Section | Heading | Page | ||||||
SECTION 1. Authorization of Notes | 1 | |||||||
SECTION 2. Sale and Purchase of Notes; Guaranty | 1 | |||||||
Section 2.1 | Series 2007-A Notes | 1 | ||||||
Section 2.2 | Additional Series of Notes | 1 | ||||||
Section 2.3 | Guaranty of Notes | 3 | ||||||
SECTION 3. Closing | 4 | |||||||
SECTION 4. Conditions to Closing | 4 | |||||||
Section 4.1 | Representations and Warranties | 4 | ||||||
Section 4.2 | Performance; No Default | 4 | ||||||
Section 4.3 | Compliance Certificates | 4 | ||||||
Section 4.4 | Guaranty Agreement | 5 | ||||||
Section 4.5 | Opinions of Counsel | 5 | ||||||
Section 4.6 | Purchase Permitted by Applicable Law, Etc | 5 | ||||||
Section 4.7 | Sale of Other Series 2007-A Notes | 5 | ||||||
Section 4.8 | Payment of Special Counsel Fees | 6 | ||||||
Section 4.9 | Private Placement Number | 6 | ||||||
Section 4.10 | Changes in Corporate Structure | 6 | ||||||
Section 4.11 | Funding Instructions | 6 | ||||||
Section 4.12 | Proceedings and Documents | 6 | ||||||
SECTION 5. Representations and Warranties of the Company | 6 | |||||||
Section 5.1 | Organization; Power and Authority | 6 | ||||||
Section 5.2 | Authorization, Etc | 7 | ||||||
Section 5.3 | Disclosure | 7 | ||||||
Section 5.4 | Organization and Ownership of Shares of Subsidiaries; Affiliates | 7 | ||||||
Section 5.5 | Financial Statements; Material Liabilities | 8 | ||||||
Section 5.6 | Compliance with Laws, Other Instruments, Etc | 8 | ||||||
Section 5.7 | Governmental Authorizations, Etc | 9 | ||||||
Section 5.8 | Litigation; Observance of Agreements, Statutes and Orders | 9 | ||||||
Section 5.9 | Taxes | 9 |
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(continued)
Section | Heading | Page | |||||||
Section 5.10 | Title to Property; Leases | 9 | |||||||
Section 5.11 | Licenses, Permits, Etc | 10 | |||||||
Section 5.12 | Compliance with ERISA | 10 | |||||||
Section 5.13 | Private Offering by the Company | 11 | |||||||
Section 5.14 | Use of Proceeds; Margin Regulations | 11 | |||||||
Section 5.15 | Existing Debt | 11 | |||||||
Section 5.16 | Existing Investments | 12 | |||||||
Section 5.17 | Foreign Assets Control Regulations, Etc | 12 | |||||||
Section 5.18 | Status under Certain Statutes | 12 | |||||||
Section 5.19 | Environmental Matters | 13 | |||||||
Section 5.20 | Notes and Guaranty Agreement Rank Pari Passu | 13 | |||||||
SECTION 6. Representations of the Purchasers | 13 | ||||||||
Section 6.1 | Purchase for Investment | 13 | |||||||
Section 6.2 | Source of Funds | 14 | |||||||
SECTION 7. Information as to Company | 15 | ||||||||
Section 7.1 | Financial and Business Information | 15 | |||||||
Section 7.2 | Officer’s Certificate | 18 | |||||||
Section 7.3 | Visitation | 19 | |||||||
SECTION 8. Prepayment of the Notes | 19 | ||||||||
Section 8.1 | Required Prepayments | 19 | |||||||
Section 8.2 | Optional Prepayments with Make-Whole Amount | 20 | |||||||
Section 8.3 | Offer to Prepay Notes in the Event of a Change in Control | 20 | |||||||
Section 8.4 | Allocation of Partial Prepayments | 22 | |||||||
Section 8.5 | Maturity; Surrender, Etc | 22 | |||||||
Section 8.6 | Purchase of Notes | 22 | |||||||
Section 8.7 | Make-Whole Amount | 23 | |||||||
SECTION 9. Affirmative Covenants | 24 | ||||||||
Section 9.1 | Compliance with Law | 24 | |||||||
Section 9.2 | Insurance | 25 | |||||||
Section 9.3 | Maintenance of Properties | 25 |
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(continued)
Section | Heading | Page | |||||||
Section 9.4 | Payment of Taxes and Claims | 25 | |||||||
Section 9.5 | Corporate Existence, Etc | 25 | |||||||
Section 9.6 | Books and Records | 25 | |||||||
Section 9.7 | Guaranty Agreement | 26 | |||||||
SECTION 10. Negative Covenants | 27 | ||||||||
Section 10.1 | Nature of Business | 28 | |||||||
Section 10.2 | Consolidated Net Worth | 28 | |||||||
Section 10.3 | Consolidated Total Debt to Consolidated Total Capitalization | 28 | |||||||
Section 10.4 | Priority Debt | 28 | |||||||
Section 10.5 | Liens | 28 | |||||||
Section 10.6 | Restrictions on Dividends of Subsidiaries, Etc | 30 | |||||||
Section 10.7 | Mergers, Consolidations, Etc | 30 | |||||||
Section 10.8 | Sale of Assets, Etc | 31 | |||||||
Section 10.9 | Disposal of Ownership of a Subsidiary | 31 | |||||||
Section 10.10 | Sale-and-Leasebacks | 32 | |||||||
Section 10.11 | Transactions with Affiliates | 32 | |||||||
Section 10.12 | Terrorism Sanctions Regulations | 32 | |||||||
SECTION 11. Events of Default | 32 | ||||||||
SECTION 12. Remedies on Default, Etc | 35 | ||||||||
Section 12.1 | Acceleration | 35 | |||||||
Section 12.2 | Other Remedies | 35 | |||||||
Section 12.3 | Rescission | 35 | |||||||
Section 12.4 | No Waivers or Election of Remedies, Expenses, Etc | 36 | |||||||
SECTION 13. Registration; Exchange; Substitution of Notes | 36 | ||||||||
Section 13.1 | Registration of Notes | 36 | |||||||
Section 13.2 | Transfer and Exchange of Notes | 36 | |||||||
Section 13.3 | Replacement of Notes | 37 | |||||||
SECTION 14. Payments on Notes | 37 | ||||||||
Section 14.1 | Place of Payment | 37 | |||||||
Section 14.2 | Home Office Payment | 37 |
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(continued)
Section | Heading | Page | |||||||
SECTION 15. Expenses, Etc | 38 | ||||||||
Section 15.1 | Transaction Expenses | 38 | |||||||
Section 15.2 | Survival | 38 | |||||||
SECTION 16. Survival of Representations and Warranties; Entire Agreement | 38 | ||||||||
SECTION 17. Amendment and Waiver | 39 | ||||||||
Section 17.1 | Requirements | 39 | |||||||
Section 17.2 | Solicitation of Holders of Notes | 39 | |||||||
Section 17.3 | Binding Effect, Etc | 40 | |||||||
Section 17.4 | Notes Held by Company, Etc | 40 | |||||||
SECTION 18. Notices | 40 | ||||||||
SECTION 19. Reproduction of Documents | 41 | ||||||||
SECTION 20. Confidential Information | 41 | ||||||||
SECTION 21. Substitution of Purchaser or Additional Purchaser | 42 | ||||||||
SECTION 22. Miscellaneous | 43 | ||||||||
Section 22.1 | Successors and Assigns | 43 | |||||||
Section 22.2 | Payments Due on Non-Business Days | 43 | |||||||
Section 22.3 | Accounting Terms | 43 | |||||||
Section 22.4 | Severability | 43 | |||||||
Section 22.5 | Construction | 44 | |||||||
Section 22.6 | Counterparts | 44 | |||||||
Section 22.7 | Governing Law | 44 | |||||||
Section 22.8 | Jurisdiction and Process; Waiver of Jury Trial | 44 |
-iv-
Schedule A | — | Information Relating to Purchasers | ||
Schedule B | — | Defined Terms | ||
Schedule 5.3 | — | Disclosure Materials | ||
Schedule 5.4 | — | Subsidiaries and Affiliates of the Company; Ownership of Subsidiary Stock; Directors and Executive Officers | ||
Schedule 5.5 | — | Financial Statements | ||
Schedule 5.15 | — | Existing Debt | ||
Schedule 5.16 | — | Existing Investments | ||
Exhibit 1 | — | Form of 6.11% Series 2007-A Senior Note due December 12, 2019 | ||
Exhibit 2 | — | Form of Guaranty Agreement | ||
Exhibit 3 | — | Investment Policy Guidelines | ||
Exhibit 4.5(a) | — | Form of Opinion of General Counsel for the Company and the Guarantors | ||
Exhibit 4.5(b) | — | Form of Opinion of Special Counsel for the Company and the Guarantors | ||
Exhibit 4.5(c) | — | Form of Opinion of Special Counsel for the Purchasers | ||
Exhibit S | — | Form of Supplement to Note Purchase Agreement |
-i-
585 West Beach Street
Watsonville,California 95076
December 12, 2007
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Very truly yours, Granite Construction Incorporated | ||||
By | /s/William G. Dorey | |||
William G. Dorey | ||||
President | ||||
By | /s/William E. Barton | |||
William E. Barton | ||||
Sr. Vice President | ||||
-46-
The Prudential Life Insurance Company of America | ||||
By: | /s/ [ILLEGIBLE] | |||
Vice President | ||||
Prudential Retirement Insurance and Annuity Company | ||||
By: | Prudential Investment Management, Inc., | |||
as investment manager | ||||
By: /s/ [ILLEGIBLE] | ||||
Vice President | ||||
Universal Prudential Arizona Reinsurance Company | ||||
By: | Prudential Investment Management, Inc., | |||
as investment manager | ||||
By: /s/ [ILLEGIBLE] | ||||
Vice President | ||||
Zurich American Insurance Company | ||||
By: | Prudential Private Placement Investors, L.P. | |||
(as Investment Advisor) | ||||
By: | Prudential Private Placement Investors, Inc. | |||
(as its General Partner) | ||||
By: /s/ [ILLEGIBLE] | ||||
Vice President | ||||
American International Group, Inc. | ||||
By: | AIG-Global Investment Corp., | |||
Investment Advisor | ||||
By: | /s/ Lorri J. White | |||
Nane: | Lorri J. White | |||
Title: | Vice President | |||
INGLife Insurance and Annuity Company ING USAAnnuity and Life Insurance Company Reliastar Life Insurance Company Reliastar Life Insurance Company of New York Security Life of Denver Insurance Company | ||||
By: | ING Investment Management LLC, | |||
as Agent | ||||
By: | /s/ Christopher P. Lyons | |||
Christopher P. Lyons | ||||
Senior Vice President | ||||
The Guardian Life Insurance Company of America | ||||
By: | /s/ Thomas M. Donohue | |||
Name: | Thomas M. Donohue | |||
Title: | Managing Director | |||
\
Principal Life Insurance Company | ||||
By: | Principal Global Investors, LLC, | |||
a Delaware limited liability company, | ||||
its authorized signatory |
By: | /s/ Joellen J. Watts | |||
Its: | Joellen J. Watts, Counsel | |||
By: | /s/ Alan P. Kress | |||
Its: | Alan P. Kress, Counsel | |||
United of Omaha Life Insurance Company | ||||||
By: | /s/ Curtis R. Caldwell | |||||
Name: | Curtis R. Caldwell | |||||
Title: | Vice President |
Allianz Life Insurance Company of North America | ||||||
By: | Allianz of America, Inc., as the authorized signatory and investment manager | |||||
By: | /s/ Gary Brown | |||||
Name: | Gary Brown | |||||
Title: | Assistant Treasurer |
THE STATE LIFE INSURANCE COMPANY | ||||||||
By: | American United Life Insurance Company, its agent | |||||||
/s/ Kent R. Adams | ||||||||
By: | Kent R. Adams | |||||||
Its: | V.P. Fixed Income Securities |
FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN | ||||||||
By: | American United Life Insurance Company, its agent | |||||||
/s/ Kent R. Adams | ||||||||
By: | Kent R. Adams | |||||||
Its: | V.P. Fixed Income Securities |
LAFAYETTE LIFE INSURANCE COMPANY | ||||||||
By: | American United Life Insurance Company, its agent | |||||||
/s/ Kent R. Adams | ||||||||
By: | Kent R. Adams | |||||||
Its: | V.P. Fixed Income Securities |
AMERICAN UNITED LIFE INSURANCE COMPANY | ||||||
/s/ Kent R. Adams | ||||||
By: | Kent R. Adams | |||||
Its: | V.P. Fixed Income Securities |
American Family Life Insurance Company | ||||||
By: | /s/ Phillip Hannifan | |||||
Phillip Hannifan | ||||||
Investment Director |
Assurity Life Insurance Company | ||||||
By: | /s/ Victor Weber | |||||
Name: | Victor Weber | |||||
Title: | Senior Director |
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
The Prudential Insurance Company of America | 2007-A | $19,965,000 |
4 Embarcadero Center, Suite 2700
San Francisco, CA 94111
Attention: Managing Director
New York, New York
ABA No.: 021-000-021
Account Name: Prudential Managed Portfolio
Account No.: P86188 (please do not included spaces)
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, New Jersey 07102-4077
Attention: Manager, Billings and Collections
Telephone: (973) 367-3141
Facsimile: (888) 889-3832
(to Note Purchase Agreement)
A-2
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
The Prudential Insurance Company of America | 2007-A | $15,770,000 |
4 Embarcadero Center, Suite 2700
San Francisco, CA 94111
Attention: Managing Director
New York, New York
ABA No.: 021-000-021
Account Name: The Prudential — Privest Portfolio
Account No.: P86189 (please do not included spaces)
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, New Jersey 07102-4077
Attention: Manager, Billings and Collections
Telephone: (973) 367-3141
Facsimile: (888) 889-3832
A-3
A-4
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Prudential Retirement Insurance and Annuity Company | 2007-A | $13,000,000 |
4 Embarcadero Center, Suite 2700
San Francisco, CA 94111
Attention: Managing Director
New York, New York
ABA No.: 021-000-021
Account Name: PRIAC
Account No.: P86329 (please do not included spaces)
c/o Prudential Investment Management, Inc.
Private Placement Trade Management
PRIAC Administration
Gateway Center Four, 7th Floor
100 Mulberry Street
Newark, New Jersey 07102-4077
Telephone: (973) 802-8107
Facsimile: (888) 889-3832
A-5
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Universal Prudential Arizona Reinsurance Company | 2007-A | $5,065,000 |
4 Embarcadero Center, Suite 2700
San Francisco, CA 94111
Attention: Managing Director
New York, New York
ABA No.: 021-000-021
Account Name: UPRAC PLAZ Trust 2 — Privates
Account No.: P86393 (please do not included spaces)
c/o The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, New Jersey 07102-4077
Attention: Manager, Billings and Collections
A-6
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Zurich American Insurance Company | 2007-A | $6,200,000 |
4 Embarcadero Center, Suite 2700
San Francisco, CA 94111
Attention: Managing Director
c/o The Bank of New York
New York, New York
ABA No.: 021-000-018
BNF: IOC566
Attention: William Cashman
Reference: ZAIC Private Placements #399141
Attention: Treasury T1-19
1400 American Lane
Schaumberg, Illinois 60196-1056
Telephone: (847) 605-6447
Facsimile: (847) 605-7895
E-mail: mary.callahan@zurichna.com
A-7
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
American International Group,Inc. | 2007-A | $40,000,000 | ||
c/o AIG Investments | ||||
2929 Allen Parkway, A36-04 | ||||
Houston, Texas 77019-2155 | ||||
Attention: Private Placements — Portfolio | ||||
Operations | ||||
Facsimile: (713) 831-1072 |
ABA # 021-000-018
Account #: GL111566
For Further Credit to: AIG, INC. — MATCHED INVESTMENT PROGRAM;
Account No. 260765
Ref: PPN # and Prin: $ ; Int: $
c/o AIG Investments
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Attention: Private Placements — Portfolio Operations
Facsimile: (713) 831-1072 OR
Email:AIGGIGPVTPLACEMENTOPERATIONS@aig.com
c/o The Bank of New York
Attention: P & I Department
Facsimile: (718) 315-3076
A-8
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Attention: Private Placements — Compliance
Email:Compliance-AIGGIG@aig.com
for which AIG Global Investment Corp. serves an investment adviser.
A-9
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
ING USA Annuity and Life InsuranceCompany | 2007-A | $12,000,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) |
Reference: PPN 387328 A#4
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-10
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-11
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
ING USA Annuity and Life InsuranceCompany | 2007-A | $6,000,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) |
Reference: PPN 387328 A#4
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-12
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-13
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Reliastar Life Insurance Company | 2007-A | $1,200,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) |
Reference: PPN 387328 A#4
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-14
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-15
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Reliastar Life Insurance Company | 2007-A | $1,000,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) |
Reference: PPN 387328 A#4
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-16
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-17
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Security Life of Denver InsuranceCompany | 2007-A | $2,700,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) | ||||
For further credit to: SLD/Acct. 178157 Reference: PPN 387328 A#4 |
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-18
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-19
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
ING Life Insurance and Annuity Company | 2007-A | $3,000,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) |
Reference: PPN 387328 A#4
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-20
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-21
Name and Address of Purchaser | Principal Amount of | |||
Series | Notes to be Purchased | |||
Reliastar Life Insurance Company ofNew York | 2007-A | $1,100,000 | ||
c/o ING Investment Management LLC | ||||
5780 Powers Ferry Road NW, Suite 300 | ||||
Atlanta, Georgia 30327-4347 | ||||
Attention: Private Placements | ||||
Facsimile: (770) 690-5057 |
ABA # 021-000-018
Account: | IOC 566/INST’L CUSTODY (for scheduled principal and interest payments) | |||
or | ||||
IOC 565/INST’L CUSTODY (for all payments other than scheduled principal and interest) |
Reference: PPN 387328 A#4
5780 Powers Ferry Road NW, Suite 300
Atlanta, Georgia 30327-4347
Attention: Operations/Settlements
Facsimile: (770) 690-4886
A-22
100 Washington Avenue South, Suite 1635
Minneapolis, Minnesota 55401-2121
Attention: Robert Boucher
Facsimile: (612) 372-5368
A-23
Name and Address of Purchaser | Principal Amount of | ||||||
Series | Notes to be Purchased | ||||||
The Guardian Life Insurance Company of America | 2007-A | $20,000,000 | |||||
7 Hanover Square | |||||||
New York, New York 10004-2616 | |||||||
Attention: Thomas Donohue | |||||||
Investment Department 20-D | |||||||
Facsimile: (212) 919-2658/2656 |
FED ABA #021000021
Chase/NYC/CTR/BNF
A/C 900-9-000200
Reference A/C #G05978, Guardian Life, PPN # 387328 A#4, Granite Construction
A-24
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
Principal Life Insurance Company | 2007-A | $ | 17,000,000 | |||||
c/o Principal Global Investors, LLC | Denominations | |||||||
Attention: Fixed Income Private Placements | $ | 9,350,000 | ||||||
711 High Street, G-26 | $ | 2,925,000 | ||||||
Des Moines, Iowa 50392-0800 | $ | 1,100,000 | ||||||
$ | 850,000 | |||||||
$ | 200,000 | |||||||
$ | 525,000 | |||||||
$ | 400,000 | |||||||
$ | 250,000 | |||||||
$ | 165,000 | |||||||
$ | 560,000 | |||||||
$ | 575,000 | |||||||
$ | 100,000 |
Wells Fargo Bank, N.A.
San Francisco, CA
For credit to Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0070036( )
Attention: (PPN number 387328 A#4 — Granite Construction Company)
A-25
Attention: Fixed Income Private Placements
711 High Street, G-26
Des Moines, Iowa 50392-0960
A-26
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
United of Omaha Life Insurance Company | 2007-A | $ | 10,000,000 | |||||
4 - Investment Accounting | ||||||||
Mutual of Omaha Plaza | ||||||||
Omaha, Nebraska 68175-1011 |
FED ABA #021000021
Private Income Processing
United of Omaha Life Insurance Company
Account # 900-9000200
a/c: G07097
PPN: 387328 A#4
Interest Amount:
Principal Amount:
Dallas, Texas 75254-2917
Attention: Income Processing – G. Ruiz
a/c: G07097
A-27
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
Allianz Life Insurance Company of North America | 2007-A | $10,000,000 | ||||||
c/o Allianz of America, Inc. | ||||||||
Attention: Private Placements | ||||||||
55 Greens Farms Road | ||||||||
P.O. Box 5160 | ||||||||
Westport, Connecticut 06881-5160 | ||||||||
Telephone: (203) 221-8580 | ||||||||
Facsimile: (203) 221-8539 | ||||||||
E-mail: blandry@azoa.com |
Mellon Bank, N.A.
ABA # 011001234
Mellon Bank Account No. AZAF6700012
DDA 125261
Cost Center 1253
Re: “Accompanying Information” below
For Credit to Portfolio Account: AZLife AZAF6700012
Description of Security: 6.11% Series 2007-A Senior Notes due December 12, 2019
PPN: 387328 A#4
Due Date and Application (as among principal, make whole and interest) of the payment being made:
A-28
c/o Allianz of America, Inc.
55 Greens Farms Road
P.O. Box 5160
Westport, Connecticut 06881-5160
Telephone: (203) 221-8580
Facsimile: (203) 221-8539
E-mail:blandry@azoa.com
Supervisor — Income Group
Mellon Bank, N.A.
Three Mellon Center — Room 3418
Pittsburgh, Pennsylvania 15259
Telephone: (412) 234-5192
E-mail:muhl.kl@mellon.com
A-29
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
The State Life Insurance Company | 2007-A | $2,000,000 | ||||||
c/o American United Life Insurance Company | ||||||||
One American Square | ||||||||
Post Office Box 368 | ||||||||
Indianapolis, Indiana 46206 | ||||||||
Attention: Mike Bullock, Securities Department |
ABA Routing #: 021000018
Account No.: GLA111566
A/C Name: Institutional Custody Insurance Division
FFC Custody #: 343761
Custody Name: The State Life Insurance Co.
RE: (PPN# 387328 A#4 and Granite Construction Incorporated)
A-30
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
Farm Bureau Life Insurance Company of Michigan | 2007-A | $3,300,000 | ||||||
c/o American United Life Insurance Company | ||||||||
One American Square | ||||||||
Post Office Box 368 | ||||||||
Indianapolis, Indiana 46206 | ||||||||
Attention: Mike Bullock, Securities Department |
AC: 2158598532
BNF: Farm Bureau Life Insurance Company of Michigan
AC: 1085001633
BBI: Trade Settlement (313) 222-4757
Bank Routing Number: 0720-0009-6
Attention: Steve Harkness
P.O. Box 30400
Lansing, Michigan 48909
A-31
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
Lafayette Life Insurance Company | 2007-A | $1,700,000 | ||||||
c/o American United Life Insurance Company | ||||||||
One American Square | ||||||||
Post Office Box 368 | ||||||||
Indianapolis, Indiana 46206 | ||||||||
Attention: Mike Bullock, Securities Department |
ABA Routing #: 021000021
SWIFT CODE CHASUS33 (for international payors)
Account No.: 631557105
Beneficiary: Lafayette Life Insurance Company
A-32
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
American United Life Insurance Company | 2007-A | $3,000,000 | ||||||
One American Square | ||||||||
Post Office Box 368 | ||||||||
Indianapolis, Indiana 46206 | ||||||||
Attention: Mike Bullock, Securities Department |
ABA Routing #: 021000018
Account No.: GLA111566
A/C Name: Institutional Custody Insurance Division
FFC Custody #: 186683
Custody Name: American United Life Insurance Co.
RE: (PPN # 387328 A#4 and Granite Construction Incorporated)
A-33
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
American Family Life Insurance Company | 2007-A | $4,000,000 | ||||||
6000 American Parkway | ||||||||
Madison, Wisconsin 53783-0001 | ||||||||
Attention: Investment Division — Private | ||||||||
Placements |
Trust Services
60 Livingston Avenue
St. Paul, Minnesota 55107-2292
ABA#: 091000022
Beneficiary Account #: 180183083765
FFC to American Family Trust Account # 000018012500 for AFLIC-Traditional
Credit for PPN #387328 A#4
A-34
Name and Address of Purchaser | Principal Amount of | |||||||
Series | Notes to be Purchased | |||||||
Assurity Life Insurance Company | 2007-A | $2,000,000 | ||||||
4000 Pine Lake Road | ||||||||
P.O. Box 82533 | ||||||||
Lincoln, Nebraska 68501-2533 |
13th & M Streets
Lincoln, Nebraska 68058
ABA No. 104000029
General Fund Account: 1-494-0092-9092
4000 Pine Lake Road
P.O. Box 82533
Lincoln, Nebraska 68156
Attention: Investment Division
Facsimile: (402) 458-2170
Telephone: (402) 437-3682
A-35
(to Note Purchase Agreement)
B-2
B-3
B-4
B-5
B-6
B-7
B-8
B-9
B-10
B-11
B-12
(to Note Purchase Agreement)
Ownership of Subsidiary Stock*;
Directors and executive officers
Schedule 5.4
Subsidiaries and Affiliates of the Company; Ownership of Subsidiary Stock; Directors and Executive Officers
Ownership by Company and/or Subsidiary | ||||||||||||||
Jurisdiction | Capital | |||||||||||||
of | Structure | |||||||||||||
Name | Organization | Capital Structure | Name | Ownership | Position | Type | ||||||||
GILC, Incorporated (“GILC”) * | California | C Corp | GCI | 100.00 | % | investor | MS | |||||||
Granite Construction Company(“GCCo”) * | California | C Corp | GCI | 100.00 | % | investor | MS | |||||||
ABC Marine LLC | Louisiana | Joint Venture | GCCo | 41.00 | % | member | A | |||||||
Audubon Bridge Constructors, a Joint Venture | Louisiana | Joint Venture | GCCo | 25.00 | % | partner | A | |||||||
Brosamer/Granite, a Joint Venture | California | Joint Venture | GCCo | 100.00 | % | partner | S | |||||||
California Corridor Constructors, a Joint Venture | California | LLC | GCCo | 30.00 | % | partner | A | |||||||
FCI Constructors/Granite, a Joint Venture | California | Joint Venture | GCCo | 60.00 | % | sponsor | S | |||||||
Gateway Constructors | California | Joint Venture | GCCo | 50.00 | % | sponsor | S | |||||||
GKS Constructors | Florida | Joint Venture | GCCo | 60.00 | % | sponsor | S | |||||||
Granite-Archer Western, a Joint Venture | Mississippi | Joint Venture | GCCo | 82.00 | % | sponsor | S | |||||||
Granite-Brosamer, a Joint Venture | California | Joint Venture | GCCo | 67.50 | % | sponsor | S | |||||||
Granite Construction Company and J.D. Abrams, | Texas | Limited Partnership | GCCo | 62.00 | % | sponsor | S | |||||||
Granite-Frontier Kemper, a Joint Venture | Arkansas | Joint Venture | GCCo | 60.00 | % | sponsor | S | |||||||
Granite-Meyers, a Joint Venture | California | Joint Venture | GCCo | 41.20 | % | sponsor | S | |||||||
Granite-Meyers-Rados, a Joint Venture | California | Joint Venture | GCCo | 55.00 | % | sponsor | S | |||||||
Granite-PCL, a Joint Venture | Florida | Joint Venture | GCCo | 64.70 | % | sponsor | S | |||||||
Granite/Q&D, a Joint Venture | Nevada | Joint Venture | GCCo | 71.40 | % | sponsor | S | |||||||
Granite-Rizzani de Eccher, a Joint Venture | Florida | Joint Venture | GCCo | 60.00 | % | sponsor | S | |||||||
Granite2-Sundt, a Joint Venture | Arizona | Joint Venture | GCCo | 65.00 | % | sponsor | S | |||||||
Hill Country Constructors | Texas | Joint Venture | GCCo | 70.00 | % | sponsor | S | |||||||
Intercounty Constructors | Maryland | Joint Venture | GCCo | 55.00 | % | sponsor | S | |||||||
K-G-W Leasing, a Joint Venture | Utah | Joint Venture | GCCo | 23.00 | % | partner | A | |||||||
Kiewit-Granite, a Joint Venture | California | Joint Venture | GCCo | 25.00 | % | partner | A | |||||||
Largo Properties, LLC | Maryland | Limited Liability Company | GCCo | 33.30 | % | member | A | |||||||
Las Vegas Monorail Team, a Joint Venture | Nevada | Joint Venture | GCCo | 44.80 | % | sponsor | A | |||||||
LGS, a Joint Venture | Maryland | Joint Venture | GCCo | 30.00 | % | partner | A | |||||||
Market Street Constructors | Pennslyvania | Joint Venture | GCCo | 99.00 | % | sponsor | S | |||||||
Minnesota Transit Constructors, a Joint Venture | Minnesota | Joint Venture | GCCo | 56.50 | % | sponsor | S |
* | Material Subsidiary |
(to Note Purchase Agreement)
Ownership by Company and/or Subsidiary | ||||||||||||
Jurisdiction | Capital | |||||||||||
of | Structure | |||||||||||
Name | Organization | Capital Structure | Name | Ownership | Position | Type | ||||||
Riverside Motorsports Park, LLC | California | Limited Liability Company | GCCo | 2.50% | member | A | ||||||
Sierra Blanca Constructors, a Joint Venture | New Mexico | Joint Venture | GCCo | 52.00% | sponsor | S | ||||||
South Corridor Constructors, a Joint Venture | Oregon | Joint Venture | GCCo | 25.00% | partner | A | ||||||
TGM Constructors | Kentucky | Joint Venture | GCCo | 25.00% | partner | A | ||||||
Tri-County Rail Constructors, a Joint Venture | Florida | Joint Venture | GCCo | 30.00% | partner | A | ||||||
Virginia Approach Constructors | Maryland | Joint Venture | GCCo | 79.00% | partner | S | ||||||
Wasatch Constructors, a Joint Venture | Utah | Joint Venture | GCCo | 23.00% | partner | A | ||||||
Washington-Granite, a Joint Venture | California | Joint Venture | GCCo | 40.00% | partner | A | ||||||
Weber County Constructors | Utah | Joint Venture | GCCo | 75.00% | sponsor | S | ||||||
Wilder Construction Company (“Wilder”) | Washington | C Corp | GCCo | 75.00% | investor | S | ||||||
Wilder Realty | Washington | C Corp | Wilder | 100.00% | investor | S | ||||||
Axton Aggregate Partnership | Washington | General Partnership | Wilder | 50.00% | GP | A | ||||||
Axton Aggregate Company | Washington | General Partnership | Wilder | 50.00% | GP | A | ||||||
HLA /Wilder, a Joint Venture | Washington | Joint Venture | Wilder | 55.00% | partner | A | ||||||
Yaquina River Constructors, a Joint Venture | Oregon | Joint Venture | GCCo | 90.00% | sponsor | S | ||||||
Yonkers/Granite, a Joint Venture | New Jersey | Joint Venture | GCCo | 60.00% | sponsor | S | ||||||
Granite Northwest, Inc. * | Washington | C Corp | GCI | 100.00% | investor | MS | ||||||
Granite Construction International | California | C Corp | GCI | 100.00% | investor | S | ||||||
Granite Road Builders, Ltd. | BC, Candada | Subsidiary | GCIntl | 100.00% | investor | S | ||||||
Granite Construction Northeast, Inc. * | New York | C Corp | GCI | 100.00% | investor | MS | ||||||
Granite Halmar-Fujitec America, a Joint Venture | New York | Joint Venture | GHC | 100.00% | partner | S | ||||||
Granite Halmar/Schiavone, a Joint Venture | New York | Joint Venture | GHC | 60.00% | partner | S | ||||||
Phoenix Constructors | New York | Joint Venture | GHC | 20.00% | partner | A | ||||||
Schiavone/Granite Halmar, a Joint Venture | New York | Joint Venture | GHC | 40.00% | partner | A | ||||||
Granite Land Company (“GLC”) * | California | C Corp | GCI | 100.00% | investor | MS | ||||||
GGV Greenwood, LLC | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
GLC Argyle 114, Ltd. | Texas | Limited Liability Company | GLC | 99.80% | LP | S | ||||||
Realty Capital Argyle 114, Ltd | Texas | Limited Liability Company | GLC Argyle 114, Ltd. | 41.67% | LP | A | ||||||
GLC Belmont, LTD. | Texas | Limited Partnership | GLC | 99.80% | LP | S | ||||||
Realty Capital Belmont, Ltd | Texas | Limited Partnership | GLC Belmont | 41.67% | LP | A | ||||||
GLC Brandywine, LLC | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
GLC/Corpac Pine Grove, LLC | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
GLC/Duc La Quinta LLC | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
GLC/EPC McCormick Woods, LLC | Washington | Limited Liability Company | GLC | 100.00% | managing | S | ||||||
GEM1, LLC | Washington | Limited Liability Company | GLC/EPC | 70.00% | LLC | S | ||||||
GLC/Foothill Monterey, LLC | California | Limited Liability Company | GLC | 99.00% | LLC | S |
Ownership by Company and/or Subsidiary | ||||||||||||
Jurisdiction | Capital | |||||||||||
of | Structure | |||||||||||
Name | Organization | Capital Structure | Name | Ownership | Position | Type | ||||||
GLC Fort Worth, LLC (“GLCFW, LLC”) | Texas | Limited Liability Company | GLC | 100.00% | GP | S | ||||||
Presidio Vista I, LTD | Texas | Limited Partnership | GLC | 89.00% | L.P | S | ||||||
GLCFW, LLC | 1.00% | GP | ||||||||||
GLC/LP Rancho Road, LLC | California | Limited Liability Company | GLC | 99.00% | managing | S | ||||||
GLC/LP Shasta View, LLC | California | Limited Liability Company | GLC | 100.00% | managing | S | ||||||
GLC Summer Creek, LLC | Texas | Limited Liability Company | GLC | 100.00% | managing | S | ||||||
Summer Sycamore I, LTD | Texas | Limited Partnership | GLC, LLC | 89.00% | LP | S | ||||||
GLC Vista Crossroads, LLC | Texas | Limited Liability Company | GLC | 100.00% | managing | S | ||||||
Vista Crossroads I, LTD | Texas | Limited Partnership | GLC, LLC | 89.00% | LP | S | ||||||
Granite Grado Ventures, LLC (“GGV, LLC”) | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
Granite Grado Ventures Project I, LLC | California | Limited Liability Company | GGV, LLC | 100.00% | managing | S | ||||||
Granite Grado Ventures Project II, LLC | California | Limited Liability Company | GGV, LLC | 90.00% | managing | S | ||||||
Granite/Mandalay Bay Finance, LLC | California | Limited Liability Company | GLC | 70.00% | member | S | ||||||
Granite/Mandalay, LLC (“GM, LLC “) | California | Limited Liability Company | GLC | 90.00% | member | S | ||||||
Oly/Granite General Partnership | California | Limited Partnership | GM, LLC | 10.00% | LP | A | ||||||
Oly/Mandalay Bay General Partnership | California | Limited Partnership | GM, LLC | 10.00% | LP | A | ||||||
Granite/PBC Pajaro, LLC | California | Limited Liability Company | GLC | 66.265% | LP | S | ||||||
Highpoint Oaks, LTD | Texas | Limited Partnership | GLC | 66.265% | LP | S | ||||||
Lodi Victor Ventures, LLC | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
Main Street Ventures, LLC | California | Limited Liability Company | GLC | 90.00% | managing | S | ||||||
Main Street Ventures-Project I, LLC | California | Limited Liability Company | MSV, LLC | 10.00% | LP | A | ||||||
Main Street Ventures-Project II, LLC | California | Limited Liability Company | MSV, LLC | 10.00% | LP | A | ||||||
Regional Park Limited | California | Limited Partnership | GLC | 25.00% | LP | A | ||||||
VAC, LLC | California | Limited Liability Company | GLC | 90.00% | LLC | S | ||||||
Villebois Village Center, LLC | Oregon | Limited Liability Company | GLC | 48.00% | LLC | A | ||||||
XS Ranch Fund VI, L.P. | Delaware | Limited Partnership | GLC | 6.70% | LP | A | ||||||
Granite SR 91 Corporation (“GSR91”) | California | C Corp | GCI | 100.00% | investor | S | ||||||
Granite SR 91, LP (“SR91, LP”) | California | Limited Partnership | GCI | 99.00% | LP | S | ||||||
GSR91 | 1.00% | GP | ||||||||||
California Private Transportation Company, LP | California | Limited Partnership | SR91, LP | 22.22% | LP | A | ||||||
GTC, Inc. (“GTC”) | Texas | C Corp | GCI | 100.00% | investor | S | ||||||
Intermountain Slurry Seal, Inc. * | Wyoming | C Corp | GCI | 100.00% | investor | MS | ||||||
Paramount-Nevada Asphalt Company, LLC | Nevada | Limited Liability Company | GCI | 50.00% | member | A | ||||||
Pozzolan Products Company (P.P.C.) * | Utah | C Corp | GCI | 100.00% | investor | MS | ||||||
TIC Holdings, Inc | Delaware | C Corp | GCI | 10.00% | investor | A | ||||||
Wilcott Corporation | Colorado | C Corp | GCI | 100.00% | investor | S |
DIRECTO | ||||||
RS | OFFICERS | |||||
Watts, David H. | Niebla, J. F. | Watts, David H. | Franich, John | |||
Cusumano, Gary M. | Dorey, William G. | |||||
Dorey, William G. | Futch, Michael | |||||
Barton, William E. | ||||||
McDonald, Rebecca | Kelsey, David H. | Grazian, David R. | ||||
Bradford, James W. | ||||||
Powell, William H. | Boitano, Mark E. | Kramer, Randy | ||||
Bjork, Claes G. | Desai, Jigisha | Marshall, Kent | ||||
Donnino, | McCann-Jenni, Mary | |||||
Michael F. | ||||||
Dowd, Brian | Roberts, James H. |
5.4-4
(to Note Purchase Agreement)
Item | Interest | Balance | ||||||||||||
No. | Lender’s Name | Description | Rate | Maturity | 10/31/07 | |||||||||
1 | Benna Investments | Real Estate property | 6.50 | % | 12/01/07 | 21,875 | ||||||||
2 | Rosemary’s Mountain | Aggregate property | 8.82 | % | 06/01/01 | 800,000 | ||||||||
3 | Wells - Anderson/Watson | Aggregate property | 6.50 | % | 12/15/19 | 162,234 | ||||||||
4 | Wells - Linda Watson Private Placement Due | Aggregate property Refinance debt & general corporate | 6.50 | % | 12/22/19 | 100,415 | ||||||||
5 | 03/15/10 Private Placement Due | purposes Refinance debt & general corporate | 6.54 | % | 03/15/10 | 20,000,000 | ||||||||
6 | 05/01/13 Bank of America Letter of | purposes Self insured Worker’s | 6.96 | % | 05/01/13 | 50,000,000 | ||||||||
7 | Credit Bank of America Letter of | Compensation | 5.96 | % | 03/15/08 | 220,000 | ||||||||
8 | Credit Bank of America Letter of | City of Patterson | 5.96 | % | 02/04/08 | 200,000 | ||||||||
9 | Credit Syndicated Bank | Silica deposit | 5.96 | % | 10/01/08 | 4,000,000 | ||||||||
10 | Facility(Revolver) | For general corporate purposes | 5.96 | % | 06/24/11 | 75,000,000 | ||||||||
11 | Main St. Ventures | Land development property | 8.06 | % | 07/21/09 | 2,667,319 | ||||||||
12 | Main St. Ventures II GLC/EPC McCormick - | Land development property | 9.00 variable | % | 08/17/08 | 888,660 | ||||||||
14 | GEM1 #1 GLC/EPC McCormick - | Land development property | 9.75 variable | % | 06/30/08 | 1,912,152 | ||||||||
15 | GEM1 #2 | Land development property | 9.75 variable | % | 10/15/07 | 2,622,579 | ||||||||
16 | GLC/CORPAC Pine Grove | Land development property | 9.25 variable | % | 03/15/08 | 2,499,367 | ||||||||
17 | GLC/CORPAC Pine Grove II | Land development property | 9.25 | % | 01/15/09 | 609,633 | ||||||||
18 | GGV Greenwood | Land development property | 9.00 | % | 09/10/09 | 500,000 | ||||||||
19 | Foothill Monterey | Land development property | 8.65 | % | 02/18/08 | 2,074,449 | ||||||||
20 | Granite Grado Ventures II | Land development property | 9.00 | % | 05/02/08 | 880,000 | ||||||||
21 | Bradywine - Kash | Land development property | 12.00 | % | 02/01/11 | 1,950,000 | ||||||||
22 | Bradywine - Souza | Land development property | 9.00 variable | % | 11/15/09 | 3,300,000 | ||||||||
24 | Summer Sycamore | Land development property | 9.25 | % | 02/01/08 | 1,972,675 | ||||||||
$ | 172,381,358 |
(to Note Purchase Agreement)
Market | ||||||
Company | Descriptions | 10/31/07 | ||||
Paramount-Nevada Asphalt | LLP | 3,422,191 | ||||
TIC Holdings, Inc. | Minority Interest | 4,173,096 | ||||
Realty Capital Argyle | LP | 1,379,469 | ||||
Highpoint Oaks, Ltd. | LP | 1,707,872 | ||||
ABC Marine, LLC | LLC | 211,881 | ||||
Realty Capital Belmont | LP | 4,943,565 | ||||
GLC Vollebois Village | LLC | 5,047,824 | ||||
XS Ranch Fund VI | LP | 1,724,835 | ||||
Granite Regional Park | LP | 918,652 | ||||
$ | 23,529,385 |
(to Note Purchase Agreement)
No. 2007-AR- | , 20 ___ | |
$ | PPN 387328 A# 4 |
(to Note Purchase Agreement)
Granite Construction Incorporated | ||||||
By | ||||||
Its | ||||||
By | ||||||
Its |
E-1-2
Due December 12, 2019
and
Additional Notes
of
Granite Construction Incorporated
(to Note Purchase Agreement)
E-2-2
E-2-3
E-2-4
E-2-5
E-2-6
E-2-7
E-2-8
E-2-9
E-2-10
E-2-11
E-2-12
E-2-13
E-2-14
E-2-15
Granite Construction Company | ||||
By | ||||
Its | ||||
By | ||||
Its | ||||
Granite Construction Northeast, Inc. | ||||
By | ||||
Its | ||||
By | ||||
Its | ||||
Granite Land Company | ||||
By | ||||
Its | ||||
By | ||||
Its | ||||
E-2-16
Granite Northwest | ||||
By | ||||
Its | ||||
By | ||||
Its | ||||
Intermountain Slurry Seal, Inc. | ||||
By | ||||
Its | ||||
Pozzolan Products Company | ||||
By | ||||
Its | ||||
GILCIncorporated | ||||
By | ||||
Its | ||||
By | ||||
Its | ||||
E-2-17
hereinafter defined Guaranty Agreement)
E-2-18
[Name of Additional Guarantor] | ||||
By | ||||
Its | ||||
E-2-19
, ___20 ___ are Holders as defined in the Subsidiary Guaranty and as such, are entitled to the full rights and benefits of Holders under the Subsidiary Guaranty. The undersigned acknowledge the terms of the Subsidiary Guaranty and agree to be bound thereby.
[Guarantors] | ||||
By: | ||||
Name: | ||||
Title: | ||||
E-2-20
INVESTMENT POLICY GUIDELINES
For Working Capital Portfolio
1.0 | Purpose |
The purpose of this policy is to set guidelines for the parameters, responsibilities and controls for working capital investment of corporate funds. These investments provide earnings on corporate funds while maintaining liquidity and working funds for the present and future operations. |
2.0 | Scope |
This policy applies to Granite Construction Incorporated and all of its subsidiaries (collectively “Granite”). The Board of Directors must approve any changes to this policy. |
3.0 | Investment Objectives |
In order to provide control of all investments and cash, Granite has established the following objectives (in the order of importance) regarding its investment policy: |
u | Safety — the primary objective of the investment activities of the Corporation is protection of capital. Each investment transaction shall seek to first ensure that capital losses are avoided, whether they are from securities defaults or erosion of market value. | ||
u | Liquidity — the investment portfolio must be structured in a manner that will provide sufficient liquidity to pay the obligations of the Corporation. Any excess cash above the aforementioned requirements may be invested in instruments with longer maturity. | ||
u | Diversification — the investment activity must ensure diversification of investments that minimizes risk exposure to any one security and/or issuer. | ||
u | Investment Return — the Corporation seeks to maximize the return on all investments within the constraints of safety and liquidity. |
4.0 | Duration |
The duration of the portfolio including escrows and deposits shall be consistent with the cash needs as determined by the cash forecast. Cash investments are restricted to average |
(to Note Purchase Agreement)
maturity 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 and Municipal Bonds as specified on the Exhibit A. | ||
The average maturity of the escrow portfolio and escrow deposit agreements shall not exceed five (5) years. | ||
Per GAAP, Cash Equivalent investments shall be defined as instruments maturing within 90 days. Short-term investments shall be defined as instruments maturing in ninety-one (91) days or more. Long-term investments shall be defined as instruments maturing in 367 days or more. |
5.0 | 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 minimum cost and accurate market valuations. |
6.0 | Authorized Traders |
The following individuals are authorized traders: | ||
Jigisha Desai, Vice President/Treasurer Mary McCann-Jenni, Vice President/Controller Ananya Mukherjee, Assistant Treasurer |
7.0 | Authorized Dealers and Banks for Trading |
The following institutions are authorized dealers: |
BMO Capital BNP Paribas Lehman Brothers Merrill Lynch Smith Barney |
All purchased investments will be delivered to Union Bank of California for safekeeping and paid for upon receipt. |
8.0 | Custody of Securities |
E-3-2
The following financial institution is authorized to hold all of the fixed income instruments in which the company is eligible to invest in custody on behalf of the company: | ||
Union Bank of California | ||
All of the money market funds in which the company is eligible to invest are also authorized to hold investments in custody on behalf of the company. The company will not take physical possession of investment securities. | ||
Each financial institution must provide timely confirmation/safekeeping receipts on all investment transactions and provide monthly transaction reports. |
9.0 | Escrow Portfolio (Securities held in escrow in lieu of retention) |
Escrows in lieu of retention are allowed at the following: |
Comerica Bank* Bank of America* Nevada Highway Fund (State of Nevada Treasury)* Union Bank of California US Bank Trust Wells Fargo Bank* |
The types of investments will be guided by the terms of the escrow, but in all cases the investment will be governed by the investment policy. Banks not listed, but required by escrow agreement, will also be acceptable. |
10. | Reporting | |
§ | Any individual transaction conforming to the policy shall be approved by one of the following officers. Any transaction not conforming to the policy must be approved by any two of the following officers: |
W. G. Dorey | W. E. Barton M. F. Donnino | ||
M. E. Boitano | J. H. Roberts |
§ | Any individual transaction down-graded causing the policy to fall out of compliance shall be approved by the Chief Financial Officer and Treasurer. | ||
§ | All new types of investment must pass a thorough credit review process that evaluates all related risks to insure that it conforms to the investment policy guidelines. |
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§ | Daily — An investment transaction sheet, sequentially numbered will be processed for approval by an authorized officer. | ||
§ | Weekly and Monthly — A portfolio will be provided to the President, Chief Operating Officer, Chief Financial Officer and all traders. | ||
§ | Monthly — A reconciliation of investment statements to the Treasury reports then to the general ledger accounts will be performed by the designated deadlines. | ||
§ | For FASB 115 purposes, the Corporation classifies all fixed income investments as “Held-to-Maturity.” |
11. | Performance Measurement |
Monthly — Depending on the weighted-average composition of the portfolio, the performance of the investment portfolio shall be measured against the Lipper Money Market Funds, Merrill Lynch 1-3 Year Government/Corporate Index, and iMoneyNet (IBC/Donoghue). |
12. | Investment Guidelines |
The following table provides a list of permitted investments. |
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INVESTMENT POLICY GUIDELINES
Investment | ||||||||||
Maximum | Limit by | Other | ||||||||
Rating | Minimum Rating | Maturity | Security | Investment | ||||||
Eligible Investments | Agency | Quality | Limit | Type | Limits | |||||
U.S. Treasury and Direct Agency Obligations | N/A | N/A | 2 Years | Up to 100% of Total Portfolio | No limit | |||||
Indirect Federal Agency Obligations of the U.S. Government | Moody’s | Aaa | 2 Years | Up to 40% of Total Portfolio | Per issuer limit - the greater of 10% of portfolio OR $5,000,000 | |||||
Obligations issued by U.S. owned domestic commercial banks limited to: Banker’s Acceptance Certificate of Deposit | S&P, & Moody’s | A-l/P-1 (for BA’s) A-l+P-1 (for CD’s) | 1 Year | 50% of Total Portfolio | Per issuer limit - - the greater of 10% of portfolio OR $5,000,000 | |||||
Obligations issued by U.S. bank subsidiaries of Non U.S. Bank limited to: Yankee/Eurodollar Banker’s Acceptance | S&P & Moody’s | A-l/P-1 (for BA’s) A-l+P-1 (for CD’s) | 1 Year | 40% of Total Portfolio | Per issuer limit - - the greater of 10% of portfolio OR $5,000,000 | |||||
Yankee/Eurodollar Certificates of Deposit (all securities U.S. dollar denominated) | ||||||||||
Commercial Paper-Top Tier | S&P & Moody’s | A-l/P-1 | 270 Days | 75% of Total Portfolio | Per issuer limit - - the greater of 10% of portfolio OR $5,000,000 |
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Investment | ||||||||||
Maximum | Limit by | Other | ||||||||
Rating | Minimum Rating | Maturity | Security | Investment | ||||||
Eligible Investments | Agency | Quality | Limit | Type | Limits | |||||
Commercial Paper — Split Rated | S&P & Moody ’s | A-l/P-2orA2-Pl Must be publicly trade Corporation. Must have at least $20B in Market Capitalization at the time of purchase. | 270 Days | 30% of Overall Commercial Paper Portfolio OR 22.5% of Total Portfolio | Per issuer limit - the greater of 10% of Commercial Paper Portfolio OR $5,000,000 | |||||
Commercial Paper — Second Tier | S&P, & Moody’s | A-2/P-2 Must be publicly trade Corporation. Must have at least $20B in Market Capitalization at the time of purchase. | 270 Days | 20% of Overall Commercial Paper Portfolio OR 15% of Total Portfolio | Per issuer limit - the greater of 10% of Commercial Paper Portfolio OR $5 ,000,000 | |||||
Asset Backed Securities | S&P & Moody’s | A-1+/P-1 or equivalent for short term, or AA/Aa2 for long term | 1 Year | 10% of Total Portfolio | Per issuer limit - the greater of 10% of portfolio OR $5,000,000 | |||||
Bonds or notes backed by loan paper or accounts receivable originated by banks, credit card companies, or other providers of credit, but excluding collateralized mortgage obligations (CMO’s). | ||||||||||
Municipal Securities (Taxable and Tax-Exempt) | S&P & Moody’s, | A-l, AA or better, Sp-1 AND P-l, Aa or better, MIG1/VMIG1 | 2 Years | 30% of Total Portfolio | Per issuer limit - the greater of 10% of portfolio OR $5,000,000 | |||||
Money Market Funds (Taxable and Tax- Exempt) — Including the passive sweep accounts offered by commercial banks | S&P & Moody’s | AAAm/Aaa | Average Maturity of 90 Days or Less | 50% of Total Portfolio | Up to $30 million may be invested in any single well- diversified money market fund that invests exclusively in securities authorized under this investment policy. |
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to the Company and the Guarantors
(to Note Purchase Agreement)
![(GRANITE CONSTRUCTION INCORPORATED LOGO)](https://capedge.com/proxy/8-K/0000950134-08-001415/f37522f3752201.gif)
Box 50085 | ||
Watsonville, CA 95077-5085 | ||
Phone 831/724-1011 | ||
FAX 831/722-9657 |
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December 12, 2007
Page 2 of 3
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to the Company and the Guarantors
(to Note Purchase Agreement)
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2000 University Avenue
East Palo Alto, California 94303-2214
www.dlapiper.com
F 650.833.2001
Re: | Granite Construction Incorporated- | |||
$200,000,000 6.11% Series 2007-A Senior Notes due December 12, 2019 |
1. | The Note Purchase Agreement; |
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the Note Purchase Agreement
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Page Two
2. | The Notes; | ||
3. | The Guaranty; | ||
4. | The Certificate or Articles of Incorporation, as the case may be, of the Company and of each Covered Subsidiary, in each case certified as true and correct by the Secretary of State or other applicable governmental authority of the state of incorporation of the applicable entity, and the Bylaws of the Company and of each Covered Subsidiary, in each case, certified to us by an officer of the Company as being in force as of the date of this opinion; | ||
5. | The resolutions of the Company’s Board of Directors adopted at its meeting on December 6, 2007; the resolutions of the Executive Committee of the Board of Directors of Granite Construction Company adopted by unanimous written consent, and the resolutions of the Boards of Directors of each other Guarantor adopted by unanimous written consent, in each case authorizing the Transaction Documents; | ||
6. | The Officers’ Certificate (as defined below); | ||
7. | A certificate issued by the Secretary of State for the State of Delaware certifying to the good standing and existence as a domestic corporation of the Company as of November 30, 2007; | ||
8. | A certificate of status issued by the Secretary of State for the State of California certifying the status as a foreign corporation of the Company as of November 30, 2007; | ||
9. | A certificate of status issued by the Secretary of State for the State of California certifying the good standing and status as a domestic corporation of Granite Construction Company as of November 30, 2007; | ||
10. | A certificate of status issued by the Secretary of State for the State of California certifying the good standing and status as a domestic corporation of GILC Incorporated November 30, 2007; | ||
11. | A certificate of status issued by the Secretary of State for the State of California certifying the good standing and status as a domestic corporation of Granite Land Company as of November 30, 2007; | ||
12. | A certificate issued by the Secretary of State for the State of New York certifying the good standing and status as a domestic corporation of Granite Construction Northeast, Inc. as of November 29, 2007; |
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13. | A certificate of existence/authorization issued by the Secretary of State for the State of Washington certifying the existence and authorization as a domestic corporation of Granite Northwest, Inc. as of November 30, 2007; | ||
14. | The agreements filed by the Company as exhibits to its annual report on Form 10-K for the fiscal year ended December 31, 2006, as filed with the United States Securities and Exchange Commission (the “Material Agreements”): and | ||
15. | Amendment No. 2 to Credit Agreement, dated as of December 7, 2007, by and among the Company, the guarantors named therein, Bank of America, N.A. as administrative agent, and each of the lenders party thereto (the “Credit Agreement Consent”). |
(A) | The genuineness and authenticity of all signatures on original documents (other than signatures on behalf of the Company and the Covered Subsidiaries on the Transaction Documents) and that all natural persons who are signatories are legally competent to execute and deliver such documents. | ||
(B) | The genuineness and authenticity of all documents submitted to us as originals, and the conformity to authentic originals of all documents submitted to us as copies. | ||
(C) | The due authorization, execution and delivery of the Note Purchase Agreement by each Purchaser, and that the Note Purchase Agreement is the legal, valid and binding obligation of each Purchaser, enforceable against such Purchaser in accordance with its terms, and that the representations and warranties as to factual matters made by the Purchasers in the Note Purchase Agreement are true and correct. | ||
(D) | As to factual matters, we have relied solely upon, and assumed the accuracy, completeness and genuineness of a certificate signed by an officer of the Company and each Subsidiary concerning certain matters set forth therein and attached hereto asExhibit “A” (the “Officers’ Certificate”), certificates of public officials and oral and written representations made to us by officers of the Company and the Subsidiaries. In addition, we have assumed that the representations and warranties as to factual matters made by the Company and the Subsidiaries in the Transaction Documents |
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to the Note Purchase Agreement
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and any certificate delivered in connection therewith are true and correct. We have made no independent investigation of any of the facts stated in any such certificate or representation and warranty; however, to our knowledge, there is nothing which would lead us to believe that such facts are inaccurate. | |||
(E) | That the Purchasers possess all required authority, licenses and permits and have satisfied all requirements respecting their power and authority to perform their obligations pursuant to the Transaction Documents and to enter into the Transaction Documents and to derive the intended benefits thereof. | ||
(F) | The reference in Paragraph II.D above, “to our knowledge”, is intended to refer to the current actual knowledge of those attorneys in this firm who have rendered or are rendering substantive legal services to the Company and the Subsidiaries in the transactions contemplated by the Transaction Documents. However, except as otherwise expressly indicated, we have not undertaken any independent investigation to determine the accuracy of such statement and any limited inquiry undertaken by us during the preparation of this opinion letter should not be regarded as such an investigation; no inference as to our knowledge of any matters bearing on the accuracy of any such statement should be drawn from the fact of our representation of the Company and/or the Subsidiaries. | ||
(G) | With respect to our opinions in Paragraphs III.1 and III.2 regarding the good standing and/or existence and qualification of the Company and the Covered Subsidiaries in their respective states of incorporation and certain foreign jurisdictions, we have relied exclusively on good standing and other certificates of public officials identified in Paragraph I above. | ||
(H) | With respect to our opinion in Paragraph III.8 that the Guaranty is a legal, valid and binding contract of the Guarantors enforceable in accordance with its terms, we have assumed that (i) each Guarantor other than the Covered Subsidiaries (the “Other Guarantors”) has been duly organized and is in good standing in its jurisdiction of incorporation, (ii) the execution, delivery and performance of the Guaranty has been duly authorized by all necessary corporate action on the part of each Other Guarantor and is within the corporate power of each Other Guarantor, (iii) no approval, consent or withholding of objection on the part of, or filing, registration or qualification with, any governmental body, federal or state (other than those required under the Applicable Laws), is necessary in connection with the execution and delivery by any Other Guarantor of the Guaranty; and (iv) the execution, delivery and performance by each Other Guarantor of the Guaranty do not conflict with or result in any breach of any of the provisions of or constitute a default under or result in the creation or imposition of any Lien upon any of the property of such Other Guarantor pursuant to the provisions of the charter documents or by-laws of such Other Guarantor. |
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(I) | With respect to our opinions in Paragraphs III.5 and III.9 regarding the necessity for approvals, consents or withholding of objections on the part of, or filing, registration or qualification with, any governmental body, federal or state, under the Applicable Laws, we have not conducted any special investigation of statutes, laws, ordinances, rules or regulations, and our opinions with respect thereto are limited to the Applicable Laws. | ||
(J) | With respect to our opinions in Paragraphs III.6 and III.10 regarding conflicts, breaches, defaults or creation of Liens under agreements or other instruments to which the Company or any Guarantor is a party or by which the Company or any Guarantor, or any of their assets, respectively, are bound, arising in connection with the execution, delivery and performance of the Note Purchase Agreement, Notes and Guaranty to which any of them are a party, we have relied solely upon our review of the Material Agreements. With respect to the Material Agreements, we have relied solely upon representations made to us in the Officers’ Certificate regarding the absence of any conflict, breach, or default and any creation or imposition of any Lien, except to the extent that such conflict, breach, default or creation or imposition of a Lien, would be apparent solely from an examination of the documents or agreements we have reviewed and not based upon facts not set forth expressly in the Material Agreements or the Transaction Documents. To the extent that any of the agreements and instruments identified in the Officers’ Certificate is governed by laws other than the Applicable Laws, our opinion relating to those agreements and instruments is based solely upon the plain meaning of their language without regard to interpretation or construction that might be indicated by the laws governing those agreements and instruments and without consideration of any parol evidence. Moreover, we have not reviewed, and express no opinion on (i) financial covenants or similar provisions requiring financial calculations or determinations to ascertain compliance or (ii) provisions relating to the occurrence of a “material adverse event” or words of similar import contained in any such agreement or instrument. Without limiting the generality of the foregoing, we express no opinion with respect to whether the Company’s or any Guarantor’s execution and delivery of, or performance under, the Transaction Documents to which it is a party, will conflict with or result in any breach of any of the provisions of, or constitute a default under, or result in the creation or imposition of any Lien under Sections 10.3 or 10.4 of the Note Purchase Agreement, dated as of May 1, 2001, by and among the Company and the purchasers listed in the Schedule A attached thereto or under Sections 10.3 or 10.4 of the Amended and Restated Note Purchase Agreement, dated as of November 1, 2001, by and among the Company and the purchasers listed in the Schedule A attached thereto, in each case as amended, supplemented, modified or restated as of the date hereof. We call your attention to the fact that compliance with certain provisions of those agreements require financial calculations that may change from time to time, and that the ability of the Company and its Subsidiaries to achieve or maintain compliance with those provisions may be impaired by events and circumstances that they do not control. |
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(K) | With respect to our opinions in Paragraphs III.6 and III.10 we have assumed that the Credit Agreement Consent is in full force and effect and is the legal, valid and binding contract and obligation of each of the parties thereto and enforceable in accordance with its terms. | ||
(L) | With respect to our opinion in Paragraphs III.12, we have assumed, without independent investigation, of the accuracy of the representations set forth in Section 5.14 of the Note Purchase Agreement: (i) that the proceeds of the Notes will be applied as specified in Section 5.14 of the Note Purchase Agreement, and (ii) the representations set forth in the second to last sentence of Section 5.14 of the Note Purchase Agreement are true, correct and accurate. We have further relied on the statement in the Officers’ Certificate that all common stock of the Company repurchased pursuant to the Company’s publicly announced share repurchase authorization prior to the date hereof, has been cancelled and retired, and that all such stock repurchased after the date hereof will be cancelled and retired immediately upon repurchase. |
1. | The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, has the corporate power and the corporate authority to execute and perform the Note Purchase Agreement and to issue the Notes and has the full corporate power and the corporate authority to conduct the activities in which it is now engaged and is duly licensed or qualified and in good standing as a foreign corporation in California. | ||
2. | Each California Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of the State of California. Granite Northeast is a corporation duly incorporated, validly existing and in good standing under the laws of the State of New York. Granite Northwest is a corporation duly incorporated and validly existing under the laws of the State of Washington. | ||
3. | The Note Purchase Agreement has been duly authorized by all necessary corporate action on the part of the Company, has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms. | ||
4. | The Notes have been duly authorized by all necessary corporate action on the part of the Company, have been duly executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms. | ||
5. | No approval, consent or withholding of objection on the part of, or filing, registration or qualification with, any governmental body, federal or state, is required under the |
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Applicable Laws in connection with the execution and delivery by the Company of the Note Purchase Agreement or the Notes. | |||
6. | The issuance and sale of the Notes and the execution, delivery and performance by the Company of the Note Purchase Agreement do not: (a) violate the Applicable Laws that are binding on the Company, or (b) conflict with or result in any breach of any of the provisions of or constitute a default under, or result in the creation or imposition of any Lien upon any of the property of the Company pursuant to, the provisions of, the Certificate of Incorporation or By-laws of the Company or any Material Agreement to which the Company is a party or by which the Company may be bound. | ||
7. | Each Covered Subsidiary has the corporate power and the authority to execute, deliver and perform the Guaranty and to conduct the activities in which it is now engaged. | ||
8. | The Guaranty has been duly authorized by all necessary corporate action on the part of each Covered Subsidiary, has been duly executed and delivered by each Covered Subsidiary and constitutes the legal, valid and binding contract of each Guarantor enforceable in accordance with its terms. | ||
9. | No approval, consent or withholding of objection on the part of, or filing, registration or qualification with, any governmental body, federal or state, is required under the Applicable Laws, in connection with the execution and delivery by any Guarantor of the Guaranty. | ||
10. | The execution, delivery and performance by each Covered Subsidiary of the Guaranty do not: (a) violate the Applicable Laws that are binding on such Covered Subsidiary, or (b) conflict with or result in any breach of any of the provisions of or constitute a default under, or result in the creation or imposition of any Lien upon any of the property of such Covered Subsidiary pursuant to the provisions of, the charter documents or by-laws of such Covered Subsidiary. The execution, delivery and performance by each Guarantor of the Guaranty do not conflict with or result in any breach of any of the provisions of or constitute a default under, any Material Agreement to which such Guarantor is a party or by which such Guarantor may be bound. | ||
11. | The issuance, sale and delivery of the Notes and the issuance and delivery of the Guaranty under the circumstances contemplated by the Note Purchase Agreement do not, under existing law, require the registration of the Notes or the Guaranty under the Securities Act of 1933, as amended, or the qualification of an indenture under the Trust Indenture Act 1939, as amended. |
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12. | The issuance of the Notes and such application of proceeds will not result in a violation of the margin requirements of Regulations T, U or X of the Board of Governors of the Federal Reserve System. |
(A) | Enforcement of the Transaction Documents may be subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect limiting the validity or enforceability of creditors’ rights and remedies generally. | ||
(B) | Enforcement of the Transaction Documents may be subject to the effects of general principles of equity, regardless of whether considered in proceedings in equity or at law. | ||
(C) | Certain provisions of the Transaction Documents providing for penalties, forfeitures or late payment charges upon delinquency in payment or the occurrence of a default, or unspecified fees or charges imposed in the sole discretion of the Purchasers, may be unenforceable in whole or in part. | ||
(D) | Enforceability may be limited by any unconscionable, inequitable, or unreasonable conduct on the part of the party seeking enforcement, defenses arising from such party’s failure to act in accordance with the terms and conditions of the Transaction Documents, defenses arising as a consequence of the passage of time, or defenses arising as a result of such party’s failure to act reasonably or in good faith or to comply with the terms of the Transaction Documents. | ||
(E) | We express no opinion herein as to the applicability or effect of any fraudulent transfer or similar law on the Transaction Documents or any of the transactions contemplated thereby. | ||
(F) | We express no opinion as to the effect on the opinions herein stated of (i) the compliance or noncompliance of any Purchaser with any state, federal or other laws or regulations applicable to it, or (ii) the legal or regulatory status or nature of any Purchaser. | ||
(G) | We express no opinion on the enforceability of any provisions of the Transaction Documents requiring any party to waive any procedural, judicial, or substantive rights or defenses, such as rights to notice, statutes of limitation, appraisal or valuation rights, redemption rights, and marshaling of assets, or any provisions purporting to authorize or consent to a confessed judgment, or any provisions purporting to waive any right to consequential or other damages, or any provisions purporting to require |
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the Company or any Subsidiary to give notice to any Purchaser of any acts or omissions of any Purchaser or any Purchaser’s employees. | |||
(H) | We express no opinion on the enforceability of any provisions stating that the provisions of the Transaction Documents are severable. | ||
(I) | We express no opinion as to the enforceability of any rights to indemnification or contribution provided for in the Transaction Documents which are violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation) or the enforceability of any rights to specific performance contained in any Transaction Document. | ||
(J) | We express no opinion on the enforceability of any provisions of the Transaction Documents that entitle any Purchaser, as a matter of right, to the appointment of a receiver after the occurrence of a default. | ||
(K) | The provisions of the Transaction Documents which provide for jurisdiction of the courts of any particular jurisdiction other than New York may not be binding on the courts in the forums selected or excluded. | ||
(L) | Enforceability of the Transaction Documents may be limited by the effect of 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). | ||
(M) | Enforceability of the Transaction Documents may be limited by the effect of any New York or federal law or court decisions that requires a lender to enforce its remedies in a commercially reasonable manner. | ||
(N) | We call to your attention that our opinion on the enforceability of the Note Purchase Agreement, Notes and Guaranty does not mean that every provision contained in the Transaction Documents is valid or enforceable, but to the extent one or more provisions of the Transaction Documents may be invalid or unenforceable, such invalidity or unenforceability will not render the Transaction Documents invalid as a whole nor will it preclude or otherwise impair (x) the provisions of the Note Purchase Agreement pertaining to acceleration of the Notes or the Provisions of the Guaranty pertaining to demand for payment thereunder, in each case, upon a material default under the Transaction Documents, or (y) the judicial enforcement of the payment obligations of the Company and the Subsidiaries under the Transaction Documents. |
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(O) | Except as expressly set forth in Paragraph III.11 and Paragraph III.12, we express no opinion as to any securities, anti-trust, tax, land use, safety, insurance company or banking rules or regulations, or any laws, rules or regulations applicable to any of the parties to the Transaction Documents other than the Company and the Guarantors. | ||
(P) | We express no opinion as to whether the members of the board of directors of the Company or any Guarantor have complied with any applicable fiduciary duties in connection with the authorization, execution and delivery of the Transaction Documents. |
(A) | The enforceability of the Guaranty against any Guarantor may be subject to 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. However, there is also authority to the effect that a guarantor may validly waive such rights if the waivers are expressly set forth in the guaranty. While we believe that a New York court should hold that the explicit language contained in the guaranty waiving such rights should be enforceable, we express no opinion with respect to the effect of (i) any modification to or amendment of the obligations of the Company that materially increases such obligations; or (ii) any other action by a holder of a Note that materially prejudices a Guarantor, if, in any such instance, such modification, election, or action occurs without notice to the Guarantor and without granting to the Guarantor an opportunity to cure any default by Company. | ||
(B) | It could be contended that the Guaranty was not given for a fair or reasonably equivalent consideration, that a Guarantor is, or, by entering into the Guaranty, may become, insolvent, and that such Guaranty be voidable by creditors of such Guarantor or by a trustee or receiver of such Guarantor in bankruptcy or similar proceedings pursuant to applicable bankruptcy, fraudulent conveyance or similar laws. Because of these possible contentions, our opinions are further limited by and subject to the effect of such laws. |
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to the Purchasers
(to Note Purchase Agreement)
Due , 20
(to Note Purchase Agreement)
585 West Beach Street
Watsonville, California 95076
,20
the attached Schedule A hereto
Granite Construction Incorporated | ||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
[Variation] | ||||
By | ||||
Name: | ||||
Title: | ||||
Principal | ||
Name and Address of Purchaser | Amount of Series | |
Notes to | ||
be Purchased | ||
[Name of Purchaser] | $ |
(1) | All payments by wire transfer of immediately available funds to: | |
with sufficient information to identify the source and application of such funds. | ||
(2) | All notices of payments and written confirmations of such wire transfers: | |
(3) | All other communications: |
(to Supplement to Note Purchase Agreement)
(to Supplement to Note Purchase Agreement)
No. 20 - R- | , 20 | |
$ | PPN |
(to Supplement to Note Purchase Agreement)
Granite Construction Incorporated | ||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||