1
CLOSING DOCUMENTS
CREDIT AGREEMENT
DATED AS OF
JUNE 30, 1997
AMONG
GRANITE CONSTRUCTION INCORPORATED,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT
AND
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO
2
INDEX
TAB
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BASIC DOCUMENTS
CREDIT AGREEMENT .............................................................................1
SCHEDULES
Schedule 2.01(a) Term Commitment
Schedule 2.01(b) Revolving Commitment
Schedule 3.03 Existing Letters of Credit
Schedule 5.01(d) Good Standing
Schedule 6.07 ERISA Compliance
Schedule 6.11(c) Leases, Dividends and Letters of Credit
Schedule 6.12 Environmental Matters
Schedule 6.17 Intellectual Property Disputes
Schedule 6.18 Subsidiaries and Equity Investments
Schedule 8.01(a) Liens Existing on Closing Date
Schedule 8.04 Investment Policy
Schedule 8.06 Contingent Obligations.
Schedule 8.18 Indebtedness
Schedule 11.02 Addresses for Notices; Payment and Lending Offices
EXHIBITS
Exhibit A Notice of Borrowing
Exhibit B Notice of Conversion/Continuation
Exhibit C Letter of Credit Application
Exhibit D Form of Legal Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit E Form of Job Status Report
Exhibit F Form of List of Anticipated Construction Bids
Exhibit G Assignment and Assumption Agreement
Exhibit H Form of Guaranty
Exhibit I Form of Letter Requesting Extension of
Revolving Termination Date
GUARANTY .....................................................................................2
3
TAB
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ADDITIONAL DOCUMENTS
Resolutions of the boards of directors of the Company and each Guarantor
certified as of the Closing Date by the Secretary or Assistant Secretary of each
such entity ..............................................................................3
Responsible Officer's Certificate as to representations and warranties,
no defaults, etc. ........................................................................4
Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ .................................................................5
4
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CREDIT AGREEMENT
DATED AS OF JUNE 30, 1997
AMONG
GRANITE CONSTRUCTION INCORPORATED,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
AS AGENT
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
================================================================================
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS......................................................... 1
1.01 Defined Terms................................................ 1
1.02 Other Interpretive Provisions................................ 18
1.03 Accounting Terms and Definitions............................. 19
ARTICLE II THE CREDITS......................................................... 20
2.01 Amounts and Terms of Commitments............................. 20
(a) The Term Credit.......................................... 20
(b) The Revolving Credit..................................... 20
(c) Funding of Term Loans.................................... 20
(d) Continuation of Interest Periods......................... 21
2.02 Loan Accounts................................................ 21
2.03 Procedure for Borrowing...................................... 21
2.04 Conversion and Continuation Elections........................ 22
2.05 Voluntary Termination or Reduction of Commitments............ 23
2.06 Optional Prepayments......................................... 24
2.07 Repayment.................................................... 24
(a) The Term Credit.......................................... 24
(b) The Revolving Credit..................................... 24
2.08 Interest..................................................... 24
2.09 Fees......................................................... 25
2.10 Computation of Fees and Interest............................. 25
2.11 Payments by the Company...................................... 26
2.12 Payments by the Banks to the Agent........................... 26
2.13 Sharing of Payments, Etc..................................... 27
2.14 Guaranty of Obligations...................................... 27
2.15 Extension of Revolving Termination Date...................... 28
ARTICLE III THE LETTERS OF CREDIT............................................... 28
3.01 The Letter of Credit Facility................................ 28
3.02 Issuance and Amendment of Letters of Credit.................. 30
3.03 Participations, Drawings and Reimbursements.................. 32
3.04 Repayment of Participations.................................. 33
3.05 Role of the Issuing Bank..................................... 34
3.06 Obligations Absolute......................................... 34
3.07 Cash Collateral Pledge....................................... 35
3.08 Letter of Credit Fees........................................ 36
3.09 Additional Issuing Bank...................................... 36
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ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY.............................. 36
4.01 Taxes........................................................ 36
4.02 Illegality................................................... 39
4.03 Increased Costs and Reduction of Return...................... 40
4.04 Funding Losses............................................... 40
4.05 Inability to Determine Rates................................. 41
4.06 Certificates of Banks........................................ 42
4.07 Survival..................................................... 42
ARTICLE V CONDITIONS PRECEDENT................................................ 42
5.01 Conditions of Effectiveness of Agreement..................... 42
(a) Credit Agreement, Exhibits, Schedules and Guaranty....... 42
(b) Resolutions; Incumbency.................................. 42
(c) Legal Opinion............................................ 43
(d) Certificate.............................................. 43
(e) Other Documents.......................................... 43
5.02 Conditions to all Credit Extension........................... 43
(a) Notice................................................... 43
(b) Continuation of Representations and Warranties........... 44
(c) No Existing Default...................................... 44
ARTICLE VI REPRESENTATIONS AND WARRANTIES...................................... 44
6.01 Corporate Existence and Power................................ 44
6.02 Corporate Authorization; No Contravention.................... 44
6.03 Governmental Authorization................................... 45
6.04 Binding Effect............................................... 45
6.05 Litigation................................................... 45
6.06 No Default................................................... 45
6.07 ERISA Compliance............................................. 46
6.08 Use of Proceeds; Margin Regulations.......................... 47
6.09 Title to Properties.......................................... 47
6.10 Taxes........................................................ 47
6.11 Financial Condition.......................................... 48
6.12 Environmental Matters........................................ 48
6.13 Regulated Entities........................................... 49
6.14 No Burdensome Restrictions................................... 49
6.15 Solvency..................................................... 49
6.16 Labor Relations.............................................. 49
6.17 Copyrights, Patents, Trademarks and Licenses, etc............ 49
6.18 Subsidiaries................................................. 50
6.19 Insurance.................................................... 50
6.20 Swap Obligations............................................. 50
6.21 Full Disclosure.............................................. 50
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ARTICLE VII AFFIRMATIVE COVENANTS............................................... 50
7.01 Financial Statements......................................... 51
7.02 Certificates; Other Information.............................. 51
7.03 Notices...................................................... 52
7.04 Preservation of Corporate Existence, Etc..................... 54
7.05 Maintenance of Property...................................... 54
7.06 Insurance.................................................... 54
7.07 Payment of Obligations....................................... 54
7.08 Compliance with Laws......................................... 55
7.09 Inspection of Property and Books and Records................. 55
7.10 Environmental Laws........................................... 55
7.11 Use of Proceeds.............................................. 56
7.12 Solvency..................................................... 56
ARTICLE VIII NEGATIVE COVENANTS.................................................. 56
8.01 Limitation on Liens.......................................... 56
8.02 Disposition of Assets........................................ 58
8.03 Consolidations and Mergers................................... 58
8.04 Loans and Investments........................................ 59
8.05 Transactions with Affiliates................................. 59
8.06 Contingent Obligations....................................... 60
8.07 Compliance with ERISA........................................ 60
8.08 Lease Obligations............................................ 61
8.09 Restricted Payments.......................................... 61
8.10 Current Ratio................................................ 62
8.11 Consolidated Tangible Net Worth.............................. 62
8.12 Leverage Ratio............................................... 62
8.13 Cash How Ratio............................................... 62
8.14 Change in Business........................................... 62
8.15 Change in Structure.......................................... 62
8.16 Accounting Changes........................................... 62
8.17 Other Contracts.............................................. 63
8.18 Limitation on Indebtedness................................... 63
8.19 Use of Proceeds.............................................. 63
ARTICLE IX EVENTS OF DEFAULT................................................... 64
9.01 Event of Default............................................. 64
(a) Non-Payment............................................. 64
(b) Representation or Warranty.............................. 64
(c) Other Defaults.......................................... 64
(d) Cross-Default........................................... 65
(e) Bankruptcy or Insolvency................................ 65
(f) Involuntary Proceedings................................. 65
(g) ERISA................................................... 66
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(h) Monetary Judgments...................................... 66
(i) Non-Monetary Judgments.................................. 66
(j) Adverse Change.......................................... 66
(k) Guarantor Defaults...................................... 66
9.02 Remedies..................................................... 67
9.03 Rights Not Exclusive......................................... 67
ARTICLE X THE AGENT........................................................... 67
10.01 Appointment and Authorization; "Agent"....................... 67
10.02 Delegation of Duties......................................... 68
10.03 Liability of Agent........................................... 68
10.04 Reliance by Agent............................................ 69
10.05 Notice of Default............................................ 69
10.06 Credit Decision.............................................. 69
10.07 Indemnification.............................................. 70
10.08 Agent in Individual Capacity................................. 70
10.09 Successor Agent.............................................. 71
ARTICLE XI MISCELLANEOUS....................................................... 71
11.01 Amendments and Waivers....................................... 71
11.02 Notices...................................................... 72
11.03 No Waiver; Cumulative Remedies............................... 72
11.04 Costs and Expenses........................................... 73
11.05 Indemnity.................................................... 73
11.06 Successors and Assigns....................................... 73
11.17 Assignments, Participations etc.............................. 74
11.08 Set-off; Payments Set Aside.................................. 75
11.09 Notification of Addresses, Lending Offices, Etc.............. 76
11.10 Confidentiality.............................................. 76
11.11 Severability................................................. 76
11.12 Governing Law and Jurisdiction............................... 76
11.13 No Third Parties Benefitted.................................. 77
11.14 Entire Agreement............................................. 77
11.15 Effect of Amendment and Restatement.......................... 77
11.16 Counterparts................................................. 77
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SCHEDULES
Schedule 2.01 (a) Term Commitment
Schedule 2.01 (b) Revolving Commitment
Schedule 3.03 Existing Letters of Credit
Schedule 5.01 (d) Good Standing
Schedule 6.07 ERISA Compliance
Schedule 6.11 (c) Leases, Dividends and Letters of Credit
Schedule 6.12 Environmental Matters
Schedule 6.17 Intellectual Property Disputes
Schedule 6.18 Subsidiaries and Equity Investments
Schedule 8.01 (a) Liens Existing on Closing Date
Schedule 8.04 Investment Policy
Schedule 8.06 Contingent Obligations
Schedule 8.18 Indebtedness
Schedule 11.02 Addresses for Notices; Payment and Lending Offices
EXHIBITS
Exhibit A Notice of Borrowing
Exhibit B Notice of Conversion/Continuation
Exhibit C Letter of Credit Application
Exhibit D Form of Legal Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit E Form of Job Status Report
Exhibit F Form of List of Anticipated Construction Bids
Exhibit G Assignment and Assumption Agreement
Exhibit H Form of Guaranty
Exhibit I Form of Letter Requesting Extension of Revolving
Termination Date
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CREDIT AGREEMENT
This CREDIT AGREEMENT, is entered into as of June 30,1997, among Granite
Construction Incorporated, a Delaware corporation (the "Company"), the several
financial institutions parties to this Agreement (collectively, the "Banks";
individually, a "Bank"), and Bank of America National Trust and Savings
Association, as agent for the Banks (the "Agent"), and as letter of credit
issuing bank.
WHEREAS, the Company, the Agent and the Banks are parties to a Second
Amended and Restated Credit Agreement dated as of June 15, 1995, as amended by
the First Amendment to Second Amended and Restated Credit Agreement dated as of
May 31, 1996 and the Second Amendment to Second Amended and Restated Credit
Agreement dated as of December 20, 1996 (the "Prior Credit Agreement"), which
provided for the making of loans and the issuance of letters of credit in the
maximum principal amount of $100,000,000;
WHEREAS, in order to provide for an increase in the maximum principal
amount of loans under the Prior Credit Agreement, as well as the modification of
certain other terms and provisions of the Prior Credit Agreement, the Agent and
the Banks have agreed to amend and restate the representations, warranties,
covenants, agreements and obligations of the Company in this Agreement, which
completely amends, restates and replaces the Prior Credit Agreement, all upon
the terms and provisions and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereby amend and restate the Prior
Credit Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS
1.01 Defined Terms. In addition to the terms defined elsewhere in this
Agreement, the following terms have the following meanings:
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of voting
securities, by contract or otherwise. Without limitation, any director,
executive officer or beneficial owner of 5% or more of the equity of a
Person shall, for the purposes of this Agreement, be deemed to control the
other Person.
"Agent" means Bank of America National Trust and Savings Association
in its capacity as agent for the Banks hereunder, and any successor agent.
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"Agent-Related Persons" has the meaning specified in Section 10.03.
"Aggregate Commitment" means the combined Commitments of the Banks
in the amount of $105,000,000, as such amount may be reduced from time to
time pursuant to this Agreement.
"Aggregate L/C Commitment" means the combined L/C Commitments of the
Banks, in the initial amount of $20,000,000 as such amount may be reduced
from time to time pursuant to this Agreement, provided that the Aggregate
L/C Commitment is a part of the Aggregate Revolving Commitment.
"Aggregate Revolving Commitment" means the combined Revolving
Commitments of the Banks, in the initial amount of $75,000,000 as such
amount may be reduced from time to time pursuant to this Agreement.
"Aggregate Term Commitment" means the combined Term Commitments of
the Banks in the initial aggregate amount of $30,000,000 as such amount
may be reduced from time to time pursuant to this Agreement.
"Agreement" means this Agreement, as amended, supplemented or
modified from time to time.
"Applicable Margin" means the per annum rates of interest specified
in the chart below:
Revolving Commitment
--------------------------------
Term Revolving
Commitment Period Term Period
---------- --------- -----------
Reference Rate Loans +0% +0% +0%
Eurodollar Rate Loans +0.600% +0.500% +0.750%
CD Rate Loans +0.725% +0.625% +0.875%
Where:
"Revolving Period" means the period from the Closing Date to the
Revolving Termination Date; and
"Term Period" means the period from the Revolving Termination Date
to the date of the final semi-annual payment under Section 2.07(b)
"Arranger" means BancAmerica Securities, Inc., a Delaware
corporation.
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"Assignee" has the meaning specified in Section 11.07.
"Assignment and Acceptance" has the meaning specified in subsection
11.07(a).
"Bank" means the institutions specified in the introductory clause
hereto. References to the "Banks" shall include BofA, including in its
capacity as Issuing Bank, and any other Bank which may be an Issuing Bank
from time to time hereunder; for purposes of clarification only, to the
extent that BofA or any other such Issuing Bank may have any rights or
obligations in addition to those of the Banks due to its status as Issuing
Bank, its status as such will be specifically referenced.
"BofA" means Bank of America National Trust and Savings Association,
a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same type made to the Company on the same day by the Banks pursuant to
Article II, and, other than in the case of Reference Rate Loans, having
the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are
authorized (a required by law to close and, if the applicable Business Day
relates to any Eurodollar Rate Loan, means such a day on which dealings
are carried on in the applicable offshore dollar interbank market.
"Capital Expenditures" means for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under GAAP on
a consolidated balance sheet of such Person and its Subsidiaries, less net
proceeds from sales of fixed or capital assets received by such Person or
any of its Subsidiaries during such period. For the purpose of this
definition, the purchase price of equipment which is purchased
simultaneously with the trade-in of existing equipment owned by such
Person or any of its Subsidiaries or with insurance proceeds shall be
included in Capital Expenditures only to the extent of the gross amount of
such purchase price less the credit granted by the seller of such
equipment for such equipment being traded in at such time, or the amount
of such proceeds, as the case may be.
"Capital Lease Obligations" means all monetary obligations of the
Company or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, is classified as a capital
lease.
"Cash Flow" means, for any period, Net Cash Provided by Operating
Activities as determined on a consolidated basis in accordance with FASB
95 plus interest expense (net of capitalized interest).
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"CD Rate" means, for any Interest Period with respect to CD Rate
Loans comprising part of the same Borrowing, the rate of interest (rounded
upward to the next 1/00th of 1%) determined as follows:
CD Rate= Certificate of Deposit Rate + Assessment Rate
1.00 - Reserve Percentage
Where:
"Assessment Rate" means, for any day of such Interest Period,
the rate determined by the Agent as equal to the annual assessment
rate in effect on such day payable to the Federal Deposit Insurance
Corporation, or any successor ("FDIC") by a member of the Bank
Insurance Fund that is classified as adequately capitalized and
within supervisory subgroup "A" (or a comparable successor
assessment risk classification within the meaning of 12 C.F.R.
Section 327.3) for insuring time deposits at offices of such member
in the United States; or, in the event that the FDIC shall at any
time hereafter cease to assess time deposits based upon such
classifications or successor classifications, equal to the maximum
annual assessment rate in effect on such day that is payable to the
FDIC by commercial banks (whether or not applicable to any
particular Bank) for insuring time deposits at offices of such banks
in the United States.
"Certificate of Deposit Rate" means the rate of interest per
annum determined by the Agent to be the arithmetic mean (rounded
upward to the next 1/100th of 1%) of the rates notified to the Agent
as the rates of interest bid by two or more certificate of deposit
dealers of recognized standing selected by the Agent for the
purchase at face value of dollar certificates of deposit issued by
major United States banks, for a maturity comparable to such
Interest Period and in the approximate amount of the CD Rate Loans
to be made, at the time selected by the Agent on the first day of
such Interest Period.
"Reserve Percentage" means, for any day of such Interest
Period, the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%), as determined by the
Agent, in effect on such day (including any ordinary, marginal,
emergency, supplemental, special and other reserve percentages),
prescribed by the FRB for determining the maximum reserves to be
maintained by member banks of the Federal Reserve System with
deposits exceeding $1,000,000,000 for new non-personal time deposits
for a period comparable to such Interest Period and in an amount of
$100,000 or more.
The CD Rate shall be adjusted, as to all CD Rate Loans then
outstanding, automatically as of the effective date of any change in the
Assessment Rate or the Reserve Percentage.
"CD Rate Loan" means a Loan that bears interest based on the CD
Rate.
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"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Closing Date" means the date on which all conditions precedent set
forth in Section 5.01 are satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, for each Bank, the sum of its Revolving
Commitment and Term Commitment
"Commitment Percentage" means, as to any Bank, the percentage
equivalent of such Bank's Revolving Commitment, Term Commitment or L/C
Commitment divided by the Aggregate Revolving Commitment, Aggregate Term
Commitment or Aggregate L/C Commitment, as applicable.
"Consolidated Current Assets" means, as of any date of
determination, all amounts which would, in accordance with GAAP, be
included under current assets on a consolidated balance sheet of the
Company and its Subsidiaries.
"Consolidated Current Liabilities" means, as of any date of
determination, all amounts which would, in accordance with GAAP, be
included under current liabilities on a consolidated balance sheet of the
Company and its Subsidiaries.
"Contingent Obligation" means, as applied to any Person, any direct
or indirect liability of that Person, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation (the
"primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person, whether or not contingent, (i) to
purchase, repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
or (iv) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each, a "Guaranty
Obligation"); or (b) in respect of any Swap Contract. The amount of any
Contingent Obligation other than in respect of Swap Contracts shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made
or, if not stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof, and, in the case of any Contingent
Obligation in respect of any Swap Contract shall be equal to the amount
that would be determined if such Swap Contract were terminated on such
date of determination, taking into account any legally enforceable netting
arrangement relating to such Swap Contract.
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"Contractual Obligations" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
property is bound.
"Controlled Group" means the Company and all Persons (whether or not
incorporated) under common control or treated as a single employer with
the Company or any of its Subsidiaries pursuant to Section 414(b), (c),
(m) or (o) of the Code.
"Conversion Date" means any date on which the Company elects to
convert a Reference Rate Loan to a Eurodollar Rate Loan or a CD Rate Loan;
a CD Rate Loan to a Eurodollar Rate Loan or a Reference Rate Loan; or a
Eurodollar Rate Loan to a CD Rate Loan or a Reference Rate Loan.
"Default" means any event which, with the giving of notice, the
lapse of time, or both, would constitute an Event of Default.
"documents" includes any and all instruments, documents, agreements,
certificates and other writings, however evidenced.
"DOL" means the United States Department of Labor.
"dollars" and "$" means lawful money of the United States.
"Domestic Lending Office" means, with respect to each Bank, the
office of that Bank designated as such in the signature pages hereto or
such other office of the Bank as it may from time to time specify to the
Company and the Agent.
"Effective Amount" means (i) with respect to any Revolving Loans or
Term Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any Borrowings and prepayments or repayments
thereof occurring on such date; and (ii) with respect to any outstanding
L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit occurring
on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements
of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; or (iii) a Person
engaged in the business of commercial
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banking that is (A) a Subsidiary of a Bank, (B) a Subsidiary of a Person
of which a Bank is a Subsidiary, or (C) or of a Person of which a Bank is
a Subsidiary.
"Environmental Claim" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon (a) the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions or
releases) of any Hazardous Material at, in or from property, whether or
not owned by the Company, or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means, as of the date of any determination, all
then existing federal, state or local laws, statutes, common law duties,
rules, regulations, ordinances and codes, together with all administrative
orders, directed duties, requests, judgments, decrees, guidelines,
licenses, authorizations and permits of, agreements with or any similar
form of decision of, or any interpretation or administration of any of the
foregoing by, any Governmental Person relating to the regulation or
protection of human or animal health or safety or of the environment or to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes
(including Hazardous Materials) into the indoor or outdoor environment,
including ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes. The term "Environmental Law" shall include
administrative orders, directed duties and the terms and conditions of any
Governmental Approval issued under any Environmental Law or with respect
to any Hazardous Material.
"ERISA" means the Employee Retirement Income Security Act of 1974
and any regulation promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company or any Subsidiary of
the Company within the meaning of Section 414(b), 414(c) or 414(m) of the
Code.
"ERISA Event" means (a) a Reportable Event with respect to a
Qualified Plan or a Multiemployer Plan; (b) a withdrawal by any member of
the Controlled Group from a Qualified Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or cessation of operations which
is treated as such a withdrawal under Section 4062(c) of ERISA; (c) a
complete or
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partial withdrawal by any member of the Controlled Group from a
Multiemployer Plan; (d) the filing of a notice of intent to terminate, the
treatment of a plan amendment as a termination under Section 4041 or 4041
A of ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a
failure to make required contributions to a Qualified Plan or
Multiemployer Plan; (f) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Qualified Plan or Multiemployer Plan; (g) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon any member of the Controlled Group; (h)
an application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code with respect to any Qualified
Plan; (i) any member of the Controlled Group engages in or otherwise
becomes liable for a non-exempt prohibited transaction; or (j) a violation
of the applicable requirements of Section 404 or 405 of ERISA or the
exclusive benefit rule under Section 401(a) of the Code by any fiduciary
with respect to any Qualified Plan for which the Company or any of its
Subsidiaries may be directly or indirectly liable.
"Eurodollar Lending Office" means with respect to each Bank, the
office of such Bank designated as such in the signature pages hereto or
such other office of such Bank as such Bank may from time to time specify
to the Company and the Agent.
"Eurodollar Rate" means, for any Interest Period, with respect to
Eurodollar Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined by
the Agent as follows:
Eurodollar Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1 /100th of 1 %) in effect on
such day (whether or not applicable to any Bank) under regulations
issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined by the
Agent as the rate at which dollar deposits in the approximate amount
of BofA's Commitment Percentage of such Borrowing for such Interest
Period would be offered by BofA's Grand Cayman Branch, Grand Cayman
B.W.I. (or such other office as may be designated for such purpose
by BofA), to major banks in the offshore dollar interbank market at
their request at approximately 11:00 a.m. (New York City time) two
Business Days prior to the commencement of such Interest Period.
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The Eurodollar Rate shall be adjusted automatically as to all
Eurodollar Rate Loans then outstanding as of be effective date of
any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan that bears interest based on the
Eurodollar Rate.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Letters of Credit" means those certain irrevocable standby
letters of credit issued under the Prior Credit Agreement and outstanding
on the date hereof, as described on Schedule 3.03.
"Existing Term Loan" has the meaning specified in Section 2.01(c).
"Event of Default" means any of the events specified in Section
9.01.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York with
respect to the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant date such rate is not so published
with respect to any such preceding Business Day, the rate for such day
will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in Section 2.09(a).
"FRB" means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such other entity
as may be in general use by significant segments of the U.S. accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GCC" means Granite Construction Company, a California corporation.
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"Governmental Approvals" means any authorization, consent, approval,
license, lease, ruling, permit, waiver, exemption, filing, registration or
notice by or with any Governmental Authority.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, and any corporation or other entity owned
or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
"Guarantor" means each of GCC, Granite SR91 Corporation, ▇▇▇▇▇▇▇
Corporation, Desert Aggregates, Inc., GG&R, Inc., Intermountain Slurry
Seal, Inc., Bear River Contractors, Pozzolan Products Company (P.P.C.),
GILC Incorporated, GILC, L.P., Granite SR91, L.P., GTC, Inc. and any other
Subsidiary executing and delivering a Guaranty from time to time under
Section 2.14 hereof.
"Guaranty" means a guaranty, in substantially the form attached
hereto as Exhibit H, executed by a Guarantor in favor of the Agent and the
Banks guarantying the obligations of the Company under this Agreement and
the other Loan Documents.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Materials" means, collectively, as of any date, (a) any
petroleum or petroleum products, flammable explosives, radioactive
materials, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, and transformers or other equipment that
contain dielectric fluid containing polychlorinated biphenyls (PCB's), (b)
any chemicals or other materials or substances which as of such date are
defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants," "infectious wastes," "pollutants" or words of similar
import under any Environmental Law, and (c) any other chemical or other
material or substance, exposure to which or use of which as of such date
is prohibited, limited or regulated under any Environmental Law.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services; (c) all
reimbursement obligations with respect to surety bonds, letters of credit,
bankers' acceptances and similar instruments (in each case, whether or not
such obligations are contingent or absolute, except that for purposes of
calculations made under Sections 8.12 and 8.13, only surety bonds under
which a breach or default has occurred and letters of credit which have
been drawn and for which reimbursement must be made one to be included as
Indebtedness); (d) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses;
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(e) all indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
Capital Lease Obligations; (g) all indebtedness referred to in paragraphs
(a) through (f) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien upon or in property (including accounts and contracts rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (h) all direct or
indirect guaranties in respect of and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others
of the kinds referred to in paragraphs (a) through (f) above.
"Indebtedness" does not include the acquisition of goods, services,
supplies or merchandise on normal trade credit.
"Indemnified Liabilities" has the meaning specified in subsection
11.05(a).
"Indemnified Person" has the meaning specified in subsection
11.05(a).
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors or
other, similar arrangement; in each case (a) and (b) under U.S. federal,
state or foreign law.
"Interest Payment Date" means, with respect to any CD Rate Loan or
Eurodollar Rate Loan, the last Business Day of each Interest Period
applicable to such Loan and, with respect to Reference Rate Loans, the last
Business Day of each calendar quarter and each date a Reference Rate Loan
is converted into a Eurodollar Rate Loan or a CD Rate Loan, provided,
however, that if any Interest Period for a CD Rate Loan or Eurodollar Rate
Loan exceeds 90 days or three months, respectively, "Interest Payment Date"
with respect to such Loans shall include the date which falls 90 days or
three months after the beginning of such Interest Period, respectively.
"Interest Period" means, (a) with respect to any Eurodollar Rate
Loan, the period commencing on the Business Day the Loan is disbursed or
continued or on the Conversion Date on which the Loan is converted to the
Eurodollar Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation; and (b) with respect to any CD Rate
Loan, the period commencing on the Business Day the CD Rate Loan is
disbursed or continued or on the Conversion Date on which a Loan is
converted to the CD Rate Loan and ending 30, 60, 90 or 180 days
thereafter, as selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation;
provided that:
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(i) if any Interest Period pertaining to a Eurodollar Rate
Loan or CD Rate Loan would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurodollar Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period
shall end the immediately preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest
Period;
(iii) no Interest Period for any Term Loan shall extend beyond
the Term Credit Maturity Date and no Interest Period for any
Revolving Loan shall extend beyond June 30, 2002 (as such date may
be extended pursuant to the terms of and subject to the conditions
of subsection 2.15(b)); and
(iv) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Reference Rate Loans
or by CD Rate Loans or Eurodollar Rate Loans having Interest Periods
that will expire on or before such date is equal to or in excess of
the amount of such principal payment.
"Issuing Bank" means BofA, and any other Bank which has agreed to
Issue one or more Letters of Credit, subject to Section 3.09 hereof.
"Issue" means, with respect to any Letter of Credit, to incorporate
the Existing Letters of Credit into this Agreement, or to issue or to
extend the expiry of, or to renew or increase the amount of such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a separate
legal entity) now or hereafter formed by the Company or any of its
Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person.
"L/C Advance" means each Bank's participation in any L/C Borrowing
in accordance with its Commitment Percentage.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed on
the date when made nor converted into a Borrowing of Revolving Loans under
subsection 2.01(b).
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"L/C Commitment" means the commitment of the Issuing Bank to Issue,
and the commitment of each of the Banks severally to participate in,
Letters of Credit (including the Existing Letters of Credit) from time to
time Issued or outstanding pursuant to Article III, and to make L/C
Advances, in an aggregate amount not to exceed its Commitment Percentage
of the Aggregate L/C Commitment, provided that each Bank's L/C Commitment
is a part of its Revolving Commitment rather than a separate, independent
commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit, including
all outstanding L/C Borrowings.
"L/C-Related Document" means any document or agreement relating to
any Letter of Credit.
"Letter of Credit" means any letter of credit Issued by the Issuing
Bank pursuant to Article III, which shall include the Existing Letters of
Credit and any Retention Letter of Credit.
"Lending Office" means, with respect to any Bank, the office or
offices of the Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Eurodollar Lending Office," as the case may be, opposite its
name on the signature pages hereto, or such other once or offices of the
Bank as it may from time to time specify to the Company and the Agent
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a Capital Lease
Obligation, any financing lease having substantially the same economic
effect as any of the foregoing, or the filing of any financing statement
naming the owner of the asset to which such lien relates as debtor, under
the UCC or any comparable law) and any contingent or other agreement to
provide any of the foregoing.
"Loan" means an extension of credit by a Bank to the Company
pursuant to Article II or (with respect to L/C Borrowings) Article III,
and may be a Reference Rate Loan, CD Rate Loan or Eurodollar Rate loan as
permitted hereunder.
"Loan Documents" means this Agreement, the Guaranty(ies) and all
documents delivered to the Agent in connection herewith or therewith,
including the letter agreements referred to in Sections 2.09 and 3.08
hereof and any letter from the Company requesting an extension of the
Revolving Termination Date pursuant to Section 2.15 hereof.
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"Majority Banks" means at any time Banks holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Loans, or, if no such
principal amount is then outstanding, Banks having at least 66-2/3% of the
Aggregate Commitment.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means a material adverse change in, or a
material adverse effect upon, any of (a) the operations, business,
properties, condition (financial or otherwise) or prospects of the Company
and its Subsidiaries taken as a whole; (b) the ability of the Company or
any Subsidiary to perform under any Loan Document; or (c) the legality,
validity, binding effect or enforceability of any Loan Document.
"Multiemployer Plan" means a "multiple employer plan" or
"multiemployer plan" (within the meaning of Section 4064(a) and Section
4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or has made, or
been obligated to make, contributions.
"Net Worth" means shareholders' equity as determined in accordance
with GAAP.
"Notice of Borrowing" means a notice given by the Company to the
Agent pursuant to Section 2.03, in substantially the form of Exhibit A.
"Notice of Conversion/Continuation" means a notice given by the
Company to the Agent pursuant to Section 2.04, in substantially the form
of Exhibit B.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's
office, central filing office or Governmental Authority for the purpose of
evidencing, creating, perfecting or preserving the priority of a Lien
securing obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the Company
to any Bank (including the Issuing Bank), the Agent, or any other Person
required to be indemnified under any Loan Document, of any kind or nature,
present or future, whether or not evidenced by any note, guaranty or other
instrument, arising under this Agreement, under any other Loan Document,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification or in any other
manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired.
"Ordinary Course of Business" means, in respect of any transaction
involving the Company or any Subsidiary of the Company, (i) the ordinary
course of such Person's business, substantially as conducted by any such
Person prior to or as of the Closing Date,
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and undertaken by such Person in good faith and not for purposes of
evading any covenant or restriction in any Loan Document, or (ii)
transactions outside the ordinary course of such Person's then-existing
business, as long as the Company provides written notice to the Agent and
the Banks prior to such Person undertaking such business, provided that
the Majority Banks shall not have delivered written objections to the
Agent within five (5) Business Days after their receipt of such written
notice.
"Other Taxes" has the meaning specified in subsection 4.01(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in subsection 11.07(d).
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied: (a)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments or assets held by such Person, or changes in
the value of securities issued by such Person in conjunction with a
securities repurchase program not otherwise prohibited hereunder, and not
for purposes of speculation or taking a "market view;" and (b) such Swap
Contracts do not contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments
on outstanding transactions to the defaulting party, or (ii) any provision
creating or permitting the declaration of an event of default, termination
event or similar event upon the occurrence of an Event of Default
hereunder (other than an Event of Default under subsection 9.01(a)).
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, Joint Venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company or any member of the Controlled Group sponsors or
maintains or to which the Company or member of the Controlled Group makes
or is obligated to make contributions, and includes any Multiemployer Plan
or Qualified Plan.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and
which any member of the Controlled Group sponsors, maintains, or to which
it makes or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding period covering
at least five (5) plan years, but excluding any Multiemployer Plan.
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"Reference Rate" means the higher of:
(a) the rate of interest publicly announced from time to
time by BofA in San Francisco, California, as its reference rate. It is a
rate set by BofA based upon various factors including BofA's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate; or
(b) one-half percent per annum above the Federal Funds
Rate.
Any change in the reference rate announced by BofA shall take effect
at the opening of business on the day specified in the public announcement
of such change.
"Reference Rate Loan" means a Loan that bears interest based on the
Reference Rate.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration
into the indoor or outdoor environment, including the movement of
Hazardous Materials through ambient air, soil, surface water, ground
water, wetlands, land or subsurface strata.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, a withdrawal from a Plan
described in Section 4063 of ERISA, or a cessation of operations described
in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
of a Governmental Authority, in each case applicable to or binding upon
the Person or any of its property or to which the Person or any of its
property is subject.
"Responsible Officer" means the Chief Executive Officer or the
President of the Company or, with respect to financial matters, the Chief
Financial Officer or the Treasurer of the Company.
"Retention Letter of Credit" means any letter of credit Issued
pursuant to Article III hereof for the purpose of providing security in
lieu of retention under any construction contract entered into by the
Company or is Subsidiaries.
"Revolving Commitment," with respect to each Bank, has the meaning
specified in subsection 2.01(b).
"Revolving Loan" has the meaning specified in subsection 2.01(b).
"Revolving Termination Date" means the earlier to occur of:
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(a) June 30, 1999; and
(b) the date on which the Commitments shall terminate in
accordance with the provisions of this Agreement.
Subject to clause (b) of this definition, the term "Revolving
Termination Date" shall be deemed to refer to any such Revolving
Termination Date as extended from time to time pursuant to, and subject to
the conditions of, Section 2.15.
"SEC" means the Securities and Exchange Commission or any successor
or similar Governmental Authority.
"Solvent" means, as to any Person at any time, that (i) the fair
value of the property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for
purposes of Section 101(32) of the United States Bankruptcy Code (11
U.S.C. Section 101 et seq.); (ii) the present fair saleable value of the
property of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become
absolute and matured; (iii) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal
course of business; (iv) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay its such debts and liabilities mature; and (v) such Person
is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute unreasonably small capital.
"Subsidiary" of a Person means any corporation, limited liability
company, association, partnership or other business entity of which more
than 50% of the voting stock or other equity interests is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Surely Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or ▇▇▇▇ option, interest rate option, forward
foreign exchange transaction, cap, collar or floor transaction, currency
swap, cross-currency rate swap, swaption, currency option or any other,
similar transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing
any or all of the foregoing.
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"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the ▇▇▇▇-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include any Bank).
"Tangible Net Worth" means Net Worth excluding goodwill, patents,
trademarks, trade names, organization expense, treasury shares,
unamortized debt discount and premium, deferred charges and other like
intangibles.
"Taxes" has the meaning specified in subsection 4.01 (a).
"Term Commitment" with respect to each Bank, has the meaning
specified in subsection 2.01 (a).
"Term Loan" has the meaning specified in subsection 2.01 (a).
"Term Credit Maturity Date" has the meaning specified in subsection
2.07(a).
"Transferee" has the meaning specified in subsection 11.07(e).
"Unfunded Pension Liabilities" means the excess of a Plan's accrued
benefits, as defined in Section 3(23) of ERISA, over the current value of
that Plan's assets, as defined in Section 3(26) of ERISA.
"United States" and "U.S." each means the United States of America.
"Withdrawal Liabilities" means, as of any determination date, the
aggregate amount of the liabilities, if any, pursuant to Section 4201 of
ERISA if the Controlled Group made a complete withdrawal from all
Multiemployer Plans and any increase in contributions pursuant to Section
4243 of ERISA.
1.02 Other Interpretive Provisions.
(a) Unless otherwise specified herein or therein, all terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this
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Agreement unless otherwise specified. The meaning of defined terms shall be
equally applicable to the singular and plural forms of the defined terms. The
term "including" is not limiting and means "including without limitation."
(c) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding," and the word "through" means "to
and including."
(d) References to agreements and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document.
(e) References to statutes or regulations are to be construed as
including all statutory and regulatory provisions consolidating, amending or
replacing the statute or regulation.
(f) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
(g) This Agreement and the other Loan Documents are the results of
negotiations among the Agent, the Company and the other parties, have been
reviewed by counsel to the Agent, the Company and such other parties, and are
the products of all parties. Accordingly, they shall not be construed against
the Banks or the Agent merely because of the Agent's or Banks' involvement in
their preparation.
1.03 Accounting Terms and Definitions.
(a) Except as otherwise expressly provided in this Agreement, all
accounting terms used in this Agreement shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Agent and the Banks under this Agreement shall (unless
otherwise disclosed to the Agent in writing at the time of delivery in the
manner described in subsection (b) below) be prepared, in accordance with GAAP
applied on a basis consistent with those used in the preparation of the latest
financial statements furnished to the Agent and the Banks under this Agreement.
All calculations made for the purposes of determining compliance with this
Agreement shall (except as otherwise expressly provided in this Agreement) be
made by application of GAAP applied on a basis consistent with those used in the
preparation of the latest annual or quarterly financial statements furnished to
the Agent and the Banks pursuant to Section 7.01 unless (i) the Company shall
have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Agent on behalf of the
Majority Banks shall so object in writing within 30 days after delivery of such
financial statements, in either of which events such calculations shall be made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made.
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(b) The Company shall deliver to the Agent, with sufficient copies
for the Agent and each Bank, at the same time as the delivery of any annual or
quarterly financial statement under Section 7.01 (i) a description in reasonable
detail of any material variation between the application of accounting
principles employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next preceding annual
or quarterly financial statements as to which no objection has been made in
accordance with the last sentence of subsection (a) above and (ii) reasonable
estimates of the difference between such statements arising as a consequence of
any such difference.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) The Term Credit. Each Bank severally agrees, on the terms and
conditions set forth herein, including subsection (c) hereof, to make a single
loan to the Company (each such loan, a "Term Loan") on the Closing Date in an
amount equal to the amount set forth opposite such Bank's name in Schedule
2.01(a) under the heading "Term Commitment" (such amount as the same may be
reduced pursuant to Section 2.05 or as a result of one or more assignments
pursuant to Section 11.07, the Bank's "Term Commitment"). Amounts borrowed as
Term Loans which are repaid or prepaid by the Company may not be reborrowed.
(b) The Revolving Credit. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Loans to the Company (each such
Loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth opposite the
Bank's name in Schedule 2.01(b) under the heading "Revolving Commitment" (such
amount as the same may be reduced pursuant to Section 2.05 or as a result of one
or more assignments pursuant to Section 11.07, the Bank's "Revolving
Commitment"); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the Effective Amount of all Revolving Loans and L/C Obligations
together shall not at any time exceed the Aggregate Revolving Commitment; and
provided further, that the sum of (i) the Effective Amount of the Revolving
Loans of any Bank, plus (ii) the participation of such Bank in the Effective
Amount of all L/C Obligations, shall not at any time exceed such Bank's
Revolving Commitment. Within the limits of each Bank's Revolving Commitment, and
subject to the other terms and conditions hereof, the Company may borrow under
this subsection 2.01(b), prepay pursuant to Section 2.06 and reborrow pursuant
to this subsection 2.01(b).
(c) Funding of Term Loans. Each Bank's obligation to fund its Term
Loan on the Closing Date shall be satisfied by deeming that each Bank's term
loan outstanding as of the Closing Date under the Prior Credit Agreement, which
loans aggregate $30,000,000 in principal amount, (the "Existing Term Loans")
shall be deemed to be its Term Loan hereunder.
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(d) Continuation of Interest Periods. Each of the Existing Term
Loans and each "Revolving Loan" (as such term is defined in the Prior Credit
Agreement) that are outstanding under the Prior Credit Agreement as of the
Closing Date and that are "Eurodollar Rate Loans" (as such term is defined in
the Prior Credit Agreement) shall continue with the same Interest Period
hereunder as the interest period in effect under the Prior Credit Agreement with
respect to such loan, until the expiration of such interest period, and shall,
until the expiration of such interest period, bear interest at the "Eurodollar
Rate" in effect under and as defined in the Prior Credit Agreement with respect
to such loans (plus the Applicable Margin hereunder).
2.02 Loan Accounts. The Loans made by each Bank shall be evidenced by one
or more loan accounts maintained by such Bank in the ordinary course of
business. The loan accounts maintained by the Agent and each Bank shall be
rebuttable presumptive evidence of the amount of the Loans made by the Banks to
the Company and the interest and payments thereon. Any failure so to record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with respect to the
Loans.
2.03 Procedure for Borrowing.
(a) Each Borrowing shall be made upon the written notice of the
Company in the form of a Notice of Borrowing (which notice must be received by
the Agent prior to 9:00 a.m. (San Francisco time) (i) three Business Days prior
to the requested borrowing date, in the case of Eurodollar Rate Loans, (ii) two
Business Days prior to the requested borrowing date, in the case of CD Rate
Loans, and (iii) on the requested borrowing date, in the case of Reference Rate
Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of (i) $3,000,000 or any multiple
of $ 1,000,000 in excess thereof, in the case of Eurodollar Rate
Loans or CD Rate Loans, and (ii) $ 1,000,000 or any multiple of $
1,000,000 in excess thereof, in the case of Reference Rate Loans;
(B) the requested borrowing date, which shall be a
Business Day;
(C) whether the Borrowing is to be comprised of
Eurodollar Rate Loans, CD Rate Loans or Reference Rate Loans; and
(D) with respect to Eurodollar Rate Loans and CD Rate
Loans, the duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Borrowing shall fail to
specify the duration of the Interest Period for any Borrowing
comprised of CD Rate Loans or Eurodollar Rate Loans, such Interest
Period shall be 90 days or three months, respectively.
(b) Upon receipt of the Notice of Borrowing, the Agent will
promptly notify each Bank thereof of the amount of such Bank's Commitment
Percentage of the Borrowing.
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(c) Each Bank will make the amount of its Commitment Percentage of
the Borrowing available to the Agent for the account of the Company at the
office specified by the Agent in Section 11.02 for payment by 10:00 a.m. (San
Francisco time), in the case of CD Rate Loans or Eurodollar Rate Loans, or 12:00
noon (San Francisco time), in the case of Reference Rate Loans, in each case on
the borrowing date requested by the Company in funds immediately available to
the Agent. Unless any applicable condition specified in Article V has not been
satisfied, the proceeds of all such Loans will then be made available to the
Company by the Agent at such office by crediting the account of the Company on
the books of BofA with the aggregate of the amounts made available to the Agent
by the Banks and in like funds as received by the Agent.
(d) After giving effect to any Borrowing, unless the Agent shall
otherwise consent, there may not be more than ten different Interest Periods in
effect.
2.04 Conversion and Continuation Elections.
(a) The Company may upon irrevocable written notice to the Agent:
(i) elect to convert on any Business Day, any Reference Rate
Loans (or any part thereof in an amount not less than $3,000,000 or an
integral multiple of $1,000,000 in excess thereof) into Eurodollar Rate
Loans or CD Rate Loans;
(ii) elect to convert on any Interest Payment Date, any CD
Rate Loans or Eurodollar Rate Loans maturing on such Interest Payment Date
(or any part thereof in an amount not less than (A) $3,000,000 or an
integral multiple of $1,000,000 in excess thereof, in the case of a
conversion into CD Rate Loans or Eurodollar Rate Loans, or (B) $1,000,000
or an integral multiple of $1,000,000 in excess thereof, in the case of a
conversion into Reference Rate Loans), in the case of CD Rate Loans, into
Eurodollar Rate Loans or Reference Rate Loans, and in the case of
Eurodollar Rate Loans, into CD Rate Loans or Reference Rate Loans; or
(iii) elect to continue, on any Interest Payment Date
therefor, any CD Rate Loans or Eurodollar Rate Loans (or any part thereof
in an amount not less than $3,000,000 or an integral multiple of
$l,000,000);
provided, that if the aggregate amount of CD Rate Loans or Eurodollar Rate Loans
shall have been reduced by payment, prepayment, or conversion of part thereof to
be less than $3,000,000, the CD Rate Loans or Eurodollar Rate Loans shall
automatically convert into Reference Rate Loans, and on and after such date the
right of the Company to continue such Loans as Eurodollar Rate Loans or CD Rate
Loans, as the case may be, shall terminate.
(b) The Company shall deliver by telex, cable or facsimile,
confirmed immediately in an original writing, a Notice of
Conversion/Continuation to be received by the Agent not later than 9:00 a.m.
(San Francisco time) at least (i) three Business Days in advance of the
Conversion Date or continuation date, if the Loans are to be converted into or
continued as
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Eurodollar Rate Loans; (ii) two Business Days in advance of the Conversion Date
or continuation date, if the Loans are to be converted into or continued as CD
Rate Loans; and (iii) on the Conversion Date or continuation date, if the Loans
are to be converted into Reference Rate Loans, specifying:
(A) the proposed Conversion Date or continuation date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the nature of the proposed conversion or
continuation; and
(D) the duration of the requested Interest Period, if
applicable.
(c) If upon the expiration of any Interest Period applicable to CD
Rate Loans or Eurodollar Rate Loans, the Company has failed to select a new
Interest Period to be applicable to such CD Rate Loans or Eurodollar Rate Loans,
as the case may be, or if any Event of Default shall then exist, the Company
shall be deemed to have elected to convert such CD Rate Loans or Eurodollar Rate
Loans into Reference Rate Loans effective as of the expiration date of such
current Interest Period.
(d) Upon receipt of a Notice of Conversion/ Continuation, the
Agent will promptly notify each Bank thereof, or, if no timely notice is
provided, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made pro rata
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
(e) After giving effect to any conversion or continuation of any
Loans, unless the Agent shall otherwise consent, there shall not be more than 10
different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments. The Company may,
upon not less than five Business Days' prior notice to the Agent, terminate the
Aggregate Revolving Commitment or permanently reduce the Aggregate Revolving
Commitment by an aggregate minimum amount of $5,000,000 or any multiple of $
1,000,000 in excess thereof, provided that no such reduction or termination
shall be permitted if the Effective Amount of all outstanding Revolving Loans
and L/C Obligations would exceed the Aggregate Revolving Commitment then in
effect, or (b) the Effective Amount of all L/C Obligations then outstanding
would exceed the Aggregate L/C Commitment then in effect; and, provided,
further, that once reduced in accordance with this Section 2.05, the Aggregate
Revolving Commitment and, if applicable the Aggregate L/C Commitment may not be
increased. Any reduction of the Aggregate Revolving Commitment shall be applied
to each Bank's Commitment in accordance with such Bank's Commitment Percentage.
If and to the extent specified by the Company in the notice to the Agent, some
or all of the reduction in the Aggregate Revolving Commitment shall be applied
to reduce the Aggregate L/C Commitment, subject to the first proviso of the
first sentence of this Section. If any of the Commitments are terminated in
their entirety, all accrued commitment fees
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to the effective date of such termination shall be payable on the effective date
of such termination without any premium or penalty.
2.06 Optional Prepayments. Subject to Section 4.04, the Company may, at
any time or from time to time, upon at least three Business Days' notice to the
Agent for CD Rate Loans or Eurodollar Rate Loans and one Business Days notice
for Reference Rate Loans, ratably prepay Loans in whole or in part, in amounts
of $2,000,000 or any multiple of $1,000,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment and whether such
prepayment is of Reference Rate Loans, CD Rate Loans or Eurodollar Rate Loans,
or any combination thereof. Such notice shall not thereafter be revocable by the
Company and the Agent will promptly notify each Bank thereof and of the amount
of such Bank's Commitment Percentage of such prepayment. If such notice is
given, the Company shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to each such date on the amount prepaid and the amounts
required pursuant to Section 4.04.
2.07 Repayment.
(a) The Term Credit. The Company agrees to repay the principal
amount of the Term Loans in six (6) equal semi-annual installments of $5,000,000
each, beginning on December 31, 1997, and thereafter on the last Business Day of
each June and December of each year thereafter, through and including June 30,
2000 (the "Term Credit Maturity Date"), on which date the final installment
shall be due and payable.
(b) The Revolving Credit. The Company agrees to repay the
principal amount outstanding as of the Revolving Termination Date of the
Revolving Loans in ten equal semiannual installments (i) beginning on the last
Business Day in December, 1999 (as such date may be extended pursuant to the
terms of and subject to the conditions of subsection 2.15(b)), and (ii)
thereafter on the last Business Day of June and December of each year
thereafter, through and including the last Business Day in June, 2004 (as such
date may be extended pursuant to the terms of and subject to the conditions of
subsection 2.15(b)).
2.08 Interest
(a) Subject to subsection 2.08(c), each Loan shall bear interest
on the outstanding principal amount thereof from the date when made until it
becomes due at a rate per annum equal to the CD Rate, the Eurodollar Rate or the
Reference Rate, as the case may be, plus the Applicable Margin.
(b) Interest on each Loan shall be payable in arrears on each
Interest Payment Date. Interest shall also be payable on the date of any
prepayment of Loans pursuant to Sections 2.05 and 2.06 for the portion of the
Loans so prepaid and upon payment (including prepayment) in full thereof and,
after the occurrence and during the continuance of any Event of Default,
interest shall be payable on demand.
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(c) If any amount of principal of or interest on any Loan, or any
other amount payable hereunder or under any of the other Loan Documents is not
paid in full when due (whether at stated maturity, by acceleration, demand or
otherwise), the Company agrees to pay interest on such unpaid principal or other
amount, from the date such amount becomes due until the date such amount is paid
in full, payable on demand, at a fluctuating rate per annum equal to the
Reference Rate plus two percent.
2.09 Fees.
(a) Agency Fee. The Company shall pay an agency fee to the Agent
for the Agent's own account, in the amounts and at the times as required by the
letter agreement dated as of May 30, 1997, between the Company and the Agent.
(b) Commitment Fees. The Company shall pay to the Agent for the
account of each Bank a commitment fee on the average daily unused portion of
such Bank's Revolving Commitment equal to 1.875% per annum. Such commitment fee
shall accrue from the Closing Date to the Revolving Termination Date and shall
be payable quarterly in arrears on the last Business Day of each calendar
quarter commencing on September 30, 1997, and on the Revolving Termination Date.
The Company shall also pay, on June 30, 1997, to the Agent for the account of
each Bank, any unpaid commitment fees due and owing under subsection 2.09(b) of
the Prior Credit Agreement through and including the Closing Date.
2.10 Computation of Fees and Interest.
(a) All computations of interest payable in respect of Reference
Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed. All other computations of fees and interest
under this Agreement shall be made on the basis of a 360 day year and actual
days elapsed, which results in more interest being paid than if computed on the
basis of a 365-day year. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(b) The Agent will, with reasonable promptness, notify the Company
and the Banks of each determination of a Eurodollar Rate or of a CD Rate,
provided that any failure to so shall not relieve the Company of any liability
hereunder. Any change in the interest rate on a Loan resulting from a change in
the Reserve Percentage, Eurocurrency Reserve Percentage, or the Assessment Rate
shall become effective as of the opening of business on the day on which such
change in the Reserve Percentage, Eurocurrency Reserve Percentage, or the
Assessment Rate becomes effective. The Agent will with reasonable promptness
notify the Company and the Banks of the effective date and the amount of each
such change, provided that any failure to do so shall not relieve the Company of
any liability hereunder.
(c) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
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2.11 Payments by the Company.
(a) All payments (including prepayments) to be made by the Company
on account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Agent, for the account of the Banks
(except as otherwise provided in subsection 2.12(b) and Sections 4.01, 4.03,
4.04 and 4.06), at the Agent's office referenced in Section 11.02, in dollars
and in immediately available funds no later than 12:00 noon (San Francisco
time). The Agent will promptly distribute to each Bank the amount of its
Commitment Percentage of such principal, interest, fees or other amounts, in
like funds as received. Any payment which is received by the Agent later than
12:00 noon (San Francisco time) shall be deemed to have been received on the
immediately succeeding Business Day.
(b) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be; subject to the provisions
set forth in the definition of "Interest Period" herein.
(c) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Banks hereunder that the
Company will not make such payment in full, the Agent may assume that the
Company has made such payment in full to the Agent on such date and the Agent
may (but shall not be so required), in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent the Company shall not have made such payment
in full to the Agent, each Bank shall repay to the Agent on demand such amount
distributed to such Bank, together with interest thereon for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Rate as in effect on such date.
2.12 Payments by the Banks to the Agent.
(a) Each Bank shall make available to the Agent in immediately
available funds for the account of the Company an amount equal to the product of
(i) its Commitment Percentage times (ii) the amount of any Borrowing.
(b) Unless the Agent shall have received notice from a Bank on or
prior to the Closing Date or, with respect to each Borrowing after the Closing
Date, at least one Business Day prior to the date of any proposed Borrowing,
that such Bank will not make available to the Agent for the account of the
Company the amount of that Bank's Commitment Percentage of the Borrowing, the
Agent may assume that each Bank has made such amount available to the Agent on
the borrowing date and the Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent and the Agent in such circumstances has made available to
the Company such amount, that Bank shall within two Business Days following the
date of such Borrowing make such amount available to the Agent, together with
interest at the Federal Funds Rate for each day during such period. A
certificate of
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the Agent submitted to any Bank with respect to amounts owing under this
subsection 2.12(b) shall be conclusive, absent manifest error. If such amount is
so made available, such payment to the Agent shall constitute such Bank's Loan
on the date of Borrowing for all purposes of this Agreement. If such amount is
not made available to the Agent within two Business Days following the date of
such Borrowing, the Agent shall notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing; provided,
however, that the Company shall not be obligated to pay any amounts pursuant to
Section 4.04 as a result of such payment.
(c) The failure of any Bank to make any Loan on any date of
Borrowing shall not relieve any other Bank of any obligation hereunder to make a
Loan on the date of such Borrowing, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on the
date of any Borrowing.
2.13 Sharing of Payments, Etc. If, other than as provided in Section
4.01, 4.03, 4.04 or 4.06, any Bank shall obtain on account of the Loans made by
it, any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Commitment Percentage of
payments on account of the Loans obtained by all the Banks, such Bank shall
forthwith (a) notify the Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid thereto together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section
11.08(a)) with respect to such participation as fully as if such Bank were the
direct creditor of the Company in the amount of such participation. The Agent
shall keep records (which shall be conclusive and binding in the absence of
manifest error), of participations purchased pursuant to this Section 2.13 and
shall in each case notify the Banks following any such purchases.
2.14 Guaranty of Obligations. The Obligations shall be jointly and
severally guaranteed by the Guarantors pursuant to one or more Guaranties.
Promptly after the date that any Person becomes a Subsidiary of the Company,
and, in any event, within ten Business Days following receipt by the Company
from the Agent of a request therefor, the Company will cause such Subsidiary to
execute and deliver to the Agent and the Banks a guaranty of the Obligations in
substantially the form of the Guaranty, along with such other items as
reasonably requested by the Agent, at the request of any Bank, in connection
with the foregoing, including resolutions, incumbency and officers certificates
and opinions of counsel.
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2.15 Extension of Revolving Termination Date. (a) Not earlier than April
30, 1998 and not later than April 30, 1999, and, if the Revolving Termination
Date has previously been extended pursuant to this Section 2.15, not earlier
than the April 30 of the year immediately prior to the year in which the
Revolving Termination Date then occurs, and not later than the April 30 of the
year in which the Revolving Termination Date then occurs, the Company may, at
its option, request that all the Banks extend the Revolving Termination Date by
one year by means of a letter, addressed to the Agent and each Bank,
substantially in the form of Exhibit I; provided, however, that notwithstanding
the foregoing, the Revolving Termination Date shall occur on the date that the
Commitments terminate pursuant to Section 9.02 or the Revolving Commitments are
terminated pursuant to Section 2.05. The Revolving Termination Date shall be
extended by one year if all of the Banks consent (in each Bank's sole and
absolute discretion) to such extension, such consent to be given by executing
and delivering to the Agent, no later than 15 Business Days after its receipt of
such letter, a counterpart of such letter; provided, that, if, one or more Banks
decline to consent to the extension of the Revolving Termination Date, any
Bank's consent to such extension shall be nullified, and the Revolving
Termination Date shall not be extended. If any Bank fails to execute and deliver
such letter on or before the expiration of the aforesaid 15 Business Day period,
such Bank shall be deemed to have declined to consent to extend the Revolving
Termination Date, and the Revolving Termination Date shall not be extended.
(b) In each instance that the Revolving Termination Date shall
have been extended pursuant to subsection (a) of this Section, the date on which
the first installment of principal is due under clause (i) of subsection 2.07(b)
shall be extended to the last Business Day of the year in which the Revolving
Termination Date (as so extended) occurs (such last Business Day, the "First
Principal Payment Date"), and the date on which the last installment of
principal is due under clause (ii) of subsection 2.07(b) shall be extended to
the last Business Day in June of the year which is five years after the year in
which the First Principal Payment Date occurs.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Facility.
(a) From time to time on the terms and conditions set forth herein
(i) the Issuing Bank agrees prior to the Revolving Termination Date (A) to issue
Letters of Credit for the account of the Company or its Subsidiaries (it being
understood that the Company shall be liable hereunder for all obligations with
respect to any Letters of Credit issued hereunder for the account of a
Subsidiary, which for purposes hereof shall be deemed to be issued "for the
account of the Company), (B) to amend Letters of Credit previously issued
hereunder by it, in accordance with subsection 3.02(c), and (C) to honor drafts
drawn under any Letter of Credit; and (ii) the Banks severally agree to
participate in Letters of Credit (including the Letters of Credit described in
subsection 3.03(a)) Issued for the account of the Company; provided, however,
that the Issuing Bank shall not be obligated to Issue, and no Bank shall be
obligated to
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participate in, any Letter of Credit if as of the date of and after giving
effect to the Issuance of such Letter of Credit (1) the Effective Amount of all
L/C Obligations plus the Effective Amount of all Revolving Loans exceeds (or
would exceed) the Aggregate Revolving Commitment, (2) the participation of any
Bank in the Effective Amount of all L/C Obligations plus the Effective Amount of
the Revolving Loans of such Bank exceeds (or would exceed) such Bank's
Commitment, or (3) the Effective Amount of L/C Obligations exceeds (or would
exceed) the Aggregate L/C Commitment. Within the foregoing limits, and subject
to the other terms and conditions hereof, the Company's ability to obtain
Letters of Credit shall be fully revolving, and, accordingly, the Company may,
during the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
(b) The Issuing Bank shall be under no obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
the Issuing Bank from issuing such Letter of Credit, or any Requirement of
Law applicable to the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuing Bank
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Bank is not otherwise compensated) not
in effect on the Closing Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the Issuing Bank has received written notice from any
Bank, the Agent or the Company, on or prior to the Business Day prior to
the requested date of issuance of such Letter of Credit, that one or more
of the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit, other
than a Retention Letter of Credit, is (x) more than one year after the
date of issuance, unless the Issuing Bank and the Majority Banks have
approved such expiry date in writing, or (y) after the Revolving
Termination Date, unless all the Banks have approved such expiry date in
writing; or the expiry date of any requested Retention Letter of Credit is
more than two years after the date of issuance, unless all of the Banks
have approved such expiry date in writing;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuing Bank;
(v) such Letter of Credit, other than a Retention Letter of
Credit, is to be used for any purpose other than to support the Company's
workers' compensation program, unless the Issuing Bank and the Majority
Banks have approved such other purpose in
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writing; or such Retention Letter of Credit is to be used for any purpose
other than to provide security in lieu of retention under any construction
contract entered into by the Company, unless the Issuing Bank and the
Majority Banks have approved such other purpose in writing; or
(vi) the face amount of any requested Retention Letter of
Credit is less than $ 1,000,000.
3.02 Issuance and Amendment of Letters of Credit.
(a) Each Letter of Credit shall be Issued upon the irrevocable
written request of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least ten days (or such shorter time as the Issuing
Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of issuance. Each such request for issuance of a Letter of Credit
shall be by telecopy, telex or cable, confirmed immediately in an original
writing, in substantially the form of Exhibit C, or an application form for
issuances of standby letters of credit as shall at any time be in use at the
applicable Issuing Bank, as such Issuing Bank shall request ("Letter of Credit
Application") and shall specify in form and detail satisfactory to the Issuing
Bank: (i) the proposed date of issuance of the Letter of Credit (which shall be
a Business Day); (ii) the face amount of the Letter of Credit (provided that
the face amount of any Retention Letter of Credit shall not be less than
$1,000,000); (iii) the expiry date of the Letter of Credit; (iv) the name and
address of the beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder; (vi) the
full text of any certificate to be presented by the beneficiary in case of any
drawing thereunder; and (vii) such other matters as the Issuing Bank may
require. This Agreement shall control in the event of any conflict with a Letter
of Credit Application.
(b) At least two Business Days prior to the Issuance of any Letter
of Credit or any amendment of any Letter of Credit, the Issuing Bank will
confirm with the Agent (by telephone or in writing) that the Agent has received
a copy of the Letter of Credit Application or Amendment Application from the
Company and, if not, the Issuing Bank will provide the Agent with a copy of
same. Unless the Issuing Bank has received notice on or before the Business Day
immediately preceding the date the Issuing Bank is to Issue a requested Letter
of Credit (A) from the Agent directing the Issuing Bank not to issue additional
Letters of Credit because (x) the available Revolving Commitments equal zero, or
the aggregate amount of all L/C Obligations equals or exceeds the Aggregate L/C
Commitment; or (y) the stated amount of the Letter of Credit the Issuing Bank is
being requested to issue exceeds the available Revolving Commitments or would
cause the Effective Amount of the L/C Obligations to exceed the Aggregate L/C
Commitment; or (B) from the Agent or any Bank that one or more conditions
specified in Article V are not then satisfied; then subject to the terms and
conditions hereof, the Issuing Bank will, on the requested date, Issue a Letter
of Credit for the account of the Company or amend or reinstate a Letter of
Credit, as the case may be, in accordance with the Issuing Bank's usual and
customary business practices.
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(c) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Termination Date, the Issuing Bank will, upon the written
request of the Company in form and substance satisfactory to the Issuing Bank
(an "Amendment Application"), with a copy sent by the Company to the Agent,
amend any Letter of Credit Issued by it; provided that the Issuing Bank shall be
under no obligation to amend any Letter of Credit if:
(i) the Issuing Bank would have no obligation at such time
to Issue such Letter of Credit in its amended form at such time under the
terms of this Agreement; or
(ii) the beneficiary of any such Letter of Credit does not
accept the Letter of Credit as amended.
(d) From time to time while a Letter of Credit is outstanding
after the Revolving Termination Date (subject to clause (iii) of subsection
3.01(b)), the Issuing Bank will, upon submission to the Issuing Bank of an
Amendment Application in form and substance satisfactory to the Issuing Bank,
with a copy sent by the Company to the Agent, amend any Letter of Credit Issued
by it; provided that the Issuing Bank shall be under no obligation to amend any
Letter of Credit after the Revolving Termination Date if:
(i) such Letter of Credit in its amended form would have an
expiry date subsequent to that of the Letter of Credit as to which the
Amendment Application has been submitted;
(ii) such Letter of Credit in is amended form would have an
amount available for drawing in excess of that of the Letter of Credit as
to which the Amendment Application has been submitted;
(iii) a Default or Event of Default has occurred and is
continuing as of the date of the Amendment Application; or
(iv) the beneficiary of any such Letter of Credit does not
accept the Letter of Credit as amended.
(e) The Agent will promptly notify the Banks of the receipt by it
of any Letter of Credit Application or Amendment Application.
(f) The Issuing Bank may, at its election (or as required by the
Agent at the direction of the Majority Banks), deliver any notices of
termination or other communications to any Letter of Credit (other than a
Retention Letter of Credit) beneficiary or transferee, or take any other action
as necessary or appropriate, at any time and from time to time, in order to
cause the expiry date of such Letter of Credit (other than a Retention Letter of
Credit) to be a date not later than the Revolving Termination Date.
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3.03 Participations, Drawings and Reimbursements.
(a) As of the Closing Date, the Existing Letters of Credit will be
deemed for all purposes Letters of Credit Issued and outstanding under this
Article III, and will be governed by applications and agreements pertaining
thereto and by this Agreement (which shall control in the event of a conflict).
Each Bank (other than the Issuing Bank) shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank on the
Closing Date a participation in such Letters of Credit and each drawing
thereunder in an amount equal to the product of (i) the Commitment Percentage of
the Bank, times (ii) the face amount of such Letters of Credit. For purposes of
subsection 3.01 (a), the Existing Letters of Credit shall be deemed to utilize
the Revolving Commitment of each Bank (other than the Issuing Bank) by an amount
equal to the amount of such participation and to utilize the Revolving
Commitment of the Issuing Bank by an amount equal to the face amount of such
Letters of Credit less the aggregate amount of such participations.
(b) Immediately upon the Issuance of each Letter of Credit in
addition to that described in subparagraph (a), each Bank (other than the
applicable Issuing Bank) shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a participation in
such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Commitment Percentage of the Bank, times (ii) the face amount
of such Letter of Credit. For purposes of subsection 3.01(a), each Issuance of a
Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Bank (other than the applicable Issuing Bank) by an amount equal to the amount
of such participation and to utilize the Revolving Commitment of the Issuing
Bank by an amount equal to the face amount of such Letter of Credit less the
aggregate amount of such participations.
(c) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the applicable Issuing Bank
will promptly notify the Company. The Company shall reimburse the Issuing Bank
prior to 11:00 a.m. (San Francisco time), on each date that any amount is paid
by the Issuing Bank under any Letter of Credit, in an amount equal to the amount
so paid by the Issuing Bank. In the event the Company shall fail to reimburse
the Issuing Bank the full amount of any drawing under any Letter of Credit by
11:00 a.m. (San Francisco time) on the same date such drawing is honored by the
Issuing Bank, the Issuing Bank will promptly notify the Agent and the Agent will
promptly notify each Bank thereof, and, if such drawing occurs before the
Revolving Termination Date, the Company shall be deemed to have requested that
Reference Rate Loans be made by the Banks to be disbursed on the date of payment
by the Issuing Bank under the Letter of Credit, subject to the amount of the
unutilized portion of the Revolving Commitment and subject to the conditions set
forth in Section 5.02. If such drawing on any Letter of Credit occurs on or
after the Revolving Termination Date, the Company shall be deemed to have
incurred from the Issuing Bank a L/C Borrowing in the amount of such drawing,
which shall be due and payable and shall bear interest in accordance with the
terms of subsection 3.03(e) hereof. Any notice given by the Issuing Bank or the
Agent pursuant hereto may be oral if immediately confirmed in writing (including
by facsimile); provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
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(d) Each Bank will upon receipt of any notice pursuant to
subsection 3.03(c) make available to the Agent for the account of the Issuing
Bank an amount in immediately available funds equal to its Commitment Percentage
of the amount of the drawing, whereupon the participating Banks shall (subject
to subsection 3.03(e)) each be deemed to have made a Revolving Loan consisting
of a Reference Rate Loan to the Company in that amount. If any Bank so notified
shall fail to make available to the Agent for the account of the Issuing Bank
the amount of such Bank's Commitment Percentage of the amount of the drawing by
no later than 12:00 noon (San Francisco time) on the date such drawing was
honored by the Issuing Bank (the "Participation Date"), then interest shall
accrue on such Bank's obligation to make such payment, from the Participation
Date to the date such Bank makes such payment at a rate per annum equal to the
Federal Funds Rate in effect from time to time. The Agent will promptly give
notice of the occurrence of the Participation Date, but failure of the Agent to
give any such notice on the Participation Date or in sufficient time to enable
any Bank to effect such payment on such date shall not relieve such Bank from
its obligations under this Section 3.03.
(e) With respect to any unreimbursed drawing which is not
converted into Revolving Loans consisting of Reference Rate Loans to the Company
in whole or in part, because of the Company's failure to satisfied the
conditions set forth in Section 5.02, because the drawing on any Letter of
Credit occurred on or after the Revolving Termination Date, or for any other
reason, the Company shall be deemed to have incurred from the Issuing Bank a L/C
Borrowing in the amount of such drawing, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest until such
demand at a rate per annum equal to the Reference Rate plus two percent, and
each Bank's payment to the Issuing Bank pursuant to subsection 3.03(d) shall be
deemed a L/C Advance in satisfaction of its participation obligation under this
Section 3.03.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account of
the Issuing Bank of funds from the Company (i) in reimbursement of any payment
made by the Issuing Bank under any Letter of Credit with respect to which any
Bank has theretofore paid the Agent for the account of the Issuing Bank for such
Bank's participation in such Letter of Credit pursuant to Section 3.03, or (ii)
in payment of interest thereon; the Agent will pay to each Bank, in the same
funds as those received by the Agent for the account of the Issuing Bank, the
amount of such Bank's Commitment Percentage of such funds, and the Issuing Bank
shall receive the amount of the Commitment Percentage of such funds of any Bank
that did not so pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time to
return to the Company or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by the
Company to the Agent for the account of the Issuing Bank pursuant to subsection
3.04(a) in reimbursement of a payment made under any Letter of Credit or
interest thereon, each Bank shall, on demand of the Agent, forthwith return to
the Agent or the Issuing Bank the amount of its Commitment Percentage of any
amounts so returned by the Agent or the Issuing Bank plus interest thereon from
the date such demand is
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made to the date such amounts are returned by such Bank to the Agent or the
Issuing Bank, at a rate per annum equal to the Federal Funds Rate in effect from
time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank agrees that, in paying any drawing under a Letter of
Credit, the Issuing Bank shall not have any responsibility to obtain any
document (other than any sight draft and certificates expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any
such document. Neither the Issuing Bank nor any of its Affiliates,
correspondents, participants or assignees, or any of their respective officers,
directors or employees, shall be liable to any Bank for:
(i) any action taken or omitted in connection herewith at
the request or with the approval of the Banks (including the Majority
Banks, as applicable);
(ii) any action taken or omitted in the absence of gross
negligence or wilful misconduct; or
(iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(b) The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.
Neither the Issuing Bank, nor any of its Affiliates, correspondents,
participants or assignees, or any of their respective officers, directors or
employees, shall be liable or responsible for any of the matters described in
paragraphs (i) through (vii) of Section 3.06; provided, however, anything in
such clauses to the contrary notwithstanding, that the Company may have a claim
against the Issuing Bank, and the Issuing Bank may be liable to the Company, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Company which the Company proves were
caused by (i) the Issuing Bank's willful misconduct or gross negligence or (ii)
the Issuing Bank's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate both
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
3.06 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank, and to
repay L/C Borrowings and L/C Borrowings converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and such other L/C-Related Document under all
circumstances, including the following:
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(i) any lack of validity or enforceability of this
Agreement, any Letter of Credit or any other L/C-Related Document;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or any
consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents or any unrelated
transaction;
(iv) any certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(v) any payment by the Issuing Bank under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment is
made by the Issuing Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations of
the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge of,
the Company or a guarantor.
3.07 Cash Collateral Pledge. Upon the request of Agent, (i) if the
Issuing Bank has honored any full or partial drawing request on any Letter of
Credit or (ii) if, as of the Revolving Termination Date, any Letters of Credit
(other than any Retention Letters of Credit) may for any reason remain
outstanding and partially or wholly undrawn, or (iii) if, after the Revolving
Termination Date, any Retention Letters of Credit remain outstanding and
partially or wholly undrawn and there shall occur a Default or Event of Default,
the Company shall immediately pay over, pledge and deliver, pursuant to a
security agreement in form and substance acceptable to the Agent, cash in an
amount equal to the maximum amount available for drawing under any outstanding
Letters of Credit, to the Agent for the benefit of the Banks as collateral.
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3.08 Letter of Credit Fees. The Company shall pay to the Agent for the
benefit of the Banks letter of credit fees equal to (i) 0.500% per annum, in
each case of the face amount of outstanding Letters of Credit other than
Retention Letters of Credit, and (ii) 0.325% per annum, in each case of the face
amount of outstanding Retention Letters of Credit. Such fees shall be payable
quarterly in arrears on the last day of each calendar quarter. The Company shall
pay BofA, in its capacity as Issuing Bank, a letter of credit fronting fee in
the amount and at the times as set forth in a letter agreement between the
Company and BofA, as Issuing Bank, dated as of May 30, 1997, and shall pay any
other Issuing Bank a letter of credit fronting fee as agreed to from time to
time by the Company and such Issuing Bank.
3.09 Additional Issuing Bank. If BofA as Issuing Bank declines to Issue a
requested Letter of Credit due to the circumstances set forth in clause (i) of
subsection 3.01(b), then the Company shall have the right to designate an
additional Bank as an Issuing Bank hereunder, provided that such Issuing Bank
shall have notified the Agent in writing prior to the Issuance of any Letter of
Credit by it that it is an Issuing Bank hereunder with respect to Letters of
Credit and upon receipt by Agent of such notice, the definition of 'Issuing
Bank' hereunder shall be deemed to be amended thereby.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Subject to subsection 4.01(g), any and all payments by the
Company to each Bank or the Agent under this Agreement shall be made free and
clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Agent, such taxes (including income taxes or franchise taxes) as are imposed on
or measured by each Bank's net income by the jurisdiction under the laws of
which such Bank or the Agent, as the case may be, is organized or maintains a
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 4.01(g), the Company shall indemnify and
hold harmless each Bank and the Agent for the fall amount of Taxes or Other
Taxes (including without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.01) paid by the Bank or the
Agent in the amount that the respective Bank
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specifies as necessary to preserve the after-tax yield the Bank would have
received if such Taxes or Other Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted and any liability (including penalties, interest, additions
to tax and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Bank or the Agent
makes written demand therefor. Should the Agent or a Bank determine in its sole
discretion to seek a refund or rebate of some or all of the amount of Taxes,
Other Taxes or other liability paid by it and for which it was indemnified by
the Company and should it receive some or all of the refund or rebate which it
sought, it shall return to the Company the difference between the amount of such
refund or rebate and its reasonable costs and expenses of counsel (and the
allocated cost of internal counsel) incurred by it in procuring such refund or
rebate.
(d) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Bank or the Agent; then, subject to subsection 4.01(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.01) such Bank or the Agent,
as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a person other than
a United States person for United States Federal income tax purposes) agrees
that:
(i) it shall, no later than the Closing Date (or, in the
case of a Bank which becomes a part hereto pursuant to Section 11.07 after
the Closing Date, the date upon which the Bank becomes a part hereto)
deliver to the Company through the Agent:
(A) if any Lending Office is located in the United
States, two accurate and complete signed originals of Internal
Revenue Service Form 4224 or any successor thereto ("Form 4224"),
and
(B) if any Lending Office is located outside the
United States, two accurate and complete signed originals of
Internal Revenue Service Form 1001
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or any successor thereto ("Form 1001"), in each case indicating that
the Bank is on the date of delivery thereof entitled to receive
payments of principal, interest and fees for the account of such
Lending Office or Offices under this Agreement free from withholding
of United States Federal income tax;
(ii) if at any time the Bank changes its Lending Office or
Offices or selects an additional Lending Office as herein provided, it
shall with reasonable promptness deliver to the Company through the Agent
in replacement for, or in addition to, the forms previously delivered by
it hereunder:
(A) if such changed or additional Lending Office is
located in the United States, two accurate and complete signed
originals of Form 4224; or
(B) otherwise, two accurate and complete signed
originals of Form 1001,
in each case indicating that the Bank is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the
account of such changed or additional Lending Office under this Agreement
free from withholding of United States federal income tax;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in the most recent Form 4224
or Form 1001 previously delivered by such Bank and if the delivery of
the same be lawful, deliver to the Company through the Agent two
accurate and complete original signed copies of Form 4224 or Form 1001
in replacement for the forms previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's reasonable request
to that effect, deliver to the Company such other forms or similar
documentation as may be required from time to time by any applicable law,
treaty, rule or regulation in order to establish such Bank's tax status
for withholding purposes.
(g) The Company will not be required to pay any additional amounts
in respect of United States federal income tax pursuant to subsection 4.01(d) to
any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Bank to comply with its
obligations under subsection 4.01(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Company a Form
4224 in respect of such Lending Office pursuant to subsection
4.01(f)(i)(A), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States federal income
tax in respect of payments by the Company hereunder for the account of
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such Lending Office for any reason other than a change in United States
law or regulations or in the official interpretation of such law or
regulations by any governmental authority charged with the interpretation
or administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Company a Form
1001 in respect of such Lending Office pursuant to Section 4.01(f)(i)(B),
and such Bank shall not at any time be entitled to exemption from
deduction or withholding of United States Federal income tax in respect of
payments by the Company hereunder for the account of such Lending Office
for any reason other than a change in United States law or regulations or
any applicable tax treaty or regulations or in the official interpretation
of any such law, treaty or regulations by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) after the date of delivery of such Form 1001.
(h) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to subsection 4.01(d), then such Bank shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
4.02 Illegality.
(a) If any Bank shall determine that the introduction of any
Requirement of Law or any change in or in the interpretation or administration
thereof has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Bank or its Lending Office
to make Eurodollar Rate Loans, then, on notice thereof by the Bank to the
Company through the Agent, the obligation of the Bank to make Eurodollar Rate
Loans shall be suspended until the Bank shall have notified the Agent and the
Company that the circumstances giving rise to such determination no longer
exists.
(b) If a Bank shall determine that it is unlawful to maintain any
Eurodollar Rate Loan, the Company shall prepay in full all Eurodollar Rate Loans
of the Bank then outstanding, together with interest accrued thereon, either on
the last day of the Interest Period thereof if the Bank may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Eurodollar Rate Loans. The Company may in
such event borrow one or more Reference Rate Loans or CD Rate Loans in
accordance with Article II hereof.
(c) If the obligation of any Bank to make or maintain Eurodollar
Rate Loans has been terminated, the Company may elect, by giving notice to the
Bank through the Agent, that all Loans requested by it which would otherwise be
made by the Bank as Eurodollar Rate Loans shall be instead Reference Rate Loans.
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(d) Before giving any notice to the Agent pursuant to this Section
4.02, the affected Bank shall designate a different Lending Office with respect
to its Eurodollar Rate Loans if such designation will avoid the need for giving
such notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise significantly disadvantageous to the Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank shall determine that, due to either (i) the
introduction of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the CD Rate or
the Eurodollar Rate or in respect of the assessment rate payable by any Bank to
the FDIC for insuring U.S. Deposits) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to such Bank or any corporation
controlling such Bank of agreeing to make or making, funding or maintaining any
Eurodollar Rate Loans or CD Rate Loans or participating in Letters of Credit,
or, in the case of the Issuing Bank, any increase in the cost to the Issuing
Bank of agreeing to issue, issuing or maintaining any Letter of Credit or of
agreeing to make or making, funding or maintaining any unpaid drawing under any
Letter of Credit, then the Company shall be liable for, and shall from time to
time, upon demand therefor by such Bank (with a copy of such demand to the
Agent), pay to the Agent for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that the introduction of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in the interpretation or administration thereof by
any central bank or other Governmental Authority charged with the interpretation
or administration thereof, or compliance by the Bank (or its Lending Office) or
any corporation controlling the Bank, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation controlling
the Bank and (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as at
consequence of its Commitments, loans, credits or obligations under this
Agreement, then, upon demand of such Bank (with a copy of such demand to the
Agent), the Company shall immediately pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the Bank for
such increase. In determining any amount due under subsection (a) or (b) of this
Section, the affected Bank may use any reasonable averaging and attribution
methods. No Bank shall be able to recover any amounts under this Section where
such amounts were incurred or accrued more than 180 days prior to the date
demand for such amounts is given to the Company.
4.04 Funding Losses. The Company agrees to reimburse each Bank and to
hold each Bank harmless from any loss or expense which the Bank may sustain or
incur as a consequence of:
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(a) the failure of the Company to make any payment (when due) or
prepayment of principal of any Eurodollar Rate Loan or CD Rate Loan (including
payments made after any acceleration thereof in accordance with Section 9.02);
(b) the failure of the Company to borrow, continue or convert a
Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation (other than as a result of
Section 4.05);
(c) the failure of the Company to make any prepayment after the
Company has given a notice in accordance with Section 2.06; or
(d) the prepayment of a Eurodollar Rate Loan or a CD Rate Loan on
a day which is not the last day of the Interest Period with respect thereto
(other than as a result of an event requiring prepayment by the Company under
subsection 2.12(b));
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or CD Rate Loans
hereunder or from fees payable to terminate the deposits from which such funds
were obtained. For purposes of calculating amounts payable by the Company to the
Banks under this Section and under subsection 4.03(a), each Eurodollar Rate Loan
and CD Rate Loan made by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
IBOR used in determining the Eurodollar Rate for such Eurodollar Rate Loan or at
the Certificate of Deposit Rate used in determining the CD Rate for such CD Rate
Loan, as applicable, by a matching deposit or other borrowing in the interbank
eurodollar market, or dollar certificates of deposit, as applicable, for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan or CD Rate Loan is in fact so funded.
4.05 Inability to Determine Rates. If the Agent shall have determined
that for any reason adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate or the CD Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan or CD Rate Loan or if the Majority
Banks shall have determined that for any reason the Eurodollar Rate or the CD
Rate applicable pursuant to subsection 2.08(a) for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan or CD Rate Loan does not
adequately and fairly reflect the cost to such Banks of funding such Loan, the
Agent will forthwith give notice of such determination to the Company and each
Bank. Thereafter, the obligation of the Banks to make or maintain CD Rate Loans
or Eurodollar Rate Loans, as the case may be, hereunder shall be suspended until
the Agent revokes such notice in writing. Upon receipt of such notice, the
Company may revoke any Notice of Borrowing or Notice of Conversion/ Continuation
then submitted by it; provided, however, that the Company shall not be obligated
to pay any amounts pursuant to Section 4.04 as a result of such revocation of
notice. If the Company does not revoke such notice, the Banks shall make,
convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Reference Rate Loans instead of CD Rate
Loans or Eurodollar Rate Loans, as the case may be.
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4.06 Certificates of Banks. Any Bank claiming reimbursement or
compensation pursuant to this Article IV shall deliver to the Company (with a
copy to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Bank hereunder and such certificate shall be conclusive and
binding on the Company in the absence of manifest error.
4.07 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Effectiveness of Agreement. The effectiveness of this
Agreement is subject to the conditions that the principal payment due on the
term loan under the Prior Credit Agreement on June 30, 1997 in the amount of
$5,000,000 shall have been paid and the Agent shall have received on or before
the Closing Date all of the following, in form and substance satisfactory to the
Agent and its counsel and in sufficient copies for each Bank:
(a) Credit Agreement, Exhibits, Schedules and Guaranty.
(i) This Agreement executed by the Company, the Agent, and
each of the Banks (including, in the case of BofA, in its capacity as
Issuing Bank);
(ii) Copies of all Exhibits and Schedules referenced in this
Agreement reviewed and approved by the Banks;
(iii) The Guaranty, dated as of the Closing Date, executed by
each Subsidiary of the Company.
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of
the Company and each Guarantor approving and authorizing the execution,
delivery and performance of this Agreement, the other Loan Documents to be
delivered by it hereunder and, as applicable, authorizing the borrowing of
the Loans or the guaranty of the Obligations, certified as of the Closing
Date by the Secretary or an Assistant Secretary of such corporation;
(ii) A certificate of the Secretary or Assistant Secretary of
the Company, and each Guarantor, certifying the names and true signatures
of the officers, of such corporation, authorized to execute and deliver,
as applicable, this Agreement, the Guaranty, and all other Loan Documents
to be delivered hereunder (which may, if applicable, be satisfied by a
certificate from the Secretary or Assistant Secretary of such corporation
dated as of the Closing Date to the effect that officers so forth in the
incumbency certificates
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previously provided to the Agent and the Banks are unchanged), certifying
that the articles or certificate of incorporation and bylaws of the
Company or such Guarantor as delivered to BofA as the Agent under the
Prior Credit Agreement have not been amended or modified in any respect,
and certifying that the Company and each such Guarantor is in good
standing in their respective jurisdictions of incorporation and in each
jurisdiction where the failure to so qualify would have a Material Adverse
Effect;
(c) Legal Opinion. An opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, general counsel to
the Company and the Guarantors, addressed to the Agent and the Banks,
substantially in the form of Exhibit D;
(d) Certificate. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article
VI are true and correct on and as of such date, as though made on and as
of such date, except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date;
(ii) no Default or Event of Default exists or would result
from the Borrowing made or requested on the Closing Date;
(iii) there has occurred since December 31, 1996, no Material
Adverse Effect;
(iv) the Company and each Guarantor are each in good standing
in their respective states of incorporation and in the case of
Intermountain Slurry Seal, Inc., Bear River Contractors, Pozzolan Products
Company (P.P.C.), and GILC Incorporated, of each state where such
Guarantor is qualified to do business as a foreign corporation, all as
more fully set forth in Schedule 5.01(d); and
(e) Other Documents. Such other approvals, opinions or documents
as any Bank may reasonably request.
5.02 Conditions to all Credit Extensions. The obligation of each Bank to
make, continue or convert any Loan to be made by it hereunder, and the
obligation of the Issuing Bank to Issue any Letter of Credit, is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing,
conversion, continuation or Issuance date:
(a) Notice. The Agent shall have received a Notice of Borrowing or
a Notice of Conversion/Continuation or, in the case of any Issuance of any
Letter of Credit (other than the Existing Letters of Credit), the Issuing Bank
and the Agent shall have received a Letter of Credit Application or Amendment
Application, as required under Section 3.02;
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(b) Continuation of Representations and Warranties. The
representations and warranties made by the Company contained in Article VI, and
the representations and warranties made by the Guarantor(s) in the
Guaranty(ies), shall be true and correct on and as of such date with the same
effect as if made on and as of such date, except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date; and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing, conversion, continuation or Issuance.
Each Borrowing, conversion, continuation, or request for the Issuance of a
Letter of Credit by the Company hereunder shall constitute a representation and
warranty by the Company hereunder as of the date of each such Borrowing,
conversion, continuation or Issuance that the conditions in this Section 5.02
have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.01 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all material governmental
licenses, authorizations, consents and approvals to own its assets, to carry on
its business and to execute, deliver and perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license, except where the failure to be so qualified or licensed would not
have a Material Adverse Effect; and
(d) is in compliance with all Requirements of Law, except to the
extent that noncompliance would not result in liability in excess of $300,000 in
the aggregate.
6.02 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company and its Subsidiaries of this Agreement and any
other Loan Document to which such Person is party have been duly authorized by
all necessary corporate action and do not and will not:
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(a) contravene the terms of that Person's certificate of
incorporation, bylaws or other organization document;
(b) conflict with or result in any material breach or
contravention of, or the creation of any Lien under, any material indenture,
agreement, lease, instrument, Contractual Obligation, injunction, order, decree
or undertaking to which such Person is a party; or
(c) to the best knowledge of the Company, violate any Requirement
of Law.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by or enforcement against the Company or any
of its Subsidiaries of this Agreement or any other Loan Document or any other
instrument or agreement required hereunder to be made by the Company or any of
its Subsidiaries.
6.04 Binding Effect. This Agreement and each other Loan Document to which
the Company or any of its Subsidiaries is a party constitute the legal, valid
and binding obligations of the Company, enforceable against such Person in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws generally affecting the rights
of creditors, and subject to equitable principles of general application.
6.05 Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company, threatened or
contemplated at law, in equity, in arbitration or before any Governmental
Authority, against the Company or any of its Subsidiaries or any of their
respective properties which:
(a) purport to affect or pertain to this Agreement, or any Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company or any of its
Subsidiaries, is reasonably likely to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery and performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
6.06 No Default No Default or Event of Default exists or would result
from the incurring of obligations by the Company under this Agreement or any
other Loan Document. Neither the Company, nor any of its Subsidiaries, is in
default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, is reasonably likely to
have a Material Adverse Effect.
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6.07 ERISA Compliance.
(a) Schedule 6.07 lists all Plans maintained or sponsored by the
Company or its Subsidiaries to which they are obligated to contribute, and
separately identifies Plans intended to be Qualified Plans and Multiemployer
Plans. All written descriptions thereof provided to the Agent are true and
complete in all material respects.
(b) Except as set forth in Schedule 6.07, each Qualified Plan is
in compliance in all material respects with the applicable provisions of ERISA,
the Code and other federal or state law, including all requirements under the
Code or ERISA for filing reports (which are true and correct in all material
respects as of the date filed), and benefits have been paid in accordance with
the provisions of such Qualified Plan.
(c) Each Qualified Plan has been determined by the IRS to qualify
under Section 401 of the Code, and the trusts created thereunder have been
determined to be exempt from tax under the provisions of Section 501 of the
Code, and to the best knowledge of the Company nothing has occurred which would
cause the loss of such qualification or tax-exempt status.
(d) Except as set forth in Schedule 6.07, the Company has no
outstanding liability under Title IV of ERISA with respect to (i) any Plan
maintained or sponsored by the Company or its Subsidiaries or any ERISA
Affiliate (as to which the Company or its Subsidiaries is or may be liable), or
(ii) any Plan to which the Company and its Subsidiaries or any ERISA Affiliate
(wherein the Company or its Subsidiaries is or may be liable) contributes or is
obligated to contribute.
(e) Except as set forth on Schedule 6.07, none of the Qualified
Plans subject to Title IV of ERISA has any Unfunded Pension Liability as to
which the Company and its Subsidiaries is or may be liable.
(f) Except as set forth in Schedule 6.07, no Qualified Plan
provides medical or other welfare benefits or extends coverage relating to such
benefits beyond the date of a participants termination of employment with the
Company or its Subsidiaries, except to the extent required by Section 4980B of
the Code and at the sole expense of the participant or the beneficiary of the
participant to the fullest extent permissible under such Section of the Code.
The Company and its Subsidiaries have complied in all material respects with the
notice and continuation coverage requirements of Section 4980B of the Code.
(g) Except as set forth in Schedule 6.07, (i) no ERISA Event has
occurred or is reasonably expected to occur with respect to any Qualified Plan,
and (ii) the Company and its Subsidiaries have not received notice that an ERISA
Event has occurred or is reasonably expected to occur with respect to any
Multiemployer Plan.
(h) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, other than routine claims for benefits
in the usual and ordinary
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course, asserted or instituted against (i) any Plan maintained or sponsored by
the Company or its Subsidiaries or, its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan of the Company or its
Subsidiaries, or (iii) any fiduciary with respect to any Plan for which the
Company or its Subsidiaries may be directly or indirectly liable, through
indemnification obligations or otherwise.
(i) Except as set forth in Schedule 6.07, the Company and its
Subsidiaries have not incurred nor reasonably expects to incur any liability in
excess of $1,000,000 in the aggregate (i) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) or
(ii) under Title IV of ERISA (other than premiums due and not delinquent under
Section 4007 of ERISA) with respect to a Plan.
(j) Except as set forth in Schedule 6.07, the Company and its
Subsidiaries have not transferred any Unfunded Pension Liability outside of the
Controlled Group or otherwise engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
(k) The Company and its Subsidiaries have not engaged, directly or
indirectly, in a non-exempt prohibited transaction (as defined in Section 4975
of the Code or Section 406 of ERISA) in connection with any Plan which is
reasonably likely to have a Material Adverse Effect.
6.08 Use of Proceeds, Margin Regulations. The proceeds of the Loans shall
be used solely for the purposes set forth in and permitted by Section 7.11 and
Section 8.20. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock. The aggregate value of all
Margin Stock directly or indirectly owned by the Company and its Subsidiaries is
less than 25% of the aggregate value of the consolidated assets of the Company
and its Subsidiaries.
6.09 Title to Properties. The Company and each of its Subsidiaries has
good record and marketable title in fee simple to or valid leasehold interests
in all its property, except for such defects in title as could not, individually
or in the aggregate, have a Material Adverse Effect. The property is free and
clear of all Liens, except Permitted Liens.
6.10 Taxes. The Company and each of its Subsidiaries have filed all
federal and other material tax returns and reports required to be filed and have
paid all federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed or
recorded. The Company has no knowledge of any proposed tax assessment against
the Company or any of its Subsidiaries which would, if the assessment were made,
have a Material Adverse Effect.
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6.11 Financial Condition.
(a) The audited consolidated financial statements of the Company
and its Subsidiaries dated December 31, 1996, and the related consolidated
statements of operations, stockholders' equity and cash flows for the fiscal
year ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise
expressly noted therein;
(ii) are complete, accurate and fairly present the financial
condition of the Company and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) show all material indebtedness and other liabilities,
direct or contingent of the Company and its consolidated Subsidiaries as
of the date thereof (including liabilities for taxes and material
commitments).
(b) Since December 31, 1996, there has been no Material Adverse
Effect.
(c) Schedule 6.11(c) sets forth the Company's and its
Subsidiaries' leases, obligation to pay a dividend, and letters of credit
existing as of the Closing Date.
6.12 Environmental Matters.
(a) The on-going operations of the Company and each of its
Subsidiaries, after the Closing Date, comply in all respects with all
Environmental Laws, except such non-compliance which would not result in
liability in excess of $2,000,000 in the aggregate.
(b) Except as specifically identified in Schedule 6.12, and except
to the extent that noncompliance would not result in liability in excess of
$300,000 in the aggregate, the Company and each of its Subsidiaries have
obtained all licenses, permits, authorizations and registrations required under
any Environmental Law ("Environmental Permits") necessary for its operations,
and all such Environmental Permits are in good standing, and the Company and
each of its Subsidiaries is in compliance with all terms and conditions of such
Environmental Permits.
(c) Except as specifically identified in Schedule 6.12, none of
the Company or any of its Subsidiaries or any of their present property or
operations is subject to any outstanding written order from or agreement with
any Governmental Authority or other Person, nor is subject to any judicial or
docketed administrative proceeding respecting any Environmental Law,
Environmental Claim or Hazardous Material.
(d) There are no conditions or circumstances relating to any
property of the Company or its Subsidiaries, or arising from operations of the
Company or its Subsidiaries conducted prior to the Closing Date which, together
with all other such conditions and circumstances relating to all other
Properties and operations, may give rise to Environmental Claims
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with a potential liability as to the Company and its Subsidiaries together in
excess of $9,000,000 in the aggregate. Schedule 6.12 contains the Company's good
faith estimate of clean-up costs associated with hydrocarbon contamination at
the Properties described therein. Notwithstanding the foregoing, (i) neither the
Company nor any of its Subsidiaries has any underground storage tanks (x) that
are not properly registered or permitted under applicable Environmental Laws or
(y) that are leaking or disposing of Hazardous Materials off-site, (ii) the
Company and its Subsidiaries have notified all of their employees of the
existence, if any, of any health hazard arising from the conditions of their
employment and have met all notification requirements under Title III of CERCLA
or any other Environmental Law, and (iii) no Hazardous Materials have been
Released at, on or under any site, facility or vessel now or previously owned,
operated or leased by the Company or any of its Subsidiaries that would have a
Material Adverse Effect.
(e) Except as specifically identified in Schedule 6.12, the
Company has no knowledge of any oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Company or any of its
Subsidiaries and no site, facility or vessel now or previously owned, operated
or leased by the Company or any of its Subsidiaries is listed or proposed for
listing on the NPL, CERCLIS or any similar state list of sites requiring
investigation or clean-up.
6.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiaries of the Company, is (a) an "Investment Company"
within the meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code or any
other federal or state statute or regulation limiting its ability to incur
Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation or is subject
to any charter or corporate restriction or any Requirement of Law which is
reasonably likely to have a Material Adverse Effect.
6.15 Solvency. The Company and is Subsidiaries, when taken together as a
whole, are Solvent.
6.16 Labor Relations. There are no strikes, lockouts or other labor
disputes against the Company or any of its Subsidiaries, or, to the best of the
Company's knowledge, threatened against or affecting the Company or any of its
Subsidiaries, and no significant unfair labor practice complaint is pending
against the Company or any of its Subsidiaries or, to the best knowledge of the
Company, threatened against any of them before any Governmental Authority, which
is reasonably likely to result in a Material Adverse Effect.
6.17 Copyrights, Patents. Trademarks and Licenses, etc. The Company and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, franchises,
authorizations and other rights that are reasonably necessary for the operation
of their respective businesses, without conflict with the
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rights of any other Person. To the best knowledge of the Company, no slogan or
other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed by the Company or any
of its Subsidiaries infringes upon any rights owned by any other Person; except
as set forth on Schedule 6.17, no claim or litigation regarding any of the
foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
is reasonably likely to result in a Material Adverse Effect.
6.18 Subsidiaries. The Company has no Subsidiaries other than those
listed on Schedule 6.18 hereto or those notified to the Agent pursuant to
subsection 7.03(i) and has no equity investments in any other corporation or
entity other than those listed on Schedule 6.18 hereto.
6.19 Insurance. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as is customarily carried
on by companies engaged in similar businesses and owning similar properties in
localities where the Company or such Subsidiary operates.
6.20 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company and its Subsidiaries have each
voluntarily entered into each Swap Contract to which it is a party based upon
its own independent assessment of its consolidated assets, liabilities and
commitments in each case as an appropriate means of mitigating and managing
risks associated with such matters.
6.21 Full Disclosure. The documents, certificates and written statements
(including the Loan Documents) furnished to the Agent by the Company or any
Subsidiary for use in connection with the transactions contemplated by this
Agreement, taken as a whole, do not contain any untrue statement of a material
fact or omit to state a material fact (known to the Company in the case of any
document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading (it being recognized by the Agent and
the Banks that projections and forecasts provided to them by the Company are not
to be viewed as facts and that actual results during the period or periods
covered by any such projections and forecasts may differ from the projected or
forecasted results).
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants and agrees that so long as any Bank shall have any
Commitment hereunder, any Letter of Credit shall be outstanding, or any Loan or
other amount shall remain unpaid, unless the Majority Banks waive compliance in
writing:
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7.01 Financial Statements. The Company shall deliver to the Agent in form
and detail satisfactory to the Agent, with copies for each Bank:
(a) as soon as available, but not later than 90 days after the end
of each fiscal year of the Company, a copy of the audited consolidated balance
sheet of the Company as at the end of such year and the related consolidated
statements of income, stockholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
year, and an opinion of Coopers & ▇▇▇▇▇▇▇ or another nationally recognized
independent public accounting firm stating that such consolidated financial
statements present fairly the financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years, all as set
forth on the Company's Form 10-K Annual Report filed with SEC for such fiscal
year;
(b) as soon as available, but not later than 45 days after the end
of each of the first three calendar quarters of each fiscal year, a copy of the
unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, stockholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such quarter, all as
set forth in the Company's Form 10-Q Quarterly Report for such quarter, and
certified by an appropriate Responsible Officer as being complete and correct
and fairly presenting, in accordance with GAAP, the financial position and the
results of operations of the Company and its Subsidiaries;
(c) as soon as available, but no later than 45 days after the
close of each month (other than the last month) of each of its fiscal years, or
no later than 90 days after the close of the last month of each of its fiscal
years, a job status report describing each construction project which is ongoing
or which the Company or any Subsidiary or any Joint Venture into which any of
them has entered has contracted to undertake and for which any of them over the
term of the contract is contractually entitled to be paid an aggregate amount of
$2,000,000 or more, in substantially the form of Exhibit E;
(d) as soon as available, but no later than 45 days after the end
of each calendar quarter (other than the last calendar quarter) of each year, or
no later than 90 days after the end of the last calendar quarter of each year, a
list of any anticipated construction bids for any Subsidiary where the bid
amount is anticipated to exceed $25,000,000 (including any bids made by a Joint
Venture in which such Subsidiary will participate) in substantially the form of
Exhibit E; and
(e) as soon as available, but not later than 45 days after the end
of each calendar quarter, a description of any equity investment in excess of
$1,000,000 by the Company or any Subsidiary in a project, with a brief
description of any financial results for the relevant reporting period that
deviate materially from the Company's good faith estimates previously furnished
to the Agent and the Banks.
7.02 Certificates: Other Information. The Company shall furnish to the
Agent with sufficient copies for each Bank:
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(a) concurrently with the delivery of the financial statements
referred to in subsection 7.01 (a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.01 (a) and (b) above, a certificate of a
Responsible Officer of the Company (i) stating that, to the best of such
officer's knowledge, the Company, during such period, has observed or performed
all of its covenants and other agreements, and satisfied every condition
contained in this Agreement to be observed, performed or satisfied by it, and
that such officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate, and (ii) showing in detail the
calculations supporting such statement in respect of Sections 8.04(d), 8.09(c),
8.10, 8.11, 8.12, 8.13 and 8.18(e);
(c) to the extent not previously delivered by the Company pursuant
to Section 7.01, (i) promptly after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders, and (ii)
promptly after the same are filed, copies of all financial statements and
regular, periodical or special reports which the Company may make to, or file
with, the SEC; and
(d) promptly, such additional financial and other information as
the Agent, at the request of any Bank, may from time to time reasonably request.
7.03 Notices. The Company shall promptly notify the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default and of
the occurrence or existence of any event or circumstance which is reasonably
likely to become a Default or Event of Default;
(b) of any (i) breach or non-performance of, or any default under
any Contractual Obligation of the Company or any of its Subsidiaries which is
reasonably likely to result in a Material Adverse Effect; or (ii) dispute,
litigation, investigation, proceeding or suspension which may exist at any time
between the Company or any of its Subsidiaries and any Governmental Authority
and which relates to or affects the ability of the Company or its Subsidiaries
to do business substantially in accordance with past practice, or which, if
adversely determined, would have a Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed and not fully covered by insurance is $2,000,000
(or its equivalent in another currency or currencies) or more, (ii) in which
injunctive or similar relief is sought and which, if adversely determined, is
reasonably likely to have a Material Adverse Effect, or (iii) in which the
relief sought is an injunction or other stay of the performance of (x) this
Agreement or any Loan Document or (y) the operations of the Company or any of
its Subsidiaries;
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(d) upon, but in no event later than ten days after, becoming
aware of (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions involving a potential liability in excess of $1,000,000 in
the aggregate instituted, completed or threatened against the Company or any
Subsidiary or any of their properties pursuant to any applicable Environmental
Laws, (ii) all other Environmental Claims involving the Company or a Subsidiary
with a potential liability in excess of $1,000,000 in the aggregate, and (iii)
any environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Company or any Subsidiary that could reasonably
be anticipated to cause such property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws and involving a potential liability in
excess of $1,000,000 in the aggregate;
(e) of any other litigation or proceeding affecting the Company or
any of its Subsidiaries which the Company would be required to report to the SEC
pursuant to the Exchange Act, within four days after reporting the same to the
SEC;
(f) any and all ERISA Events affecting the Company or any member
of its Controlled Group involving a potential liability in excess of $1,000,000
in the aggregate (but in no event more than ten days after any such ERISA Event)
together with (i) a copy of any notice with respect to any such ERISA Events
that may be required to be filed with the PBGC and (ii)any notice delivered by
the PBGC to the Company or any member of its Controlled Group with respect to
any such ERISA Events;
(g) promptly upon becoming aware thereof, of any Material Adverse
Effect subsequent to the date of the most recent audited financial statements of
the Company delivered to the Banks pursuant to subsection 7.01(a);
(h) upon becoming aware thereof, of any labor controversy
resulting in or threatening to result in, any strike, work stoppage, boycott,
shutdown or other labor disruption against or involving the Company or any
Subsidiary which would materially impact the operations of the Company or any
Subsidiary;
(i) within three Business Days after the date of such occurrence,
if any Person shall become a Subsidiary of the Company; and
(j) if applicable, upon the request from time to time of the
Agent, the Swap Termination Values, together with a description of the method by
which such values were determined, relating to any then-outstanding Swap
Contracts to which the Company or any of its Subsidiaries is party.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of the Company, setting forth details
of the occurrence referred to therein and, in the case of subsections (a)
through (h), stating what action the Company proposes to take with respect
thereto.
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7.04 Preservation of Corporate Existence, Etc. The Company shall and
shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its State or jurisdiction of
incorporation;
(b) preserve and maintain in fall force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business except in connection with
transactions permitted by Section 8.03 and sales of assets permitted by Section
8.02;
(c) use its reasonable efforts, in the ordinary course and
consistent with past practice, to preserve its business organization and
preserve the goodwill and business of the customers, suppliers and others having
business relations with it; and
(d) preserve or renew all of its registered trademarks, trade
names and service marks, the non-preservation of which are reasonably likely to
have a Material Adverse Effect.
7.05 Maintenance of Property. Except as permitted in Section 8.02 and
Section 8.03, the Company shall maintain, and shall cause each of its
Subsidiaries to maintain, and preserve all its property which is used or useful
in its business in good working order and condition, ordinary wear and tear
excepted and make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so would not have a Material Adverse
Effect. The Company shall, and shall cause each of its Subsidiaries to, use the
standard of care typical in the industry in the operation of its facilities.
7.06 Insurance. The Company shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons, including workers' compensation insurance,
public liability and property and casualty insurance which amount shall not be
reduced by the Company or such Subsidiary in the absence of thirty days' prior
notice to the Agent. Upon request of the Agent, the Company shall furnish the
Agent, with copies for each Bank, at reasonable intervals (but not more than
once per calendar year) a certificate of a Responsible Officer of the Company
(and, if requested by the Agent any insurance broker of the Company or any
Subsidiary) setting forth the nature and extent of all insurance maintained by
the Company and its Subsidiaries in accordance with this Section 7.06 (and
which, in the case of a certificate of a broker, were placed through such
broker).
7.07 Payment of Obligations. Except to the extent that noncompliance
would not result in liability in excess of $1,000,000 in the aggregate, the
Company shall, and shall cause its Subsidiaries to, pay and discharge as the
same shall become due and payable, all their respective obligations and
liabilities, including:
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(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, might by law become a Lien
upon its property; and
(c) all Indebtedness as and when due and payable but subject to
any subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
7.08 Compliance with Laws. The Company shall comply, and shall cause each
of its Subsidiaries to comply, in all material respects with all Requirements of
Law of any Governmental Authority having jurisdiction over it or its business
(including the federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.09 Inspection of Property and Books and Records. The Company shall
maintain, and shall cause each of its Subsidiaries to maintain, proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiaries.
The Company will permit, and will cause each of its Subsidiaries to permit,
representatives of the Agent or any Bank to visit and inspect any of their
respective properties, to examine their respective corporate, financial and
operating records and make copies thereof or abstract therefrom, and to discuss
their respective affairs, finances and accounts with their respective directors,
officers, employees and independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company, but at no expense to the Company;
provided, however, when an Event of Default exists the Agent or any Bank may
visit and inspect at the expense of the Company such properties at any time
during normal business hours and without advance notice.
7.10 Environmental Laws.
(a) The Company shall, and shall cause each of its Subsidiaries
to, conduct its operations and keep and maintain its property in compliance with
all Environmental Laws.
(b) Upon written request of the Agent or any Bank, the Company
shall submit and cause each of its Subsidiaries to submit, to the Agent and such
Bank, at the Company's sole cost and expense and at reasonable intervals, a
report providing an update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice or report
required pursuant to subsection 7.03(d) and any other environmental, health or
safety compliance obligation, remedial obligation or liability, that could,
individually or in the aggregate, result in liability in excess of $1,000,000.
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7.11 Use of Proceeds. The Company shall use the proceeds of the Revolving
Loans solely for working capital and other general corporate purposes (including
stock repurchases and acquisitions not prohibited hereunder) not in
contravention of any Loan Document or any Requirement of Law.
7.12 Solvency. The Company shall continue to be, and cause each of its
Subsidiaries to be, Solvent.
ARTICLE VIII
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank shall
have any Commitment hereunder, any Letter of Credit shall be outstanding, or any
Loan or other amount payable hereunder shall remain unpaid, unless the Majority
Banks waive compliance in writing:
8.01 Limitation on Liens. The Company shall not, nor shall it permit any
of its Subsidiaries to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property or
assets, whether now owned or hereafter acquired, or offer or agree to do so,
other than the following ("Permitted Liens"):
(a) any lien existing on the Closing Date on the property of the
Company or its Subsidiaries, which is set forth in Schedule 8.01 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 7.07, provided that no
Notice of Lien has been filed or recorded;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the Ordinary Course
of Business which are not delinquent or remain payable without penalty;
(e) Liens (other than any Lien imposed by ERISA) on the property
of the Company or any of its Subsidiaries incurred, or pledges or deposits
required, in connection with workmen's compensation, unemployment insurance and
other social security legislation;
(f) Liens on the property of the Company or any of its
Subsidiaries securing (i) the performance of bids, trade contracts (other than
for borrowed money), leases, and statutory obligations, and (ii) obligations on
surety and appeal bonds, and (iii) other obligations of a like nature incurred
in the Ordinary Course of Business provided all such Liens in the aggregate are
not reasonably likely to result in a Material Adverse Effect;
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(g) Easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries,
taken as a whole;
(h) liens on assets acquired after the date of this Agreement
provided, however, that such Liens existed at the time such assets were acquired
and were not created in anticipation thereof;
(i) Purchase money security interests and Liens with respect to
any conditional sale or other title retention agreements and any lease in the
nature thereof (other than capital leases) on any property acquired or held by
the Company or its Subsidiaries in the Ordinary Course of Business (including
accessions thereto and proceeds arising from the disposition thereof), securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property; provided that (A) any such Lien attaches to
such property concurrently with or within 30 days after the acquisition thereof,
(B) any such Lien with respect to purchase money security interests, conditional
sales or other title retention agreements encumber only property and accessions
thereto (and proceeds arising from the disposition thereof) which are subject to
such conditional sale or other title retention agreement or lease in the nature
thereof or acquired using the proceeds of Indebtedness secured by such purchase
money security interest, and (C) the aggregate outstanding principal amount of
the Indebtedness secured by any such arrangements shall not exceed $12,000,000;
(j) Liens on any property securing Indebtedness permitted to be
incurred pursuant to subsections 8.08(c) and 8.08(d);
(k) Liens on the partnership interests of Granite SR 91 L.P., a
Subsidiary of the Company, in California Private Transportation Company, L.P.,
granted in connection with the financing of that certain construction project
known as SR-91;
(l) Leases or subleases and licenses and sublicenses entered into
in the Ordinary Course of Business granted to others not interfering in any
material respect with the businesses of the Company and its Subsidiaries, taken
as a whole, and any interest or title of a lessor or licensor under any lease or
license;
(m) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.01(h);
(n) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(o) Liens securing reimbursement obligations of the Company or its
Subsidiaries with respect to commercial letters of credit obtained in the
Ordinary Course of
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Business and not prohibited hereby; provided, that such Liens shall attach only
to documents or other property relating to such letters of credit and products
and proceeds thereof;
(p) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided, that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution; and
(q) Any Lien renewing, extending, or refunding any Lien permitted
under clauses (a) to (p), inclusive, of this Section 8.01, provided, that the
principal amount secured is not increased and that such Lien is not extended to
other property (other than pursuant to its original terms).
8.02 Disposition of Assets. The Company shall not, nor shall it permit
any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
all or a substantial part of its assets, business or property (including
accounts and notes receivable (with or without recourse) and equipment
sale-leaseback transactions) or enter into any agreement to do any of the
foregoing, except:
(a) dispositions by the Company or any of its Subsidiaries of
inventory, used or worn-out property, or property which is no longer necessary
to the operations of the Company or any of its Subsidiaries in the Ordinary
Course of Business;
(b) equipment which is sold by the Company or any of its
Subsidiaries in the Ordinary Course of Business; provided, however, that the
sale proceeds from each sale of equipment are used within 12 months of such sale
to replace the equipment sold with other equipment and/or real property of
equivalent fair market value and for use in the Ordinary Course of Business;
(c) real property which is sold by the Company or any of its
Subsidiaries in the Ordinary Course of Business; provided, however, that the
sale proceeds from each sale of real property are used within 12 months of such
sale to replace the real property sold with other real property and/or equipment
of equivalent fair market value and for use in the Ordinary Course of Business;
and
(d) other sales of assets not described in subparagraphs (a), (b)
or (c); provided, however, that the aggregate consideration from such sales
received by the Company and its Subsidiaries, including aggregate cash received
and the aggregate fair market value of non-cash property received, shall not
exceed $12,000,000 in each fiscal year.
8.03 Consolidations and Mergers. The Company shall not, nor shall it
permit any of its Subsidiaries to, merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of
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(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) or enter into any
Joint Venture or partnership with, any Person except:
(a) any Subsidiary of the Company may merge, consolidate or
combine with or into, or transfer assets to the Company (provided that the
Company shall be the continuing or surviving corporation) or with any one or
more Subsidiaries of the Company (provided that if any transaction shall be
between a Subsidiary and a wholly owned Subsidiary, the wholly owned Subsidiary
shall be the continuing or surviving corporation);
(b) any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise), to the Company or another wholly owned Subsidiary of the Company; if
immediately after giving effect thereto, no Default or Event of Default would
exist;
(c) the Company may merge, consolidate or combine with another
entity if (i) the Company is the corporation surviving the merger, and (ii)
immediately after giving effect thereto, no Default or Event of Default would
exist; and
(d) the Company or any of its Subsidiaries may enter into any
Joint Venture or partnership with any Person in the Ordinary Course of Business.
8.04 Loans and Investments. The Company shall not, directly or
indirectly, purchase or acquire, or permit any of its Subsidiaries to purchase
or acquire, or make any commitment therefor, any capital stock, equity interest,
assets, obligations or other securities of or any interest in, any Person, or
make any advance, loan, extension of credit or capital contribution to or any
other investment in, any Person including any Affiliates of the Company, except
for: (a) investments in accordance with Schedule 8.04;(b) extensions of credit
in the nature of accounts receivable or notes receivable arising from the sale
or lease of goods or services in the Ordinary Course of Business; (c) extensions
of credit by the Company to any of its wholly owned Subsidiaries or by any of
its wholly owned Subsidiaries to another of the wholly owned Subsidiaries of the
Company; (d) investments in up to 33.334% (when aggregated with the amount of
any such investments made in 1996) of the capital stock of TIC Holdings, Inc.,
not to exceed in aggregate amount (when aggregated with the amount of any such
investments made in 1996) the amount of $21,000,000; provided, that, such
investments are made during the calendar year 1997; or (e) additional purchases
of or investments in the stock of Subsidiaries or the capital stock, assets,
obligations or other securities of or interest in other Persons not exceeding in
any fiscal year 1O% of the Company's consolidated Tangible Net Worth as of the
last day of the immediately preceding fiscal year.
8.05 Transactions with Affiliates. The Company shall not and shall not
permit any of its Subsidiaries to enter into any transaction will any affiliate
of the Company or of any such Subsidiary except as contemplated by this
Agreement or in the Ordinary Course of Business and pursuant to the reasonable
requirements of the business of the Company or such Subsidiary and upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than would
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obtain in a comparable arm's-length transaction with a Person not an Affiliate
of the Company or such Subsidiary.
8.06 Contingent Obligations. The Company shall not, nor shall it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the Ordinary Course
of Business;
(b) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed in Schedule 8.06;
(c) the assumption and performance of the Company's co-joint
venturers' Joint Venture obligations when, in the Company's good faith judgment,
such financial arrangement best serves the Company's financial interests;
(d) any guaranty of or contingent liability for the obligation of
a subcontractor of the Company or its Subsidiaries on a construction project,
provided the Company or such Subsidiary determines in good faith that such
financial arrangement best serves the Company's or such Subsidiary's financial
interests;
(e) any guaranty of or, without duplication, contingent liability
for, any letters of credit issued for the account of the Company or any
Subsidiary (but not including Letters of Credit issued hereunder) entered into
in the Ordinary Course of Business in an aggregate amount outstanding not to
exceed $12,000,000, which limit shall include letters of credit set forth on
Schedule 6.11(c);
(f) pursuant to the Guaranty(ies);
(g) reimbursement obligations in respect of letters of credit
Issued under this Agreement or not prohibited hereby;
(h) Permitted Swap Obligations; or
(i) the guaranty of the obligations of California Private
Transportation Company, L.P. represented by the Lien on the partnership
interests of Granite SR 91 L.P. permitted pursuant to subsection 8.01(k).
8.07 Compliance with ERISA. The Company shall not directly or indirectly
and shall not permit any ERISA Affiliate directly or indirectly (i) to terminate
any Plan subject to Title IV of ERISA so as to result in any material (in the
opinion of the Majority Banks) liability to the Company or any ERISA Affiliate
(ii) to permit to exist any ERISA Event or any other event or condition which
presents the risk of a material (in the opinion of the Majority Banks) liability
of the Company or any ERISA Affiliate, or (iii) to make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from any Multiemployer
Plan so as to result in any material (in the opinion of the Majority Banks)
liability to the Company or any ERISA Affiliate, (iv) to
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enter into any new Plan or modify any existing Plan so as to increase its
obligations thereunder except in the ordinary course of business consistent with
past practice which could result in any material (in the opinion of the Majority
Banks) liability to the Company or any ERISA Affiliate, or (v) permit the
present value of all nonforfeitable accrued benefits under each Plan (using the
actuarial assumptions utilized by the PBGC upon termination of a Plan)
materially (in the opinion of the Majority Banks) to exceed the fair market
value of Plan assets allocable to such benefits, all determined as of the most
recent valuation date for each such Plan.
8.08 Lease Obligations. The Company shall not, nor shall it permit any of
its Subsidiaries to, create or suffer to exist any obligations for the payment
of rent for any property under lease or agreement to lease, except for:
(a) leases of the Company and its Subsidiaries in existence on the
Closing Date and listed on Schedule 6.11(d) and any renewal, extension or
refinancing thereof;
(b) after the Closing Date, any leases entered into by the Company
or any of its Subsidiaries in the Ordinary Course of Business;
(c) after the Closing Date, any lease entered into by the Company
or any of its Subsidiaries; provided, that:
(i) immediately prior to giving effect to such lease, the
property or asset subject to such lease was sold by the Company or any
such Subsidiary to the lessor under such lease for not less than fair
market value; and
(ii) no Default or Event of Default would occur as a result
of such sale and subsequent lease;
(d) after the Closing Date, capital leases other than those
permitted under clauses (a), (b) and (c) of this Section 8.08 entered into by
the Company or any of its Subsidiaries to finance the acquisition of equipment,
provided that Capital Lease Obligations shall not exceed in any fiscal year
$6,000,000.
8.09 Restricted Payments. The Company shall not acquire for value (or
permit any of its Subsidiaries to do so) any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or hereafter
outstanding; except that the Company may, in accordance with applicable
Requirements of Law (a) purchase, redeem or otherwise acquire shares of its
common stock or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its common
stock, (b) purchase, redeem or otherwise acquire shares of common stock for cash
in order to contribute such shares to the Company's employee stock-ownership
plan provided that the aggregate amount paid by the Company in connection with
such transactions does not exceed in any fiscal year the amount equal to 15% of
plan compensation (as such term is interpreted for purposes of Section
4.01(a)(17) of the Code) paid by the Company in such fiscal year, and such
shares are promptly so contributed; and (c) purchase, redeem or otherwise
acquire shares of its capital stock or warrants,
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rights or options to acquire any such shares for cash in an aggregate amount not
to exceed $35,000,000 computed on a cumulative basis during the term of this
Agreement; provided, that, notwithstanding the aggregate amount of
consideration, the number of shares (or warrants, rights or options to acquire
any such shares) allowed to be purchased under this clause (c) shall not exceed
15% of the number shares of capital stock of the Company outstanding as of the
Closing Date; and provided, further, that in each case (a), (b) and (c), both
immediately before and after giving effect to such proposed action, no Default
or Event of Default exists or would exist.
8.10 Current Ratio. The Company shall not permit (as of the end of any
fiscal quarter) the ratio of Consolidated Current Assets to Consolidated Current
Liabilities to be less than (i) 1.25 to 1.00 at the end of the first quarter of
each fiscal year and (ii) 1.30 to 1.00 at the end of the second, third and
fourth quarter of each fiscal year.
8.11 Consolidated Tangible Net Worth. The Company shall not permit its
consolidated Tangible Net Worth at any time during any fiscal quarter to be less
than $174,200,000, plus 50% of net earnings (without reduction for losses)
accrued after March 31, 1997, plus 75% of the net proceeds of any new common
stock issued by the Company.
8.12 Leverage Ratio. The Company shall not at any time during any fiscal
quarter permit its ratio of total consolidated Indebtedness to consolidated
Tangible Net Worth to be greater than 0.75 to 1.00.
8.13 Cash Flow Ratio. The Company shall not permit (as of the end of any
fiscal quarter) the ratio of (a) its consolidated Cash Flow for the four most
recent quarters ending with such fiscal quarter to (b) its consolidated interest
expense and principal due and payable on Indebtedness for the four most recent
quarters ending with such fiscal quarter to be less than 1.75 to 1.00.
8.14 Change in Business. The Company shall not, and shall not permit any
of its Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by it on the date hereof.
8.15 Change in Structure. Except as permitted under Section 8.03, the
Company shall not and shall not permit any of its Subsidiaries to, make any
changes in its capital structure (including in the terms of its outstanding
stock) or amend its certificate of incorporation or by-laws if, as a result,
there would be a reasonable likelihood of having a Material Adverse Change.
8.16 Accounting Changes. The Company shall not, and shall not permit any
of its Subsidiaries to, make any significant change in accounting treatment and
reporting practices, except as permitted by GAAP and as would not reasonably be
expected to result in any measurable change in the Company's consolidated
financial statements or in any financial test or measurement reference in this
Agreement, or change the fiscal year of the Company or any of its Subsidiaries.
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8.17 Other Contracts. The Company shall not, and shall not permit any of
its Subsidiaries to, enter into any employment contracts or other arrangements
whose terms, including salaries, benefits and other compensation, are different
from those entered into in the Ordinary Course of Business.
8.18 Limitation on Indebtedness. The Company shall not suffer or permit
any of its Subsidiaries to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 8.06;
(b) Indebtedness existing on the Closing Date and set forth in
Schedule 8.18;
(c) Indebtedness secured by Liens permitted by subsection 8.01
(i) in an aggregate amount outstanding not to exceed $12,000,000;
(d) Indebtedness incurred in connection with leases permitted
pursuant to Section 8.08;
(e) Without duplication, Indebtedness incurred in connection with
letters of credit issued for the account of the Company or any of its
Subsidiaries (but not including Letters of Credit issued hereunder) entered into
in the Ordinary Course of Business in an aggregate amount outstanding not to
exceed $12,000,000, which limit shall include letters of credit set forth on
Schedule 6.11(c);
(f) Indebtedness incurred in the Ordinary Course of Business in
connection with (i) securing the performance of bids, trade contracts (other
than for borrowed money), and statutory obligations, and (ii) obligations on
surety and appeal bonds, and (iii) other obligations of a like nature incurred
in the Ordinary Course of Business;
(g) Indebtedness of a wholly owned Subsidiary of the Company to
another wholly owned Subsidiary of the Company or to the Company and
Indebtedness of the Company to any wholly owned Subsidiary of the Company; and
(h) Indebtedness incurred under the Loan Documents, and Letters of
Credit Issued under the Loan Documents.
8.19 Use of Proceeds.
(a) Except in the case of clauses (i), (ii), and (iii), as the
same will not result in a violation of Regulation G, T, U or X of the FRB or any
other applicable Requirement of Law, the Company shall not, and shall not suffer
or permit any Subsidiary to, use any portion of the Loan proceeds or any Letter
of Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii)
to repay or otherwise refinance indebtedness of the Company or others incurred
to
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▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) to extend credit for the purpose of
purchasing or carrying any Margin Stock, or (iv) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Exchange Act.
(b) The Company shall not, directly or indirectly, use any portion
of the Loan proceeds or any Letter of Credit (i) knowingly to purchase
Ineligible Securities from the Arranger during any period in which the Arranger
makes a market in such Ineligible Securities, (ii) knowingly to purchase during
the underwriting or placement period Ineligible Securities being underwritten or
privately placed by the Arranger, or (iii) to make payments of principal or
interest on Ineligible Securities underwritten or privately placed by the
Arranger and issued by or for the benefit of the Company or any Affiliate of the
Company. BancAmerica Securities, Inc. is a registered broker-dealer and
permitted to underwrite and deal in certain Ineligible Securities. "Ineligible
Securities" means securities which may not be underwritten or dealt in by member
banks of the Federal Reserve System under Section 16 of the Banking Act of 1933
(12 U.S.C. Section 24, Seventh), as amended.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following events shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay when due any amount of
principal of any Loan or L/C Borrowing; or fails to pay within three Business
Days of when due any interest, fees or any other amount payable hereunder or
pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by
the Company or any of its Subsidiaries herein, in any Loan Document or which is
contained in any certificate, document or financial or other statement furnished
at any time under this Agreement, or in or under any Loan Document, shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Other Defaults. (i) The Company fails to perform or observe
any term, covenant or agreement set forth in Sections 7.03(a), 7.04(a), 7.11,
7.12, 8.03(c), 8.10, 8.11, 8.12, 8.13 or 8.19;
(ii) The Company fails to perform or observe any term,
covenant or agreement set forth in Sections 2.14, 7.01, 7.02, 7.03 (other
than subsection (a) thereof) or 7.09 or Article VIII (except Sections
8.03(c), 8.10, 8.11, 8.12, 8.13 or 8.19) and such failure shall continue
unremedied for a period of five days after the earlier of (i) the date
upon which a Responsible Officer knew or reasonably should have known of
such failure or (ii) the date upon which written notice thereof is given
to the Company by the Agent or any Bank;
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(iii) The Company fails to perform or observe any term,
covenant or agreement contained in this Agreement not specifically
mentioned in this Article (including subparagraphs (c)(i) or (c)(ii)) and
such failure shall continue unremedied for a period of thirty days after
the earlier of (i) the date upon which a Responsible Officer knew or
reasonably should have known of such failure or (ii) the date upon which
written notice thereof is given to the Company by the Agent or any Bank;
or
(d) Cross-Default. The Company or any of its Subsidiaries (i)
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Contingent Obligation having an aggregate principal amount of more than
$3,500,000 and such failure continues after the applicable grace or notice
period, if any, specified in the agreement or instrument relating thereto; (ii)
fails to perform or observe any other condition or covenant or any other event
shall occur or condition exist under any agreement or instrument relating to any
Indebtedness or Contingent Obligation, having an aggregate principal amount of
more than $3,500,000 if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable prior to its stated maturity (or any Guaranty
Obligation of such Person to become payable) or cash collateral in respect
thereof to be demanded; or (iii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (1) any event
of default under such Swap Contract as to which the Company or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (2) any Termination
Event (as so defined) as to which the Company or any Subsidiary is an Affected
Party (as so defined), and, in either event, the Swap Termination Value owed by
the Company or such Subsidiary as a result thereof is greater than $3,500,000;
provided, however, that no failure to perform described in subparagraph (d)(ii)
or (d)(iii) only shall constitute an Event of Default if, prior to any exercise
of remedies by the Agent and the Majority Banks under Section 9.02 hereof, such
failure to perform has been waived in writing by the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or by a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries); or
(e) Bankruptcy or Insolvency. The Company or any of its
Subsidiaries (i) becomes insolvent or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the Ordinary Course of Business;
(iii) commences any Insolvency Proceeding or files any petition or answer in any
Insolvency Proceeding; (iv) acquiesces in the appointment of a receiver,
trustee, custodian or liquidator for itself or a substantial portion of its
property, assets or business or effects a plan or other arrangement with its
creditors; (v) admits the material allegations of a petition filed against it in
any Insolvency Proceeding; or (vi) takes any action to effectuate any of the
foregoing; or
(f) Involuntary Proceedings. Any involuntary Insolvency Proceeding
is commenced or filed against the Company or any of its Subsidiaries or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part
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of the Company's or any of its Subsidiaries' assets and any such proceedings or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; or
(g) ERISA. (i) The Company or an ERISA Affiliate shall fail to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under a Multiemployer Plan;
(ii) the Company or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as defined in
Section 4001 (a)(2) or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension Liabilities is more than
$1,000,000; (iv) in the case of an ERISA Event involving the complete or partial
withdrawal from a Multiemployer Plan, the withdrawing employer has incurred a
withdrawal liability in an aggregate amount exceeding $1,000,000; (v) in the
case of an ERISA Event not described in clause (iii) or (iv), the Unfunded
Pension Liabilities of the relevant Plan or Plans exceed $1,000,000; (vi) a
Plan that is intended to be qualified under Section 401(a) of the Code shall
lose its qualification, and the loss can reasonably be expected to impose on the
Company or an ERISA Affiliate liability (for additional taxes, to Plan
participants, or otherwise) in the aggregate amount of $1,000,000 or more; (vi)
the commencement or increase of contributions to, the adoption of, or the
amendment of a Plan by, the Company or an ERISA Affiliate shall result in a net
increase in unfunded liabilities to the Company or an ERISA Affiliate in excess
of $1,000,000; or (vii) the occurrence of any combination of events listed in
clauses (iii) through (vii) that involves a net increase in aggregate Unfunded
Pension Liabilities and unfunded liabilities in excess of $1,000,000; or
(h) Monetary Judgments. One or more final judgments, orders or
decrees shall be entered against the Company or any of its Subsidiaries
involving in the aggregate a liability (not covered by insurance) of $1,500,000
or more and the same shall remain unvacated, undischarged, unstayed or unbonded
pending appeal for a period of ten days after the date upon which payment must
be made pursuant thereto; or
(i) Non-Monetary Judgments. Any non-monetary judgment, order or
decree shall be rendered against the Company or any of its Subsidiaries which
does have or is reasonably likely to have a Material Adverse Effect, and either
(i) enforcement proceedings shall have been commenced by any Person upon such
judgment or order or (ii) there shall be any period of ten consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(j) Adverse Change. There shall occur a Material Adverse Effect;
or
(k) Guarantor Defaults. Any Guarantor shall fail in any material
respect to perform or observe any term, covenant or agreement in the Guaranty to
which it is a party; or any Guaranty shall for any reason be partially
(including with respect to future advances) or wholly revoked or invalidated, or
otherwise cease to be in full force and effect (except in accordance
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with its terms), or any Guarantor or any other Person shall contest in any
manner the validity or enforceability thereof or deny that it has any further
liability or obligation thereunder.
9.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks, (a) declare the
Commitments of each Bank to make Loans and any obligation of the Issuing Bank to
Issue Letters of Credit to be terminated, whereupon such Commitments and
obligation shall forthwith be terminated; (b) declare an amount equal to the
maximum aggregate amount that is or at any time thereafter may become available
for drawing under any outstanding Letters of Credit (whether or not any
beneficiary shall have presented, or shall be entitled at such time to present,
the drafts or other documents required to draw under such Letters of Credit) to
be immediately due and payable, and declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon and all other amounts
payable hereunder to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Company; (c) exercise all rights and remedies available to it
under the Loan Documents or applicable law; provided, however, that upon the
occurrence of any event specified in subsections 9.01(e) or (f) above (in the
case of such subsection 9.01(f) upon the expiration of the 60 day period
mentioned therein), the obligation of each Bank to make Loans and any obligation
of the Issuing Bank to Issue Letters of Credit shall automatically terminate and
the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without further
act of the Agent or any Bank.
9.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent." (a) Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
(b) The Issuing Bank shall act on behalf of the Banks with respect
to any Letters of Credit Issued by it and the documents associated therewith
until such time and except for so long as the Agent may agree at the request of
the Majority Banks to act for such Issuing
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Bank with respect thereto; provided, however, that the Issuing Bank shall have
all of the benefits and immunities (i) provided to the Agent in this Article X
with respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent," as used in this Article X,
included the Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuing Bank.
(c) Without limiting the generality of the foregoing subsections
and notwithstanding any other provisions herein, the use of the term "agent" or
"Agent" in this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(d) The provisions of this Article X shall survive the payment of
all Obligations hereunder and inure to the benefit of BofA, including after its
resignation or replacement as the Agent, as to any actions taken or omitted to
be taken by such BofA while it was the Agent.
10.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.03 Liability of Agent. None of the Agent, its Affiliates, or any of
their respective officers, directors, employees, agents, or attorneys-in-fact
(collectively, the "Agent-Related Persons") shall (i) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct) or (ii) be
responsible in any manner to any of the Banks for any recital, statement,
representation or warranty made by the Company or any Subsidiary or Affiliate of
the Company or any officer thereof contained in this Agreement or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company or any of its Subsidiaries or
Affiliates.
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10.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, telecopy, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Majority
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 5.01 and 5.02, each Bank shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
the Bank prior to the Borrowing specifying its objection thereto and either such
objection shall not have been withdrawn by notice to the Agent to that effect or
the Bank shall not have made available to the Agent the Bank's ratable portion
of such Borrowing.
10.05 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees payable to
the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be requested by the
Majority Banks in accordance with Article IX; provided, however, that unless and
until the Agent shall have received any such request, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
10.06 Credit Decision. Each Bank expressly acknowledges that none of the
Agent Related Persons has made any representation or warranty to it and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by the Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and
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creditworthiness of the Company and its Subsidiaries and made its own decision
to enter into this Agreement and extend credit to the Company hereunder. Each
Bank also represents that it will, independently and without reliance upon the
Agent and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Company which may come into the possession of any of the Agent-Related Persons.
10.07 Indemnification. The Banks agree to indemnify the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their outstanding Loans, or, if no Loans are outstanding,
their Commitments, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time following the repayment of the Loans) be imposed on, incurred by or
asserted against any such person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by any such person under or in connection with any of the foregoing; provided,
however, that no Bank shall be liable for the payment to any Agent-Related
Person of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such person's gross negligence or willful misconduct. Without limitation of
the foregoing, each Bank shall reimburse the Agent promptly upon demand for its
ratable share of any costs or out-of-pocket expenses (including fees and
expenses of counsel and the allocated cost of in-house counsel) incurred by the
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company.
10.08 Agent in Individual Capacity. BofA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent or the Issuing
Bank hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, BofA or is Affiliates may receive
information regarding the Company or its Affiliates (including information that
may be subject to confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, BofA shall
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have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Agent or the Issuing Bank.
10.09 Successor Agent. The Agent may, and at the request of the Majority
Banks shall, reign as Agent upon 30 days' notice to the Banks. If the Agent
shall resign as Agent under this Agreement, the Majority Banks, after consulting
with the Company, shall appoint from among the Banks a successor agent for the
Banks. If no successor Agent is appointed prior to the effective date of the
resignation of the Agent, the Agent shall appoint, after consulting with the
Banks and the Company, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring Agent's rights,
powers and duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article X and Sections
11.04 and 11.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement. Notwithstanding the
foregoing, however, BofA may not be removed as the Agent at the request of the
Majority Banks unless BofA shall also simultaneously be replaced as "Issuing
Bank" hereunder pursuant to, documentation in form and substance reasonably
satisfactory to BofA.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Banks, and then such waiver shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks do any of the following:
(a) increase the Commitment of any Bank or subject any Bank to any
additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest or (subject to clause (iii) below) fees or other amounts due hereunder
or under any Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (iii) below) of any fees or other
amounts payable hereunder or under any Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for the Banks or
any of them to take any action hereunder; or
(e) release any Guarantor from its obligations under its Guaranty;
or
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(f) amend this Section 11.01 or Section 2.13;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the Issuing Bank
under this Agreement or any L/C-Related Document relating to any Letter of
Credit issued or to be issued by it, (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Majority Banks,
affect the rights or duties of the Agent under this Agreement, and (iii) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing
executed by the parties thereto.
11.02 Notices.
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed or
delivered, if to the Company to its address specified on Schedule 11.02 hereof;
if to any Bank, to its Domestic Lending Office set forth on Schedule 11.02; and
if to the Agent, to its address specified on Schedule 11.02 hereof; or, as to
the Company or the Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as to each other party at
such other address as shall be designated by such party in a written notice to
the Company and the Agent. All such notices and communications shall, when
mailed by overnight delivery, telegraphed, telexed, cabled, be effective when
delivered for overnight delivery or to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the cable company,
respectively, or if delivered, upon delivery, except that notices to the Agent
pursuant to Article II or IX shall not be effective until received by the Agent,
and notices pursuant to Article III to the Issuing Bank shall not be effective
until actually received by the Issuing Bank at the address specified for the
"Issuing Bank" on the applicable signature page hereof.
(b) Any agreement of the Agent or the Banks to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any liability to the
Company or other Person on account of any action taken or not taken by the Agent
or any Bank in reliance upon such telephonic or facsimile notice. The obligation
of the Company to repay the Loans and L/C Obligations shall not be affected in
any way or to any extent by any failure by the Agent or any Bank to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Agent and the Banks of a confirmation which is at variance with the terms
understood by the Agent and the Banks to be contained in the telephonic or
facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of any Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
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11.04 Costs and Expenses. The Company shall:
(a) pay or reimburse the Agent on demand for all reasonable costs
and expenses incurred in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to, this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the reasonable costs and
expenses of counsel to the Agent (and the allocated cost of internal counsel)
with respect thereto;
(b) pay or reimburse each Bank and the Agent on demand for all
costs and expenses incurred by them in connection with the enforcement or
preservation of any rights (including in connection with any "workout" or
restructuring regarding the Loans) under this Agreement, any Loan Document, and
any such other documents, including fees and out-of-pocket expenses of counsel
(and the allocated cost of internal counsel) to the Agent and to each of the
Banks; and
(c) pay or reimburse the Agent on demand for all appraisal, audit,
search and filing fees, incurred or sustained by the Agent in connection with
the matters referred to under paragraphs (a) and (b) above.
11.05 Indemnity. The Company shall pay, indemnify, and hold the
Agent-Related Persons, and each Bank and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including reasonable fees and expenses of
counsel and allocated costs of internal counsel) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any such Indemnified Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Indemnified Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding related to this
Agreement or the Loans or the Letters of Credit or the use of the proceeds
thereof (whether or not any Indemnified Person is a party thereto) (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this section shall
survive payment of all other Obligations.
11.06 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to Section 11.07, except that the Company may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Bank.
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11.07 Assignments, Participations etc.
(a) Any Bank may, with the written consent of the Company and the
Agent and the Issuing Bank, which consents shall not be unreasonably withheld,
at any time assign and delegate to one or more Eligible Assignees (each an
"Assignee") all or any ratable part of the Aggregate Commitment and of the
entire Aggregate Revolving Commitment, Aggregate Term Commitment and Aggregate
L/C Commitment or any other rights or obligations of such Bank hereunder in a
minimum amount of $10,000,000 or, if less, 100% of such Bank's Commitments;
provided, however, that with the consent of the Agent and the Issuing Bank
(which shall not be unreasonably withheld) but without the consent of the
Company, any Bank may assign all or any ratable part of the Aggregate Commitment
and of the entire Aggregate Revolving Commitment, Aggregate Term Commitment and
Aggregate L/C Commitment or any other rights or obligations of such Bank
hereunder in a minimum amount of $10,000,000, or, if less 100% of such Bank's
Commitments, to any entity described in subsection (iii) of the definition of
Eligible Assignee (together with the foregoing defined Assignees, "Assignees");
provided further, however, that the Company, the Issuing Bank and the Agent may
continue to deal solely and directly with such Bank in connection with the
interests so assigned to an Assignee until (i) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Company
and the Agent by such Bank and the Assignee, (ii) such Bank and its Assignee
shall have delivered to the Company, the Issuing Bank and the Agent an
Assignment and Acceptance in the form of Exhibit G ("Assignment and Acceptance")
and (iii) the processing fee of $3,500 shall have been paid to the Agent.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received the Assignment and Acceptance, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Bank under the Loan
Documents and (ii) the assignor Bank shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Immediately upon each Assignee's making its payment under the
Assignment and Acceptance, this Agreement, shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more banks or other
entities (a "Participant") participating interests in all or any ratable part of
the Loans and the entire Commitment of that Bank or any other interest of that
Bank hereunder; provided, however, that (i) the Bank's obligations under this
Agreement shall remain unchanged, (ii) the Bank shall remain solely responsible
for the performance of such obligations, (iii) the Company and the Agent shall
continue to deal solely and directly with the Bank in connection with the Bank's
rights and obligations under this Agreement, and (iv) no Bank shall transfer or
grant any participating interest under which the Participant shall have rights
to approve any amendment to,
74
84
or any consent or waiver with respect to this Agreement except to the extent
such amendment, consent or waiver would require unanimous consent as described
in the first proviso to Section 11.01. In the case of any such participation,
the Participant shall not have any rights under this Agreement, or any of the
other Loan Documents, and all amounts payable by the Company hereunder shall be
determined as if such Bank had not sold such participation, except that if
amounts outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement in favor of any
Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
11.08 Set-off; Payments Set Aside.
(a) In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists, each Bank is authorized at any time and
from time to time, without prior notice to the Company, any such notice being
waived by the Company to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Bank to
or for the credit or the account of the Company against any and all obligations
of the Company now or hereafter existing under this Agreement or any other Loan
Document and any Loan held by such Bank irrespective of whether or not the Agent
or such Bank shall have made demand under this Agreement or any Loan Document
and although such obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Company and the Agent after any such set-off and
application made by such Bank; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Bank under this Section 11.08(a) are in addition to the other rights and
remedies (including without limitation, other rights of set-off) which the Bank
may have.
(b) To the extent that the Company or any Guarantor makes a
payment to the Agent or the Banks, or the Agent or any Bank exercises its right
of set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (i)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (ii)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
75
85
11.09 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of As Eurodollar Lending Office and
its Domestic Lending Office, of payment instructions in respect of all payments
to be made to it hereunder and of such other administrative information as the
Agent shall reasonably request.
11.10 Confidentiality. Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
non-public information provided to it by the Company or any Subsidiary of the
Company or by the Agent on such Company's or Subsidiary's behalf in connection
with this Agreement or any Loan Document and neither it nor any of its
Affiliates shall use any such information for any purpose or in any manner other
than pursuant to the terms contemplated by this Agreement, except to the extent
such information (i) was or becomes generally available to the public other than
as a result of a disclosure by the Bank, or (ii) was or becomes available on a
non-confidential basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the Company known to the
Bank; provided, however, that any Bank may disclose such information (A) at the
request of any Bank regulatory authority or in connection with an examination of
such Bank by any such authority; (B) pursuant to subpoena or other court
process; (C) when required to do so in accordance with the provisions of any
applicable law; (D) at the express direction of any other agency of any State of
the United States of America or of any other jurisdiction in which such Bank
conducts its business; (E) to such Bank's independent auditors and other
professional advisors; and (F) as to any Bank or its Affiliate, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is deemed
party with such Bank or such Affiliate. Notwithstanding the foregoing, the
Company authorizes each Bank to disclose to any Participant or Assignee (each, a
"Transferee") and any prospective Transferee such financial and other
information in such Bank's possession concerning the Company or its Subsidiaries
which has been delivered to the Banks pursuant to this Agreement or which has
been delivered to the Banks by the Company in connection with the Banks' credit
evaluation of the Company prior to entering into this Agreement; provided
further, however that such Transferee agrees in writing to such Bank to keep
such information confidential to the same extent required of the Banks
hereunder.
11.11 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.12 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND
76
86
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND
THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE
BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
11.13 No Third Parties Benefitted. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Banks, the Agent
and the Agent-Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement.
11.14 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire Agreement and understanding among the Company,
the Banks and the Agent and supersedes all prior or contemporaneous Agreements
and understandings of such persons, verbal or written, relating to the subject
matter hereof and thereof except for the fee letters referenced in subsections
2.09(a) and Section 3.08 and any prior arrangements made with respect to the
payment by the Company of (or any indemnification for) any fees, costs or
expenses payable to or incurred (or to be incurred) by or on behalf of the Agent
or one or more of the Banks.
11.15 Effect of Amendment and Restatement. This Agreement is intended to
completely amend, restate and replace the Prior Credit Agreement, without
novation. The Company hereby acknowledges certifies and agrees that if, pursuant
to the Prior Credit Agreement the Banks have made advances on a revolving basis
to the Company that are outstanding as of the date of this Agreement, or the
Issuing Bank has issued letters of credit that are outstanding as of the date of
this Agreement, (a) the Company's obligation to repay those advances to the
Banks and to reimburse the Issuing Bank in respect of such drawings under such
letters of credit is not subject to any defense, counterclaim, set-off, right of
recoupment, abatement or other claim or determination; and (b) those loans shall
continue and. constitute Revolving Loans (or Term Loans, pursuant to subsection
2.01 (c), as applicable), and those letters of credit shall continue and
constitute Letters of Credit, of the Company, in each case under and subject to
the terms and provisions of this Agreement. Notwithstanding the foregoing, any
obligation of the Company under the Prior Credit Agreement that by its terms
survives the termination of the "Aggregate Commitments" or repayment of other
"Obligations" under the Prior Credit Agreement, including the Company's
obligations (if any) under Articles IV and X and Sections 11.04 and 11.05, shall
survive the execution and effectiveness of this Agreement.
11.16 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement in any number of separate counterparts, each of which,
when so executed, shall
77
87
be deemed an original, and all of said counterparts taken together shall be
deemed to constitute but one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Company and
the Agent.
78
88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:
--------------------------------- ---------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title:
------------------------------ ------------------------------
Vice President & CFO
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ By:
--------------------------------- ---------------------------------
Title: ▇.▇. ▇▇▇▇▇▇▇▇▇▇ Title:
------------------------------ ------------------------------
Vice President & Treasurer
BANK OF AMERICA NATIONAL TRUST ABN-AMRO BANK N.V.,
AND SAVINGS ASSOCIATION, as Agent San Francisco International Branch
By: By:
--------------------------------- ---------------------------------
Title: Vice President Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST By:
AND SAVINGS ASSOCIATION, as a Bank and ---------------------------------
as Issuing Bank Title:
------------------------------
By:
--------------------------------
Title: Vice President
-----------------------------
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
89
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST AND ABN-AMRO BANK N.V.,
SAVINGS ASSOCIATION, as Agent San Francisco International Branch
By: /s/ [SIG] By:
--------------------------------- ---------------------------------
Title: Vice President Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST By:
AND SAVINGS ASSOCIATION, as a Bank and ---------------------------------
as Issuing Bank Title:
------------------------------
By: /s/ [SIG]
--------------------------------
Title: Vice President
-----------------------------
UNION BANK OF CALIFORNIA, N.A.
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
90
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST AND ABN-AMRO BANK N.V.,
SAVINGS ASSOCIATION, as Agent San Francisco International Branch
By: By:
--------------------------------- ---------------------------------
Title: Vice President Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST By:
AND SAVINGS ASSOCIATION, as a Bank and ---------------------------------
as Issuing Bank Title:
------------------------------
By:
--------------------------------
Title: Vice President
-----------------------------
UNION BANK OF CALIFORNIA, N.A.
By: /s/ [SIG]
--------------------------------
Title: Vice President
-----------------------------
By:
--------------------------------
Title:
-----------------------------
91
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ---------------------------------
Title: Title: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------ ------------------------------
Vice President
By: By: /s/ STEPHANE RONZE
--------------------------------- ---------------------------------
Title: Title: Stephane Ronze
------------------------------ ------------------------------
Assistant Vice President
BANK OF AMERICA NATIONAL TRUST ABN-AMRO BANK N.V.,
AND SAVINGS ASSOCIATION, as Agent San Francisco International Branch
By: By:
--------------------------------- ---------------------------------
Title: Vice President Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST By:
AND SAVINGS ASSOCIATION, as a Bank and ---------------------------------
as Issuing Bank Title:
------------------------------
By:
--------------------------------
Title: Vice President
-----------------------------
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
92
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
BANK OF AMERICA NATIONAL TRUST ABN-AMRO BANK N.V.,
AND SAVINGS ASSOCIATION, as Agent San Francisco International Branch
By: By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- ---------------------------------
Title: Vice President Title: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------
Assistant Vice President
BANK OF AMERICA NATIONAL TRUST By: /s/ ▇.▇. ▇▇▇▇▇▇▇
AND SAVINGS ASSOCIATION, as a Bank and ---------------------------------
as Issuing Bank Title: ▇. ▇. ▇▇▇▇▇▇▇
------------------------------
Group Vice President
By:
--------------------------------
Title: Vice President
-----------------------------
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
93
SCHEDULE 2.01(a)
TERM COMMITMENT
BANK TERM COMMITMENT
---- ---------------
Bank of America
National Trust and
Savings Association $11,250,000
Banque Nationale
de Paris $ 6,562,500
ABN-AMRO Bank N.V. $ 6,562,500
Union Bank of California, N.A. $ 5,625,000
-----------
Total $30,000,000
===========
94
SCHEDULE 2.01(b)
REVOLVING COMMITMENT
BANK REVOLVING COMMITMENT
---- --------------------
Bank of America
National Trust and
Savings Association $28,125,000
Banque Nationale
de Paris $16,406,250
ABN-AMRO Bank TM $16,406,250
Union Bank of California, N.A. $14,062,500
-----------
Total $75,000,000
===========
95
SCHEDULE 3.03
EXISTING LETTERS OF CREDIT
1. Letter of Credit #1171, as amended
Applicant: Granite Construction Company
Beneficiary: State of California Self-Insurance Plans
Original Issue Date: February 10, 1987
Expiry Date: March 15, 1998*
Current Face Amount: $3,585,430.00
*"Evergreen" letter of credit: provides for automatic one-year extensions unless
a notice of non-renewal is provided to the beneficiary not less than 45 days
prior to the expiry date of such letter of credit.
96
GRANITE CONSTRUCTION INCORPORATED
Schedule 5.01 (d)
Good Standing
97
GRANITE CONSTRUCTION INCORPORATED
Schedule 5.01(d)
Granite Construction Incorporated G.G. & R., Inc.
--------------------------------- ---------------
California Utah
Delaware
Nevada
Utah
Wyoming
Granite Construction Company Intermountain Slurry Seal. Inc.
---------------------------- -------------------------------
Alabama Arizona
Arizona California
Arkansas Colorado
California Idaho
Colorado Montana
Delaware Nevada
Florida Utah
Georgia
Hawaii
Idaho Bear River Contractors
Illinois ----------------------
Kentucky Arizona
Louisiana California
Maryland Colorado
Minnesota Idaho
Mississippi Montana
Missouri Nevada
Montana New Mexico
Nebraska Oregon
Nevada Utah
New Jersey Washington
New Mexico Wyoming
New York
North Carolina
North Dakota GTC, Inc.
Ohio ---------
Oklahoma Texas
Oregon
South Carolina
Tennessee Desert Aggregates Inc.
Texas ----------------------
Utah Arizona
Virginia California
Washington
Washington D.C.
West Virginia
Wyoming
98
Granite SR91 Corporation Granite SR91 LP
------------------------ ---------------
California California
▇▇▇▇▇▇▇ Corporation Pozzolan Products Company (P.P.C.)
------------------- ----------------------------------
California Arizona
Colorado Nevada
Utah
GILC LP GILC Incorporated
------- -----------------
Arizona California
California Florida
Colorado Utah
Florida Wyoming
Georgia
Idaho
Nevada
New Mexico
Texas
Utah
Wyoming
99
GRANITE CONSTRUCTION INCORPORATED
Schedule 6.07
ERISA Compliance
100
GRANITE CONSTRUCTION INCORPORATED
SCHEDULE 6.07
QUALIFIED PLANS
PLAN NAME SPONSOR
Granite Construction Profit Sharing Granite Construction Incorporated
and 401-K Plan
Granite Construction Employee Stock Granite Construction Incorporated
Ownership Plan
▇▇▇▇▇▇▇ Company Profit Sharing and G. G. & R., Incorporated
Retirement Plan*
* During the due diligence process Granite uncovered ERISA defined an
operational defect (under Code 401 (l) with ▇▇▇▇▇▇▇ Company Profit Sharing
and Retirement Plan. A Voluntary Compliance Resolution in compliance with
the requirements of Rev. Proc. 94-62 was filed on August 5, 1995.
Preliminary information indicates that to correct the defect will cost
between $100,000 (probable) to $250,000 (worst case), and as of February
14, 1997 has been assigned to an Internal Revenue Service agent for
review.
MULTIEMPLOYER PLANS
Signatory to the Agreement with, the Cement Masons, Operating Engineers,
Teamsters, Laborers, and Carpenters unions.
Carpenters Local #1620 (Wyoming) Operating Engineers (Material Testers) - Sacramento, CA
Carpenters (Construction) - Arizona Operating Engineers (MTL. Producers- PVT. Wk.) - Marysville, CA
Carpenters (Construction) - Northern and Southern California Operating Engineers (R, S & G) - Imperial County, CA
Carpenters (Construction) - Northern Nevada Operating Engineers (R, S & G) - Riverside/San Bernardino, CA
Carpenters (Construction) - San Diego, CA Piledrivers (Construction) - Northern and Southern California
Cement Masons (Construction) - Northern and Southern California Pipefitters Local #192 (Wyoming)
Cement Masons (Construction) - Northern Nevada Plasterers & Cement Masons Local No. 588 (Utah)
Cement Masons (Construction) - San San Diego, CA Plasters (Construction) - ▇▇▇▇▇▇▇ County, CA
Cement Masons (Farm Ditch) - Imperial County, CA Plumbers, Local 355 (Utility Construction)-Northern California
Laborers Local No. 295 (Utah) Teamsters Local No. 222 (Utah)
Laborers Local #12711 (Wyoming) Teamsters Local No. 976 (Utah)
Laborers (Construction) - Northern and Southern California Teamsters Local #307 (Wyoming)
Laborers (Construction) - Northern Nevada and Las Vegas, NV Teamsters (Construction) - Northern and Southern California
Laborers (Construction) - San Diego, CA Teamsters (Construction) - Northern Nevada and Las Vegas, NV
Laborers (Farm Ditch) - Imperial County, CA Teamsters (Construction)-San Diego, CA
Laborers (Tunnel Construction) - Northern and Southern California Teamsters (R, S & G) - Coalinga, CA
Operating Engineers Local No. 3 (Utah) Teamsters (R, S & G) - Imperial County, CA
Operating Engineers Local No. 800 (Wyoming) Teamsters (R, S & G) - ▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇) CA
Operating Engineers (Construction) - Northern California Teamsters (R, S & G) - Riverside/San Bernardino, CA
Operating Engineers (Construction ) - Northern Nevada and
Las Vegas, NV Teamsters (Readymix) - Reno, NV
Operating Engineers (Construction) - Southern California and
San Diego, CA Utah District Council of Carpenters
Operating Engineers (Farm Ditch) - Imperial County, CA Wyoming Building and Trades
In addition to above referenced plans, contributions have been made to the
▇▇▇▇-▇▇▇▇▇▇▇ Trust funds as required under collective bargaining agreements in
the states where Granite has performed work as follows:
Colorado Oklahoma
Georgia Oregon
Illinois Texas
Maryland Utah
Mississippi Washington
New Mexico Washington DC - Virginia
101
GRANITE CONSTRUCTION INCORPORATED
Schedule 6.11 (c)
Leases, Dividends and Letters of Credit
102
GRANITE CONSTRUCTION INCORPORATED
SCHEDULE 6.11 (c)
LEASES: (GCC AS LESSEE)
ANNUAL
LESSOR DESCRIPTION MATURITY PAYMENTS
-----------------------------------------------------------------------------------------------------------------
Arizona State Labor Department Pit 01/31/00 21,318
Associates Construction Equipment 10/31/99 50,460
Associates Construction Equipment 06/30/99 240,000
Associates Construction Equipment 05/31/99 56,552
Associates Construction Equipment 04/30/99 234,000
Associates Construction Equipment 01/31/99 286,000
Associates Construction Equipment 12/31/98 172,980
Associates Construction Equipment 12/31/98 127,368
Associates Construction Equipment 10/31/98 117,600
Associates Construction Equipment 03/31/00 312,312
Athens Avenue - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pit 06/16/99 1,170
CIT Construction Equipment 04/30/99 54,131
CIT Construction Equipment 09/06/98 42,216
CIT Construction Equipment 03/31/97 32,211
City of Calpatria Plant Property 06/30/98 1,200
▇▇▇▇▇▇▇▇ Pit 12/31/99 40,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ Pit 03/31/99 30,000
▇▇▇▇▇ Living Trust Pit 12/31/97 23,250
First Union Construction Equipment 05/25/97 54,735
GE Capital Modular Space Office Building 09/06/98 $29,340
▇▇▇▇▇▇▇ Realty Company Building 05/08/05 30,000
Granite Rock Company Office & Yard 12/31/00 165,100
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Quarry Property 07/31/99 50,000
Jackling Aggregate Limited Pit 12/31/05 72,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Pit 12/31/98 24,000
Kansallis Construction Equipment 05/25/98 27,255
Kansallis Construction Equipment 04/25/97 49,052
Kansallis Construction Equipment 04/25/97 8,624
Little Rock Sand & Gravel Pit 04/30/01 132,480
▇▇▇▇▇▇▇▇ & Peto Pit 12/31/97 25,440
▇. ▇. ▇▇▇▇▇▇▇▇ and ▇. ▇. ▇▇▇▇▇ Pit 01/02/06 70,000
▇▇▇▇▇ ▇▇▇▇▇ Pit 12/31/00 62,783
Mariposa Ranch Limited Part. Pit 09/30/99 12,500
Meredit, Parker, Key, Bath Pit 12/31/97 137,100
▇. ▇. ▇▇▇▇▇▇▇▇ & B.C. Hillcock Pit 01/31/98 12,688
Pebble Beach Corporation Pit 12/31/00 24,000
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Plant property 09/30/97 7,500
▇▇▇▇▇▇▇▇▇▇▇ Ranch & Scarscelli Pit 04/30/98 15,000
State of Arizona Pit 03/01/99 13,624
▇. ▇▇▇▇▇▇▇▇▇▇ & Company Office Building 09/30/97 54,000
TOKAI Construction Equipment 10/25/97 79,095
Topo Ranch (▇▇▇▇▇▇▇▇▇ Group) Pit 06/30/97 3,013
▇▇▇▇▇▇ Development Pit 12/31/19 75,000
Western Pacific Railroad Co. Pit 06/01/01 50,000
▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ Pit 05/31/03 2,000
▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇ Pit 05/31/03 750
-----------------------------------------------------------------------------------------------------------------
$3,129,847
LEASES: (DESERT AGGREGATES AS LESSEE)
-----------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/▇. ▇▇▇▇▇▇ Pit 03/07/16 24,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Pit 02/29/96 7,200
-----------------------------------------------------------------------------------------------------------------
$31,200
LEASES: (BRC AS LESSEE)
-----------------------------------------------------------------------------------------------------------------
State of Utah Office Building 08/01/38 14,504
State of Utah Office Building 11/01/38 6,883
-----------------------------------------------------------------------------------------------------------------
$21,387
LEASES: (PPC AS LESSEE)
-----------------------------------------------------------------------------------------------------------------
▇ ▇ ▇▇▇▇▇▇▇ Company Office Building 03/31/99 23,313
-----------------------------------------------------------------------------------------------------------------
$23,313
103
GRANITE CONSTRUCTION INCORPORATED
SCHEDULE 6.11 (c)
DIVIDENDS: (GCI OBLIGATION)
MATURITY AMOUNT
--------------------------------------------------------------------------------------------------------
Second Quarter 1997 $.06 dividend
declared for holders of record as of 07/18/97 $1,096,564
June 30, 1997 (approximately)
LETTERS OF CREDIT:
BENEFICIARY TYPE SECURED LENDER MATURITY AMOUNT
--------------------------------------------------------------------------------------------------------
Sierra Pacific Power Performance N B of A 05/16/98 104,000
Company (GCC)
Granite SR91 L.P. Performance N B of A 07/14/98 3,111,112
(SR91 Corp. & GCI)
--------------------------------------------------------------------------------------------------------
$3,215,112
----------
$7,517,423
----------
104
GRANITE CONSTRUCTION INCORPORATED
Schedule 6.12
Environmental Matters
105
GRANITE CONSTRUCTION INCORPORATED
SCHEDULE 6.12
ENVIRONMENTAL
Granite Construction in the normal course of business utilizes petroleum
(hydrocarbon) products which by definition are considered hazardous materials.
The utilization of these asphalt products, diesel, and gasoline over the years
of operations have the potential of creating exposure to environmental clean up
requirements. All underground tanks meet current requirements. There is no
pending governmental ordered clean up. However, the following represents
estimates based on construction industry housekeeping practices as encountered
during our normal course of business. Except as indicated with an "*", these
costs do not represent actual identified exposures.
Locations Description Amount
-----------------------------------------------------------------------------------------------------
Arvin, CA Asphalt Batch Plant 100,000
Arvin, Ca Surface Spills 50,000
Bakersfield, CA Surface Spills 100,000
Bakersfield, CA Diesel Aboveground Storage Tanks 25,000
Bakersfield, CA Asphalt Batch Plant 100,000
Coalinga, CA Asphalt Batch Plant 50,500
Coalinga, CA Surface Spills 10,000
▇▇▇▇▇▇, Ca Asphalt Batch plant 200,000
French Camp, CA Diesel/Gasoline Underground Storage Tanks 100,000
Gardnerville, NV Surface Spills 25,000
Gardnerville, NV Asphalt Batch Plant 50,000
Indio, CA * Asphalt Batch Plant 250,0OO
Palmdale, CA Surface Spills 10,000
Palmdale, CA Asphalt Batch Plant 50,000
▇▇▇▇▇▇▇, NV Asphalt Batch Plant 75,000
▇▇▇▇▇▇▇, NV Surface Spills 50,000
Sacramento, CA Diesel/Gasoline Underground Storage Tanks 50,000
Sacramento, CA Asphalt Batch Plant 300,000
Sacramento, CA Surface Spills 200,000
Sacramento, CA Diesel Aboveground Storage Tanks 50,000
Salinas, CA Surface Spills 250,000
Santa Barbara, CA Surface Spills 100,000
Santa Barbara, CA Diesel/Gasoline Underground Storage Tanks 75,000
Santa Barbara, CA Asphalt Batch Plant 50,000
Santa Cruz, CA Asphalt Batch Plant 75,000
Sparks, NV Diesel/Gasoline Underground Storage Tanks 25,000
Thousand Palms, CA * Asphalt Batch Plant 533,000
(Garnet)
Tracy, CA Asphalt Batch Plant 75,000
Tracy, CA Surface Spills 25,000
Tucson, AZ Surface Spills 25,000
Tucson, AZ Diesel/Gasoline Underground Storage Tanks 50,000
Tucson, AZ Asphalt Batch Plant 150,000
Watsonville, CA Diesel/Gasoline Underground Storage Tanks 150,000
Watsonville, CA Surface Spills 50,000
▇▇▇▇, UT * Asphalt Batch Plant 1,400,000
Whitehall, UT * Asphalt Batch Plant 55,000
Salt Lake City, UT * Asphalt Batch Plant 250,000
(▇▇▇▇ ▇▇▇▇▇)
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ * Diesel/Gasoline Underground Storage Tanks 1,106,000
(9th North)
Salt Lake County, UT * Surface Spills 30,000
(Hercule)
▇▇▇▇▇ County, UT * Surface Spills 100,000
(Ogden)
Salt Lake County, UT * Aggregate and smelter site 1,250,000
(CPC)
▇▇▇▇▇▇, UT * Surface Spills 100,000
Fireclay Battery, UT * Surface Spills 25,000
-----------------------------------------------------------------------------------------------------
$7,794,000
==========
106
GRANITE CONSTRUCTION INCORPORATED
Schedule 6.17
Intellectual Property Disputes
There is no claim or litigation regarding any copyrights, patents, trademarks or
licenses.
107
GRANITE CONSTRUCTION INCORPORATED
Schedule 6.18
Subsidiaries and Equity Investments
108
GRANITE CONSTRUCTION INCORPORATED
SCHEDULE 6.18
EQUITY INVESTMENTS:
COMPANY DESCRIPTIONS QUANTITY INVESTMENT MARKET
VALUE 06/03/97
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Common Stock 100 shares $1,325
Perini Corporation Common Stock 100 shares 725
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Common Stock 100 shares 688
Calmat Company Common Stock 100 shares 2,038
Cascade Corporation Common Stock 100 shares 1,713
TIC Holdings Minority Interest 257,126 Shares 20,119,081
▇▇▇▇▇-▇▇▇▇▇▇/Granite Joint Venture 201,169
Granite/▇▇▇▇▇▇ Joint Venture (255,981)
Kiewit/Granite (TCA) Joint Venture 9,094,030
Kiewit/Granite (KG Leasing) Joint Venture 9,072,746
Kiewit/Granite (E. Dam) Joint Venture 2,814,542
----------------------------------------------------------------------------------------------------
$41,052,075
===========
109
[TABLE NOT SHOWN]
110
GRANITE CONSTRUCTION INCORPORATED
Schedule 8.01 (a)
Liens Existing on Closing Date
Please see Schedule 8.18 for Liens
111
GRANITE CONSTRUCTION INCORPORATED
Schedule 8.04
Investment Policy
112
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
OBJECTIVES
Within the spectrum of activities of this organization, it is necessary to
provide a framework for the regular and continuous management of its investment
funds. Short term and intermediate term investments provide earnings on excess
cash while maintaining liquidity and working funds for the present and future
operations.
In order to provide control of all investments and cash, this policy shall limit
investment activities to: first, preserve principal; second, meet liquidity
needs; third, avoid inappropriate concentration of investments; and fourth,
deliver good yield in relationship to these GUIDELINES and market conditions.
DURATION
Cash investments are restricted to the average duration of one (1) year from
date of settlement. Any investments with longer maturity than one year must be
invested in instruments issued by, guaranteed by, or insured by the U.S.
Government or any of its agencies. The average portfolio duration of escrows and
deposit agreements shall not exceed five (5) years. Short term investments shall
be defined as instruments maturing in ninety-one (91) days or more.
LIQUIDITY
The duration of the portfolio including escrows & deposits shall be consistent
with the cash needs as determined by the cash forecast. The portfolio will be
constructed in order to provide funds that will enable the company to meet its
day to day requirements and short term needs. Any excess cash above the
aforementioned requirements may be invested in instruments with longer maturity.
MARKETABILITY
Holdings should be of sufficient size and held in issues which are traded
actively (except time deposits, loan participation, and master notes) to
facilitate transactions at a minimum cost and accurate market valuation.
Effective 01/96
Page 1 of 5
113
TRADING
The following individuals are authorized traders:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇
Any individual transaction conforming to the policy set forth herein or, any
transaction of an Investment Manager not conforming to the respective Investment
Manager's policy shall be approved by one of the following officers or, any
transaction not conforming to the policy set forth herein must be approved by
any two of the following officers:
▇. ▇. ▇▇▇▇▇ W. E. ▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇ M. E. ▇▇▇▇▇▇▇
DEALERS AND BANKS FOR TRADING
The preferred dealers and banks designated as safekeeping depositories in order
of choice are:
Bank of America, Glendale, CA (Wentworth,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇)
Bank of New York
▇▇▇▇▇ Fargo
Additional dealer(s): ABN - AMRO Securities
BA Securities
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Investments purchased through other than preferred dealers will be delivered to
Bank of New York for safekeeping and paid for upon receipt.
ESCROW
Escrows in lieu of retention are allowed at the following bank(s):
Bank of America
Bank One of Arizona
First Trust of California, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust Company
Nations Bank
Pioneer Citizens Bank, Nevada
SunTrust Bank
The types of investments will be guided by the terms of the escrow, but in all
cases the
Effective 01/96
Page 2 of 5
114
investment will be governed by the investment policy stated herein. Banks not
listed, but required by escrow agreement, will also be acceptable.
REPORTING
* Daily - An Investment Transaction sheet, sequentially numbered will be
processed for approval by an authorized officer.
* Weekly and Monthly - A Portfolio listing will be provided to the Chief
Financial Officer and the traders.
Effective 01/96
Page 3 of 5
115
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
------------------------------------------------------------------------------------------------------------------------------------
IF INSTRUMENT CARRIES A GUARANTEE, CONSIDER GUARANTOR TO BE ISSUER
-----------------------------------------------------------------------------------
ELIGIBLE INVESTMENTS CONCENTRATION LIMITS CREDIT QUALITY
-------------------------------------------------
The portfolio will be limited Maximum concentration at
time of purchase Rating Limitations
------------------------------------------------------------------------------------------------------------------------------------
Obligations issued by U.S. Government limited to:
U.S. Treasury Bills
U.S. Treasury Notes N/A N/A
U.S. Treasury Bonds No Maximum
------------------------------------------------------------------------------------------------------------------------------------
Obligations of agencies of the U.S. Government
limited to:
Federal Farm Credit Bank 25% of the portfolio
Federal Home Loan Bank Any one issuer not to N/A N/A
Federal Home Loan Mortgage Corporation exceed $1,000,000 or 10%
Federal National Mortgage Association of total portfolio
Student Loan Marketing Association (whichever is greater)
------------------------------------------------------------------------------------------------------------------------------------
Obligations collateralized by U.S. Government Delivered to authorized
securities limited to: 25% of the portfolio Fully collateralized by safekeeping account.
Repurchase Agreements Any one issuer not to U.S. Gov't and Agency Collateral value plus
Reverse Repurchase Agreements exceed $1,000,000 or 10% securities included in accrued interest must
of total portfolio these guidelines exceed and be maintained
(whichever is greater) at level exceeding
value of agreement
------------------------------------------------------------------------------------------------------------------------------------
Obligations issued by U.S. owned domestic 50% of the portfolio A-1/P-1
commercial banks limited to: Any one issuer not to AND Top 40 U.S. Banks
Bankers' Acceptance exceed $1,000,000 or 10% AAA/NR or AA/Aa by deposit and assets
Certificates of Deposit of total portfolio or better underlying (see attached list)
(whichever is greater) credit quality
------------------------------------------------------------------------------------------------------------------------------------
Obligations issued by U.S. bank subsidiaries of
Non U.S. banks so long as they are a state 40% of the portfolio A-1/P-1
chartered bank limited to: Any one issuer not to AND Top 50 World Banks
Yankee Bankers' Acceptances exceed $1,000,000 or 10% AAA/NR or AA/Aa by deposit and assets
Yankee Certificates of Deposit of total portfolio or better underlying (see attached list)
(all securities U.S. dollar denominated) (whichever is greater) credit quality
------------------------------------------------------------------------------------------------------------------------------------
Effective 01/96
116
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
----------------------------------------------------------------------------------------------------------------------------------
IF INSTRUMENT CARRIES A GUARANTEE, CONSIDER GUARANTOR TO BE ISSUER
--------------------------------------------------------------------------------------
ELIGIBLE INVESTMENTS CONCENTRATION LIMITS CREDIT QUALITY
The portfolio will be limited to Maximum concentration at --------------------------------------------------------
time of purchase Rating Limitations
----------------------------------------------------------------------------------------------------------------------------------
Obligations of major U.S. corporation 50% of the portfolio
and U.S. holding companies limited to: Any one issuer not to A-1/P-1/D-1 Any TWO of three
exceed $1,000,000 or 10% S&P, Moody's, ▇▇▇▇ & rating services
Commercial Paper of total portfolio ▇▇▇▇▇▇
(whichever is greater)
----------------------------------------------------------------------------------------------------------------------------------
25% of portfolio
Loan Participation Any one issuer not to Use issuer's Same as
Master Notes exceed $1,000,000 or 10% commercial commercial paper credit
of total portfolio paper credit rating quality requirements
(whichever is greater)
----------------------------------------------------------------------------------------------------------------------------------
Tax-exempt investments limited to: 25% of portfolio S&P: A-1, AA or
Commercial Paper Any one issuer not to better, Sp-1 Bonds NOT subject to
Floating Rate Put Bonds exceed $1,000,000 or 10% AND Alternative Minimum Tax
Floating Rate Put Notes of total portfolio Moody's: P-1, Aa and when advantageous in the
Municipal Notes (whichever is greater) better, VMIG-1. marketplace
Municipal Bonds
----------------------------------------------------------------------------------------------------------------------------------
Money Market Mutual Funds Consistent with Company's Limited to those approved
Liquidity requirements by the Board of Directors
----------------------------------------------------------------------------------------------------------------------------------
117
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
WENTWORTH, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
OBJECTIVES
The assets are liquidity and working funds for the present and future operations
of the firm. It is essential that the assets be invested in a high quality
portfolio which: first, preserve principal; second, meet liquidity needs; third,
delivers good yield in relationship to these guidelines and market conditions;
fourth, avoids inappropriate concentrations of investments; and fifth, provides
fiduciary control of all investments and cash by the firm's appointed custodian.
DURATION
The portfolio's average duration shall not exceed two (2) years from date of
settlement. Short term investments shall be defined as instruments maturing in
ninety-one (91) days or more.
LIQUIDITY
The portfolio will be constructed so that it can provide $ 1,000,000.00 in 30
days and the remainder shall be consistent with the cash needs of the Company as
determined by the cash forecast, and be so constructed that it can provide funds
to match the Company's cash requirements.
MARKETABILITY
Holdings should be of sufficient size and held in issues which are traded
actively (except time deposits, loan participation, and master notes) to
facilitate transactions at a minimum cost and accurate market valuation.
TRADING
All purchases and sales will be executed at the best net price with the
principal dealers and banks in the particular securities. All securities
purchased will be in the name of client.
DEALERS AND RANKS FOR TRADING
As determined by Wentworth, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, but within the confines of this
agreement emphasizing credit quality.
Effective 3/95
Page 1 of 4
118
REPORTING
* Daily - Copy of confirmation slip.
* Monthly - Month-End regular accounting transaction, portfolio
listing and cash flow schedules, and rate of return reports.
REINVESTMENT
Principal (and interest when appropriate) will be reinvested immediately upon
receipt.
COMMUNICATION
Wentworth, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ should maintain communications with client with as
reasonable frequency as market conditions and the portfolio warrant. Major
market condition changes and/or major portfolio changes should be called to the
attention of the client.
Any trading which will realize a net loss in principal or exceeds policy limits
must first be approved by the client.
DISCRETIONARY ACCOUNT
Wentworth, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ will have full discretion to invest the portfolio
within the guidelines.
PERFORMANCE BENCHMARK
The performance of the portfolio will be compared to appropriate market indices
for securities with longer maturity than one year. Overall performance should
not be less than 90-day Treasury ▇▇▇▇ Index over a one year time horizon.
Effective 3/95
Page 2 of 4
119
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT MANAGER POLICY GUIDELINES
WENTWORTH, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
IF INSTRUMENT CARRIES A GUARANTEE, CONSIDER GUARANTOR TO BE ISSUER
-----------------------------------------------------------------------------------
ELIGIBLE INVESTMENTS CONCENTRATION LIMITS CREDIT QUALITY
-------------------------------------------------
The portfolio will be limited Maximum concentration at
time of purchase Rating Limitations
------------------------------------------------------------------------------------------------------------------------------------
Obligations issued by U.S. Government limited to:
U.S. Treasury Bills
U.S. Treasury Notes No Maximum N/A N/A
U.S. Treasury Bonds
------------------------------------------------------------------------------------------------------------------------------------
Obligations of agencies of the U.S. Government
limited to:
Federal Farm Credit Bank 50% of the portfolio
Federal Home Loan Bank Any one issuer not to N/A N/A
Federal Home Loan Mortgage Corporations exceed $1,000,000 or 10%
Federal National Mortgage Association of total portfolio
Student Loan Marketing Association (whichever is greater)
------------------------------------------------------------------------------------------------------------------------------------
Obligations collateralized by U.S. Government Delivered to authorized
securities limited to: 25% of the portfolio Fully collateralized by safekeeping account.
Repurchase Agreements Any one issuer not to U.S. Gov't and Agency Collateral value plus
Reverse Repurchase Agreements exceed $1,000,000 or 10% securities included in accrued interest must
of total portfolio these guidelines exceed and be maintained
(whichever is greater) at level exceeding
value of agreement
------------------------------------------------------------------------------------------------------------------------------------
Obligations issued by U.S. owned domestic 50% of the portfolio A-1/P-1
commercial banks limited to: Any one issuer not to AND Top 100 U.S. Banks
Bankers' Acceptance exceed $1,000,000 or 10% A/A by deposit and assets
Certificates of Deposit of total portfolio or better underlying
(whichever is greater) credit quality
------------------------------------------------------------------------------------------------------------------------------------
Obligations issued by Non U.S. bank domiciled
in countries that are approved sovereign risks 50% of the portfolio A-1/P-1
by Investment Manager limited to: Any one issuer not to AND Top 200 World Banks
Yankee Bankers' Acceptances exceed $1,000,000 or 10% A/A by deposit and assets
Yankee Certificates of Deposit of total portfolio or better underlying
(all securities U.S. dollar denominated) (whichever is greater) credit quality
------------------------------------------------------------------------------------------------------------------------------------
Effective 03/95
Page 3 of 4
120
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT MANAGER POLICY GUIDELINES
WENTWORTH, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
IF INSTRUMENT CARRIES A GUARANTEE, CONSIDER GUARANTOR TO BE ISSUER
--------------------------------------------------------------------------------------
ELIGIBLE INVESTMENTS CONCENTRATION LIMITS CREDIT QUALITY
The portfolio will be limited to Maximum concentration at --------------------------------------------------------
time of purchase Rating Limitations
----------------------------------------------------------------------------------------------------------------------------------
Obligations of major corporations 50% of the portfolio
and U.S. holding companies limited to: Any one issuer not to A-1/P-1/F-1 Any TWO of three
exceed $1,000,000 or 10% S&P, ▇▇▇▇▇'▇, Fitch rating services
Commercial Paper of total portfolio
Medium Term Note (whichever is greater)
----------------------------------------------------------------------------------------------------------------------------------
50% of portfolio
Loan Participation Any one issuer not to Use issuer's Same as
Master Notes exceed $1,000,000 or 10% commercial commercial paper credit
of total portfolio paper credit rating quality requirements
(whichever is greater)
----------------------------------------------------------------------------------------------------------------------------------
Tax-exempt investments limited to: 25% of portfolio S&P: A-1, AA or
Commercial Paper Any one issuer not to better, Sp-1 Bonds subject to
Floating Rate Put Bonds exceed $1,000,000 or 10% AND Alternative Minimum Tax
Floating Rate Put Notes of total portfolio Moody's: P-1, Aa or only when advantageous
Municipal Notes (whichever is greater) better, VMIG-1. in the marketplace
Municipal Bonds
----------------------------------------------------------------------------------------------------------------------------------
121
GRANITE CONSTRUCTION INCORPORATED
Schedule 8.06
Contingent Obligations
There are no contingent obligations outstanding.
122
GRANITE CONSTRUCTION INCORPORATED
Schedule 8.18
Indebtedness
123
GRANITE CONSTRUCTION INCORPORATED
SCHEDULE 8.18
INDEBTEDNESS
NOTES:
LENDER TYPE SECURED INTEREST MATURITY BALANCE
Y/N RATE 05/31/97
--------------------- ----------- ------- -------- -------- --------
Small Business Admin- Acquisition N 4.91% 01/04/99 129,050
Istration (GCC)
▇▇▇▇▇▇▇ Flaschbarth Land Acquisition N 8.00% 06/30/00 260,000
(GCC)
C. B. Concrete Acquisition N 6.50% 04/14/02 2,638,387
Company, Inc. (GCC)
Scach, Inc. (BRC) Acquisition N 6.50% 04/14/02 788,091
$3,815,528
NOTE: PLEASE SEE SCHEDULE 6.11 (C) FOR CAPITALIZED LEASES.
124
SCHEDULE 11.02
ADDRESSES FOR NOTICES: PAYMENT AND LENDING OFFICES
Addresses for Notices
IF TO THE COMPANY:
Granite Construction Incorporated
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payment and Lending Offices
IF TO THE AGENT: AGENT'S PAYMENT OFFICE:
Bank of America NT&SA Bank of America NT&SA
Agency Administrative Services #5596 (ABA 121-000-358-S.F.)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attn: Agency Administrative Services
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ #5596
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telex: GRT 3726050 BA GA SFO ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ For credit to account
No. 12330-15118
ref: Bancontrol-Granite Construction
IF TO THE BANKS: BANKS' PAYMENT AND LENDING OFFICES:
BANK OF AMERICA NT&SA
BANK OF AMERICA NT&SA Global Payment Operations
San Francisco Credit Products #3838 Customer Service Americas #5693
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 41st Floor ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Leader Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ABA No. ▇▇▇-▇▇▇-▇▇▇ SF
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic and Eurodollar Lending Office
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
i
125
Addresses for Notices Payment and Lending Offices
IF TO THE BANKS: BANKS' PAYMENT AND LENDING OFFICES:
UNION BANK OF CALIFORNIA, N.A. UNION BANK OF CALIFORNIA, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ABA No. ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic and Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BANQUE NATIONALE DE PARIS BANQUE NATIONALE DE PARIS
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attention: Treasury
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ABA No. ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 278900
Domestic and Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABN-AMRO BANK N.V. ABN-AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Acct No. 651001054541
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ABA No. ▇▇▇▇▇▇▇▇▇
Telex: 278137
Domestic and Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IF TO THE ISSUING BANK:
Bank of America NT&SA
International Trade
Banking Division #5655
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ii
126
EXHIBIT A
NOTICE OF BORROWING
-------------------
Date:______________
To: Bank of America National Trust and Savings Association as Agent for the
Banks parties to the Credit Agreement dated as of June 30, 1997 (as
extended, renewed, amended or restated from time to time, the "Credit
Agreement") among Granite Construction Incorporated, certain Banks which
are signatories thereto and Bank of America National Trust and Savings
Association, as Agent
Ladies and Gentlemen:
The undersigned, Granite Construction Incorporated (the "Company"),
refers to the Credit Agreement, the terms defined therein being used herein as
therein defined, and hereby gives you notice irrevocably, pursuant to Section
2.03 of the Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is ________, 19___.
2. The aggregate amount of the proposed Borrowing is $__________.
3. The Borrowing is to be comprised of $_____ of [CD Rate]
[Eurodollar Rate] [Reference Rate] Loans.
4. The duration of the Interest Period for the CD Rate Loans or
Eurodollar Rate Loans included in the Borrowing shall be [____ days]
[___ months].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Company contained
in Article VI of the Credit Agreement are true and correct as though
made on and as of such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they
are true and correct as of such earlier date);
A-1
127
Default has occurred and is continuing, or would result
from [text missing] nd
(c) The proposed Borrowing will not cause the aggregate principal amount
of all outstanding Revolving Loans plus the aggregate amount available for
drawing under all outstanding Letters of Credit plus the aggregate principal
amount of all outstanding L/C Borrowings to exceed the Aggregate Revolving
Commitment.
GRANITE CONSTRUCTION
INCORPORATED
By:_____________________________
Title:__________________________
By:_____________________________
Title:__________________________
A-2
128
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date:
To: Bank of America National Trust and Savings Association, as Agent for the
Banks parties to the Credit Agreement dated as of June 30, 1997 (as
extended, renewed, amended or restated from time to time, the "Credit
Agreement") among Granite Construction Incorporated, certain Banks which
are signatories thereto and Bank of America National Trust and Savings
Association, as Agent
Ladies and Gentlemen:
The undersigned, Granite Construction Incorporated (the "Company"),
refers to the Credit Agreement, the terms defined therein being used herein as
therein defined, and hereby gives you notice irrevocably, pursuant to Section
2.04 of the Credit Agreement, of the [conversion] [continuation] of the Loans
specified herein, that:
1. The Conversion/Continuation Date is _____, 19___.
2. The aggregate amount of the Loans [converted] is $_______ or
[continued] is $____________.
3. The Loans are to be [converted into] [continued as] [CD Rate]
[Eurodollar Rate] [Reference Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be [___ days]
[___ months].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed Conversion/Continuation
Date, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Company contained
in Article VI of the Credit Agreement are true and correct as though
made on and as of such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they
are true and correct as of such earlier date);
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed [conversion]
[continuation]; and
B-1
129
(c) If the proposed [conversion] [continuation] is of Revolving
Loans, the proposed [conversion][continuation] will not cause the
aggregate principal amount of all outstanding Revolving Loans plus the
aggregate amount available for drawing under all outstanding Letters of
Credit plus the aggregate principal amount of all outstanding L/C
Borrowings to exceed the Aggregate Revolving Commitment.
GRANITE CONSTRUCTION
INCORPORATED
By:_____________________________
Title:__________________________
By:_____________________________
Title:__________________________
B-2
130
Exhibit C
[LOGO]
================================================================================
APPLICATION AND AGREEMENT
FOR STANDBY LETTER OF CREDIT
TO: Bank of America National Trust and Savings Association ("Bank")
For Bank Use Only
L/C NO._________
A. APPLICATION.
_______________("Customer") requests Bank to issue an irrevocable standby letter
of credit ("Letter of Credit") as follows:
[ ] Full text teletransmission [ ]airmail with brief preliminary
teletransmission advice [ ] Airmail [ ] Courier
For account of (Customer Name and Address) In favor of (Beneficiary Name and Address)
_________________________________________ _________________________________________
_________________________________________ _________________________________________
_________________________________________ _________________________________________
Advising Bank
_________________________________________
_________________________________________
_________________________________________
Amount __________________________(_____) Expiration Date: Drafts to be drawn on and presented at Bank's Issuing
(in words and figures)
Currency________________________________ unit on or before__________________________, 19____
Available by drafts drawn at sight on Bank's issuing unit when accompanied by
the following documentation:
1. The original standby letter of credit.
2. The signed statement of the beneficiary worded as follows (state exact
wording that is to appear in the statement accompanying the draft):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Special instructions:___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Customer understands that the risk to Customer is greater if Customer
requests a standby letter of credit which requires only a draft rather than a
standby letter of credit which requires supporting documentation.
Customer understands that the final form of the Letter of Credit may be
subject to such revisions and changes as are deemed necessary or appropriate by
Bank's letter of credit issuing unit and Customer hereby consents to such
revisions and changes.
131
B. AGREEMENT
In consideration of Bank issuing for the account of Customer the Letter
of Credit, Customer agrees to the following:
1. Customer shall pay Bank, on demand, all amounts paid by Bank under or
in respect of the Letter of Credit.
2. On each fee payment date, so long as any undrawn amount of the Letter
of Credit remains available, Customer shall pay Bank a Letter of Credit fee. The
fee payment dates shall be the dates as Customer and Bank may agree, or in the
absence of such agreement, the fee payment date shall be the date on which the
Bank issues such Letter of Credit. The fee shall be at such rate per annum as
Customer and Bank may agree, or in the absence of such agreement, at the rate
customarily charged by Bank at the time such fee is payable. The applicable
Letter of Credit fee shall be calculated and payable on the undrawn amount of
the Letter of Credit as of such fee payment date, and shall be for the period
commencing on such fee payment date and ending on the day preceding the next fee
payment date (or the expiration date of the Letter of Credit, as the case may
be), both dates inclusive. The Letter of Credit fee will be computed on the
basis of a 365 day year and actual days elapsed. Bank shall not be required to
refund any portion of the Letter of Credit fee paid for any period during which
(a) the Letter of Credit expires of otherwise terminates, or (b) the undrawn
amount of the Letter of Credit is reduced by drawings or by amendment.
3. Customer shall pay Bank, on demand, commissions and fees for
amendments to the Letter of Credit, payments under the Letter of Credit,
extensions of the Letter of Credit, cancellation of the Letter of Credit, and
other services in the amounts Customer and Bank may agree, or, in the absence of
such agreement, in the amounts customarily charged by Bank on the date of Bank's
demand.
4. All payments and deposits by Customer under this Application and
Agreement shall be made at the branch or office Bank may designate from time to
time. Bank shall have no obligation to pay Customer interest on any deposit made
by Customer under this Application and Agreement.
5. (a) All payments and deposits by Customer under this Application and
Agreement shall be in the currency in which the Letter of Credit is payable
except that Bank may, at its option, require payments and deposits by Customer
under this Application and Agreement to be made in U.S. Dollars if the Letter of
Credit is payable in a foreign currency.
(b) The amount of each payment and each deposit by Customer under
this Application and Agreement in U.S. Dollars for a Letter of Credit payable in
a foreign currency shall be determined by converting the relevant amount to U.S.
Dollars at the Conversion Rate in effect:
(i) with respect to each payment under Paragraph B.1., on the
date the payment is made by Bank under or in respect of the Letter of Credit;
and
(ii) with respect to each payment not falling under the
preceding clause (i) and each deposit, on the date of Bank's demand for such
payment or deposit.
(c) If a U.S. Dollar deposit by Customer under this Application and
Agreement for a Letter of Credit payable in a foreign currency becomes less than
the U.S. Dollar equivalent of the undrawn amount of the Letter of Credit because
of any variation in rates of exchange, Customer shall deposit with Bank, on
demand, additional amounts in U.S. Dollars so that the total amount deposited by
Customer under this Application and Agreement is not less than the U.S. Dollar
equivalent of the undrawn amount of the Letter of Credit, determined by using
the Conversion Rate on the date of Bank's latest demand.
(d) "Conversion Rate" means the rate quoted by Bank in San
Francisco, California for the purchase from Bank of the relevant foreign
currency with U.S. Dollars.
6. Customer shall reimburse or compensate Bank, on demand, for all costs
incurred, losses suffered and payments made by Bank which are applied or
allocated by Bank to the Letter of Credit (as determined by Bank) by reason of
any and all present or future reserve, deposit, assessment or similar
requirements against (or against any class of or change in or in the amount of )
assets or liabilities of, or commitments or extensions of credit by, Bank.
7. If Bank determines that any law, rule, regulation or guideline
regarding capital adequacy affects or would affect the amount of capital
required to be maintained by Bank or any corporation controlling Bank and that
(taking into consideration Bank's policies with respect to capital adequacy and
Bank's desired return on capital) the amount of required capital is increased as
a result of Bank's obligations under the Letter of Credit, then, on demand,
Customer shall pay Bank additional amounts sufficient as specified by Bank to
compensate Bank for such increase.
8. Upon the occurrence of any of the following events, Customer shall
deposit with Bank, on demand and as cash security for Customer's obligations to
Bank under this Application and Agreement, an amount equal to the undrawn amount
of the Letter of Credit:
(a) Customer defaults under any provision of this Application and
Agreement;
(b) Any bankruptcy or similar proceeding is commenced with respect
to Customer;
(c) Any default occurs under any other agreement involving the
borrowing of money or the extension of credit under which Customer may be
obligated as borrower, instalment purchaser or guarantor, if such default
consists of the failure to pay any indebtedness when due or if such default
permits or causes the acceleration of any indebtedness or the termination of any
commitment to lend or to extend credit;
(d) Customer defaults on any other obligation to Bank;
(e) In the opinion of Bank, any material adverse change occurs in
Customer's business, operations, financial condition or ability to perform its
obligations under this Applications and Agreement;
(f) Any court order, injunction or other legal process is issued
restraining or seeking to restrain drawing or payment under the Letter of
Credit,
(g) Any person other than Beneficiary attempts, or in any way claims
any right, to draw under the Letter of Credit, including, without limitation,
any debtor in possession, custodian, receiver, trustee, assignee for benefit of
creditors, personal representative or other successor.
9. Customer shall pay interest, on demand, on any amount not paid when
due under this Application and Agreement from the due date until payment in full
at a rate per annum equal to the rate of interest publicly announced from time
to time by Bank in San Francisco, California, as its reference rate plus three
percentage points. The reference rate is set by Bank based on various factors
including Bank's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some credits. Bank may
price credit at, above or below the reference rate. Any change in Bank's
reference rate shall take effect at the opening of business on the day specified
in Bank's public announcement of change in Bank's reference rate. Interest will
be computed on the basis of a 365 day year and actual days elapsed.
10. Customer authorizes Bank to charge any of Customer's accounts with
Bank for all amounts then due and payable to Bank under this Application and
Agreement.
11. Customer shall pay, on demand, all costs, expenses and attorney's
fees (including allocated costs for in-house legal services) incurred by Bank in
connection with (a) any dispute concerning the Letter of Credit or this
Application and Agreement, or (b) the enforcement of this Application and
Agreement.
12. If any arbitration award, judgment or orders is given or made for
the payment of any amount due under this Application and Agreement and such
arbitration award, judgment or order is expressed in a currency other than the
currency required under this Application and Agreement, Customer shall indemnify
Bank against and hold Bank harmless from all lost and damage incurred by Bank as
a result of any variation in rates of exchange between the date of such
arbitration award, judgment or order and the date of payment (or ii) the case of
partial payments, the date of each partial payment) thereof. This indemnity
shall constitute an obligation separate and independent from the other
obligations contained in this Applications and Agreement, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by Bank form time to time, and shall continue in full force
and effect notwithstanding any arbitration award, judgment or order for a
liquidated sum respect of an amount due under this Application and Agreement.
13. The word "Customer" in this Application and Agreement refers to each
signer (other than Bank) of this Application and Agreement. If this Application
and Agreement is signed by more than one Customer, their obligations under this
Application and Agreement shall be joint and several.
14. Subject to the laws, customs and practices of the trade in the area
where the beneficiary is located, the Letter of Credit will be subject to, and
performance under the Letter of Credit by Bank, its correspondents, and the
beneficiary will be governed by, the "Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500", or by later Uniform Customs and Practice fixed by later
Congresses of the International Chamber of Commerce as in effect on the date the
Letter of Credit is issued.
15. This Application and Agreement shall be governed by and construed
under the laws of the State of California, to the jurisdiction of which the
parties hereto submit.
16. Any controversy among the parties arising out of or relating to this
Application and Agreement or the Letter of Credit shall at the request of any
party be determined by arbitration. The arbitration shall be conducted in San
Francisco, California, under the United States Arbitration Act (Title 9, U.S.
Code), notwithstanding any choice of law provision in this Application and
Agreement or the Letter of Credit, and pursuant to the Commercial Rules of the
American Arbitration Association. The arbitrator shall give effect to statutes
of limitation in determining any claim. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrator. Judgment upon the
arbitration award may be entered in any court having jurisdiction. This
Paragraph shall not limit the right of any party to this Application and
Agreement or the Letter of Credit to exercise lawful self-help remedies or to
obtain provisional or ancillary remedies from a court of competent jurisdiction
before, during, or after the pendency of any arbitration. The seeking, obtaining
or exercising of such a remedy does not waive the right of any party, including
the party who sought such remedy, to resort to arbitration. Notwithstanding the
foregoing, no controversy shall be submitted to arbitration under this Paragraph
without the consent of all parties if, at the time of the proposed submission,
such controversy arises from or relates to an obligation to Bank which is
secured by real property collateral.
17. Customer represents and warrants to Bank that Customer has obtained
all import and export licenses and other governmental approvals required for the
goods and the documents described in the Letter of Credit. Without limiting the
generality of the foregoing, Customer further expressly represents and warrants
to Bank that the transactions underlying the Letter of Credit are not prohibited
under the Foreign Assets Control Regulations of the United States Treasury
Department.
This Application and Agreement is executed by Customer on______________, 19___.
____________________________________________
Name of Customer
By__________________________________________ Title________________________
By__________________________________________ Title________________________
FOR OFFICE USE ONLY
FX-149 TO: [ ] International Trade Banking Division-Los Angeles
Operations Center #5666
COMMISSION [ ] Per MISC-42 [ ] Other
[ ] Charge Branch [ ] Charge directly
[ ] Commissions and Charges only
[ ] Drawings, Commissions and Charges
FINANCIAL SERVICES OFFICER NAME (Type or Print) BANKAMERINET NO.
__________________________________________________ ________________________
CDA/DDA CUSTOMER A/C#
__________________________________________________
FINANCIAL SERVICES OFFICER SIGNATURE BRANCH/DEPT. NAME
__________________________________________________ ________________________
BRANCH/▇▇▇▇.▇▇.
__________________________________________________
132
Granite Construction Incorporated
Exhibit D
Form of Legal Opinion
JUNE 30, 1997
▇▇▇▇▇▇▇-901700
Bank of America National Trust and Savings Association,
for itself and as Agent
for the Banks from time to time
party to the Credit Agreement, referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Credit Products ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I have acted as counsel for Granite Construction Incorporated, a Delaware
corporation ("Borrower"), in connection with that certain Credit Agreement dated
as of June 30, 1997 including Exhibits and Schedules (the "Credit Agreement"),
by and among Borrower, the several financial institutions parties to the Credit
Agreement (the "Banks") and Bank of America National Trust and Savings
Association as agent for the Banks (the "Agent") and as issuing bank. I have
also represented each of Granite Construction Company, a California corporation
("GCC"), Granite SR91 Corporation, a California corporation ("SR91"), ▇▇▇▇▇▇▇
Corporation, a Colorado corporation ("▇▇▇▇▇▇▇"), Desert Aggregates, Inc., a
California corporation ("Desert"), G.G. & R., Inc., a Utah corporation ("G.G. &
R."), Intermountain Slurry Seal, Inc., a Utah corporation ("Intermountain"),
Bear River Contractors, a Wyoming corporation ("Bear River"), Pozzolan Products
Company ("P.P.C."), a Utah corporation ("Pozzolan"), GTC, Inc., a Texas
corporation ("GTC"), GILC, L.P., a California limited partnership ("GILC,
L.P."), SR91, L.P., a California limited partnership ("SR91, L.P.") and GILC
Incorporated, a California corporation ("GILC", and together with GCC SR91,
Desert, ▇▇▇▇▇▇▇, ▇.▇. & R., Intermountain, Bear River, GILC, L.P., SR91, L.P.,
Pozzolan and GTC, the "Subsidiaries"), each of which is a direct or indirect
wholly owned subsidiary of Borrower, in connection with the Guaranty given by
each of the Subsidiaries in favor of the Agent for the benefit of Banks
guaranteeing the obligations of Borrower under the Credit
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 2
Agreement. I am rendering this opinion pursuant to subsection 5.01 (c) of the
Credit Agreement. Except as otherwise defined herein, capitalized terms used but
not defined herein shall have the meanings given to them in the Credit
Agreement.
As used herein, the term "Loan Documents" shall mean the Credit
Agreement and the Guaranty.
I am admitted to practice law only in the State of California, and I
express no opinion concerning any law other than the law of the State of
California, the Delaware General Corporation law, the law of the United States
of America, and, to the extent necessary to render my opinion in paragraphs
1(b), 1(d), 1(e), l(f), the second sentence of paragraph 3 and paragraphs 5(d),
6 and 8, the Colorado Corporations Code, the Utah Revised Business Corporations
Act, the Wyoming Business Corporations Act and the Texas Business Corporation
Act. In so far as the opinions contained herein purport to relate to the
Delaware General Corporation Law, the Colorado Corporations Code, the Utah
Revised Business Corporations Act, the Wyoming Business Corporations Act and the
Texas Business Corporation Act (collectively, the "Laws"), I have relied on such
Laws as reported in standard compilations.
In rendering this Opinion, I have assumed the genuineness and
authenticity of all signatures (other than that of Borrower and each Subsidiary)
on original documents; the authenticity of all documents submitted to me as
originals; the conformity of originals to all documents submitted to me as
copies; the accuracy, completeness and authenticity of certificates of public
officials; the due authorization, execution and delivery of all documents
(except the due authorization, execution and delivery by Borrower of the Credit
Agreement and by each Subsidiary of the Guaranty) where authorization,
execution and delivery are prerequisites to the effectiveness of such documents;
the power and authority of the Banks to enter into and perform their obligations
under the Loan Documents; that the Banks are duly qualified in the State of
California to do business of the type contemplated by the Loan Documents; that
each of the Banks qualifies for the exemption from the otherwise applicable
interest rate limitations of California law for loans or forbearances by, as the
case may be, (i) national banks provided by Article XV, Section 1 of the
California Constitution or (ii) certain "foreign (other nation) banks" provided
by California Financial Code Section 1716 or (iii) state banks provided by
Article XV, Section 1 of the California Constitution; that all loans under me
Credit Agreement will be made by the Banks for their own accounts or for the
account of another person or entity that qualifies for an exemption hunk me
interest rate limitations of California law, and there is no present agreement
or plan, express or implied, on the part of the Banks to sell participations or
any other interest in the loans to be made under the Credit Agreement to any
person or entity other than a person or entity that also qualifies for an
exemption. From the interest rate limitations of California law; and with
134
Bank of America National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 3
respect to matters of fact (as distinguished from matters of law), I also have
relied upon and assumed that the representations of the Borrower and each
Subsidiary and the other parties set forth in the Loan Documents and any other
certificates, instruments or agreements executed in connection therewith or
delivered to me are true, correct, complete and not misleading, although to my
knowledge the representations of the Borrower and each Subsidiary set forth in
the Loan Documents and any such other certificates, instruments and agreements
ant true, correct, complete and not misleading. I have also assumed that all
individuals executing and delivering documents on behalf of the Banks and Agent
had the legal capacity to so execute and deliver and that the Loan Documents are
obligations binding upon Banks and Agent.
With respect to my opinions in paragraph 4(c) and 5(c) below, I have
relied solely upon copies, supplied to me by the Borrower or a Subsidiary, of
each undertaking, contract, indenture, mortgage, deed. of trust or other
instrument document or agreement listed in Exhibit A, (i) of the Borrower listed
on the Index to Form 10K Exhibits to the Borrower's Annual Report on Form 10K
for the fiscal year ending December 31, 1996 and (ii) of the Borrower involving
amounts in excess of $50,000,000 to which Borrower or any Subsidiary is a party
or by which Borrower or any Subsidiary is bound.
In rendering my opinion in paragraph 6, I have relied solely on a
certificate of good standing from each of the Secretary of State's office of
each of the states listed below the Borrower's and each Subsidiary's name on
Exhibit B.
Where I render an opinion "to the best of my knowledge" or concerning an
item "known to me" or my opinion otherwise refers to my "knowledge," it is
intended to indicate that during the course of my representation of Borrower and
the Subsidiaries, no information that would give me current actual knowledge of
the inaccuracy of such statement has come to my attention in rendering legal
services to Borrower or the Subsidiaries.
On the basis of the foregoing, in reliance thereon, and with the
foregoing qualifications, I am of the opinion that:
1. (a) Borrower is a corporation, duly incorporated and validly existing
under the laws of Delaware and has the requisite corporate power and authority
to own its property and to conduct the business in which it is currently
engaged. (b) ▇▇▇▇▇▇▇ is a corporation duly incorporated and validly existing
under the laws of Colorado and has the requisite corporate power and authority
to own its property and to conduct the business in which it is currently
engaged. (c) Each of ▇▇▇, ▇▇▇▇, GILC and Desert is a corporation duly
incorporated and
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 4
validly existing under the laws of California and has the requisite corporate
power and authority to own its property and to conduct the business in which it
is currently engaged. (d) Each of G.G. & R., Intermountain, and Pozzolan is a
corporation duly incorporated and validly existing under the laws of Utah and
has the requisite corporate power and authority to own its property and to
conduct the business in which it is currently engaged. (e) Bear River is a
corporation duly incorporated and validly existing under the laws of Wyoming and
has the requisite corporate power and authority to own its property and to
conduct the business in which it is currently engaged. (f) GTC is a corporation
duly incorporated and validly existing under the laws of Texas and has the
requisite corporate power and authority to own its property and to conduct the
business in which it is currently engaged. (g) GILC, L.P. and SR91, L.P. are
California limited partnerships validly existing under the laws of California
and each has the requisite partnership power and authority to own its property
and to conduct the business in which it is currently engaged.
2. Borrower (a) has taken all necessary and appropriate corporate action
to authorize the execution, delivery and performance of the Credit Agreement,
and (b) has the corporate power and authority to execute, deliver and perform
the Credit Agreement. Each Subsidiary (a) has taken all necessary and
appropriate corporate action or partnership action, as applicable, to authorize
the execution, delivery and performance of the Guaranty, and (b) has the
corporate power or partnership power, as applicable, and authority to execute,
deliver and perform the Guaranty.
3. The Credit Agreement has been duly executed and delivered by the
Borrower. The Guaranty has been duly executed and delivered by each of the
Subsidiaries. The Credit Agreement constitutes a legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms. The Guaranty constitutes a legal, valid and binding obligation of each
Subsidiary, enforceable against each Subsidiary in accordance with its terms.
4. The execution, delivery and performance by Borrower of the Credit
Agreement do not (a) violate or contravene any injunction, order, writ,
judgment, decree, determination or award of any United States or California
Governmental Authority as presently in effect applicable to Borrower; (b)
conflict with or result in a breach of or constitute a default under the
certificate of incorporation and bylaws of Borrower; (c) violate or result in a
breach of or constitute any default under any agreements of Borrower set forth
in Exhibit A, and, do not result in or require the creation or imposition of any
lien on any of Borrower's properties or revenues pursuant to any injunction,
order, decree or undertaking as presently in effect or any such agreements of
Borrower set forth in Exhibit A; or (d) result in or require the creation or
imposition of any lien on any of its properties or revenues pursuant to any
provision of any law, rule or regulation as presently in effect.
136
Bank of America National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 5
5. The execution, delivery and performance by each Subsidiary of the
Guaranty do not (a) violate or contravene any injunction, order, writ judgment,
decree, determination or award of any United States or California Governmental
Authority as presently in effect applicable to each Subsidiary; (b) conflict
with or result in a breach of or constitute a default under the
articles/certificates of incorporation and bylaws or partnership agreement, as
applicable, of each Subsidiary; (c) violate or result in a breach of or
constitute any default under any agreements of each Subsidiary set forth in
Exhibit A, and do not result in or require the creation or imposition of any
lien on any Subsidiary's its properties or revenues pursuant to any injunction,
order, decree or undertaking as presently in effect or any such agreements of
each Subsidiary; or (d) result in or require the creation or imposition of any
lien on any of its properties or revenues pursuant to any provision of any law,
rule or regulation as presently in effect.
6. Each of Borrower, and the Subsidiaries is duly qualified to do
business and is in good standing in the states listed below its name on Exhibit
B hereto.
7. No authorization, consent, approval, license, qualification or formal
exemption from, nor notice to, nor any filing, recordation, declaration or
registration with, any United States or California Governmental Authority, or to
my knowledge any other Governmental Authority, is necessary or required on the
part of Borrower in connection with the execution, delivery, or performance by
Borrower of the Credit Agreement.
8. No authorization, consent, approval, license, qualification or formal
exemption from, nor notice to, nor any filing, recordation, declaration or
registration with any United States or California Governmental Authority, or to
my knowledge any other Governmental Authority, is necessary or required on the
part of each Subsidiary in connection with the execution, delivery, or
performance by each Subsidiary of the Guaranty.
9. To the best of my knowledge, there is no claim, dispute, injunction,
temporary restraining order, action, litigation, investigation or proceeding
pending or threatened against Borrower before any court, arbitrator,
administrative agency or Governmental Authority of any kind (a) with respect to
the Credit Agreement or (b) which, if adversely determined, would have a
Material Adverse Effect.
10. To the best of my knowledge, there is no claim, dispute, injunction,
temporary restraining order, action, litigation, investigation or proceeding
pending or threatened against any Subsidiary before any court, arbitrator,
administrative agency or Governmental Authority of any kind (a) with respect to
the Guaranty or (b) which, if adversely determined, would have a Material
Adverse Effect.
137
Bank of America National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 6
11. Neither the Borrower nor any Subsidiary is an "investment company"
or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended. Neither the Borrower nor any
Subsidiary is subject to regulation under the Public Utility Holding Company Act
of 1935, the Interstate Commerce Act (49 U.S.C Sections 10101 et seq. (Supp.
1992) or the Federal Power Act which would limit its ability to incur
Indebtedness.
12. Neither the Borrower nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock. The aggregate value of all
Margin Stock directly or indirectly owned by the Borrower and its Subsidiaries
is less than 25% of the aggregate value of the consolidated assets of the
Borrower and its Subsidiaries.
13. The only subsidiaries of Borrower are the Subsidiaries and Granite
SR91 L.P. a limited partnership, of which Granite SR91 Corporation is the
general partner and the Borrower is the sole limited partner.
The opinions expressed in this letter are qualified to the extent that
the validity, binding nature or enforceability of any provisions of the Loan
Documents may be limited or otherwise affected by:
a. The effects of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or other similar laws now or hereafter in effect
limiting the validity or enforceability of creditor's rights and remedies
generally;
b. General principles of equity, regardless of whether considered in
proceedings in equity or at law;
c. The covenant of good faith and fair dealing implied in every
agreement under common law (and to similar provisions of federal law, where
applicable); and
d. The effect of any law or legal principle which provides that a court
may refuse to enforce, or may limit the application of; a contract or any clause
thereof which the court finds as a matter of law to have been unconscionable at
the time it was made.
e. The opinions expressed in this letter are further qualified to the
extent that the validity, binding nature or enforceability of any provisions of
the Loan Documents may be limited or otherwise affected by:
i. The unenforceability under certain circumstances under
California or
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 7
federal law or court decisions of provisions (i) releasing a party against
liability for wrongful or negligent acts, (ii) indemnifying a party to the
extent that the events giving rise to the indemnity arise in whole or in part
from the wrongful or negligent acts of the indemnitee, or (iii) where such
release or indemnification is contrary to public policy, including but not
limited to indemnification and/or releases relating to any issues of securities
laws;
ii. The effect of California Civil Code Section 1717 and other
applicable statutes and judicial decisions which provide, among other things,
that a court may limit the granting of attorneys' fees to those attorneys' fees
which are determined by the court to be reasonable and that attorneys' fees may
be granted only to a prevailing party and that a contractual provision for
attorneys' fees is deemed to extend to both parties (notwithstanding that such
provision by its express terms benefits only one party);
iii. The assumption that if the Agent or the Banks enforce their
remedies, they will do so in a commercially reasonable manner;
iv. The effect of California court decisions invoking statutes or
principles of equity which have held that certain covenants and provisions of
agreements are unenforceable where (i) the breach of such covenants or
provisions imposes restrictions or burdens upon the debtor, including the
acceleration of indebtedness due under debt instruments, and it cannot be
demonstrated that the enforceability of such restrictions or burdens is
reasonably necessary for the protection of the creditors, or (ii) the creditor's
enforcement of such covenants or provisions under the circumstances would
violate the creditor's implied covenants of good faith and fair dealing;
v. The unenforceability under certain circumstances of
contractual provisions self-help or summary remedies; and
vi. Decisions by California courts admitting evidence extrinsic
to a written agreement between the parties thereto that the parties intended a
meaning contrary to that expressed by the parties in writing.
The foregoing opinions are also subject to the following additional
assumptions, limitations, qualifications and exceptions:
a. Provisions in the Loan Documents requiring Borrower or any Subsidiary
to execute, in the future, additional instruments and documents may be
unenforceable.
b. Any provision contained in the Loan Documents that purports to
require that any action or decision of Agent or Banks is conclusively binding
upon Borrower or any
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 8
Subsidiary may be unenforceable.
c. You are advised that any provision in the Loan Documents purporting
to waive, limit or restrict the right of Borrower or Subsidiary to offset
against obligations owing under the Loan Documents may not be enforceable.
d. Those provisions in the Loan Documents imposing late charges
(interest or otherwise) and/or additional interest in the event of default are
governed by the rules relating to "liquidated damages" as set forth in
California Civil Code Sections 1671 et seq., and relevant case law (see, e.g.,
▇▇▇▇▇▇▇ ▇. Coast and Southern Federal Savings & Loan, 9 Cal.3d 731 (1973)). I
express no opinion as to the effect of judicial decisions and statutes limiting
the enforceability of provisions imposing penalties, forfeitures, late payment
charges, an increase in interest rate, or payment of other additional
consideration, (i) upon prepayment, late payment, maturity, default or a
lender's election to accelerate a loan, particularly in cases where the
occurrence of a default or waiving the benefit of a statutory right bears no
reasonable relation to the damage suffered by the lender or is otherwise held to
be a penalty; or (ii) as a consequence of costs incurred by the lender or
imposition of governmental charges, taxes, levies or requirements upon a lender.
e. Those provisions in the Loan Documents requiring the consent of Agent
and Banks or allowing Agent or Banks to take certain actions may be interpreted
by a court to contain an implied covenant of reasonableness and/or fair dealing
(see, e.g., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 40 Cal.3d 488 (1985); ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 147
Cal.App.3d 321 (1983)).
f. You should be aware of the unenforceability, under certain
circumstances, of provisions waiving broadly or vaguely stated rights or unknown
future rights, or rights which may not be waived on statutory or public policy
grounds, or provisions stating that rights or remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to or with
any other right or remedy or that the election of some particular remedy or
remedies does not preclude recourse to one or more others.
g. You should be aware of limitations based on public policy on
provisions stating that a borrower's obligations are unaffected by reason of any
default or failure on the part of a lender to perform or comply with the terms
of the subject loan documents.
h. I express no opinion as to the enforceability of the consent to
service, jurisdiction or forum of any claim, demand, action or cause of action
arising under or related to the Loan Documents or the transactions contemplated
therein.
i. I express no opinion as to the enforceability of any right of any
creditor to
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 9
collect any payment due under the Loan Documents to the extent that such payment
constitutes a penalty or forfeiture.
j. I express no opinion as to the enforceability of provisions in the
Loan Documents creating presumptions or creating rights of set-off.
k. I express no opinion on the accuracy of any representations or
warranties of Borrower or any Subsidiary. Furthermore I express no opinion as to
the survivability of any warranties, indemnities or other obligations.
l. I express no opinion as to the enforceability of those provisions in
the Loan Documents purporting to appoint the Agent or Banks as attorney-in-fact
for Borrower or to grant an irrevocable power of attorney to Agent or Banks.
m. I express no opinion as to the enforceability of provisions in the
Loan Documents purporting to provide that any approval, consent, authorization
or satisfaction required of Agent or Banks or any notice given by or other
action taken by Agent or Banks under the Loan Documents shall be presumed to be
reasonable.
n. I express no opinion as to the effect of laws and judicial decisions
that provide that in certain circumstances a surety may be exonerated if the
creditor materially alters the original obligation of the principal without the
surety's consent, or otherwise takes any action without notifying the surety
that materially prejudices the surety.
o. I express no opinion as to any securities, anti-trust, tax, land use,
safety, environmental, hazardous materials, insurance company or banking laws,
rules or regulations, or laws, rules or regulations applicable to Agent or
Banks.
p. I express no opinion as to any provision providing for the exclusive
jurisdiction of a particular court or purporting to waive rights to trial by
jury, service of process or objections to the laying of venue or to forum on the
basis of forum non conveniens in connection with any litigation arising out of
or pertaining to the Loan Documents.
q. I express no opinion as to the effect of California Civil Code
Section 1698 and similar statutes and federal laws and judicial decisions (a)
providing that oral modifications to a contract or waivers of contractual
provisions may be enforceable, if the modification was performed,
notwithstanding any express provision in the agreement that the agreement may
only be modified or an obligation thereunder waived in writing, or (b) creating
an implied agreement from trade practices or course of conduct.
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 10
r. I express no opinion as to the effect of certain rights, remedies and
waivers contained in the Loan Documents being limited or rendered ineffective by
applicable statutory law or judicial decisions governing such provisions, but
such laws and judicial decisions do not render the Loan Documents unenforceable
as a whole, and there exists, in the Loan Documents and pursuant to applicable
law, legally adequate remedies for realization of the principal benefits
purported to be afforded by the Loan Documents.
s. With respect to my opinions expressed in paragraphs 4(d), 5(d), 7 and
8, I have not conducted any special investigation of statutes laws, rules or
regulations and my opinion with respect thereto are limited to such Laws that to
my knowledge and as in my experience are of general application to transactions
of the sort contemplated by the Loan Documents.
I further advise you that:
a. The enforceability of the Guaranty against a Subsidiary may be
subject to California statutory provisions and case law to the effect that a
guarantor may be exonerated if the beneficiary of the guaranty alters the
original obligation of the principal, fair to inform the guarantor of material
information pertinent to the principal or any collateral, elects remedies that
may impair the subrogation rights of the guarantor against the principal or that
may impair the value of the collateral, fails to accord the guarantor the
protections afforded a debtor under the Uniform Commercial Code or otherwise
takes any action that materially prejudices the guarantor unless, in any such
case, the guarantor validly waives such rights or the consequences of any such
action. See, e.g., California Civil Code Section 2799 through Section 2855;
Sumitomo Bank of California ▇. ▇▇▇▇▇▇▇, 70 Cal. 2d 81, 73 Cal. Rptr. 564 (1968);
Union Bank ▇. ▇▇▇▇▇▇▇, 265 Cal. App. 2d 40, 71 Cal, Rptr 64 (1968); ▇▇▇▇▇▇▇▇ v.
Bank of Sonoma County., 184 Cal. App. 3d II 19, 229 Cal Rptr. 396 (1986); C.I.T.
Corp. v. Anwright Corp., 191 Cal. App. 3d 1420, 237 Cal. ▇▇▇▇, ▇▇▇ (1987);
American National Bank v. Perma-Tile Roof Co., 200 Cal. App. 3d 889, 246 Cal
Rptr. 381 (1988); In re ▇▇▇▇▇▇▇▇, ▇▇▇ ▇.▇▇ ▇▇▇▇ (9th Cir. 1990); and Cathay
Bank. ▇. ▇▇▇, 18 Cal. Rptr. 2d 420 (1993). While express and specific waivers of
a guarantor's right to be exonerated, such as those contained hi the Guaranty
are generally enforceable under California law we express no opinion as to
whether the Guaranty contains an express and specific waiver of each exoneration
defense a guarantor might assert or as to whether each of the waivers contained
in the Guaranty is fully enforceable.
b. It could be contended that the Guaranty has not been given for a fair
or reasonably equivalent consideration, that a Subsidiary is, or, by entering
into the Guaranty may become, insolvent, and that die Guaranty may be voidable
by creditors of a Subsidiary or by a trustee or receiver of a Subsidiary in
bankruptcy or similar proceedings pursuant to
142
GRANITE CONSTRUCTION INCORPORATED
Exhibit E
Form of Job Status Report
143
GRANITE CONSTRUCTION INCORPORATED
INCOMPLETE MAJOR CONTRACTS * (DOLLARS IN THOUSANDS)
CONTRACT PERCENT BACKLOG COMPLETION
JOB # JOB NAME AMOUNT COMPLETE AMOUNT DATE AGENCY/OWNER STATE
144
GRANITE CONSTRUCTION INCORPORATED
Exhibit F
Form of List of Anticipated Construction Bids
145
GRANITE CONSTRUCTION INCORPORATED
HEAVY CONSTRUCTION DIVISION Tentative Bidding Schedule DATE:
------------------------------------------------------------------------------------------------------------------------------------
BID -- PROJECT -- -- BID -- $ MIL AREA MGR JOINT
DATE NAME LOCATION AGENCY CITY TIME DAYS BUDGET ESTIMATOR VENTURE DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
146
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated
as of __________ is made between _________________________ (the "Assignor") and
_____________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Restated Credit
Agreement dated as of June 30, 1997 (as amended, amended and restated, modified,
supplemented or renewed, the "Credit Agreement") among Granite Construction
Incorporated, a Delaware corporation (the "Company"), the several financial
institutions from time to time party thereto (including the Assignor, the
"Banks"), and Bank of America National Trust and Savings Association, as letter
of credit issuing bank ("Issuing Bank") and as agent for the Banks (the
"Agent"). Any terms defined in the Credit Agreement and not defined in this
Agreement are used herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to make term loans and revolving loans (the "Loans") to the Company
and to issue or participate in standby letters of credit ("Letters of Credit")
issued for the account of the Company or its Subsidiaries in an aggregate amount
not to exceed $_______ (the "Commitment");
WHEREAS, [the Assignor has made Loans in the aggregate principal
amount of $________ to the Company] [no Loans are outstanding under the Credit
Agreement];
WHEREAS, [the Assignor has acquired a participation in the
Issuing Bank's liability under Letters of Credit in an aggregate principal
amount of $_________ (the "L/C Obligations")] [no Letters of Credit are
outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of
the] [all] rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [together with a corresponding portion of each of its
outstanding Loans and L/C Obligations,] in an amount equal to $_________ (the
"Assigned Amount") on the terms and subject to the conditions set forth herein
and the Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Assumption.
(a) Subject to the terms and conditions of this Agreement,
(i) the Assignor hereby sells, transfers and assigns to the Assignee, and (ii)
the Assignee hereby purchases,
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147
assumes and undertakes from the Assignor, without recourse and without
representation or warranty (except as provided in this Agreement) _% (the
"Assignee's Percentage Share") of (A) the Commitment [and the Loans and the L/C
Obligations] of the Assignor and (B) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor under and in connection with the
Credit Agreement and the Loan Documents.
[If appropriate, add paragraph specifying payment to Assignor by
Assignee of outstanding principal of, accrued interest on, and fees with respect
to, Loans and L/C Obligations assigned.]
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Bank under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank. It is the intent
of the parties hereto that the Commitment of the Assignor shall, as of the
Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Sections 11.4 and 11.5 of the Credit Agreement to the extent such rights relate
to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Commitment will be
$__________.
(d) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignor's Commitment will be
$___________.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $______,
representing the Assignee's pro rata share of the principal amount of all Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent
a processing fee in the amount specified in Section 11.07(a) of the Credit
Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date with
respect to the Commitment[,] [and] Loans [and L/C Obligations] shall be for the
account of the Assignor. Any interest, fees and other payments accrued on and
after the Effective Date with respect to the Assigned Amount shall be for the
account of the Assignee. Each of the Assignor and the
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148
Assignee agrees that it will hold in trust for the other party any interest,
fees and other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentence and pay to the other party any such amounts
which it may receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 7.01 (a) [and (b)] of
the Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter into
this Agreement; and (b) agrees that it will, independently and without reliance
upon the Assignor, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the Credit
Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date
for this Agreement shall be ______________(the "Effective Date"); provided that
the following conditions precedent have been satisfied on or before the
Effective Date:
(i) this Agreement shall be executed and delivered by the
Assignor and the Assignee;
(ii) the consent of the Company, the Issuing Bank and the
Agent required for an effective assignment of the Assigned Amount by the
Assignor to the Assignee under Section 11.07(a) of the Credit Agreement shall
have been duly obtained and shall be in full force and effect as of the
Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts
due to the Assignor under this Agreement;
(iv) the Assignee shall have complied with Section 4.01(f)
of the Credit Agreement (if applicable); and
(v) the processing fee referred to in Section 2(b) hereof
and in Section 11.07(a) of the Credit Agreement shall have been paid to the
Agent;
(b) Promptly following the execution of this Agreement, the
Assignor shall deliver to the Company, the Issuing Bank and the Agent for
acknowledgment by the Agent a Notice of Assignment substantially in the form
attached hereto as Schedule 1.
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149
6. Agent.
(a) The Assignee hereby appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Banks pursuant to the terms of
the Credit Agreement.
[(b) [INCLUDE ONLY IF ASSIGNOR IS AGENT] The Assignee shall
assume no duties or obligations held by the Assignor in its capacity as Agent
under the Credit Agreement.]
7. Withholding Tax.
The Assignee (a) represents and warrants to the Agent and the Company
that under applicable law and treaties no tax will be required to be withheld by
the Agent with respect to any payments to be made to the Assignee hereunder, (b)
agrees to furnish (if it is organized under the laws of any jurisdiction other
than the United States or any State thereof) to the Agent and the Company prior
to the time that the Agent or Company is required to make any payment of
principal, interest or fees hereunder, duplicate executed originals of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service
Form 1001 (wherein the Assignee claims entitlement to the benefits of a tax
treaty that provides for a complete exemption from U.S. federal income
withholding tax on all payments hereunder) and agrees to provide new Forms 4224
or 1001 upon the expiration of any previously delivered form or comparable
statements in accordance with applicable U.S. law and regulations and amendments
thereto, duly executed and completed by the Assignee, and (c) agrees to comply
with all applicable U.S. laws and regulations with regard to such withholding
tax exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any Lien or other adverse claim; (ii) it is
duly organized and existing and it has the full power and authority to take, and
has taken, all action necessary to execute and deliver this Agreement and any
other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations hereunder; (iii)
no notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due execution,
delivery and performance of this Agreement, and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further action by,
or notice to, or filing with, any Person is required of it for such execution,
delivery or performance; and (iv) this Agreement has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in
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150
connection with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no responsibility
with respect to, the solvency, financial condition or statements of the Company,
or the performance or observance by the Company, of any of its respective
obligations under the Credit Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Agreement and any other
documents required or permitted to be executed or delivered by it in connection
with this Agreement, and to fulfill its obligations hereunder; (ii) no notices
to, or consents, authorizations or approvals of, any Person are required (other
than any already given or obtained) for its due execution, delivery and
performance of this Agreement; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee, enforceable
against the Assignee in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, including the delivery of any notices or other documents or
instruments to the Company or the Agent, which may be required in connection
with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Agreement
shall be in writing and signed by the parties hereto. No failure or delay by
either party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof and any waiver of any breach of the provisions of
this Agreement shall be without prejudice to any rights with respect to any
other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off
or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Agreement.
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(d) This Agreement may be executed in any number of counterparts
and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any State
or Federal court sitting in California over any suit, action or proceeding
arising out of or relating to this Agreement and irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such California State or Federal court. Each party to this Agreement hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS Agreement, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not inconsistent
with the Credit Agreement.]
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IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
[ASSIGNOR]
By:___________________________
Title:________________________
By:___________________________
Title:________________________
Address:
______________________________
______________________________
______________________________
[ASSIGNEE]
By:___________________________
Title:________________________
By:___________________________
Title:________________________
Address:
______________________________
______________________________
______________________________
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SCHEDULE 1
NOTICE OF ASSIGNMENT AND ASSUMPTION
[Date]
Bank of America National Trust
and Savings Association, as Agent
Credit Products #3838
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Leader, Vice President
Bank of America National Trust
and Savings Association, as Issuing Bank
International Trade
Banking Division #5655
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Granite Construction Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of June 30, 1997 (as
amended, amended and restated, modified, supplemented or renewed from time to
time the "Credit Agreement") among Granite Construction Incorporated (the
"Company") the Banks referred to therein and Bank of America National Trust and
Savings Association, as letter of credit issuing bank ("Issuing Bank") and as
agent for the Banks (the "Agent"). Terms defined in the Credit Agreement are
used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by ____________ (the "Assignor") to ____________ (the "Assignee") of
______% of the right, title and interest of the Assignor in and to the Credit
Agreement (including, without limitation, the right, title and interest of the
Assignor in and to the Commitments of the Assignor[,] [and] all outstanding
Loans made by the Assignor [and the Assignor's participation in the Letters of
Credit]) pursuant to the Assignment and Assumption Agreement attached hereto
(the "Agreement"). Before giving effect to such assignment the Assignor's
Commitment is $ ____________[,] [and] the aggregate amount of its outstanding
Loans is $_______________[, and its participation in L/C Obligations is
$____________].
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2. The Assignee agrees that, upon receiving the consent of the
Agent, the Issuing Bank and the Company to such assignment, the Assignee will be
bound by the terms of the Credit Agreement as fully and to the same extent as
if the Assignee were the Bank originally holding such interest in the Credit
Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:_________________________
Address:_________________________
_________________________
_________________________
Attention:_________________________
Telephone: ( )_________________________
Telecopier: ( )_________________________
(B) Payment Instructions:
Account No.:_________________________
At:_________________________
_________________________
_________________________
Reference:_________________________
Attention:_________________________
4. You are entitled to rely upon the representations, warranties
and covenants of each of the Assignor and Assignee contained in the Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Notice of Assignment and Assumption to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:________________
Title:______________
By:_________________
Title:________________
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[NAME OF ASSIGNEE]
By:______________
Title:____________
By:_________________
Title:_______________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
GRANITE CONSTRUCTION INCORPORATED
By:_____________________________
Title:___________________________
By:_____________________________
Title:___________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:_____________________________
Its: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Issuing Bank
By:_____________________________
Its: Vice President
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EXHIBIT H
FORM OF GUARANTY
This Guaranty is entered into as of June 30, 1997, jointly and
severally by each of the parties set forth under the caption "GUARANTORS" on the
signature pages hereto (each, a "Guarantor"), in favor of each Lender Party (as
defined below).
Recitals
A. Pursuant to a Credit Agreement, dated as of June 30, 1997
(together with all amendments and other modifications, supplements, restatements
and extensions, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among Granite Construction Incorporated, a Delaware corporation
(the "Company"), the various financial institutions (individually, a "Bank" and
collectively, the "Banks") as are, or may from time to time become, parties
thereto, and Bank of America National Trust and Savings Association, as the
agent for such Banks (together with any successors) thereto in such capacities,
the "Agent"), the Banks have provided the Commitments and agreed to make Loans
to the Company and to participate in Letters of Credit issued by the Issuing
Bank for the account of the Company or its Subsidiaries.
B. One of the conditions precedent to the effectiveness of the
Credit Agreement is the execution and delivery of this Guaranty by each
Guarantor.
C. Each Guarantor has duly authorized the execution, delivery and
performance by it of this Guaranty.
D. It is in the best interests of each Guarantor to execute this
Guaranty inasmuch as such Guarantor will derive substantial direct and indirect
benefits from the Loans made and the Letters of Credit issued from time to time
pursuant to the Credit Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and in order to induce (i) the
Banks to make Loans (including the initial Loans) to the Company, (ii) the
Issuing Bank to issue and the Banks to participate in Letters of Credit issued
by the Issuing Bank for the account of the Company or its Subsidiaries, all
pursuant to the Credit Agreement, each Guarantor jointly and several agrees, for
the benefit of each Lender Party, as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used in
this Guaranty have the meanings given to them in the Credit Agreement, and as
used herein, "Lender Party" means, as the context may require, any Bank, the
Issuing Bank or the Agent and each of its successors, transferees and assigns.
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2. Guaranty.
2.1 Guaranty. Each Guarantor hereby jointly and severally
unconditionally guarantees and promises to pay to the Lender Parties or order,
on demand, any and all Obligations of the Company to the Lender Parties from
time to time outstanding under or in respect to the Credit Agreement or any
other Loan Document (the "Obligations"); provided, however, that each Guarantor
shall be jointly and severally liable under this Guaranty for the maximum amount
of such liability that can be hereby incurred by such Guarantor without
rendering this Guaranty, as it relates to such Guarantor, void or voidable under
applicable law relating to fraudulent conveyance, fraudulent transfer or similar
law (including the California Uniform Fraudulent Transfer Act and Sections 544
and 548 of the Federal Bankruptcy Reform Act of 1978, as amended (11 U.S.C.
Section 101, et seq.) (the "Bankruptcy Code")) and not for any greater amount,
and the Lender Parties by their acceptance hereof accept such limitation to the
extent needed to make this Guaranty fully enforceable and nonavoidable. Any
Lender Party may permit the indebtedness of the Company to such Lender Party to
include indebtedness other than the Obligations, and may apply any amounts
received from any source, other than from any Guarantor, to that portion of
Company's indebtedness to such Lender Party which is not a part of the
0bligations.
2.2 Obligations Independent. The obligations hereunder are joint and
several, and independent of the obligations of the Company, and a separate
action or actions may be brought and prosecuted against any Guarantor whether
action is brought against the Company or any other Guarantor or guarantor or
whether the Company or any other Guarantor or guarantor be joined in any such
action or actions. Each Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder. Each Guarantor acknowledges that
in providing benefits to the Company, the Lender Parties are relying upon the
enforceability of this Guaranty and the Obligations as separate and distinct
indebtedness, obligations and liabilities of each Guarantor.
2.3 Authorization of Renewals, Etc. Each Guarantor authorizes each
Lender Party, without notice or demand and without affecting its liability
hereunder, from time to time to:
(a) renew, compromise, extend, accelerate or otherwise change the
time for payment, or otherwise change the terms, of the Obligations, including
increase or decrease of the rate of interest thereon, or otherwise change the
terms of the Credit Agreement or any other Loan Document;
(b) receive and hold security for the payment of this Guaranty or
the Obligations and exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale
thereof as any Lender Party in its or their discretion may determine; and
(d) release or substitute any one or more of any endorsers or
guarantors of the Obligations.
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Further, the performance or occurrence of any of the acts or events described in
clauses (a), (b), (c), and (d) above with respect to indebtedness of the
Company, other than the Obligations, to any Lender Party shall not affect the
liability of any Guarantor hereunder.
2.4 Waiver of Certain Rights. Each Guarantor waives any right to require
any Lender Party to:
(a) proceed against the Company or any other Guarantor or
guarantor;
(b) proceed against or exhaust any security or other guaranty for
the Obligations or any other indebtedness of the Company to any Lender Party; or
(c) pursue any other remedy in the Lender Parties' power
whatsoever.
2.5 Waiver of Certain Defenses. Each Guarantor waives any defense
arising by reason of any disability, lack of corporate authority or other
defense of the Company, or the cessation from any cause whatsoever of the
liability of the Company, or any claim that such Guarantor's obligations exceed
or are more burdensome than those of the Company. Each Guarantor waives all
rights and defenses arising out of an election of remedies by the Lender
Parties, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for the Obligations, has destroyed the
Guarantor's rights of subrogation and reimbursement against the Company by
operation of Section 580d of the California Code of Civil Procedure or
otherwise, and all rights or defenses the Guarantor may have by reason of
protection afforded to the Company with respect to the Obligations pursuant to
the antideficiency laws or other laws of the state of California limiting or
discharging the Obligations. Each Guarantor waives any benefit of, and any right
to participate in, any security or other guaranty now or hereafter held by the
Lender Parties securing the Obligations. Each Guarantor waives, to the fullest
extent permitted by law, any defenses or benefits that may be derived from or
afforded by applicable law limiting the liability of or exonerating guarantors
or sureties, or which may conflict with the terms of this Guaranty, including
any and all benefits that otherwise might be available to any Guarantor under
California Civil Code Sections 1432, 2810, 2815, 2819, 2845, 2848, 2849, 2850,
2899 and 3433 and California Code of Civil Procedure Sections 580a, 580b, 580d
and 726.
2.6 Subrogation, etc. At any time that a payment is made by any
Guarantor with respect to the Obligations, such Guarantor shall have a right of
contribution against the Company and each other Person (other than any Lender
Party) obligated under, or otherwise a party to, any Loan Document (each, an
"Obligor") and each other Obligor shall have an obligation to indemnify such
Guarantor in me maximum amount permitted by applicable law, which right of
contribution and indemnity shall be subject to adjustment at the time of any
subsequent payment with respect to the Obligations; provided, however, that the
maximum aggregate liability of any Guarantor shall not exceed the maximum amount
of liability that such Guarantor can incur without rendering such contribution
and indemnity rights void or voidable under applicable law relating to
fraudulent conveyance or fraudulent transfers or similar law, and not for any
greater amount; provided, further, however, that no Guarantor will exercise any
rights which it may acquire by reason of any payment made hereunder, whether by
way of rights of subrogation,
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reimbursement or otherwise, until the prior payment, in full and in cash, of all
Obligations of the Company and each other Obligor and the termination of the
Commitments and the expiry of the Letters of Credit. Any amount paid to any
Guarantor on account of any payment made hereunder prior to the payment in full
of all Obligations of the Company and each other Obligor shall be held in trust
for the benefit of the Lender Parties and shall immediately be paid to the Agent
and credited and applied against the Obligations of the Company and each other
Obligor, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(a) any Guarantor has made payment to the Lender Parties of all
or any part of the Obligations of the Company or any other Obligor, and
(b) all Obligations of the Company and each other Obligor have
been paid in full and all Commitments and Letters of Credit have expired or been
permanently terminated, at such Guarantor's request, the Agent, on behalf of the
Lender Parties, will execute and deliver to such Guarantor appropriate documents
(without recourse and without representation or warranty) necessary to evidence
the transfer by subrogation to such Guarantor of an interest in the Obligations
of the Company and each other Obligor resulting from such payment by such
Guarantor. In furtherance of the foregoing, for so long as any Obligations,
Letters of Credit or Commitments remain outstanding, each Guarantor shall
refrain from taking any action or commencing any proceeding against the Company
or any other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Guaranty to any Lender Party.
2.7 Waiver of Presentments, Etc. Each Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this Guaranty and of
the existence, creation, extension or incurring of the Obligations or any new or
additional Obligations or any other indebtedness of Company to any of the Lender
Parties, or the reliance by any Lender Party upon this Guaranty, or the exercise
of any right, power or privilege hereunder.
2.8 Information Relating to Company. Each Guarantor acknowledges and
agrees that it shall have the sole responsibility for obtaining from the Company
such information concerning the Company's financial condition or business
operations as such Guarantor may require, and that no Lender Party has any duty
at any time to disclose to any Guarantor any information relating to the
business operations or financial condition of the Company.
2.9 Right of Setoff. In addition to any rights and remedies of the
Lender Parties provided by law, if an Event of Default exists, each Lender Party
is authorized at any time and from time to time, without prior notice to any
Guarantor, any such notice being waived by each Guarantor to the fullest extent
permitted by law, to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender Party to or for the credit or the account of any
Guarantor against any and all obligations of such Guarantor now or hereafter
existing under this Guaranty or any other Loan
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Document, irrespective of whether or not the Lender Party shall have made demand
under this Guaranty or any other Loan Document and although such obligations may
be contingent or unmatured. Each Lender Party agrees promptly to notify the
applicable Guarantor and the Agent after any such set-off and application made
by such Lender Party; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender Party under this Section 2.9 are in addition to the other rights and
remedies (including without limitation, other rights of set-off) which such
Lender Party may have.
2.10 Subordination. Any obligations of the Company to any Guarantor, now
or hereafter existing, including but not limited to any obligations to any
Guarantor as subrogee of any Lender Party or resulting from any Guarantor's
performance under this Guaranty, are hereby subordinated to the Obligations and
all other indebtedness (including any interest that would accrue pursuant to the
terms of the Loan Documents or other agreements after commencement of any
Insolvency Proceeding, whether or not allowed as a claim) of the Company to the
Lender Parties. Such obligations of the Company to any Guarantor if the Majority
Banks so request shall be enforced and performance received by such Guarantor as
trustee for the Lender Parties and the proceeds thereof shall be paid over to
the Lender Parties on account of the Obligations, but without reducing or
affecting in any manner the liability of any Guarantor under the other
provisions of this Guaranty. The Lender Parties shall be entitled to enforce all
of such Guarantor's rights with respect to such obligations of the Company to
such Guarantor, including in any Insolvency Proceeding. Any amounts received by
any Guarantor in contravention of this Section 2.10 shall be held in trust for
the benefit of the Lender Parties and shall be paid over or delivered to the
Agent for application to the payment of all Obligations or held as cash
collateral to the extent necessary to give effect to this Guaranty.
2.11 Reinstatement of Guaranty. If this Guaranty is returned or
canceled, and subsequently any payment or transfer of any interest in property
by the Company to the any Lender Party in fulfillment of any Obligation is
rescinded or must be returned by the Lender Party to the Company, this Guaranty
shall be reinstated with respect to any such payment or transfer, regardless of
any such prior return or cancellation.
2.12 Powers. It is not necessary for the any Lender Party to inquire
into the powers of the Company or of the officers, directors, partners or agents
acting or purporting to act on its behalf, and any Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
2.13 Taxes.
(a) Subject to subsection 2.13(g), any and all payments by any
Guarantor to each Lender Party under this Guaranty or any other Loan Documents
shall be made free and clear of, and without deduction or withholding for, any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender Party, such taxes (including income taxes or franchise taxes) as
are imposed on or measured by each Lender Party's net income by the jurisdiction
under the laws of which such Lender Party is organized or maintains a Lending
Office or any political subdivision thereof (all
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such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) In addition, each Guarantor shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Guaranty or any other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 2.13(g), each Guarantor shall indemnify
and hold harmless each Lender Party for the full amount of Taxes or Other Taxes
(including without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.13) paid by the Lender
Party and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, in the amount necessary to
preserve the after-tax yield such Lender Party would have received if such Taxes
or Other Taxes had not been imposed, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment under this indemnification shall be
made within 30 days from the date the Lender Party makes written demand
therefor. Should such Lender Party determine in its sole discretion to seek a
refund or rebate of some or all of the amount of Taxes, Other Taxes or other
liability paid by it and for which it was indemnified by a Guarantor and should
it receive some or all of the refund or rebate which it sought, it shall return
to such Guarantor the difference between the amount of such refund or rebate and
its reasonable costs and expenses of counsel (and the allocated cost of internal
counsel) incurred by it in procuring such refund or rebate.
(d) If any Guarantor shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Lender Party, then, subject to subsection 2.13(g):
(i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
2.13) such Lender Party receives an amount equal to the sum it would
have received had no such deductions been made;
(ii) such Guarantor shall make such deductions; and
(iii) such Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(e) Within 30 days after the date of any payment by any Guarantor
of Taxes or Other Taxes, such Guarantor shall furnish to the affected Lender
Party the original or a certified copy of a receipt evidencing payment thereof
or other evidence of payment satisfactory to such Lender Party
(f) Each Lender Party which is a foreign person (i.e., a person
other than a United States person for United States Federal income tax purposes)
agrees that:
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(i) it shall, no later than the Closing Date (or, in the
case of a Bank which becomes a Lender Party pursuant to Section 4.1 after the
Closing Date, the date upon which such Bank becomes a Lender Party) deliver to
the Guarantor through the Agent:
(A) if any Lending Office is located in the United States, two
accurate and complete signed originals of Internal Revenue Service Form
4224 or any successor thereto ("Form 4224"), and
(B) if any Lending Office is located outside the United States,
two accurate and complete signed originals of Internal Revenue Service
Form 1001 or any successor thereto ("Form 1001"), in each case
indicating that such Bank is on the date of delivery thereof entitled to
receive payments of principal, interest and fees for the account of such
Lending Office or Offices under this Guaranty free from withholding of
United States Federal income tax;
(ii) if at any time any Bank changes its Lending Office or
Offices or selects an additional Lending Office as herein provided, it shall
with reasonable promptness deliver to the Guarantor through the Agent in
replacement for, or in addition to, the forms previously delivered by it
hereunder:
(A) if such changed or additional Lending Office is located in
the United States, two accurate and complete signed originals of Form
4224; or
(B) otherwise, two accurate and complete signed originals of
Form 1001, in each case indicating that such Bank is on the date of
delivery thereof entitled to receive payments of principal, interest and
fees for the account of such changed or additional Lending Office under
this Guaranty free from withholding of United States federal income tax;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event mentioned in
(ii) above) requiring a change in the most recent Form 4224 or Form 1001
previously delivered by such Bank and if the delivery of the same be lawful,
deliver to the Guarantor through the Agent two accurate and complete original
signed copies of Form 4224 or Form 1001 in replacement for the forms previously
delivered by the Bank; and
(iv) it shall, promptly upon any Guarantor's reasonable
request to that effect, deliver to such Guarantor such other forms or similar
documentation as may be required from time to time by any applicable law,
treaty, rule or regulation in order to establish such Bank's tax status for
withholding purposes.
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(g) No Guarantor will be required to pay any additional amounts
in respect of United States federal income tax pursuant to subsection 2.13(d) to
any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Bank to comply with its
obligations under subsection 2.13(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to such Guarantor a
Form 4224 in respect of such Lending Office pursuant to subsection
2.13(f)(i)(A), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States federal income
tax in respect of payments by such Guarantor hereunder for the account
of such Lending Office for any reason other than a change in United
States law or regulations or in the official interpretation of such law
or regulations by any governmental authority charged with the
interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to such Guarantor a
Form 1001 in respect of such Lending Office pursuant to subsection
2.13(f)(i)(B), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States Federal income
tax in respect of payments by such Guarantor hereunder for the account
of such Lending Office for any reason other than a change in United
States law or regulations or any applicable tax treaty or regulations or
in the official interpretation of any such law, treaty or regulations by
any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 1001.
(h) If any Guarantor is required to pay additional amounts to any
Lender Party pursuant to subsection 2.13(d), then such Lender Party shall use
its reasonable best efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by such Guarantor which may thereafter accrue if such change
in the judgment of such Lender Party is not otherwise significantly
disadvantageous to such Lender Party.
(i) The agreements and obligations of each Guarantor contained in
this Section 2.13 shall survive the payment in full of all other Obligations.
2.14 Continuing Guaranty. This Guaranty is a continuing guaranty and
agreement of subordination and shall continue in effect and be binding upon each
Guarantor until termination of the Commitments, existing of the Letters of
Credit and payment and performance in full of the Obligations which may exist or
which may arise from time to time under successive transactions, and each
Guarantor expressly acknowledges that this Guaranty shall remain in full force
and effect notwithstanding that there may be periods in which no Obligations
exist. This Guaranty supersedes all prior guaranties executed from time to time
by any of the Guarantors in connection with the Second Amended and Restated
Credit Agreement dated as of June 15, 1995, as amended
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from time to time, among the Company, the financial institutions party thereto
as "Banks" and Bank of America NT & SA as the Agent for the Banks.
2.15 Substantial Benefits. The funds that have been borrowed from the
Banks by the Company and the Issuance of any Letter of Credit by the Issuing
Bank have been and are to be contemporaneously used for the benefit of the
Company and the Guarantors. The Company and the Guarantors have derived and will
derive significant and substantial benefits from the accommodations that have
been made by the Banks and the Issuing Bank under the Loan Documents. The
Guarantors have received at least "reasonably equivalent value" (as such phrase
is used in Section 548 of the Bankruptcy Code, in Section 3439.04 of the
California Uniform Fraudulent Transfer Act and in comparable provisions of other
applicable law) and more than sufficient consideration to support its
obligations hereunder in respect of the Obligations and under any of the Loan
Documents to which it is a party.
3. Representations and Warranties. Each Guarantor represents and warrants to the
Lender Parties that (a) such Guarantor and the Company are distinct and separate
entities operating independently; (b) such Guarantor has received copies of the
Credit Agreement and the other Loan Documents and is familiar with and fully
understands of all their respective terms and conditions; (c) no Lender Party
has made any representations or warranties to such Guarantor regarding the
creditworthiness of the Company or the prospects of repayment from sources other
than the Company; (d) this Guaranty is executed at the request of the Company;
(e) such Guarantor has established adequate means of obtaining from the Company
on a continuing basis financial and other information pertaining to the business
of the Company; and (f) such Guarantor is Solvent (both before and after giving
effect to this Guaranty, taking into account such Guarantor's rights of
contribution and indemnity as provided in Section 2.6).
2. Miscellaneous
4.1 Participations; Novations. Any Lender Party may from time to time,
without notice to any Guarantor and without affecting any Guarantor's
obligations hereunder, transfer its interest in the Obligations to Participants
and Assignees (each as defined in the Credit Agreement) as provided in the
Credit Agreement. Each Guarantor agrees that each such transfer will give rise
to a direct obligation of such Guarantor to each such Participant and Assignee
and that each such Participant and Assignee shall have the same rights and
benefits under this Guaranty as it would have if it were a Bank party to the
Credit Agreement and this Guaranty. Each Lender Party agrees to maintain the
confidentiality of all non-public information provided to it by any Guarantor or
by the Agent on such Guarantor's behalf to the same extent and with the same
exceptions as provided in the Credit Agreement. Notwithstanding the foregoing,
each Guarantor authorizes the Agent and each other Lender Party to disclose to
any prospective Participant and Assignee and any Participant and Assignee any
and all confidential information in the Agent's and such Lender Party's
possession concerning the Guarantor, this Guaranty and any security for this
Guaranty; provided, however, that such Participant or Assignee or such
prospective Participant or Assignee agrees in writing to the Agent or such
Lender Party, as the case may be, to keep such information confidential to the
same extent required by the Lender Parties under the Credit Agreement.
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4.2 Merger. In the event that (i) one or more Guarantors is merged into
the Company or another Guarantor or (ii) one or more of the Guarantors is sold
or liquidated, subject, in each case, to the provisions of the Credit Agreement,
such Guarantor shall cease to be a Guarantor hereunder without the necessity to
amend or re-issue this Guaranty, and each Guarantor agrees that its obligations
hereunder shall continue in full force and effect hereunder and shall not be
affected by any such merger, sale or liquidation.
4.3 Waivers; Writing Required. No delay or omission by any Lender Party
to exercise any right under this Guaranty shall impair any such right, nor shall
it be construed to be a waiver thereof. No waiver of any single breach or
default under this Guaranty shall be deemed a waiver of any other breach or
default. Any amendment or waiver of any provision of this Guaranty must be in
writing to be effective.
4.4 Remedies. All rights and remedies provided in this Guaranty and any
instrument or agreement referred to herein are cumulative and are not exclusive
of any rights or remedies otherwise provided by law. Any single or partial
exercise of any right or remedy shall not preclude the further exercise thereof
or the exercise of any other right or remedy..
4.5 Costs and Expenses. Each Guarantor agrees to pay to each Lender
Party on demand all costs, expenses and attorneys' fees (including allocated
costs for in-house legal services) incurred by each such Lender Party in
connection with the enforcement of this Guaranty.
4.6 Section Headings. Interpretation. Section headings are for reference
only, and shall not affect the interpretation or meaning of any provision of
this Guaranty. Unless otherwise provided, references to Articles, Sections and
Exhibits shall be deemed references to Articles, Sections and Exhibits of this
Guaranty. All references to the word "Guarantor" or "the Guarantors" shall mean
all and any one or more of them, as the context shall require.
4.7 Severability. The illegality or unenforceability of any provision of
this Guaranty or any instrument or agreement referred to herein shall not in any
way affect or impair the legality or enforceability of the remaining provisions
of this Guaranty or any instrument or agreement referred to herein.
4.8 Governing, Law and Jurisdiction.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR AND EACH LENDER PARTY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF
THOSE COURTS. EACH GUARANTOR AND EACH LENDER PARTY IRREVOCABLY WAIVES
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ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH GUARANTOR AND EACH LENDER PARTY
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
4.9 Separate Obligations. This Guaranty creates separate obligations of
each Guarantor in favor of the Lender Parties. The fact that such obligations
are set forth in this one Guaranty rather than in a separate guaranty document
for each Guarantor is for the convenience of the Company and the Guarantors and
shall in no way impair or adversely affect the rights or benefits of any of the
Lender Parties hereunder. Each Guarantor agrees to execute and deliver a
separate agreement, immediately upon request at any time of the Majority Banks,
evidencing such Guarantor's obligations under this Guaranty.
4.10 Entire Agreement. This Guaranty and any instrument, agreement or
document attached hereto or referred to herein (a) integrate all the terms and
conditions mentioned herein or incidental hereto, (b) supersede all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) are intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties. In the event of any conflict between the
terms, conditions and provisions of this Guaranty and any such instrument,
agreement or document, the terms, conditions and provisions of this Guaranty
shall prevail.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by
its duly authorized officers as of the day and year first above written.
GUARANTORS
GRANITE CONSTRUCTION COMPANY
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
GRANITE SR91 CORPORATION
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
DESERT AGGREGATES, INC.
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
169
GG&R, INC.
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
INTERMOUNTAIN SLURRY SEAL, INC.
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
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BEAR RIVER CONTRACTORS
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
POZZOLAN PRODUCTS COMPANY (P.P.C.)
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
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GILC INCORPORATED
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
GILC, L.P.
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
172
GRANITE SR91, L.P.
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
GTC, INC.
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
Address:______________________________
Attention:
Telecopy:
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EXHIBIT I
FORM OF LETTER REQUESTING EXTENSION
OF REVOLVING TERMINATION DATE
Bank of America National Trust and
Savings Association, as Agent,
and the Banks party to the hereinafter
described Credit Agreement
Credit Products #3838
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Leader, Vice President
Ladies and Gentlemen:
In accordance with Section 2.15 of the Credit Agreement, dated as of
June 30, 1997, among Granite Construction Incorporated (the "Company") and you
(the "Credit Agreement"), the Company hereby requests that each Bank consent to
extend the Revolving Termination Date (as defined in the Credit Agreement) by
one year from June ___, _____, to June ____, _______.
The Company hereby represents and warrants that: (a) all of the
representations and warranties contained in Article VI of the Credit Agreement
are true and correct on and as of the date hereof with the same effect as though
made on the date hereof, except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date, and (b) no Default or Event of Default has
occurred and is continuing on and as of the date hereof.
Attached hereto is a Guarantor Acknowledgement and Consent, in the form
of Schedule 1 hereto, duly executed by each Guarantor.
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Bank of America National Trust and
Savings Association, as Agent,
The Banks Party to the Credit Agreement
__________,_______
Page 2
Please indicate your consent to such extension by signing the enclosed
counterpart of this letter and returning it to the Agent on or before _____,
____ [15 Business Days after date that letter is sent]. If you fail to return an
executed counterpart on or before such date, you shall be deemed to have
declined to consent to such extension.
Very truly yours,
GRANITE CONSTRUCTION INCORPORATED
By:__________________________
Name:__________________________
Title:__________________________
By:__________________________
Name:__________________________
Title:__________________________
Consented to as of this
______day of _________, ____
[APPLICABLE PARTY]
By:_________________________
Title:______________________
By:_________________________
Title:______________________
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Schedule I to Letter Requesting
Extension of Revolving Termination Date
GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, each a Guarantor with respect to the Company's
obligations to the Agent and the Banks under the Credit Agreement, each hereby
(i) acknowledge and consent to the execution, delivery and performance by the
Company of the foregoing letter requesting an extension of the Revolving
Termination date from June ___, ____ to June __, ___, and (ii) reaffirm and
agree that the respective guaranty to which the undersigned is party and all
other documents and agreements executed and delivered by the undersigned to the
Agent and the Banks in connection with the Credit Agreement are and, after
giving effect to the requested extension of the Revolving Termination Date (if
consented to by the Banks), will be in full force and effect, without defense,
offset or counterclaim. (Capitalized terms used herein have the meanings
specified in the foregoing letter.)
GUARANTORS
GRANITE CONSTRUCTION COMPANY
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
GRANITE SR91 CORPORATION
By:_________________________________
Title:______________________________
By:_________________________________
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176
Title:______________________________
Date:_______________________________
▇▇▇▇▇▇▇ CORPORATION
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
DESERT AGGREGATES, INC.
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
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GG&R, INC.
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
INTERMOUNTAIN SLURRY SEAL, INC.
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
BEAR RIVER CONTRACTORS
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
POZZOLAN PRODUCTS COMPANY (P.P.C.)
By:_________________________________
Title:______________________________
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By:_________________________________
Title:______________________________
Date:_______________________________
GILC INCORPORATED
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
GILC, L.P.
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
GRANITE SR 91, L.P.
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
GTC, INC.
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179
By:_________________________________
Title:______________________________
By:_________________________________
Title:______________________________
Date:_______________________________
[Add any other Guarantors]
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GUARANTY
This Guaranty is entered into as of June 30, 1997, jointly and
severally by each of the parties set forth under the caption "GUARANTORS" on the
signature pages hereto (each, a "Guarantor"), in favor of each Lender Party (as
defined below).
Recitals
A. Pursuant to a Credit Agreement, dated as of June 30, 1997
(together with all amendments and other modifications, supplements, restatements
and extensions, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among Granite Construction Incorporated, a Delaware corporation
(the "Company"), the various financial institutions (individually, a "Bank" and
collectively, the "Banks") as are, or may from time to time become, parties
thereto, and Bank of America National Trust and Savings Association, as the
agent for such Banks (together with any successor(s) thereto in such capacities,
the "Agent"), the Banks have provided the Commitments and agreed to make Loans
to the Company and to participate in Letters of Credit issued by the Issuing
Bank for the account of the Company or its Subsidiaries.
B. One of the conditions precedent to the effectiveness of the
Credit Agreement is the execution and delivery of this Guaranty by each
Guarantor.
C. Each Guarantor has duly authorized the execution, delivery and
performance by it of this Guaranty.
D. It is in the best interests of each Guarantor to execute this
Guaranty inasmuch as such Guarantor will derive substantial direct and indirect
benefits from the Loans made and the Letters of Credit issued from time to time
pursuant to the Credit Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in order to induce (i) the
Banks to make Loans (including the initial Loans) to the Company, (ii) the
Issuing Bank to issue and the Banks to participate in Letters of Credit issued
by the Issuing Bank for the account of the Company or its Subsidiaries, all
pursuant to the Credit Agreement, each Guarantor jointly and several agrees, for
the benefit of each Lender Party, as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used in this
Guaranty have the meanings given to them in the Credit Agreement, and as used
herein, "Lender Party" means, as the context may require, any Bank, the Issuing
Bank or the Agent and each of its successors, transferees and assigns.
181
2. Guaranty.
2.1 Guaranty. Each Guarantor hereby jointly and severally unconditionally
guarantees and promises to pay to the Lender Parties or order, on demand, any
and all Obligations of the Company to the Lender Parties from time to time
outstanding under or in respect to the Credit Agreement or any other Loan
Document (the "Obligations"); provided, however, that each Guarantor shall be
jointly and severally liable under this Guaranty for the maximum amount of such
liability that can be hereby incurred by such Guarantor without rendering this
Guaranty, as it relates to such Guarantor, void or voidable under applicable law
relating to fraudulent conveyance, fraudulent transfer or similar law (including
the California Uniform Fraudulent Transfer Act and Sections 544 and 548 of the
Federal Bankruptcy Reform Act of 1978, as amended (11 U.S.C. Section 101, et
seq.). (the "Bankruptcy Code")), and not for any greater amount, and the Lender
Parties by their acceptance hereof accept such limitation to the extent needed
to make this Guaranty fully enforceable and nonavoidable. Any Lender Party may
permit the indebtedness of the Company to such Lender Party to include
indebtedness other than the Obligations, and may apply any amounts received from
any source, other than from any Guarantor, to that portion of Company's
indebtedness to such Lender Party which is not a part of the Obligations.
2.2 Obligations Independent. The obligations hereunder are joint and
several, and independent of the obligations of the Company, and a separate
action or actions may be brought and prosecuted against any Guarantor whether
action is brought against the Company or any other Guarantor or guarantor or
whether the Company or any other Guarantor or guarantor be joined in any such
action or actions. Each Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder. Each Guarantor acknowledges that
in providing benefits to the Company, the Lender Parties are relying upon the
enforceability of this Guaranty and the Obligations as separate and distinct
indebtedness, obligations and liabilities of each Guarantor.
2.3 Authorization of Renewals, Etc. Each Guarantor authorizes each Lender
Party, without notice or demand and without affecting its liability hereunder,
from time to time to:
(a) renew, compromise, extend, accelerate or otherwise change the
time for payment, or otherwise change the terms, of the Obligations, including
increase or decrease of the rate of interest thereon, or otherwise change the
terms of the Credit Agreement or any other Loan Document;
(b) receive and hold security for the payment of this Guaranty or
the Obligations and exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale
thereof as any Lender Party in its or their discretion may determine; and
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(d) release or substitute any one or more of any endorsers or
guarantors of the Obligations.
Further, the performance or occurrence of any of the acts or events described in
clauses (a), (b), (c), and (d) above with respect to indebtedness of the
Company, other than the Obligations, to any Lender Party shall not affect the
liability of any Guarantor hereunder.
2.4 Waiver of Certain Rights. Each Guarantor waives any right to require
any Lender Party to:
(a) proceed against the Company or any other Guarantor or guarantor;
(b) proceed against or exhaust any security or other guaranty for
the Obligations or any other indebtedness of the Company to any Lender Party; or
(c) pursue any other remedy in the Lender Parties' power whatsoever.
2.5 Waiver of Certain Defenses. Each Guarantor waives any defense arising
by reason of any disability, lack of corporate authority or other defense of the
Company, or the cessation from any cause whatsoever of the liability of the
Company, or any claim that such Guarantor's obligations exceed or are more
burdensome than those of the Company. Each Guarantor waives all rights and
defenses arising out of an election of remedies by the Lender Parties, even
though that election of remedies, such as a nonjudicial foreclosure with respect
to security for the Obligations, has destroyed the Guarantor's rights of
subrogation and reimbursement against the Company by operation of Section 580d
of the California Code of Civil Procedure or otherwise, and all rights or
defenses the Guarantor may have by reason of protection afforded to the Company
with respect to the Obligations pursuant to the antideficiency laws or other
laws of the state of California limiting or discharging the Obligations. Each
Guarantor waives any benefit of, and any right to participate in, any security
or other guaranty now or hereafter held by the Lender Parties securing the
Obligations. Each Guarantor waives, to the fullest extent permitted by law, any
defenses or benefits that may be derived from or afforded by applicable law
limiting the liability of or exonerating guarantors or sureties, or which may
conflict with the terms of this Guaranty, including any and all benefits that
otherwise might be available to any Guarantor under California Civil Code
Sections 1432, 2810, 2815, 2819, 2845, 2848, 2849, 2850, 2899 and 3433 and
California Code of Civil Procedure Sections 580a, 580b, 580d and 726.
2.6 Subrogation, etc.. At any time that a payment is made by any Guarantor
with respect to the Obligations, such Guarantor shall have a right of
contribution against the Company and each other Person (other than any Lender
Party) obligated under, or otherwise a party to, any Loan Document (each, an
"Obligor") and each other Obligor shall have an obligation to indemnify such
Guarantor in the maximum amount permitted by applicable law, which right of
contribution and indemnity shall be subject to adjustment at the time of any
subsequent payment with respect to the Obligations; provided, however, that the
maximum aggregate liability of any Guarantor shall not exceed the maximum amount
of liability that such Guarantor can incur
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without rendering such contribution and indemnity rights void or voidable under
applicable law relating to fraudulent conveyance or fraudulent transfers or
similar law, and not for any greater amount; provided, further, however, that no
Guarantor will exercise any rights which it may acquire by reason of any payment
made hereunder, whether by way of rights of subrogation, reimbursement or
otherwise, until the prior payment, in full and in cash, of all Obligations of
the Company and each other Obligor and the termination of the Commitments and
the expiry of the Letters of Credit. Any amount paid to any Guarantor on account
of any payment made hereunder prior to the payment in full of all Obligations of
the Company and each other Obligor shall be held in trust for the benefit of the
Lender Parties and shall immediately be paid to the Agent and credited and
applied against the Obligations of the Company and each other Obligor, whether
matured or unmatured, in accordance with the terms of the Credit Agreement;
provided, however, that if
(a) any Guarantor has made payment to the Lender Parties of all or
any part of the Obligations of the Company or any other Obligor, and
(b) all Obligations of the Company and each other Obligor have been
paid in full and all Commitments and Letters of Credit have expired or been
permanently terminated,
at such Guarantor's request, the Agent, on behalf of the Lender Parties, will
execute and deliver to such Guarantor appropriate documents (without recourse
and without representation or warranty) necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Obligations of the Company
and each other Obligor resulting from such payment by such Guarantor. In
furtherance of the foregoing, for so long as any Obligations, Letters of Credit
or Commitments remain outstanding, each Guarantor shall refrain from taking any
action or commencing any proceeding against the Company or any other Obligor (or
its successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this
Guaranty to any Lender Party.
2.7 Waiver of Presentments, Etc. Each Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this Guaranty and of
the existence, creation, extension or incurring of the Obligations or any new or
additional Obligations or any other indebtedness of Company to any of the Lender
Parties, or the reliance by any Lender Party upon this Guaranty, or the exercise
of any right, power or privilege hereunder.
2.8 Information Relating to Company. Each Guarantor acknowledges and
agrees that it shall have the sole responsibility for obtaining from the Company
such information concerning the Company's financial condition or business
operations as such Guarantor may require, and that no Lender Party has any duty
at any time to disclose to any Guarantor any information relating to the
business operations or financial condition of the Company.
2.9 Right of Setoff. In addition to any rights and remedies of the Lender
Parties provided by law, if an Event of Default exists, each Lender Party is
authorized at any time and
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184
from time to time, without prior notice to any Guarantor, any such notice being
waived by each Guarantor to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
Party to or for the credit or the account of any Guarantor against any and all
obligations of such Guarantor now or hereafter existing under this Guaranty or
any other Loan Document, irrespective of whether or not the Lender Party shall
have made demand under this Guaranty or any other Loan Document and although
such obligations may be contingent or unmatured. Each Lender Party agrees
promptly to notify the applicable Guarantor and the Agent after any such set-off
and application made by such Lender Party; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender Party under this Section 2.9 are in
addition to the other rights and remedies (including without limitation, other
rights of set-off) which such Lender Party may have.
2.10 Subordination. Any obligations of the Company to any Guarantor, now
or hereafter existing, including but not limited to any obligations to any
Guarantor as subrogee of any Lender Party or resulting from any Guarantor's
performance under this Guaranty, are hereby subordinated to the Obligations and
all other indebtedness (including any interest that would accrue pursuant to the
terms of the Loan Documents or other agreements after commencement of any
Insolvency Proceeding, whether or not allowed as a claim) of the Company to the
Lender Parties. Such obligations of the Company to any Guarantor if the Majority
Banks so request shall be enforced and performance received by such Guarantor as
trustee for the Lender Parties and the proceeds thereof shall be paid over to
the Lender Parties on account of the Obligations, but without reducing or
affecting in any manner the liability of any Guarantor under the other
provisions of this Guaranty. The Lender Parties shall be entitled to enforce all
of such Guarantor's rights with respect to such obligations of the Company to
such Guarantor, including in any Insolvency Proceeding. Any amounts received by
any Guarantor in contravention of this Section 2.10 shall be held in trust for
the benefit of the Lender Parties and shall be paid over or delivered to the
Agent for application to the payment of all Obligations or held as cash
collateral to the extent necessary to give effect to this Guaranty.
2.11 Reinstatement of Guaranty. If this Guaranty is returned or canceled,
and subsequently any payment or transfer of any interest in property by the
Company to the any Lender Party in fulfillment of any Obligation is rescinded or
must be returned by the Lender Party to the Company, this Guaranty shall be
reinstated with respect to any such payment or transfer, regardless of any such
prior return or cancellation.
2.12 Powers. It is not necessary for the any Lender Party to inquire into
the powers of the Company or of the officers, directors, partners or agents
acting or purporting to act on its behalf, and any Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
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2.13 Taxes.
(a) Subject to subsection 2.13(g), any and all payments by any
Guarantor to each Lender Party under this Guaranty or any other Loan Documents
shall be made free and clear of, and without deduction or withholding for, any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender Party, such taxes (including income taxes or franchise taxes) as
are imposed on or measured by each Lender Party's net income by the jurisdiction
under the laws of which such Lender Party is organized or maintains a Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being,
hereinafter referred to as "Taxes").
(b) In addition, each Guarantor shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Guaranty or any other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 2.13(g), each Guarantor shall indemnify
and hold harmless each Lender Party for the full amount of Taxes or Other Taxes
(including without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.13) paid by the Lender
Party and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, in the amount necessary to
preserve the after-tax yield such Lender Party would have received if such Taxes
or Other Taxes had not been imposed, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment under this indemnification shall be
made within 30 days from the date the Lender Party makes written demand
therefor. Should such Lender Party determine in its sole discretion to seek a
refund or rebate of some or all of the amount of Taxes, Other Taxes or other
liability paid by it and for which it was indemnified by a Guarantor and should
it receive some or all of the refund or rebate which it sought, it shall return
to such Guarantor the difference between the amount of such refund or rebate and
its reasonable costs and expenses of counsel (and the allocated cost of internal
counsel) incurred by it in procuring such refund or rebate.
(d) If any Guarantor shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender Party, then, subject to subsection 2.13(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) such Lender Party
receives an amount equal to the sum it would have received had no such
deductions been made;
(ii) such Guarantor shall make such deductions; and
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(iii) such Guarantor shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by any Guarantor of
Taxes or Other Taxes, such Guarantor shall furnish to the affected Lender Party
the original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to such Lender Party
(f) Each Lender Party which is a foreign person (i.e., a person
other than a United States person for United States Federal income tax purposes)
agrees that:
(i) it shall, no later than the Closing Date (or, in the
case of a Bank which becomes a Lender Party pursuant to Section 4.1 after
the Closing Date, the date upon which such Bank becomes a Lender Party)
deliver to the Guarantor through the Agent:
(A) if any Lending Office is located in the United States, two
accurate and complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224"), and
(B) if any Lending Office is located outside the United
States, two accurate and complete signed originals of Internal
Revenue Service Form 1001 or any successor thereto ("Form 1001"), in
each case indicating that such Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such Lending Office or Offices under this
Guaranty free from withholding of United States Federal income tax;
(ii) if at any time any Bank changes its Lending Office
or Offices or selects an additional Lending Office as herein provided, it
shall with reasonable promptness deliver to the Guarantor through the
Agent in replacement for, or in addition to, the forms previously
delivered by it hereunder:
(A) if such changed or additional Lending Office is located in
the United States, two accurate and complete signed originals of
Form 4224; or
(B) otherwise, two accurate and complete signed originals of
Form 1001,
in each case indicating that such Bank is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the account of
such changed or additional Lending Office under this Guaranty free from
withholding of United States federal income tax;
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(iii) it shall, before or promptly after the occurrence
of any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in the most recent Form 4224
or Form 1001 previously delivered by such Bank and if the delivery of the
same be lawful, deliver to the Guarantor through the Agent two accurate
and complete original signed copies of Form 4224 or Form 1001 in
replacement for the forms previously delivered by the Bank; and
(iv) it shall, promptly upon any Guarantor's reasonable
request to that effect, deliver to such Guarantor such other forms or
similar documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to establish such
Bank's tax status for withholding purposes.
(g) No Guarantor will be required to pay any additional amounts in
respect of United States federal income tax pursuant to subsection 2.13(d) to
any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts
would not have arisen but for a failure by such Bank to comply with its
obligations under subsection 2.13(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to such Guarantor
a Form 4224 in respect of such Lending Office pursuant to subsection
2.13(f)(i)(A), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States federal income
tax in respect of payments by such Guarantor hereunder for the account of
such Lending Office for any reason other than a change in United States
law or regulations or in the official interpretation of such law or
regulations by any governmental authority charged with the interpretation
or administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to such Guarantor
a Form 1001 in respect of such Lending Office pursuant to subsection
2.13(f)(i)(B), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States Federal income
tax in respect of payments by such Guarantor hereunder for the account of
such Lending Office for any reason other than a change in United States
law or regulations or any applicable tax treaty or regulations or in the
official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form 1001.
(h) If any Guarantor is required to pay additional amounts to any
Lender Party pursuant to subsection 2.13(d), then such Lender Party shall use
its reasonable best efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by such Guarantor which may thereafter accrue if
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such change in the judgment of such Lender Party is not otherwise significantly
disadvantageous to such Lender Party.
(i) The agreements and obligations of each Guarantor contained
in this Section 2.13 shall survive the payment in full of all other Obligations.
2.14 Continuing Guaranty. This Guaranty is a continuing guaranty and
agreement of subordination and shall continue in effect and be binding upon each
Guarantor until termination of the Commitments, existing of the Letters of
Credit and payment and performance in full of the Obligations which may exist or
which may arise from time to time under successive transactions, and each
Guarantor expressly acknowledges that this Guaranty shall remain in full force
and effect notwithstanding that there may be periods in which no Obligations
exist. This Guaranty supersedes all prior guaranties executed from time to time
by any of the Guarantors in connection with the Second Amended and Restated
Credit Agreement dated as of June 15, 1995, as amended from time to time, among
the Company, the financial institutions party thereto as "Banks" and Bank of
America NT & SA as the Agent for the Banks.
2.15 Substantial Benefits. The funds that have been borrowed from the
Banks by the Company and the Issuance of any Letter of Credit by the Issuing
Bank have been and are to be contemporaneously used for the benefit of the
Company and the Guarantors. The Company and the Guarantors have derived and will
derive significant and substantial benefits from the accommodations that have
been made by the Banks and the Issuing Bank under the Loan Documents. The
Guarantors have received at least "reasonably equivalent value" (as such phrase
is used in Section 548 of the Bankruptcy Code, in Section 3439.04 of the
California Uniform Fraudulent Transfer Act and in comparable provisions of other
applicable law) and more than sufficient consideration to support its
obligations hereunder in respect of the Obligations and under any of the Loan
Documents to which it is a party.
3. Representations and Warranties. Each Guarantor represents and warrants to the
Lender Parties that (a) such Guarantor and the Company are distinct and separate
entities operating independently; (b) such Guarantor has received copies of the
Credit Agreement and the other Loan Documents and is familiar with and fully
understands of all their respective terms and conditions; (c) no Lender Party
has made any representations or warranties to such Guarantor regarding the
creditworthiness of the Company or the prospects of repayment from sources other
than the Company; (d) this Guaranty is executed at the request of the Company;
(e) such Guarantor has established adequate means of obtaining from the Company
on a continuing basis financial and other information pertaining to the business
of the Company; and (f) such Guarantor is Solvent (both before and after giving
effect to this Guaranty, taking into account such Guarantor's rights of
contribution and indemnity as provided in Section 2.6).
4. Miscellaneous
4.1 Participations; Novations. Any Lender Party may from time to time,
without notice to any Guarantor and without affecting any Guarantor's
obligations hereunder, transfer its interest
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in the Obligations to Participants and Assignees (each as defined in the Credit
Agreement) as provided in the Credit Agreement. Each Guarantor agrees that each
such transfer will give rise to a direct obligation of such Guarantor to each
such Participant and Assignee and that each such Participant and Assignee shall
have the same rights and benefits under this Guaranty as it would have if it
were a Bank party to the Credit Agreement and this Guaranty. Each Lender Party
agrees to maintain the confidentiality of all non-public information provided to
it by any Guarantor or by the Agent on such Guarantor's behalf to the same
extent and with the same exceptions as provided in the Credit Agreement.
Notwithstanding the foregoing, each Guarantor authorizes the Agent and each
other Lender Party to disclose to any prospective Participant and Assignee and
any Participant and Assignee any and all confidential information in the Agent's
and such Lender Party's possession concerning the Guarantor, this Guaranty and
any security for this Guaranty; provided, however, that such Participant or
Assignee or such prospective Participant or Assignee agrees in writing to the
Agent or such Lender Party, as the case may be, to keep such information
confidential to the same extent required by the Lender Parties under the Credit
Agreement.
4.2 Merger. In the event that (i) one or more Guarantors is merged into
the Company or another Guarantor or (ii) one or more of the Guarantors is sold
or liquidated, subject, in each case, to the provisions of the Credit Agreement,
such Guarantor shall cease to be a Guarantor hereunder without the necessity to
amend or re-issue this Guaranty, and each Guarantor agrees that its obligations
hereunder shall continue in full force and effect hereunder and shall not be
affected by any such merger, sale or liquidation.
4.3 Waivers, Writing Required. No delay or omission by any Lender Party to
exercise any right under this Guaranty shall impair any such right, nor shall it
be construed to be a waiver thereof. No waiver of any single breach or default
under this Guaranty shall be deemed a waiver of any other breach or default. Any
amendment or waiver of any provision of this Guaranty must be in writing to be
effective.
4.4 Remedies. All rights and remedies provided in this Guaranty and any
instrument or agreement referred to herein are cumulative and are not exclusive
of any rights or remedies otherwise provided by law. Any single or partial
exercise of any right or remedy shall not preclude the further exercise thereof
or the exercise of any other right or remedy.
4.5 Costs and Expenses. Each Guarantor agrees to pay to each Lender Party
on demand all costs, expenses and attorneys' fees (including allocated costs for
in-house legal services) incurred by each such Lender Party in connection with
the enforcement of this Guaranty.
4.6 Section Headings, Interpretation. Section headings are for reference
only, and shall not affect the interpretation or meaning of any provision of
this Guaranty. Unless otherwise provided, references to Articles, Sections and
Exhibits shall be deemed references to Articles, Sections and Exhibits of this
Guaranty. All references to the word "Guarantor" or "the Guarantors" shall mean
all and any one or more of them, as the context shall require.
10
190
4.7 Severability. The illegality or unenforceability of any provision of
this Guaranty or any instrument or agreement referred to herein shall not in any
way affect or impair the legality or enforceability of the remaining provisions
of this Guaranty or any instrument or agreement referred to herein.
4.8 Governing Law and Jurisdiction.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND
ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR AND EACH LENDER PARTY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF
THOSE COURTS. EACH GUARANTOR AND EACH LENDER PARTY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH GUARANTOR AND EACH LENDER PARTY
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
4.9 Separate Obligations. This Guaranty creates separate obligations of
each Guarantor in favor of the Lender Parties. The fact that such obligations
are set forth in this one Guaranty rather than in a separate guaranty document
for each Guarantor is for the convenience of the Company and the Guarantors and
shall in no way impair or adversely affect the rights or benefits of any of the
Lender Parties hereunder. Each Guarantor agrees to execute and deliver a
separate agreement, immediately upon request at any time of the Majority Banks,
evidencing such Guarantor's obligations under this Guaranty.
4.10 Entire Agreement. This Guaranty and any instrument, agreement or
document attached hereto or referred to herein (a) integrate all the terms and
conditions mentioned herein or incidental hereto, (b) supersede all oral
negotiations and prior writings with respect to the subject matter hereof, and
(c) are intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in this Guaranty and any such
instrument, agreement and document and as the complete and exclusive statement
of the terms agreed to by the parties. In the event of any conflict between the
terms, conditions and provisions of this Guaranty and any such instrument,
agreement or document, the terms, conditions and provisions of this Guaranty
shall prevail.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its
duly authorized officers as of the day and year first above written.
GUARANTORS
GRANITE CONSTRUCTION COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Vice/President & CFO
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: ▇.▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Vice President & Treasurer
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telecopy:
GRANITE SR91 CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
President & CEO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Vice President & CFO
Address:__________________________
__________________________
__________________________
Attention:
Telecopy:
192
▇▇▇▇▇▇▇ CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
President & CEO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Vice President & CFO
Address:
Attention:
Telecopy:
DESERT AGGREGATES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
CFO, Treasurer & Assistant
Secretary
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Assistant Secretary
Address:
Attention:
Telecopy:
193
GG&R, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
President & CEO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Vice President & CFO
Address:
Attention:
Telecopy:
INTERMOUNTAIN SLURRY SEAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
CFO & Assistant Secretary
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Assistant Secretary
Address:
Attention:
Telecopy:
194
BEAR RIVER CONTRACTORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CFO &Assistant Secretary
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Katbleen Kenan
----------------------------
Assistant Secretary
Address:
Attention:
Telecopy:
POZZOLAN PRODUCTS COMPANY (P.P.C.)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
CFO & Assistant Secretary
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Assistant Secretary
Address:
Attention:
Telecopy
195
GILC INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
President & CEO
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: ▇.▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Vice President & CFO
Address:
Attention:
Telecopy:
GILC, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
President & CEO
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: ▇.▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Vice President & CFO
Address:
Attention:
Telecopy:
196
GRANITE SR91, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
President & CEO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Vice President & CFO
Address:
Attention:
Telecopy:
GTC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
President & Treasurer
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: ▇.▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Vice President, Assistant
Secretary and Assistant
Treasurer
Address:
Attention:
Telecopy:
197
GRANITE CONSTRUCTION INCORPORATED
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company") requires
financing in the ordinary course of business for working capital and other
general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), to be secured under certain circumstances as provided
therein by the pledge of certain collateral by the Company and in the other
documents contemplated therein (the "Loan Documents"), and to be jointly and
severally guaranteed by the Guarantors; and
WHEREAS, the Board of Directors of the Company has determined after
analysis and discussion that it is in the best interests of the Company to
procure such financing from the Banks pursuant to the Credit Agreement and other
Loan Documents and to secure such financing under certain circumstances as
provided therein by the pledge of certain collateral by the Company;
NOW, THEREFORE, BE IT RESOLVED, that the Company be, and hereby is,
authorized and empowered to enter into and deliver the Credit Agreement, and
other Loan Documents to which the Company will or may be a party, together with
all changes therein and supplements, modifications, amendments and restatements
thereof approved by an executive officer of the Company as hereinafter provided;
to borrow money from time to time thereunder at such rates of interest as may be
specified therein; to mortgage, pledge or otherwise encumber any of the
Company's assets and properties of any kind or nature whatsoever (including, but
not limited to, those referenced above) to secure in whole or in part its
obligations under the Credit Agreement, and other Loan Documents and to repay
money borrowed thereunder, together with interest thereon, and take any and all
other actions that may be necessary or desirable in order to perform or
otherwise satisfy, in whole or in part, any and all of the Company's obligations
under the Credit Agreement and other Loan Documents, as and when due or in
advance thereof, to otherwise carry out the intent or purposes thereof or of
these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the Company be, and each of those
executive officers hereby is, authorized and directed in the name and on behalf
of the Company to negotiate, execute and deliver to the Agent and the Banks the
Credit Agreement and other Loan Documents, incorporating such changes therein as
the executive officer signing the same may approve, and from time to time
thereafter to negotiate, execute and deliver such supplements, extensions,
modifications, amendments or restatements thereof as the executive officer
signing the same may approve as necessary or desirable to carry out the intent
or purposes thereof or of these Resolutions, with the execution of any of the
foregoing being conclusive evidence of the signing officer's approval thereof;
RESOLVED FURTHER, that those and other appropriate officers of the Company
be, and each of them hereby is, authorized and directed in the name and on
behalf of the Company to do and perform any and all such other acts and things,
to sign or make such other agreements, certificates,
198
instruments, notices, requests, statements, and other documents and
communications, and to take or omit such other actions as each of them in his
sole discretion may deem necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the terms and provisions of the
Credit Agreement and other Loan Documents, as and when due or in advance
thereof, to consummate the transactions contemplated therein or to carry out the
intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Bank shall be entitled to rely upon any action
taken or omitted or any agreement, certificate, instrument, notice, request,
statement or other document or communication signed or made by any person listed
as an executive officer of the Company in the most recent Certificate of the
Company's Secretary delivered to the Agent until such time as the Agent shall
have received express written notice to the contrary from an executive officer
of the Company; and
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Credit Agreement and other Loan Documents as
so executed and delivered, and as so supplemented, modified, amended and
restated from time to time, and the actions of officers of the Company so taken
or omitted, hereby are all authorized, approved and ratified in all respects,
notwithstanding anything to the contrary contained in the Bylaws of the Company
or any other resolution of the Board of Directors of the Company.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite Construction
Incorporated, a Delaware corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors Executive Committee by Unanimous Consent Without a Meeting,
effective June 30, 1997 and entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
199
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite Construction
Incorporated, a Delaware corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, certify that I am the duly elected Vice President
and Assistant Secretary of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇
▇▇▇▇▇ is the duly elected Vice President and Secretary of the Company and that
his signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President and Assistant Secretary
200
GRANITE CONSTRUCTION COMPANY
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
Granite Construction Company (the "Guarantor"), requires financing in the
ordinary course of business for working capital and other general corporate
purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor have determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED, that the Company be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, instruments, notices, requests, statements, and other documents
and communications, and to take or omit such other actions as each of them in
his sole discretion may deem necessary or desirable in order to perform or
otherwise satisfy, in whole or in part, any and all of the terms and provisions
of the Credit Agreement and other Loan Documents, as and when due or in advance
thereof, to consummate the transactions contemplated therein or to carry out the
intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary or
the Treasurer of the Guarantor be, and each of those executive officers hereby
is, authorized and directed in the name and on behalf of the Guarantor to
negotiate, execute and deliver to the Lender Parties the Guaranty and other Loan
Documents, incorporating such changes therein as the executive officer signing
the same may approve, and from time to time thereafter to negotiate, execute and
deliver such supplements, extensions, modifications, amendments or restatements
thereof as the executive officer signing the same may approve as necessary or
desirable to carry out the intent or purposes thereof or of these Resolutions,
with the execution of any of the foregoing being conclusive evidence of the
signing officer's approval thereof;
201
RESOLVED FURTHER, that those and other appropriate officers of the
Guarantor be, and each of them hereby is, authorized and directed in the name
and on behalf of the Guarantor to do and perform any and all such other acts and
things, to sign or make such other agreements, certificates, instruments,
notices, requests, statements, and other documents and communications, and to
take or omit such other actions as each of them in his or her sole discretion
may deem necessary or desirable in order to perform or otherwise satisfy, in
whole or in part, any and all of the terms and provisions of the Guaranty and
other Loan Documents to which the Guarantor is or may become party, as and when
due or in advance thereof, to consummate the transactions contemplated therein
or to carry out the intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Secretary delivered to the Agent until such time
as the Agent shall have received express written notice to the contrary from an
executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite Construction
Company, a California corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors Executive Committee by Unanimous Consent Without a Meeting,
effective June 30, 1997 and entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
202
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite Construction
Company, a California corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, certify that I am the duly elected Vice President
and Assistant Secretary of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇
▇▇▇▇▇ is the duly elected Vice President and Secretary of the Company and that
his signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President and Assistant Secretary
203
GRANITE SR91 CORPORATION
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
Granite SR91 Corporation (the "Guarantor"), requires financing in the ordinary
course of business for working capital and other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor has determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the Guarantor be, and each of those
executive officers hereby is, authorized and directed in the name and on behalf
of the Guarantor to negotiate, execute and deliver to the Lender Parties the
Guaranty and other Loan Documents, incorporating such changes therein as the
executive officer signing the same may approve, and from time to time thereafter
to negotiate, execute and deliver such supplements, extensions, modifications,
amendments or restatements thereof as the executive officer signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
conclusive evidence of the signing officer's approval thereof,
RESOLVED FURTHER, that those and other appropriate officers of the
Guarantor be, and
204
each of them hereby is, authorized and directed in the name and on behalf of the
Guarantor to do and perform any and all such other acts and things, to sign or
make such other agreements, certificates, instruments, notices, requests,
statements, and other documents and communications, and to take or omit such
other actions as each of them in his or her sole discretion may deem necessary
or desirable in order to perform or otherwise satisfy, in whole or in part, any
and all of the terms and provisions of the Guaranty and other Loan Documents to
which the Guarantor is or may become party, as and when due or in advance
thereof, to consummate the transactions contemplated therein or to carry out the
intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary from an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite SR91 Corporation,
a California corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
205
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite SR91 Corporation,
a California corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, certify that I am the duly elected President and Chief
Executive Officer of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇▇▇▇▇
is the duly elected Vice President and Secretary of the Company and that his
signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
206
▇▇▇▇▇▇▇ CORPORATION
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
▇▇▇▇▇▇▇ Corporation (the "Guarantor"), requires financing in the ordinary course
of business for working capital and other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
"Credit Agreement"), and in the other documents contemplated therein (the "Loan
Documents"), to be secured under certain circumstances as provided therein by
the pledge of certain collateral by the Company and to be jointly and severally
guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor have determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the Guarantor be, and each of those
executive officers hereby is, authorized and directed in the name and on behalf
of the Guarantor to negotiate, execute and deliver to the Lender Parties the
Guaranty and other Loan Documents, incorporating such changes therein as the
executive officer signing the same may approve, and from time to time thereafter
to negotiate, execute and deliver such supplements, extensions, modifications,
amendments or restatements thereof as the executive officer signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
207
conclusive evidence of the signing officer's approval thereof;
RESOLVED FURTHER, that those and other appropriate officers of the
Guarantor be, and each of them hereby is, authorized and directed in the name
and on behalf of the Guarantor to do and perform any and all such other acts and
things, to sign or make such other agreements, certificates, instruments,
notices, requests, statements, and other documents and communications, and to
take or omit such other actions as each of them in his or her sole discretion
may deem necessary or desirable in order to perform or otherwise satisfy, in
whole or in part, any and all of the terms and provisions of the Guaranty and
other Loan Documents to which the Guarantor is or may become party, as and when
due or in advance thereof, to consummate the transactions contemplated therein
or to carry out the intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary from an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of ▇▇▇▇▇▇▇ Corporation, a
Colorado corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
208
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of ▇▇▇▇▇▇▇ Corporation, a
Colorado corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, certify that I am the duly elected President and Chief
Executive Officer of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇▇▇▇▇
is the duly elected Vice President and Secretary of the Company and that his
signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
209
DESERT AGGREGATES, INC.
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
Desert Aggregates, Inc. (the "Guarantor"), requires financing in the ordinary
course of business for working capital and other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor have determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the ("Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes; therein and supplements
modifications, amendments and restatements thereof approved by an executive
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the Guarantor be, and each of those
executive officers hereby is, authorized and directed in the name and on behalf
of the Guarantor to negotiate, execute and deliver to the Lender Parties the
Guaranty and other Loan Documents, incorporating such changes therein as the
executive officer signing the same may approve, and from time to time thereafter
to negotiate, execute and deliver such supplements, extensions, modifications,
amendments or restatements thereof as the executive officer signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
conclusive evidence of the signing officer's approval thereof;
RESOLVED FURTHER, that those and other appropriate officers of the
Guarantor be, and
210
each of them hereby is, authorized and directed in the name and on behalf of the
Guarantor to do and perform any and all such other acts and things, to sign or
make such other agreements, certificates, instruments, notices, requests,
statements, and other documents and communications, and to take or omit such
other actions as each of them in his or her sole discretion may deem necessary
or desirable in order to perform or otherwise satisfy, in whole or in part, any
and all of the terms and provisions of the Guaranty and other Loan Documents to
which the Guarantor is or may become party, as and when due or in advance
thereof, to consummate the transactions contemplated therein or to carry out the
intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Secretary delivered to the Agent until such time
as the Agent shall have received express written notice to the contrary from an
executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
me Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Desert Aggregates, Inc.,
a California corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of me Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
211
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Desert Aggregates, Inc.,
a California corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
I, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, certify that I am the duly elected Assistant Secretary
of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the duly
elected Vice President and Secretary of the Company and that his signature above
is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Assistant Secretary
212
G.G. & R., INC.
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
G.G. & R., INC. (the "Guarantor"), requires financing in the ordinary course of
business for working capital and other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banns party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor have determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby in
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the Guarantor be, and each of those
executive officers hereby is, authorized and directed in the name and on behalf
of the Guarantor to negotiate, execute and deliver to the Lender Parties the
Guaranty and other Loan Documents, incorporating such changes therein as the
executive officer signing the same may approve, and from time to time thereafter
to negotiate, execute and deliver such supplements, extensions, modifications,
amendments or restatements thereof as the executive officer signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
conclusive evidence of the signing officer's approval thereof;
RESOLVED FURTHER, that those and other appropriate officers of the
Guarantor be, and each of them hereby is authorized and directed in the name and
on behalf of the Guarantor to do and
213
perform any and all such other acts and things, to sign or make such other
agreements, certificates, instruments, notices, requests, statements, and other
documents and communications, and to take or omit such other actions as each of
them in his or her sole discretion may deem necessary or desirable in order to
perform or otherwise satisfy, in whole or in part, any and all of the terms and
provisions of the Guaranty and other Loan Documents to which the Guarantor is or
may become party, as and when due or in advance thereof, to consummate the
transactions contemplated therein or to carry out the intent or purposes thereof
or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary from an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of G.G. & R., Inc., a Utah
corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
214
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of G. G. & R., Inc., a Utah
corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and in
each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, certify that I am the duly elected President and Chief
Executive Officer of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇▇▇▇▇
is the duly elected Vice President and Secretary of the Company and that his
signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
215
INTERMOUNTAIN SLURRY SEAL, INC.
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
Intermountain Slurry Seal, Inc. (the "Guarantor"), requires financing in the
ordinary course of business for working capital and other general corporate
purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks, (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor have determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer or an authorized representative of the Guarantor as hereinafter
provided, and to take any and all other actions that may be necessary or
desirable in order to perform or otherwise satisfy, in whole or in part, any and
all of the Company's obligations under the Guaranty and other Loan Documents, as
and when due or in advance thereof, to otherwise carry out the intent or
purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer be, and each of those executive officers
and authorized representatives hereby is, authorized and directed in the name
and on behalf of the Guarantor to negotiate, execute and deliver to the Lender
Parties the Guaranty and other Loan Documents, incorporating such changes
therein as the executive officer or authorized representative signing the same
may approve, and from time to time thereafter to negotiate, execute and deliver
such supplements, extensions, modifications, amendments or restatements thereof
as the executive officer or authorized representative signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
conclusive evidence of the signing officer's or authorized representative's
approval thereof;
216
RESOLVED FURTHER, that those and other appropriate officers and authorized
representatives of the Guarantor, be, and each of them hereby is, authorized and
directed in the name and on behalf of the Guarantor to do and perform any and
all such other acts and things, to sign or make such other agreements,
certificates, instruments, notices, requests, statements,, and other documents
and communications, and to take or omit such other actions as each of them in
his or her sole discretion may deem necessary or desirable in order to perform
or otherwise satisfy, in whole or in part, any and all of me turns and
provisions of the Guaranty and other Loan Documents to which the Guarantor is or
may become party, as and when due or in advance thereof, to consummate the
transactions contemplated therein or to carry out the intent or purposes thereof
or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary from an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Intermountain Slurry
Seal, Inc., a Utah corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
217
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Intermountain Slurry
Seal, Inc., a Utah corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
I, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, certify that I am the duly elected Assistant Secretary
of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the duly
elected Vice President and Secretary of the Company and that his signature above
is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Assistant Secretary
218
BEAR RIVER CONTRACTORS
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
Bear River Contractors (the "Guarantor") requires financing in the ordinary
course of business for working capital and other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor has determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may to supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer or an authorized representative of the Guarantor as hereinafter
provided, and to take any and all other actions that may be necessary or
desirable in order to perform or otherwise satisfy, in whole or in part, any and
all of the Company's obligations under the Guaranty and other Loan Documents, as
and when due or in advance thereof, to otherwise carry out the intent or
purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer and each of those executive officers and
authorized representatives hereby is, authorized and directed in the name and on
behalf of the Guarantor to negotiate, execute and deliver to the Lender Parties
the Guaranty and other Loan Documents, incorporating such changes therein as the
executive officer or authorized representative signing the same may approve, and
from time to time thereafter to negotiate, execute and deliver such supplements,
extensions, modifications, amendments or restatements thereof as the executive
officer or authorized representative signing the same may approve as necessary
or desirable to carry out the intent or purposes thereof or of these
Resolutions, with the execution of any of the foregoing being conclusive
evidence of the signing officer's or authorized representative's approval
thereof;
219
RESOLVED FURTHER, that those and other appropriate officers or authorized
representatives of the Guarantor be, and each of them hereby is, authorized and
directed in the name and on behalf of the Guarantor to do and perform any and
all such other acts and things, to sign or make such other agreements,
certificates, instruments notices, requests, statements, and other documents and
communications, and to take or omit such other actions as each. of them in his
or her sole discretion may deem necessary or desirable in order to perform or
otherwise satisfy, in whole or in part, any and all of the terms and provisions
of the Guaranty and other Loan Documents to which the Guarantor is or may become
party, as and when due or in advance thereof, to consummate the transactions
contemplated therein or to carry out the intent or purposes thereof or of these
Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary from an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Bear River Contractors, a
Wyoming corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
220
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Bear River Contractors, a
Wyoming corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
I ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, certify that I am the duly elected Assistant Secretary
of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the duly
elected Vice President and Secretary of the Company and that his signature above
is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Assistant Secretary
221
POZZOLAN PRODUCTS COMPANY (P.P.C.)
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
Pozzolan Products Company (P.P.C.) (the "Guarantor"), requires financing in the
ordinary course of business for working capital and other general corporate
purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned td them in the Credit Agreement, as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain in that
certain Credit Agreement proposed between the Company, Bank of America National
Trust and Savings Association, as agent for the Banks (the "Agent"), and the
Banks party thereto, to be dated on or about June 30, 1997, (as the same may be
supplemented, modified, amended or restated from time to time in the manner
provided therein, the "Credit Agreement"), and in the other documents
contemplated therein (the "Loan Documents"), to be secured under certain
circumstances as provided therein by the pledge of certain collateral by the
Company and to be jointly and severally guaranteed by the Guarantor and certain
other guarantors; and
WHEREAS, the Board of Directors of the Guarantor have determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may to supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty" );
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer or an authorized representative of the Guarantor as hereinafter
provided, and to take any and all other actions that may be necessary or
desirable in order to perform or otherwise satisfy, in whole or in part, any and
all of the Company's obligations under the Guaranty and other Loan Documents, as
and when due or in advance thereof, to otherwise carry out the intent or
purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer be, and each of those executive officers
and authorized representatives hereby is, authorized and directed in the name
and on behalf of the Guarantor to negotiate, execute and deliver to the Lender
Parties the Guaranty and other Loan Documents, incorporating such changes
therein as the executive officer or authorized representative signing the same
may approve, and from time to time thereafter to negotiate, execute and deliver
such supplements, extensions, modifications, amendments or restatements thereof
as the executive officer or authorized representative signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
conclusive evidence of the signing officer's or authorized representative's
approval thereof,
222
RESOLVED FURTHER, that those and other appropriate officers and authorized
representatives of the Guarantor be, and each of them hereby is, authorized and
directed in the name and on behalf of the Guarantor to do and perform any and
all such other acts and things, to sign or make such other agreements,
certificates, instruments, notices, requests, statements, and other documents
and communications, and to take or omit such other actions as each of them in
his or her sole discretion may deem necessary or desirable in order to perform
or otherwise satisfy, in whole or in part, any and all of the terms and
provisions of the Guaranty and other Loan Documents to which the Guarantor is or
may become party, as and when due or in advance thereof, to consummate the
transactions contemplated therein or to carry out the intent or purposes thereof
these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary form an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of officers of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Pozzolan Products
Company, a Utah corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
223
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Pozzolan Products Company
(PPC), a Utah corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
I, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, certify that I am the duly elected Assistant Secretary
of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the duly
elected Vice President and Secretary of the Company and that his signature above
is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Assistant Secretary
224
GILC INCORPORATED
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company"), the owner of
GILC Incorporated (the "Guarantor"), requires financing in the ordinary course
of business for working capital and other general corporate, purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement as defined below), have
offered to make such financing available to the Company upon the terms and
provisions and subject to the conditions contained in that certain Credit
Agreement proposed between the Company, Bank of America National Trust and
Savings Association, as agent for the Banks (the "Agent"), and the Banks party
thereto, to be dated on or about June 30, 1997 (as the same may be supplemented,
modified, amended or restated from time to time in the manner provided therein,
the "Credit Agreement"), and in the other documents contemplated therein (the
"Loan Documents"), to be secured under certain circumstances as provided therein
by the pledge of certain collateral by the Company and to be jointly and
severally guaranteed by the Guarantor and certain other guarantors; and
WHEREAS, the Board of Directors of the Guarantor has determined after
analysis and discussion that it is in the best interests of the Guarantor to
induce the Banks to make and continue such financing to the Company pursuant to
the Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several Guaranty
proposed by the Guarantor and the other subsidiaries of the Company party
thereto in favor of each Lender Party (as defined therein) to be dated on or
about June 30, 1997 (as the same may be supplemented, modified, amended or
restated from time to time in the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that the Guarantor be, and hereby is,
authorized and empowered to enter into and deliver the Guaranty and other Loan
Documents (as such terms are defined in the Guaranty) to which the Guarantor
will or may be a party, together with all changes therein and supplements,
modifications, amendments and restatements thereof approved by an executive
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President the Secretary,
any Assistant Secretary or the Treasurer of the Guarantor be, and each of those
executive officers hereby is, authorized and directed in the name and on behalf
of the Guarantor to negotiate, execute and deliver to the Lender Parties the
Guaranty and other Loan Documents, incorporating such changes therein as the
executive officer signing the same may approve, and from time to time thereafter
to negotiate, execute and deliver such supplements, extensions, modifications,
amendments or restatements thereof as the executive officer signing the same may
approve as necessary or desirable to carry out the intent or purposes thereof or
of these Resolutions, with the execution of any of the foregoing being
conclusive evidence of the signing officer's approval thereof,
RESOLVED FURTHER, that those and other appropriate officers of the
Guarantor be, and
225
each of them hereby is, authorized and directed in the name and on behalf of the
Guarantor to do and perform any and all such other acts and things, to sign or
make such other agreements, certificates, instruments, notices, requests,
statements, and other documents and communications, and to take or omit such
other actions as each of them in his or her sole discretion may deem necessary
or desirable in order to perform or otherwise satisfy, in whole or in part, any
and all of the terms and provisions of the Guaranty and other Loan Documents to
which the Guarantor is or may become party, as and when due or in advance
thereof, to consummate the transactions contemplated therein or to carry out the
intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an executive officer of the Guarantor in the most recent
Certificate of the Guarantor's Assistant Secretary delivered to the Agent until
such time as the Agent shall have received express written notice to the
contrary from an executive officer of the Guarantor;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of offices of
the Guarantor so taken or omitted, hereby are all authorized, approved and
ratified in all respects, notwithstanding anything to the contrary contained in
the Bylaws of the Guarantor or any other resolution of the Board of Directors of
the Guarantor.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of GILC Incorporated, a
California corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
226
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of GILC Incorporated, a
California corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, certify that I am the duly elected Vice President and
Assistant Secretary of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇
▇▇▇▇▇ is the duly elected Vice President and Secretary of the Company and that
his signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Assistant Secretary
227
GILC INCORPORATED
JULY 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company") is the sole
owner of GILC Incorporated (the "General Partner"), General Partner is the sole
general partner of GILC, L.P. (the "Guarantor"), and the Company requires
financing in the ordinary course of business for working capital and other
general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have made
such financing available to the Company upon the terms and provisions and
subject to the conditions contained in that certain Credit Agreement between the
Company, Bank of America National Trust and Savings Association, as agent for
the Banks (the "Agent"), and the Banks party thereto, dated as of June 30, 1997
(as the same may be supplemented, modified, amended or restated from time to
time in the manner provided therein, the "Credit Agreement"), and in the other
documents contemplated therein (the "Loan Documents"), to be secured under
certain circumstances as provided therein by the pledge of certain collateral by
the Company and to be jointly and severally guaranteed by the Guarantor and
certain other guarantors; and
WHEREAS, the Board of Directors of the General Partner has determined
after analysis and discussion that it is in the best interests of the Guarantor
to require the Banks to continue such financing to the Company pursuant to the
Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several guaranty
in favor of each Lender Party (as defined therein) dated as of July 30, 1997 (as
the same may be supplemented, modified, amended or restated from time to lime in
the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that any officer of the General Partner be,
and hereby is, authorized and empowered to enter into and deliver the Guaranty
and other Loan Documents (as such terms are defined in the Guaranty) to which
the Guarantor will or may be a party, together with all changes therein and
supplements, modifications, amendments and restatements thereof approved by any
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the General Partner be, and each of
those executive officers hereby is, authorized and directed in the name and on
behalf of the General Partner as the sole general partner of the Guarantor to
negotiate, execute and deliver to the Lender Parties the Guaranty and other Loan
Documents, incorporating such changes therein as the executive officer signing
the same may approve, and from time to time thereafter to negotiate, execute and
deliver such supplements, extensions, modifications, amendments or restatements
thereof as the executive officer signing the same may approve as necessary or
desirable to carry out the intent or purposes thereof or of these Resolutions,
with the execution of any of the foregoing being conclusive evidence of the
signing officer's approval thereof;
228
RESOLVED FURTHER, that those and other appropriate officers of the General
Partner be, and each of them hereby is, authorized and directed in the name and
on behalf of the General Partner as the sole general partner of the Guarantor to
do and perform any and all such other acts and things, to sign or make such
other agreements, certificates, instruments, notices, requests, statements, and
other documents and communications, and to take or omit such other actions as
each of them in his or her sole discretion may deem necessary or desirable in
order to perform or otherwise satisfy, in whole or in part, any and all of the
terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is or may become party, as and when due or in advance thereof, to
consummate the transactions contemplated therein or to carry out the intent or
purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an officer of the General Partner in the most recent Incumbency
Certificate delivered to the Agent until such time as the Agent shall have
received, express written notice to the contrary from any officer of the General
Partner; and
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of the sole
general partner of the Guarantor so taken or omitted, hereby are all authorized,
approved and ratified in all respects, notwithstanding anything to the contrary
contained in the Agreement of Limited Partnership of the Guarantor or any other
resolution of the Board of Directors of the General Partner.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of GILC Incorporated, a
California corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
229
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of GILC Incorporated, a
California corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Agreement of Limited Partnership of GILC, L.P. previously provided the
Bank as Agent under the Prior Credit Agreement has not been amended or modified
in any respect.
The Company and GILC, L.P. are in good standing in their jurisdictions of
incorporation and formation and in each jurisdiction where the failure to so
qualify would have a Material Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, certify that I am the duly elected Vice President and
Assistant Secretary of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇
▇▇▇▇▇ is the duly elected Vice President and Secretary of the Company and that
his signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Assistant Secretary
230
GRANITE SR91 CORPORATION
JULY 30, 1997
WHEREAS, Granite Construction Incorporated (the "Company") is the sole
owner of Granite SR91 Corporation (the "General Partner"), General Partner is
the sole general partner of Granite SR91 L.P. (the "Guarantor"), and the Company
requires financing in the ordinary course of business for working capital and
other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement, as defined below), have made
such financing available to the Company upon the terms and provisions and
subject to the conditions contained in that certain Credit Agreement between the
Company, Bank of America National Trust and Savings for the Banks (the "Agent"),
and the Banks party thereto, dated as of June 30, 1997 (as the same may be
supplemented, modified, amended or restated from time to time in the manner
provided therein, the "Credit Agreement"), and in the other documents
contemplated therein (the "Loan Documents"), to be secured under certain
circumstances as provided therein by the pledge of certain collateral by the
Company and to be jointly and severally guaranteed by the Guarantor and certain
other guarantors;
WHEREAS, the Board of Directors of the General Partner has determined
after analysis and discussion that it is in the best interests of the Guarantor
to require the Banks to continue such financing to the Company pursuant to the
Credit Agreement and other Loan Documents by the Guarantor's guaranty of the
obligations of the Company contained in that certain joint and several guaranty
in favor of each Lender Party (as defined therein) dated as of July 30, 1997 (as
the same may be supplemented, modified, amended or restated from time to time in
the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that any officer of the General Partner be,
and hereby is, authorized and empowered to enter into and deliver the Guaranty
and other Loan Documents (as such terms are defined in the Guaranty) to which
the Guarantor will or may be a party, together with all changes therein and
supplements, modifications, amendments and restatements thereof approved by any
officer of the Guarantor as hereinafter provided, and to take any and all other
actions that may be necessary or desirable in order to perform or otherwise
satisfy, in whole or in part, any and all of the Company's obligations under the
Guaranty and other Loan Documents, as and when due or in advance thereof, to
otherwise carry out the intent or purposes thereof or of these resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the General Partner be, and each of
those executive officers hereby is, authorized and directed in the name and on
behalf of the General Partner as the sole general partner of the Guarantor to
negotiate, execute and deliver to the Lender Parties the Guaranty and other Loan
Documents, incorporating such changes therein as the executive officer signing
the same may approve, and from time to time thereafter to negotiate, execute and
deliver such supplements, extensions, modifications, amendments or restatements
thereof as the executive officer signing the same may approve as necessary or
desirable to carry out the intent or purposes thereof or of these Resolutions,
with the execution of any of the foregoing being conclusive evidence of the
signing officer's approval thereof;
231
RESOLVED FURTHER, that those and other appropriate officers of the General
Partner be, and each of them hereby is, authorized and directed in the name and
on behalf of the General Partner as the sole general partner of the Guarantor to
do and perform any and all such other acts and things, to sign or make such
other agreements, certificates, instruments, notices, requests, statements, and
other documents and communications, and to take or omit such other actions as
each of them in his or her sole discretion may deem necessary or desirable in
order to perform or otherwise satisfy, in whole or in part, any and all of the
terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is or may become party, as and when due or in advance thereof, to
consummate the transactions contemplated therein or to carry out the intent or
purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an officer of the General Partner in the most recent Incumbency
Certificate delivered to the Agent until such time as the Agent shall have
received. express written notice to the contrary from any officer of the General
Partner;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Guarantor is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, and the actions of the sole
general partner of the Guarantor so taken or omitted, hereby are all authorized,
approved and ratified in all respects, notwithstanding anything to the contrary
contained in the Agreement of Limited Partnership of the Guarantor or any other
resolution of the Board of Directors of the General Partner.
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite SR91 Corporation,
a California corporation (the "Company").
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Consent Without a Meeting, effective June 30, 1997 and
entered into the Minute Book of the Company.
The action and resolutions are in conformity with the Articles of
Incorporation and Bylaws of the Company, have not been modified or repealed and
are now in full force and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
232
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of Granite SR91 Corporation,
a California corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Limited Partnership Agreement of Granite SR91, L.P. previously
provided the Bank as Agent under the Prior Credit Agreement has not been amended
or modified in any respect.
The Company and Granite SR91, L.P., are in good standing in their
jurisdictions of incorporation and formation and in each jurisdiction where the
failure to so qualify would have a Material Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, certify that I am the duly elected President and Chief
Executive Officer of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇ ▇▇▇▇▇
is the duly elected Vice President and Secretary of the Company and that his
signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
233
GTC, INC.
JUNE 30, 1997
WHEREAS, Granite Construction Incorporated, (the "Company") is the sole
owner of GTC, Inc. and the Company requires financing in the ordinary course of
business for working capital and other general corporate purposes;
WHEREAS, certain Banks (capitalized terms not defined herein having the
meanings assigned to them in the Credit Agreement as defined below), have made
such financing available to the Company upon the terms and provisions and
subject to the conditions contained in that certain Credit Agreement between the
Company, Bank of America National Trust and Savings Association, as agent for
the Banks (the "Agent"), and the Banks party thereto, dated as of June 30, 1997
(as the same may be supplemented, modified, amended or restated from time to
time in the manner provided therein, the "Credit Agreement"), and in the other
documents contemplated therein (the "Loan Documents"), to be secured under
certain circumstances as provided therein by the pledge of certain collateral by
the Company and to be jointly and severally guaranteed by the Guarantor and
certain other guarantors;
WHEREAS, the Board of Directors of the Corporation has determined after
analysis and discussion that it is in the best interests of the Corporation to
require the Banks to continue such financing to the Company pursuant to the
Credit Agreement and other Loan Documents by the Corporation's guaranty of the
obligations of the Company contained in that certain joint and several guaranty
in favor of each Lender Party (as defined therein) dated as of June 30, 1997 (as
the same may be supplemented, modified, amended or restated from time to time in
the manner provided therein, the "Guaranty");
NOW, THEREFORE, BE IT RESOLVED that any officer of the Corporation be, and
hereby is, authorized and empowered to enter into and deliver the Guaranty and
other Loan Documents (as such terms are defined in the Guaranty) to which the
Corporation will or may be a party, together with all changes therein and
supplements, modifications, amendments and restatements thereof approved by any
officer of the Corporation as hereinafter provided, and to take any and all
other actions that may be necessary or desirable in order to perform or
otherwise satisfy, in whole or in part, any and all of the Company's obligations
under the Guaranty and other Loan Documents, as and when due or in advance
thereof, to otherwise carry out the intent or purposes thereof or of these
resolutions;
RESOLVED FURTHER, that the President, any Vice President, the Secretary,
any Assistant Secretary or the Treasurer of the Corporation be, and each of
those executive officers hereby is, authorized and directed in the name and on
behalf of the Corporation to negotiate, execute and deliver to the Lender
Parties the Guaranty and other Loan Documents, incorporating such changes
therein as the executive officer signing the same may approve, and from time to
time thereafter to negotiate, execute and deliver such supplements, extensions,
modifications, amendments or restatements thereof as the executive officer
signing the same may approve as necessary or desirable to carry out the intent
or purposes thereof or of these Resolutions, with the execution of any of the
foregoing being conclusive evidence of the signing officer's approval thereof;
RESOLVED FURTHER, that those and other appropriate officers of the
Corporation, and
234
each of them hereby is, authorized and directed in the name and on behalf of the
Corporation to do and perform any and all such other acts and things, to sign or
make such other agreements, certificates, instruments, notices, requests,
statements, and other documents and communications, and to take or omit such
other actions as each of them in his or her sole discretion may deem necessary
or desirable in order to perform or otherwise satisfy, in whole or in part, any
and all of the terms and provisions of the Guaranty and other Loan Documents to
which the Corporation is or may become party, as and when due or in advance
thereof, to consummate the transactions contemplated therein or to carry out the
intent or purposes thereof or of these Resolutions;
RESOLVED FURTHER, that the Lender Parties shall be entitled to rely upon
any action taken or omitted or any agreement, certificate, instrument, notice,
request, statement or other document or communication signed or made by any
person listed as an officer of the Corporation in the most recent Incumbency
Certificate delivered to the Agent until such time as the Agent shall have
received express written notice to the contrary from any officer of the
Corporation;
RESOLVED FURTHER, that the representations, warranties, covenants and
other terms and provisions of the Guaranty and other Loan Documents to which the
Corporation is a party as so executed and delivered, and as so supplemented,
modified, amended and restated from time to time, hereby are all authorized,
approved and ratified in all respects, notwithstanding anything to the contrary
contained in any other resolution of the Board of Directors of the Corporation.
CERTIFICATE OF THE SECRETARY
I certify that:
I am the duly elected and qualified Secretary of GTC, Inc., a Texas
corporation.
The foregoing is a true copy of resolutions adopted by action of the Board
of Directors by Unanimous Written Consent effective December 30, 1997 and
entered in the Minute Book of the Corporation.
The action is in conformity with the Articles of Incorporation and Bylaws
of the Corporation, has not been modified or repealed, and is now in full force
and effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
235
CERTIFICATE OF SECRETARY
I certify that:
I am the duly elected and qualified Secretary of GTC, INC., a Texas
corporation (the "Company").
The officers set forth in the incumbency certificate previously provided
to the Agent and the Banks are unchanged.
The Articles of Incorporation and Bylaws of the Company previously
provided the Bank as Agent under the Prior Credit Agreement have not been
amended or modified in any respect.
The Company is in good standing in its jurisdiction of incorporation and
in each jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, certify that I am the duly elected Vice President
and Assistant Secretary of the Company and that, as of the date hereof, ▇▇▇▇▇▇▇
▇▇▇▇▇ is the duly elected Vice President and Secretary of the Company and that
his signature above is his genuine signature.
Dated: June 30, 1997 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President and Assistant Secretary
236
Granite Construction Incorporated
Officer's Certificate
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, hereby certifies that he is the Chief
Financial Officer of Granite Construction Incorporated, a Delaware corporation
("the Company"), and that, as of the date hereof:
1. This Certificate is being delivered pursuant to subsection 5.01 (d)
of the Credit Agreement dated as of June 30, 1997 (the "Credit
Agreement"), entered into by and among the Company, Bank of America
National Trust and Savings Association, as agent for itself and the
Banks (the "Agent"), and the several financial institutions from
time to time party thereto (collectively, the "Banks"). The terms
used in this Certificate and not otherwise defined herein have the
respective meanings ascribed to them in the Credit Agreement;
2. The representations and warranties of the Company contained in
Article VI of the Credit Agreement are true and correct in all
material respects on and as of the date hereof with the same effect
as though made on and as of the date hereof, except to the extent
such representations and warranties expressly refer to an earlier
date, in which case they are true and correct as of such earlier
date;
3. No Default or Event of Default exists or would result from the
Borrowing made on the Closing Date; and
4. There has occurred since December 31, 1996 no Material Adverse
Effect.
IN WITNESS WHEREOF, the undersigned has executed this Certificate in the
name and on behalf of the Company as of June 30, 1997.
GRANITE CONSTRUCTION INCORPORATED
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
237
GRANITE
CONSTRUCTION
COMPANY SINCE 1922
June 30, 1997
▇▇▇▇▇▇▇-901700
Bank of America National Trust and Savings Association,
for itself and as Agent
for the Banks from time to time
party to the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Credit Products ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I have acted as counsel for Granite Construction Incorporated, a Delaware
corporation ("Borrower"), in connection with that certain Credit Agreement dated
as of June 30, 1997 including Exhibits and Schedules (the "Credit Agreement"),
by and among Borrower, the several financial institutions parties to the Credit
Agreement (the "Banks") and Bank of America National Trust and Savings
Association, as agent for the Banks (the "Agent") and as issuing bank. I have
also represented each of Granite Construction Company, a California corporation
("GCC"), Granite SR91 Corporation, a California corporation ("SR91 "), ▇▇▇▇▇▇▇
Corporation, a Colorado corporation ("▇▇▇▇▇▇▇"), Desert Aggregates, Inc., a
California corporation ("Desert"), G.G. & R., Inc., a Utah corporation ("G.G. &
R."), Intermountain Slurry Seal, Inc., a Utah corporation ("Intermountain"),
Bear River Contractors, a Wyoming corporation ("Bear River"), Pozzolan Products
Company ("P.P.C."), a Utah corporation ("Pozzolan"), GTC, Inc., a Texas
corporation ("GTC"), GILC, L.P., a California limited partnership ("GILC,
L.P."), SR91, L.P., a California limited partnership ("SR91, L.P.") and GILC
Incorporated, a California corporation ("GILC", and together with ▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇. & R., Intermountain, Bear River, GILC, L.P., SR91, L.P.,
Pozzolan and GTC, the "Subsidiaries"), each of which is a direct or indirect
wholly owned subsidiary of Borrower, in connection with the Guaranty given by
each of the Subsidiaries in favor of the Agent for the benefit of Banks
guaranteeing the obligations of Borrower under the Credit
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone 408/▇▇▇-▇▇▇▇
FAX 408/▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 2
Agreement. I am rendering this opinion pursuant to subsection 5.01 (c) of the
Credit Agreement. Except as otherwise defined herein, capitalized terms used but
not defined herein shall have the meanings given to them in the Credit
Agreement.
As used herein, the term "Loan Documents" shall mean the Credit Agreement
and the Guaranty.
I am admitted to practice law only in the State of California, and I
express no opinion concerning any law other than the law of the State of
California, the Delaware General Corporation law, the law of the United States
of America, and, to the extent necessary to render my opinion in paragraphs
l(b), l(d), l(e), l(f), the second sentence of paragraph 3 and paragraphs 5(d),
6 and 8, the Colorado Corporations Code, the Utah Revised Business Corporations
Act, the Wyoming Business Corporations Act and the Texas Business Corporation
Act. In so far as the opinions contained herein purport to relate to the
Delaware General Corporation Law, the Colorado Corporations Code, the Utah
Revised Business Corporations Act, the Wyoming Business Corporations Act and the
Texas Business Corporation Act (collectively, the "Laws"), I have relied on such
Laws as reported in standard compilations.
In rendering this Opinion, I have assumed the genuineness and authenticity
of all signatures (other than that of Borrower and each Subsidiary) on original
documents; the authenticity of all documents submitted to me as originals; the
conformity of originals to all documents submitted to me as copies; the
accuracy, completeness and authenticity of certificates of public officials; the
due authorization, execution and delivery of all documents (except the due
authorization, execution and delivery by Borrower of the Credit Agreement and by
each Subsidiary of the Guaranty) where authorization, execution and delivery are
prerequisites to the effectiveness of such documents; the power and authority of
the Banks to enter into and perform their obligations under the Loan Documents;
that the Banks are duly qualified in the State of California to do business of
the type contemplated by the Loan Documents; that each of the Banks qualifies
for the exemption from the otherwise applicable interest rate limitations of
California law for loans or forbearances by, as the case may be, (i) national
banks provided by Article XV, Section 1 of the California Constitution or (ii)
certain "foreign (other nation) banks" provided by California Financial Code
Section 1716 or (iii) state banks provided by Article XV, Section 1 of the
California Constitution; that all loans under the Credit Agreement will be made
by the Banks for their own accounts or for the account of another person or
entity that qualifies for an exemption from the interest rate limitations of
California law, and there is no present agreement or plan, express or implied,
on the part of the Banks to sell participations or any other interest in the
loans to be made under the Credit Agreement to any person or entity other than a
person or entity that also qualifies for an exemption from the interest rate
limitations of California law; and with
239
Bank of America National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 3
respect to matters of fact (as distinguished from matters of law), I also have
relied upon and assumed that the representations of the Borrower and each
Subsidiary and the other parties set forth in the Loan Documents and any other
certificates, instruments or agreements executed in connection therewith or
delivered to me are true, correct, complete and not misleading, although to my
knowledge the representations of the Borrower and each Subsidiary set forth in
the Loan Documents and any such other certificates, instruments and agreements
are true, correct, complete and not misleading. I have also assumed that all
individuals executing and delivering documents on behalf of the Banks and Agent
had the legal capacity to so execute and deliver and that the Loan Documents are
obligations binding upon Banks and Agent.
With respect to my opinions in paragraph 4(c) and 5(c) below, I have
relied solely upon copies, supplied to me by the Borrower or a Subsidiary, of
each undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement listed in Exhibit A, (i) of the Borrower
listed on the Index to Form 10K Exhibits to the Borrower's Annual Report on Form
10K for the fiscal year ending December 31, 1996 and (ii) of the Borrower
involving amounts in excess of $50,000,000 to which Borrower or any Subsidiary
is a party or by which Borrower or any Subsidiary is bound.
In rendering my opinion in paragraph 6, I have relied solely on a
certificate of good standing from each of the Secretary of State's office of
each of the states listed below the Borrower's and each Subsidiary's name on
Exhibit B.
Where I render an opinion "to the best of my knowledge" or concerning an
item "known to me" or my opinion otherwise refers to my "knowledge," it is
intended to indicate that during the course of my representation of Borrower and
the Subsidiaries, no information that would give me current actual knowledge of
the inaccuracy of such statement has come to my attention in rendering legal
services to Borrower or the Subsidiaries.
On the basis of the foregoing, in reliance thereon, and with the foregoing
qualifications, I am of the opinion that:
1. (a) Borrower is a corporation, duly incorporated and validly existing
under the laws of Delaware and has the requisite corporate power and authority
to own its property and to conduct the business in which it is currently
engaged. (b) ▇▇▇▇▇▇▇ is a corporation duly incorporated and validly existing
under the laws of Colorado and has the requisite corporate power and authority
to own its property and to conduct the business in which it is currently
engaged. (c) Each of ▇▇▇, ▇▇▇▇, GILC and Desert is a corporation duly
incorporated and
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 4
validly existing under the laws of California and has the requisite corporate
power and authority to own its property and to conduct the business in which it
is currently engaged. (d) Each of G.G. & R., Intermountain, and Pozzolan is a
corporation duly incorporated and validly existing under the laws of Utah and
has the requisite corporate power and authority to own its property and to
conduct the business in which it is currently engaged. (e) Bear River is a
corporation duly incorporated and validly existing under the laws of Wyoming and
has the requisite corporate power and authority to own its property and to
conduct the business in which it is currently engaged. (f) GTC is a corporation
duly incorporated and validly existing under the laws of Texas and has the
requisite corporate power and authority to own its property and to conduct the
business in which it is currently engaged. (g) GILC, L.P. and SR91, L.P. are
California limited partnerships validly existing under the laws of California
and each has the requisite partnership power and authority to own its property
and to conduct the business in which it is currently engaged.
2. Borrower (a) has taken all necessary and appropriate corporate action
to authorize the execution, delivery and performance of the Credit Agreement,
and (b) has the corporate power and authority to execute, deliver and perform
the Credit Agreement. Each Subsidiary (a) has taken all necessary and
appropriate corporate action or partnership action, as applicable, to authorize
the execution, delivery and performance of the Guaranty, and (b) has the
corporate power or partnership power, as applicable, and authority to execute,
deliver and perform the Guaranty.
3. The Credit Agreement has been duly executed and delivered by the
Borrower. The Guaranty has been duly executed and delivered by each of the
Subsidiaries. The Credit Agreement constitutes a legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms. The Guaranty constitutes a legal, valid and binding obligation of each
Subsidiary, enforceable against each Subsidiary in accordance with its terms.
4. The execution, delivery and performance by Borrower of the Credit
Agreement do not (a) violate or contravene any injunction, order, writ,
judgment, decree, determination or award of any United States or California
Governmental Authority as presently in effect applicable to Borrower; (b)
conflict with or result in a breach of or constitute a default under the
certificate of incorporation and bylaws of Borrower; (c) violate or result in a
breach of or constitute any default under any agreements of Borrower set forth
in Exhibit A, and, do not result in or require the creation or imposition of any
lien on any of Borrower's properties or revenues pursuant to any injunction,
order, decree or undertaking as presently in effect or any such agreements of
Borrower set forth in Exhibit A; or (d) result in or require the creation or
imposition of any lien on any of its properties or revenues pursuant to any
provision of any law, rule or regulation as presently in effect.
241
Bank of America National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 5
5. The execution, delivery and performance by each Subsidiary of the
Guaranty do not (a) violate or contravene any injunction, order, writ judgment,
decree, determination or award of any United States or California Governmental
Authority as presently in effect applicable to each Subsidiary; (b) conflict
with or result in a breach of or constitute a default under the
articles/certificates of incorporation and bylaws or partnership agreement, as
applicable, of each Subsidiary: (c) violate or result in a breach of or
constitute any default under any agreements of each Subsidiary set forth in
Exhibit A, and do not result in or require the creation or imposition of any
lien on any Subsidiary's its properties or revenues pursuant to any injunction,
order, decree or undertaking as presently in effect or any such agreements of
each Subsidiary; or (d) result in or require the creation or imposition of any
lien on any of its properties or revenues pursuant to any provision of any law,
rule or regulation as presently in effect.
6. Each of Borrower, and the Subsidiaries is duly qualified to do business
and is in good standing in the states listed below its name on Exhibit B hereto.
7. No authorization, consent, approval, license, qualification or formal
exemption from, nor notice to, nor any filing, recordation, declaration or
registration with, any United States or California Governmental Authority, or to
my knowledge any other Governmental Authority, is necessary or required on the
part of Borrower in connection with the execution, delivery, or performance by
Borrower of the Credit Agreement.
8. No authorization, consent, approval, license, qualification or formal
exemption from, nor notice to, nor any filing, recordation, declaration or
registration with any United States or California Governmental Authority, or to
my knowledge any other Governmental Authority, is necessary or required on the
part of each Subsidiary in connection with the execution, delivery, or
performance by each Subsidiary of the Guaranty.
9. To the best of my knowledge, there is no claim, dispute, injunction,
temporary restraining order, action, litigation, investigation or proceeding
pending or threatened against Borrower before any court, arbitrator,
administrative agency or Governmental Authority of any kind (a) with respect to
the Credit Agreement or (b) which, if adversely determined, would have a
Material Adverse Effect.
10. To the best of my knowledge, there is no claim, dispute, injunction,
temporary restraining order, action, litigation, investigation or proceeding
pending or threatened against any Subsidiary before any court, arbitrator,
administrative agency or Governmental Authority of any kind (a) with respect to
the Guaranty or (b) which, if adversely determined, would have a Material
Adverse Effect.
242
Bank of America National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 6
11. Neither the Borrower nor any Subsidiary is an "investment company" or
a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended. Neither the Borrower nor any
Subsidiary is subject to regulation under the Public Utility Holding Company Act
of 1935, the Interstate Commerce Act (49 U.S.C Sections 10101 et seq. (Supp.
1992) or the Federal Power Act which would limit its ability to incur
Indebtedness.
12. Neither the Borrower nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock. The aggregate value of all
Margin Stock directly or indirectly owned by the Borrower and its Subsidiaries
is less than 25% of the aggregate value of the consolidated assets of the
Borrower and its Subsidiaries.
13. The only subsidiaries of Borrower are the Subsidiaries and Granite
SR91 L.P., a limited partnership, of which Granite SR91 Corporation is the
general partner and the Borrower is the sole limited partner.
The opinions expressed in this letter are qualified to the extent that the
validity, binding nature or enforceability of any provisions of the Loan
Documents may be limited or otherwise affected by:
a. The effects of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or other similar laws now or hereafter in effect
limiting the validity or enforceability of creditor's rights and remedies
generally;
b. General principles of equity, regardless of whether considered in
proceedings in equity or at law;
c. The covenant of good faith and fair dealing implied in every agreement
under common law (and to similar provisions of federal law, where applicable);
and
d. The effect of any law or legal principle which provides that a court
may refuse to enforce, or may limit the application of; a contract or any clause
thereof which the court finds as a matter of law to have been unconscionable at
the time it was made.
e. The opinions expressed in this letter are further qualified to the
extent that the validity, binding nature or enforceability of any provisions of
the Loan Documents may be limited or otherwise affected by:
i. The unenforceability under certain circumstances under California
or
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 7
federal law or court decisions of provisions (i) releasing a party against
liability for wrongful or negligent acts, (ii) indemnifying a party to the
extent that the events giving rise to the indemnity arise in whole or in part
from the wrongful or negligent acts of the indemnitee, or (iii) where such
release or indemnification is contrary to public policy, including but not
limited to indemnification and/or releases relating to any issues of securities
laws;
ii. The effect of California Civil Code Section 1717 and other
applicable statutes and judicial decisions which provide, among other things,
that a court may limit the granting of attorneys' fees to those attorneys' fees
which are determined by the court to be reasonable and that attorneys' fees may
be granted only to a prevailing party and that a contractual provision for
attorneys' fees is deemed to extend to both parties (notwithstanding that such
provision by its express terms benefits only one party);
iii. The assumption that if the Agent or the Banks enforce their
remedies, they will do so in a commercially reasonable manner;
iv. The effect of California court decisions invoking statutes or
principles of equity which have held that certain covenants and provisions of
agreements are unenforceable where (i) the breach of such covenants or
provisions imposes restrictions or burdens upon the debtor, including the
acceleration of indebtedness due under debt instruments, and it cannot be
demonstrated that the enforceability of such restrictions or burdens is
reasonably necessary for the protection of the creditors, or (ii) the creditor's
enforcement of such covenants or provisions under the circumstances would
violate the creditor's implied covenants of good faith and fair dealing;
v. The unenforceability under certain circumstances of contractual
provisions self-help or summary remedies; and
vi. Decisions by California courts admitting evidence extrinsic to a
written agreement between the parties thereto that the parties intended a
meaning contrary to that expressed by the parties in writing.
The foregoing opinions are also subject to the following additional
assumptions, limitations, qualifications and exceptions:
a. Provisions in the Loan Documents requiring Borrower or any Subsidiary
to execute, in the future, additional instruments and documents may be
unenforceable.
b. Any provision contained in the Loan Documents that purports to require
that any action or decision of Agent or Banks is conclusively binding upon
Borrower or any
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 8
Subsidiary may be unenforceable.
c. You are advised that any provision in the Loan Documents purporting to
waive, limit or restrict the right of Borrower or Subsidiary to offset against
obligations owing under the Loan Documents may not be enforceable.
d. Those provisions in the Loan Documents imposing late charges (interest
or otherwise) and/or additional interest in the event of default are governed by
the rules relating to "liquidated damages" as set forth in California Civil Code
Sections 1671 et seq., and relevant case law (see, e.g., ▇▇▇▇▇▇▇ ▇. Coast and
Southern Federal Savings & Loan, 9 Cal.3d 731 (1973)). I express no opinion as
to the effect of judicial decisions and statutes limiting the enforceability of
provisions imposing penalties, forfeitures, late payment charges, an increase in
interest rate, or payment of other additional consideration, (i) upon
prepayment, late payment, maturity, default or a lender's election to accelerate
a loan, particularly in cases where the occurrence of a default or waiving the
benefit of a statutory right bears no reasonable relation to the damage suffered
by the lender or is otherwise held to be a penalty; or (ii) as a consequence of
costs incurred by the lender or imposition of governmental charges, taxes,
levies or requirements upon a lender.
e. Those provisions in the Loan Documents requiring the consent of Agent
and Banks or allowing Agent or Banks to take certain actions may be interpreted
by a court to contain an implied covenant of reasonableness and/or fair dealing
(see, e.g., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 40 Cal.3d 488 (1985); ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 147
Cal.App.3d 321 (1983)).
f. You should be aware of the unenforceability, under certain
circumstances, of provisions waiving broadly or vaguely stated rights or unknown
future rights, or rights which may not be waived on statutory or public policy
grounds, or provisions stating that rights or remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to or with
any other right or remedy or that the election of some particular remedy or
remedies does not preclude recourse to one or more others.
g. You should be aware of limitations based on public policy on provisions
stating that a borrower's obligations are unaffected by reason of any default or
failure on the part of a lender to perform or comply with the terms of the
subject loan documents.
h. I express no opinion as to the enforceability of the consent to
service, jurisdiction or forum of any claim, demand, action or cause of action
arising under or related to the Loan Documents or the transactions contemplated
therein.
i. I express no opinion as to the enforceability of any right of any
creditor to
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 9
collect any payment due under the Loan Documents to the extent that such payment
constitutes a penalty or forfeiture.
j. I express no opinion as to the enforceability of provisions in the Loan
Documents creating presumptions or creating rights of set-off.
k. I express no opinion on the accuracy of any representations or
warranties of Borrower or any Subsidiary. Furthermore I express no opinion as to
the survivability of any warranties, indemnities or other obligations.
l. I express no opinion as to the enforceability of those provisions in
the Loan Documents purporting to appoint the Agent or Banks as attorney-in-fact
for Borrower or to grant an irrevocable power of attorney to Agent or Banks.
m. I express no opinion as to the enforceability of provisions in the Loan
Documents purporting to provide that any approval, consent, authorization or
satisfaction required of Agent or Banks or any notice given by or other action
taken by Agent or Banks under the Loan Documents shall be presumed to be
reasonable.
n. I express no opinion as to the effect of laws and judicial decisions
that provide that in certain circumstances a surety may be exonerated if the
creditor materially alters the original obligation of the principal without the
surety's consent, or otherwise takes any action without notifying the surety
that materially prejudices the surety.
o. I express no opinion as to any securities, anti-trust, tax, land use,
safety, environmental, hazardous materials, insurance company or banking laws,
rules or regulations, or laws, rules or regulations applicable to Agent or
Banks.
p. I express no opinion as to any provision providing for the exclusive
jurisdiction of a particular court or purporting to waive rights to trial by
jury, service of process or objections to the laying of venue or to forum on the
basis of forum non conveniens in connection with any litigation arising out of
or pertaining to the Loan Documents.
q. I express no opinion as to the effect of California Civil Code Section
1698 and similar statutes and federal laws and judicial decisions (a) providing
that oral modifications to a contract or waivers of contractual provisions may
be enforceable, if the modification was performed, notwithstanding any express
provision in the agreement that the agreement may only be modified or an
obligation thereunder waived in writing, or (b) creating an implied agreement
from trade practices or course of conduct.
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 10
r. I express no opinion as to the effect of certain rights, remedies and
waivers contained in the Loan Documents being limited or rendered ineffective by
applicable statutory law or judicial decisions governing such provisions, but
such laws and judicial decisions do not render the Loan Documents unenforceable
as a whole, and there exists, in the Loan Documents and pursuant to applicable
law, legally adequate remedies for realization of the principal benefits
purported to be afforded by the Loan Documents.
s. With respect to my opinions expressed in paragraphs 4(d), 5(d), 7 and
8, I have not conducted any special investigation of statutes laws, rules or
regulations and my opinion with respect thereto are limited to such Laws that to
my knowledge and as in my experience are of general application to transactions
of the sort contemplated by the Loan Documents.
I further advise you that:
a. The enforceability of the Guaranty against a Subsidiary may be subject
to California statutory provisions and case law to the effect that a guarantor
may be exonerated if the beneficiary of the guaranty alters the original
obligation of the principal, fails to inform the guarantor of material
information pertinent to the principal or any collateral, elects remedies that
may impair the subrogation rights of the guarantor against the principal or that
may impair the value of the collateral, fails to accord the guarantor the
protections afforded a debtor under the Uniform Commercial Code or otherwise
takes any action that materially prejudices the guarantor unless, in any such
case, the guarantor validly waives such rights or the consequences of any such
action. See e.g., California Civil Code Section 2799 through Section 2855;
Sumitomo Bank of California ▇. ▇▇▇▇▇▇▇, 70 Cal. 2d 81, 73 Cal. Rptr. 564 (1968);
Union Bank ▇. ▇▇▇▇▇▇▇, 265 Cal. App. 2d 40, 71 Cal. Rptr 64 (1968); ▇▇▇▇▇▇▇▇ v.
Bank of Sonoma County, 184 Cal. App. 3d 1119, 229 Cal Rptr. 396 (1986); C.I.T.
Corp. v. Anwright Corp., 191 Cal. App. 3d 1420, 237 Cal. Rptr. 108 (1987);
American National Bank v. Perma-Tile Roof Co., 200 Cal. App. 3d 889, 246 Cal
Rptr. 381 (1988); In re ▇▇▇▇▇▇▇▇, ▇▇▇ ▇.▇▇ ▇▇▇▇ (9th Cir. 1990); and Cathay Bank
▇. ▇▇▇, 18 Cal. Rptr. 2d 420 (1993). While express and specific waivers of a
guarantor's right to be exonerated, such as those contained in the Guaranty, are
generally enforceable under California law, we express no opinion as to whether
the Guaranty contains an express and specific waiver of each exoneration defense
a guarantor might assert or as to whether each of the waivers contained in the
Guaranty is fully enforceable.
b. It could be contended that the Guaranty has not been given for a fair or
reasonably equivalent consideration, that a Subsidiary is, or, by entering into
the Guaranty may become, insolvent, and that the Guaranty may be voidable by
creditors of a Subsidiary or by a trustee or receiver of a Subsidiary in
bankruptcy or similar proceedings pursuant to
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and Savings Association,
for itself and as Agent
June 30, 1997
Page 11
applicable bankruptcy, fraudulent conveyance or similar laws. Because of these
possible contentions, my opinions are further limited by and subject to the
effect of such laws.
This opinion is intended solely for the benefit of the Agent, and the
Banks and their Assignees and Participants, as defined in Section 11.07 of the
Credit Agreement, and is not to be made available to or relied upon by any other
person, firm, or entity, other than regulatory authorities in connection with
bank examinations, without our prior written consent.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President and General Counsel
MF:pc
Encls.
248
EXHIBIT A
INDEX TO FORM 10-K EXHIBITS
Exhibit Page
No. Description No.
------- ----------- ----
3.1 Certificate of Incorporation of Granite Construction Incorporated [a]
3.2 Bylaws of Granite Construction Incorporated (as amended and restated
effective February 27,1991) [b]
10.1 Granite Construction Incorporated Employee Stock Ownership Plan,
through amendments and Trust Agreement (**as to Trust
Agreements only) [b]
10.1.a Amendment 3 to the Granite Construction Incorporated Employee
Stock Ownership Plan, through amendments and Trust Agreement
(**as to Trust Agreements only) [c]
10.1.b Amendment 4 to the Granite Construction Incorporated Employee
Stock Ownership Plan as of May 21, 1993 [d]
10.1.c Amendment 5 to the Granite Construction Incorporated Employee Stock
Ownership Plan adopted December 16, 1993 and effective January 1,
1994 [d]
10.1.d Amendment 6 to the Granite Construction Incorporated Employee Stock
Ownership Plan adopted December 15, 1994 and effective January 1,
1995 [e]
10.1.e Amendment 7 to Granite Construction Incorporated Employee Stock
Ownership Plan and Amendment 1 to the Trust Agreement adopted
December 19, 1995, effective January 1, 1996 [g]
10.2 Amendment to and Restatement of the Granite Construction
Company Profit Sharing and 401K Plan adopted December 15, 1994
and effective January 1, 1995 [e]
10.2.a Amendment to and Restatement of Granite Construction Incorporated
Profit Sharing and 401K Plan and Trust Agreement adopted and
effective as of December 15, 1994 [e]
10.2.b Amendment 2 to the Granite Construction Incorporated Profit Sharing
and 401K Plan and Amendment 2 to the Trust Agreement adopted March
20, 1995 and effective January 1, 1996 [g]
10.2.c Amendment 3 to the Granite Construction Incorporated Profit
Sharing and 401K Plan adopted August 23, 1996 and effective
January 1, 1997 25
10.3 1995 Granite Construction Company Incentive Compensation Plan [g]
10.4 Restated and Amended Granite Construction Incorporated
1990 Omnibus Stock and Incentive Plan effective December 31, 1994 [g]
10.5 Second Amended and Restated Credit Agreement dated and
effective June 15, 1995 [g]
10.5.a First Amendment to the Second Amended and Restated Credit
Agreement adopted May 31, 1996 and effective June 30, 1996 28
10.5.b Second Amendment to the Second Amended and Restated Credit
Agreement adopted and effective December 31, 1996 38
10.6 Form of Director and Officer Indemnification Agreement [a]
23
249
Granite Construction Incorporated
Exhibit A (continued)
Material Agreements in excess of $50,000,000
Job# Description Amount
---- ----------- ------
216465 NV DOT - Hwy 395 Extension (GCC) 56,623,398.00
300082 TX DOT - Central Expressway US 75 S2 (GCC) 107,446,700.00
300093 TX DOT - Central Expressway US 75 Dallas Co.(GCC) 110,568,500.00
300101 FL DOT - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ I-4 (GCC) 51,637,088.00
300805 Tollway - TCA Joint Venture (GCC) 239,194,779.00
300809 East Dam Embankment - Joint Venture (GCC) 68,877,750.00
300819 UT DOT - I-15 Rebuild - Wasatch Contractors JV (GCC) 303,147,377.00
250
EXHIBIT B
GRANITE CONSTRUCTION INCORPORATED
Granite Construction Incorporated G.G. & R., Inc.
California Utah
Delaware
Nevada
Utah
Wyoming
Granite Construction Company Intermountain Slurry Seal, Inc.
Alabama Arizona
Arizona California
Arkansas Colorado
California Idaho
Colorado Montana
Delaware Nevada
Florida Utah
Georgia
Hawaii
Idaho
Illinois Bear River Contractors
Kentucky Arizona
Louisiana California
Maryland Colorado
Minnesota Idaho
Mississippi Montana
Missouri Nevada
Montana New Mexico
Nebraska Oregon
Nevada Utah
New Jersey Washington
New Mexico Wyoming
New York
North Carolina
North Dakota
Ohio GTC, Inc.
Oklahoma Texas
Oregon
South Carolina
Tennessee
Texas Desert Aggregates, Inc.
Utah Arizona
Virginia California
Washington
Washington D.C.
West Virginia
Wyoming
251
EXHIBIT B (continued)
Granite SR91 Corporation Granite SR91 LP
California California
▇▇▇▇▇▇▇ Corporation Pozzolan Products Company (P.P.C.)
California Arizona
Colorado Nevada
Utah
GILC LP GILC Incorporated
Arizona California
California Florida
Colorado Utah
Florida Wyoming
Georgia
Idaho
Nevada
New Mexico
Texas
Utah
Wyoming
252
GRANITE CONSTRUCTION INCORPORATED
PRIMARY BANK
Bank of America, N.T. & S.A.
Credit Products Group #3838
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Account Officer ▇▇▇▇▇▇▇▇ ▇▇▇▇-Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Manager ▇▇▇▇▇ Leader-Vice President ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Syndicated Loan Agreement
Term Loan
Original Note Balance $50,000,000
Terms: Reference Rate
IBOR +.60%
CD +.725%
Current Locked-in Rates: 20MM @ 6.5375 through 09/30/97
10MM @ 6.4750 through 12/31/97
Outstanding 06/30/97 $30,000,000
Original Participation Amount $18,750,000
Participation Percent 37.5%
Outstanding 06/30/97 $11,250,000
Revolving Loan
$75 Million Line of Credit
Terms: Reference Rate
IBOR +.500%
CD +.625%
Current Locked-in Rates: 5MM @ 6.4375 through 09/30/97
10MM @ 6.3125 through 09/30/97
5MM @ 6.3750 through 12/31/97
25MM @ 6.3750 through 12/31/97
Commitment Fee .1875% of unused line (billed qtrly)
Agency Fee $15,000 yr in advance (billed qrtly)
Outstanding 06/30/97
Working Capital $25,000,000
W/C - Letter of Credit $ 3,585,430
TIC Investment $20,000,00
Total $48,585,430
Participation Percentage 37.5%
Outstanding Participation 06/30/97 $18,219,536
Unused Revolving Balance $26,414,570
Unused Participation $ 9,905,464
Expiration 6/30/99
July 23, 1997
253
PARTICIPATING BANK
ABN - AMRO Bank, N.V.
San Francisco International Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Senior Officer ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Account Officer ▇▇▇▇ ▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Syndicated Loan Agreement
Term Loan
Original Note Balance $50,000,000
Terms: Reference Rate
IBOR +.600%
CD +.725%
Current Locked-in Rates: 20MM @ 6.5375 through 09/30/97
10MM @ 6.4750 through 12/31/97
Outstanding 06/30/97 $30,000.00
Original Participation Amount $10,937,500
Participation Percent 21.875%
Outstanding 06/30/97 $ 6,562,500
Revolving Loan
$75 Million Line of Credit
Terms: Reference Rate
IBOR +.550%
CD +.625%
Current Locked-in Rates: 5MM @ 6.4375 through 09/30/97
10MM @ 6.3125 through 09/30/97
5MM @ 6.3750 through 12/31/97
25MM @ 6.3750 through 12/31/97
Outstanding 06/30/97
Working Capital $25,000,000
W/C - Letter of Credit $ 3,585,430
TIC Investment $20,000,000
TOTAL $48,585,430
Participation Percentage 21.875%
Outstanding Participation 06/30/97 $10,628,063
Unused Revolving Balance $26,414,570
Unused Participation $ 5,778,187
Expiration 6/30/99
July 23, 1997
254
PARTICIPATING BANK
Banque National de Paris (BNP)
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Account Manager ▇▇▇ ▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Ext. 206
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Associates ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Ext. 253
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Syndicated Loan Agreement
Term Loan
Original Note Balance $50,000,000
Terms: Reference Rate
IBOR + .600%
CD +.725%
Current Locked-in Rates: 20MM @ 6.5375 through 09/30/97
1OMM @ 6.4750 through 12/31/97
Outstanding 06/30/97 $30,000,000
Original Participation Amount $10,937,500
Participation Percent 21.875%
Outstanding 06/30/97 $ 6,562,500
Revolving Loan
$75 Million Line of Credit
Terms: Reference Rate
IBOR +.500%
CD + .625%
Current Locked-in Rates: 5MM @ 6.4375 through 09/30/97
1OMM @ 6.3125 through 09/30/97
5MM @ 6.3750 through 12/31/97
25MM @ 6.3750 through 12/31/97
Outstanding 06/30/97
Working Capital $25,000,000
W/C - Letter of Credit $ 3,585,430
TIC Investment $20,000,000
TOTAL $48,585,430
Participation Percentage 21.875%
Outstanding Participation 06/30/97 $10,628,063
Unused Revolving Balance $26,414,570
Unused Participation $ 5,778,187
Expiration 6/30/99
July 23, 1997
255
PARTICIPATING BANK
Union Bank (of California)
The Bank of Tokyo Group
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Senior Officer ▇▇▇▇ ▇▇▇▇▇
Senior Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Corporate Account ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Officers Vice President Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Syndicated Loan Agreement
Term Loan
Original Note Balance $50,000,000
Terms: Reference Rate
IBOR +.600%
CD +.725%
Current Locked-in Rates: 20MM @ 6.5375 through 09/30/97
10MM @ 6.4750 through 12/31/97
Outstanding 06/30/97 $30,000,000
Original Participation Amount $ 9,375,000
Participation Percent 18.75%
Outstanding 06/30/97 $5,625,000
Revolving Loan
$75 Million Line of Credit
Terms: Reference Rate
IBOR +.500%
CD +.625%
Current Locked-in Rates: 5MM @ 6.4375 through 09/30/97
10MM @ 6.3125 through 09/30/97
5MM @ 6.3750 through 12/31/97
25MM @ 6.3750 through 12/31/97
Outstanding 06/30/97
Working Capital $25,000,000
W/C - Letter of Credit $ 3,585,430
TIC Investment $20,000,000
TOTAL $48,585,430
Participation Percentage 18.75%
Outstanding Participation 06/30/97 $ 9,109,768
Unused Revolving Balance $26,414,570
Unused Participation $ 4,529,732
Expiration 6/30/99
July 23, 1997
256
PARTICIPATING BANK
Granite SR91 L.P.
Bank of America, N.T. & S.A.
Credit Products Group #3838
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SR91 Letter of Credit
Commitment Fee .50% of unused line quarterly
Outstanding 06/30/97 $ 2,711,116
Expiration 7/14/98
July 23, 1997
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Account Administrator ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. BANK - UTAH
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Branch Manager ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK, N.A.
Pajaro Valley Business Center
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Associate ▇▇▇▇ ▇▇▇▇▇▇▇
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK - UTAH
Cash Management
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Account Officers ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Relationship Manager Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
Account Administrator ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone:(▇▇▇) ▇▇▇-▇▇▇▇
July 23, 1997
258
ESCROW CONTACTS
BANK ONE - ARIZONA, NA
Trust Department
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Trust Specialist ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇)▇▇▇-▇▇▇▇
FIRST TRUST OF CALIFORNIA, N.A.
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Account Administrator ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST COMPANY
EBT Operations
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Trust Officer ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK - TEXAS
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Trust Officer ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇)▇▇▇-▇▇▇▇
PIONEER CITIZENS BANK OF NEVADA
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Account Administrator ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇
July 23, 1997
259
ESCROW CONTACTS
SUNTRUST BANK - GEORGIA
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Account Administrator ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
NV DOT
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Account Administrator ▇▇▇▇▇ English
Phone: (▇▇▇) ▇▇▇-▇▇▇▇