EXHIBIT 10.2
CONSENT AND AGREEMENT OF GUARANTORS
Reference is made to that Credit Agreement dated as of June 27, 2003
among Granite Construction Incorporated, Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto (as amended, the "Credit
Agreement"). Each of the undersigned, in its capacity as a Guarantor
(hereinafter defined), acknowledges that its consent to the foregoing First
Amendment Agreement to the Credit Agreement dated as of September 15, 2004 (the
"Amendment") is not required, but each Guarantor nevertheless does hereby
consent to the foregoing Amendment and to the documents and agreements referred
to therein. Nothing herein shall in any way limit any of the terms or provisions
of that Continuing Guaranty Agreement dated as of June 27, 2003, (the
"Guaranty") made by Granite Construction Company, a California corporation,
Granite Land Company, a California corporation, Intermountain Slurry Seal, Inc.,
a Wyoming corporation, Pozzolan Products Company, a Utah corporation, GILC, L.P.
a California limited partnership, Granite Halmar Construction Company, Inc., a
New York corporation (each a "Guarantor" and collectively, the "Guarantors"), in
favor of each Guaranteed Party or any other Loan Document executed by a
Guarantor (as the same may be amended from time to time), all of which are
hereby ratified and affirmed in all respects.
Each Guarantor further agrees that its respective Guaranty
shall be amended as follows:
(a) Section 3.1 is amended by deleting such section in its entirety
and replacing it with the following:
"Section 3.1 Nature and Application of Payments. Each
Guarantor shall make all payments hereunder in immediately available
lawful money in the Obligation Currency (as hereinafter defined) or,
if required by the Administrative Agent, in lawful money of the
United States, in each case, in immediately available funds without
deduction or withholding (whether for taxes (whether income, excise,
or otherwise) or offset). Without regard to the form in which
received, the Guaranteed Parties may apply any payment with respect
to the Guaranteed Obligations or any other amounts due hereunder in
such order as the Guaranteed Parties shall in their sole and
absolute discretion determine, irrespective of any contrary
instructions received from any other Person."
(b) Article IX is amended by adding the following Section 9.4 and
Section 9.5 immediately after Section 9.3 thereof:
"Section 9.4 Foreign Currency. If any claim arising under or
related to this Guaranty is reduced to judgment denominated in a
currency (the "Judgment Currency") other than the currencies in
which the Guaranteed Obligations are denominated (collectively, the
"Obligation Currency"), the judgment shall be for the equivalent in
the Judgment Currency of the amount of the claim denominated in the
Obligations Currency included in the judgment, determined as of the
date of judgment. The equivalent of any Obligations Currency amount
in any Judgment Currency shall be calculated at the spot rate for
the purchase of the Obligations Currency with the Judgment Currency
quoted by the Administrative Agent in the
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place of the Administrative Agent's choice at or about 8:00 a.m.
(San Francisco time) on the date for determination specified above.
The Guarantor shall indemnify and hold the Guaranteed Parties
harmless from and against all loss or damage resulting from any
change in exchange rates between the date any claim is reduced to
judgment and the date of payment thereof by the Guarantor. If the
Guaranteed Parties so notify the Guarantor in writing, at the
Administrative Agent's sole and absolute discretion, payments under
this Guaranty shall be the U.S. Dollar equivalent of the Guaranteed
Obligations or any portion thereof, determined as of the date
payment is made."
"Section 9.5 USA PATRIOT Act Notice. Each Lender that is
subject to the Act (as hereinafter defined) and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies
each Guarantor that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law on October 26,
2001)) (the "Act"), it is required to obtain, verify and record
information that identifies each Guarantor, which information
includes the name and address of each Guarantor and other
information that will allow such Lender or the Administrative Agent,
as applicable, to identify each Guarantor in accordance with the
Act."
Each capitalized term used but not otherwise defined in the Guaranty
or herein, shall have the meanings assigned to them in the Credit Agreement (as
amended by the Amendment).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGES FOLLOW]
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This Consent and Agreement of Guarantors shall constitute a Loan
Document under the Credit Agreement and may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one instrument.
GRANITE CONSTRUCTION COMPANY,
a California corporation
By: /s/ William G. Dorey
-------------------------------------
William G. Dorey
President & Chief Executive Officer
By: /s/ William E. Barton
-------------------------------------
William E. Barton
Chief Financial Officer
GRANITE LAND COMPANY,
a California corporation
By: /s/ Mark E. Boitano
-------------------------------------
Mark E. Boitano
Executive Vice President, Granite
Construction Incorporated
By: /s/ William E. Barton
-------------------------------------
William E. Barton
Chief Financial Officer, Granite
Construction Incorporated
INTERMOUNTAIN SLURRY SEAL, INC.,
a Wyoming corporation
By: /s/ Michael L. Thomas
-------------------------------------
Michael L. Thomas
President
By: /s/ David J. Brunton
-------------------------------------
David J. Brunton
Chief Financial Officer
[SIGNATURE PAGE 1 TO CONSENT AND AGREEMENT OF GUARANTORS]
POZZOLAN PRODUCTS COMPANY (P.P.C.),
a Utah corporation
By: /s/ Michael L. Thomas
-------------------------------------
Michael L. Thomas
President
By: /s/ David J. Brunton
-------------------------------------
David J. Brunton
Chief Financial Officer
GILC, L.P.,
a California Limited Partnership
By: GILC Incorporated
its General Partner
By: /s/ William E. Barton
-------------------------------------
William E. Barton
President & Chief Executive Officer
By: /s/ Roxane C. Allbritton
-------------------------------------
Roxane C. Allbritton
Chief Financial Officer
GRANITE HALMAR CONSTRUCTION COMPANY,
INC., a New York corporation
By: /s/ William G. Dorey
-------------------------------------
William G. Dorey
President & Chief Executive Officer
By: /s/ William E. Barton
-------------------------------------
William E. Barton
Chief Financial Officer
[SIGNATURE PAGE 2 TO CONSENT AND AGREEMENT OF GUARANTORS]
DATED September 15, 2004
Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Suzie Anna Wan
-----------------------------------
Suzie Anna Wan
AVP
[SIGNATURE PAGE 3 TO CONSENT AND AGREEMENT OF GUARANTORS]