1
EXHIBIT 10.2
CONTINUING GUARANTY AGREEMENT
This CONTINUING GUARANTY AGREEMENT (this "Agreement"), dated as of June
29, 2001, is made by each of the undersigned (each, a "Guarantor" and,
collectively, the "Guarantors"), in favor of each Guaranteed Party (as
hereinafter defined).
WHEREAS, Granite Construction Incorporation, a Delaware corporation (the
"Company"), Bank of America, N.A., as Administrative Agent, as L/C Issuer and as
a Lender, and the other financial institutions as are, or may from time to time
become, parties thereto have entered into or are in the process of entering into
that certain Credit Agreement, dated as of June 29, 2001 (as amended, modified
and/or supplemented from time to time, the "Credit Agreement"), pursuant to
which the Lenders have provided the Commitments and agreed to make Loans to the
Company and to participate in Letters of Credit issued by the L/C Issuer for the
account of the Company or its Subsidiaries on the terms and conditions contained
therein; and
WHEREAS, to induce the Lenders and the L/C Issuer to provide and to
continue to provide financial accommodations to the Company pursuant to the
terms of the Credit Agreement and the other Loan Documents, the Guarantors have
each agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), and intending to be legally bound
hereby, each Guarantor irrevocably and unconditionally undertakes and agrees for
the benefit of Guaranteed Party as follows:
ARTICLE I
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Certain Definitions. Each capitalized term used but not
otherwise defined herein has the meaning ascribed thereto in the Credit
Agreement. As used herein, the term "Guaranteed Party" means, as the context may
require, the Administrative Agent, the L/C Issuer and each Lender (and each of
such Person's respective successors, transferees and assigns).
Section 1.2 Construction. For purposes of this Agreement and unless
otherwise specified herein: (a) references to the plural include the singular
and to the singular include the plural, references to any gender include any
other gender, the part includes the whole, the term "including" is not limiting,
and the term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or"; (b) references in this Agreement to any
determination by the Guaranteed Party include good faith estimates (in the case
of quantitative determinations) and good faith beliefs (in the case of
qualitative determinations) by any Guaranteed Party; any determination made in
good faith by any Guaranteed Party shall be conclusive absent manifest error;
(c) the words "hereof," "herein," "hereby," and "hereunder," and any other
similar words, refer to this Agreement as a whole and not to any particular
provision of this Agreement; (d) article, section, subsection, clause, exhibit
and schedule references are to this Agreement; and (e) any reference to this
Agreement or any other Loan Document includes all permitted alterations,
amendments, changes, extensions, modifications, renewals, or supplements thereto
or thereof, as applicable.
2
ARTICLE II
GUARANTY BY GUARANTORS
Section 2.1 Promise to Pay and Perform. Each Guarantor jointly and
severally unconditionally and irrevocably guarantees to each Guaranteed Party
the payment and performance of all Obligations when and as the same shall become
due and payable (whether at stipulated or any accelerated or earlier date of
maturity (including the date of any required prepayment)) (the "Guaranteed
Obligations"), it being each Guarantor's intent that such Guarantor's guaranty
is a guaranty of payment and not a guaranty of collection. If the Company fails
to pay or perform any Guaranteed Obligation on or before the date when due
(whether at stipulated or any accelerated or earlier date of maturity (including
the date of any required prepayment)), each Guarantor shall jointly and
severally unconditionally and immediately make such payment or render such
performance upon written demand therefor by any Guaranteed Party.
Section 2.2 Cumulative Obligations; Continuing Guaranty. The obligations
of each Guarantor hereunder are in addition to any other obligations of such
Guarantor under any other guaranties of the Indebtedness or other obligations of
the Company or any other Person at any time given to any Guaranteed Party. This
Agreement shall not affect or invalidate any such other guaranties. This
Agreement is a continuing guaranty and shall remain in full force and effect
notwithstanding the fact that, at any particular time, no Guaranteed Obligations
may be outstanding.
Section 2.3 Joint and Several Obligation; Independent Obligation. Each
Guarantor is directly, jointly and severally with all other guarantors of the
Guaranteed Obligations or any portion thereof, liable to the Guaranteed Parties.
The obligations of each Guarantor hereunder are direct and primary and are
independent of the obligations of the Company or any other such guarantor, and a
separate action may be brought against each Guarantor irrespective of whether an
action is brought against the Company or any other such other guarantor or
whether the Company or any such other guarantor is joined in such action. Each
Guarantor's liability hereunder shall not be contingent upon the exercise or
enforcement by the Guaranteed Parties of any remedies they may have against the
Company or any other guarantor or the enforcement of any Lien or realization
upon any security the Guaranteed Parties may at any time possess. Any release
that may be given by the Guaranteed Parties to the Company or any other
guarantor shall not release any Guarantor hereunder unless such release
expressly so provides.
Section 2.4 Limit of Liability. Notwithstanding anything to the contrary
contained herein, each Guarantor shall be liable hereunder only for the largest
amount that would not render such Guarantor's obligations hereunder subject to
avoidance under Section 548 of the Bankruptcy Code or comparable provisions of
any applicable state law; provided that such amount shall be presumed to be the
entire amount of the Guaranteed Obligations. If, any Guarantor claims that such
Guarantor's liability hereunder is less than the entire amount of the Guaranteed
Obligations, such Guarantor shall have the burden of proving, by clear and
convincing evidence, that such Guarantor's liability hereunder should be so
limited since the information concerning, and the circumstances of, the
financial condition of such Guarantor are more readily available to and are
under the control of such Guarantor. All payments received by any Guaranteed
Party from any Person other than a Guarantor on account of the Guaranteed
Obligations shall be deemed as having been applied to Guaranteed Obligations
that, pursuant to this Section 2.4, are in excess of the amounts guaranteed
hereunder.
3
ARTICLE III
PAYMENTS
Section 3.1 Nature and Application of Payments. Each Guarantor shall
make all payments hereunder in immediately available lawful money of the United
States, 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.
Section 3.2 Indefeasible Payment; Revival. If any portion of any payment
to the Guaranteed Parties is set aside and repaid by any Guaranteed Party for
any reason after being made by any Guarantor, the amount so set aside shall be
revived as a Guaranteed Obligation and each Guarantor shall be liable for the
full amount the Guaranteed Parties are, or any Guaranteed Party is, required to
repay plus all costs and expenses (including attorneys' fees, costs, and
expenses) incurred by the Guaranteed Parties in connection therewith.
ARTICLE IV
CERTAIN REPRESENTATIONS AND WARRANTIES OF GUARANTORS
Each Guarantor represents and warrants as follows (which representations
and warranties shall be true, correct, and complete at all times):
Section 4.1 No Contravention; No Default. The execution, delivery, and
performance by such Guarantor of this Agreement do not and will not: (a)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any contractual obligation to which such Guarantor is a party or
any order, injunction, writ, or decree of any governmental authority to which
such Guarantor or such Guarantor's properties are subject; or (b) violate any
law, rule, or regulation of any governmental authority.
Section 4.2 Binding Effect. This Agreement constitutes the legal, valid,
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
Section 4.3 Litigation. Except as set forth on Schedule 5.06 to the
Credit Agreement, there are no actions, suits, proceedings, claims, or disputes
pending, or, to the best knowledge of such Guarantor, threatened in writing, at
law, in equity, in arbitration, or before any governmental authority, against
such Guarantor or any of such Guarantor's properties which purport to affect or
pertain to this Agreement, any of the other Loan Documents, or any of the
transactions contemplated hereby or thereby.
Section 4.4 Regulated Entity. Neither such Guarantor nor any Person
controlling such Guarantor is: (a) an "investment company" within the meaning of
the Investment Company Act of 1940; or (b) subject to regulation by any federal
or state statute or regulation limiting such Guarantor's ability to incur such
Guarantor's obligations hereunder.
Section 4.5 No Action Required. No consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing, or
declaration with any governmental authority or of, to, or with any other Person,
is or will be required for: (a) the execution, delivery, or performance of
4
this Agreement by such Guarantor; or (b) the exercise by the Guaranteed Parties
of any of their respective rights and remedies provided for herein.
Section 4.6 Changes Affecting the Guaranteed Obligations. Such Guarantor
has taken and is taking all steps in such Guarantor's opinion necessary or
appropriate to be informed on a continuing basis of changes or potential changes
affecting the Guaranteed Obligations. Without limiting the generality of the
foregoing, such Guarantor hereby confirms that it has received and reviewed the
Credit Agreement, the Fee Letter and all other Loan Documents (and all other
agreements, documents and instruments related thereto) that such Guarantor, in
such Guarantor's sole determination, has deemed necessary or appropriate to
receive and review.
Section 4.7 Reliance by Guarantor; Financial Condition of the Company.
This Agreement is not made by such Guarantor in reliance on any representation
or warranty, express or implied, by any Guaranteed Party concerning the
financial condition of the Company, the nature, value, or extent of any security
for the Guaranteed Obligations, or any other matter. Such Guarantor is presently
informed of the financial condition of the Company and of all other
circumstances that a diligent inquiry would reveal and which bear upon the risk
of nonpayment of the Guaranteed Obligations. Such Guarantor has reviewed each of
the Loan Documents.
Section 4.8 Adequate Consideration. The consideration given or provided,
or to be given or provided, by the Guaranteed Parties in connection with this
Agreement is adequate and satisfactory in all respects, and represents
reasonably equivalent value, to support this Agreement and such Guarantor's
obligations hereunder.
ARTICLE V
CERTAIN COVENANTS OF GUARANTORS
Section 5.1 Knowledge of Financial Condition. Each Guarantor shall keep
informed of the Company's financial condition, the status of any guarantors or
of any security for the Guaranteed Obligations, and all other circumstances that
bear upon the risk of nonpayment of the Guaranteed Obligations.
Section 5.2 Further Assurances. Each Guarantor shall, from time to time,
at the expense of such Guarantor, promptly execute and deliver all further
documents and take all further action that may be necessary, or that the
Guaranteed Parties (or any of them) may reasonably request, to enable the
Guaranteed Parties (or any of them) to exercise and enforce their respective
rights and remedies hereunder.
Section 5.3 Sales, Dispositions, etc. Each Guarantor will not, without
the prior written consent of the Guaranteed Party, sell, lease, assign,
encumber, hypothecate, transfer or otherwise dispose of all of substantially all
of such Guarantor's properties or assets, or any interest therein, except as
otherwise permitted by the Credit Agreement.
ARTICLE VI
CERTAIN ACKNOWLEDGEMENTS AND AGREEMENTS OF GUARANTORS
Section 6.1 Modifications to Loan Documents and Guaranteed Obligations.
Each Guarantor acknowledges and agrees that, without notice to such Guarantor
and without affecting or impairing the obligations of such Guarantor hereunder,
the Guaranteed Parties (or any of them) may, by action or
5
inaction, compromise or settle, extend the period of duration or the time for
the payment, or discharge the performance of, or may refuse to, or otherwise not
enforce, or may, by action or inaction, release all or any one or more parties
to, any one or more of the Loan Documents or otherwise with respect to the
Guaranteed Obligations or may grant other indulgences to the Company in respect
thereof, or may amend or modify in any manner and at any time (or from time to
time) any one or more of the Loan Documents or otherwise with respect to the
Guaranteed Obligations, or may, by action or inaction, release or substitute any
guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the Guaranteed
Obligations or any guaranty of the Guaranteed Obligations, or any portion
thereof.
Section 6.2 Subordination. Each Guarantor agrees that any and all
present and future indebtedness of the Company owing to such Guarantor is
postponed in favor of and subordinated to indefeasible payment, in full, in
cash, of the Guaranteed Obligations. In this regard, upon the occurrence and
during the continuance of a Default or an Event of Default, no payment of any
kind whatsoever shall be made with respect to such indebtedness until the
Guaranteed Obligations have been indefeasibly paid in full. Any payment received
by any Guarantor in respect of such indebtedness shall be held by such Guarantor
as trustee for the Guaranteed Parties and promptly paid over to the Guaranteed
Parties on account of the Guaranteed Obligations but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Agreement.
Section 6.3 Administrative Agent as Each Guarantor's Attorney-in-Fact.
Each Guarantor irrevocably appoints the Administrative Agent as such Guarantor's
attorney-in-fact, with full authority in the place and stead and name of such
Guarantor, from time to time at the Administrative Agent's discretion but only
following the occurrence and during the continuation of an Event of Default, to
take any action and to execute any instrument which the Guaranteed Parties (or
any of them) may, in accordance with the provisions of the Loan Documents or
this Agreement, require as necessary or advisable to accomplish the purposes of
this Agreement.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Notices. All notices, requests, and other communications to
any party under this Agreement shall be in writing (including telegraphic,
telex, telefacsimile, or cable communication) and mailed, telegraphed, telexed,
sent by telefacsimile, cabled, or delivered to such party at its address or
telefacsimile number set forth, in the case of each Guarantor, on the signature
pages hereof, or, in the case of the Guaranteed Parties, on Schedule 10.02 to
the Credit Agreement, or such other address or telefacsimile number as such
party may hereafter specify for the purpose by notice to the other party given
in accordance with this Section 7.1. Each such notice, request or other
communication shall be deemed to have been received: (a) if mailed as provided
above by any method other than overnight delivery service, on the third Business
Day after deposit in the mails; (b) if mailed by overnight delivery service,
telegraphed, telexed, sent by telefacsimile, or cable, when delivered for
overnight delivery, delivered to the telegraph company, confirmed by telex
answerback, transmitted by telefacsimile (with electronic confirmation), or
delivered to the cable company, respectively; or (c) if delivered by hand, upon
delivery. If any conflict exists between any oral communication to any
Guaranteed Party and the written confirmation thereof, the oral communication
shall control if any Guaranteed Party has acted thereon prior to actual receipt
of such written confirmation.
Section 7.2 Amendments, Waivers, and Consents. No amendments or waivers
of any provision of this Agreement nor any consent to any departure by any
Guarantor from the terms hereof shall in any event be effective unless the same
shall be in writing and signed by the Administrative Agent
6
(or all Guaranteed Parties if required by the terms of the Credit Agreement) and
the Guarantors. Any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7.3 No Waiver; Cumulative Nature of Remedies. No failure or
delay on the part of any Guaranteed Party in exercising any of its rights and
remedies under this Agreement, any of the Loan Documents, or otherwise with
respect to any of the Guaranteed Obligations shall operate as a waiver thereof;
nor shall any single or partial exercise of any right under this Agreement, the
Loan Documents, or otherwise with respect to the Guaranteed Obligations preclude
any other or further exercise thereof or the exercise of any other right or
remedies. The rights and remedies provided in this Agreement and otherwise with
respect to the Guaranteed Obligations are cumulative and not exclusive of any
rights and remedies provided by law.
Section 7.4 Costs and Expenses. Each Guarantor shall pay or reimburse
the Guaranteed Parties on demand for all fees, costs, and expenses incurred by
the Guaranteed Parties in connection with the enforcement or attempted
enforcement of this Agreement, the preservation of any rights or remedies under
this Agreement, or in any action, case, or proceeding (whether at law or in
equity) relating to this Agreement. Without limiting the generality of the
foregoing, such fees, costs, and expenses shall include reasonable Attorney
Costs actually incurred by the Guaranteed Parties or any of them (irrespective
of whether the Company is liable therefor), whether or not suit is brought, in
connection therewith.
Section 7.5 Successors and Assigns. This Agreement shall: (a) be binding
upon each Guarantor and each Guarantor's successors and assigns; and (b) inure
to the benefit of each Guaranteed Party and its successors and assigns (all to
the extent permitted by the Loan Documents). Without limiting the generality of
the foregoing subsection (b) but subject to the provisions of the Credit
Agreement, any Guaranteed Party may assign or otherwise transfer all or any part
of the Guaranteed Obligations owed to it to any other Person.
Section 7.6 Headings. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement and shall not be given any substantive effect.
Section 7.7 Ambiguities. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved using any presumption against
any Guarantor or any Guaranteed Party, whether under any rule of construction or
otherwise. On the contrary, this Agreement has been reviewed by each Guarantor
and each Guaranteed Party and their respective counsel. In case of any ambiguity
or uncertainty, this Agreement shall be construed and interpreted according to
the ordinary meaning of the words used to accomplish fairly the purposes and
intentions of all parties hereto.
Section 7.8 Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality, and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby. In addition, all agreements and
covenants herein shall be given independent effect such that, if a particular
action or condition is prohibited by the terms of any such agreement or
covenant, the fact that such action or condition would be permitted by another
agreement or covenant shall not be construed as allowing such action to be taken
or condition to exist.
Section 7.9 Counterparts; Telefacsimile Signatures. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
Each Guarantor may effect execution and delivery of this Agreement by executing
a counterpart hereof and sending the signature page bearing such Guarantor's
signature to the
7
Administrative Agent by telefacsimile and, thereafter, promptly sending by mail
or delivering such signature page to the Administrative Agent; provided that the
failure to deliver such signature page by such Guarantor shall not affect the
validity, enforceability, or binding effect of this Agreement against such
Guarantor.
Section 7.10 Entire Agreement. This Agreement and the Credit Agreement
embody the entire agreement and understanding concerning the Guarantors and the
Guaranteed Parties relating to the subject matter hereof and supersede all prior
agreements and understandings relating to the subject matter hereof. No course
of prior dealing between any Guarantor and the Guaranteed Parties (or any of
them), no usage of the trade, and no parol or extrinsic evidence of any nature,
shall be used or be relevant to supplement, explain or modify any term used
herein.
ARTICLE VIII
CERTAIN WAIVERS BY GUARANTORS
EACH GUARANTOR MAKES THE FOLLOWING WAIVERS WITH FULL KNOWLEDGE AND
UNDERSTANDING THAT SUCH WAIVERS, IF NOT SO MADE, MIGHT OTHERWISE RESULT IN SUCH
GUARANTOR BEING ABLE TO AVOID OR LIMIT SUCH GUARANTOR'S LIABILITY HEREUNDER
EITHER IN WHOLE OR IN PART.
Section 8.1 Notices. Each Guarantor absolutely, unconditionally,
knowingly, and expressly waives: (a) notice of the acceptance by the Guaranteed
Parties of this Agreement; (b) notice of any Credit Extensions consisting
Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations,
subject, however, to such Guarantor's right to make inquiry, at any reasonable
time, of any Guaranteed Party to ascertain the amount of the Guaranteed
Obligations owing to such Guaranteed Party; (d) notice of any adverse change in
the financial condition of the Company, of any change in value, or the release,
of any collateral, or of any other fact that might increase such Guarantor's
risk hereunder; (e) notice of presentment for payment, demand, protest, and
notice thereof as to any instrument; (f) notice of any Default or Event of
Default; and (g) all other notices (except if such notice is expressly required
to be given to such Guarantor under this Agreement) and demands to which
guarantor might otherwise be entitled.
Section 8.2 Revocation. Each Guarantor absolutely, unconditionally,
knowingly, and expressly waives any right to revoke such Guarantor's guaranty
obligation hereunder as to future Guaranteed Obligations and, in light thereof,
all protection afforded such Guarantor under Section 2815 of the California
Civil Code. Each Guarantor fully realizes and understands that, upon execution
of this Agreement, such Guarantor will not have any right to revoke this
Agreement as to any future indebtedness and, thus, may have no control over such
Guarantor's ultimate responsibility for the amount and nature of the Guaranteed
Obligations.
Section 8.3 Defenses of the Company. Each Guarantor absolutely,
unconditionally, knowingly, and expressly waives any defense arising by reason
of any disability or other defense (other than the defense that the Guaranteed
Obligations shall have been fully and finally performed and indefeasibly paid)
of the Company or by reason of the cessation from any cause whatsoever
(including any act or failure to act by the Company or the Guaranteed Parties)
of the liability of the Company in respect thereof, including any such defense
or cessation of liability arising from or as a result of: (a) any statute of
limitations; (b) any lack of power or authority of the Company or any Person
acting or purporting to act on the Company's behalf; (c) the operation of
Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or
any similar law of the State of California or any other jurisdiction; or (d) any
claim of fraudulent transfer or preference.
8
Section 8.4 Suretyship and Certain Other Rights and Defenses of
Guarantors. Each Guarantor absolutely, unconditionally, knowingly, and expressly
waives:
(a) any right to assert against the Guaranteed Parties (or any of them)
any defense (legal or equitable), set-off, counterclaim, or claim which such
Guarantor may now or at any time hereafter have against the Company or any other
Person liable to the Guaranteed Parties (or any of them);
(b) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of any of the Guaranteed Obligations or
any security therefor or from any failure of the Guaranteed Parties (or any of
them) to act in a commercially reasonable manner;
(c) any defense arising by reason of or deriving from any claim or
defense based upon an election of remedies by the Guaranteed Parties (or any of
them) (including a nonjudicial foreclosure sale of any real property collateral
which destroys, diminishes, or otherwise adversely affects any Guarantor's
rights of subrogation, reimbursement, indemnity, or contribution or other rights
against the Company or any other Person), including any defense based upon an
election of remedies by any Guaranteed Party under the provisions of Sections
580a, 580b, 580d, and 726 of the California Code of Civil Procedure or any
similar law of the State of California or any other jurisdiction. In making this
waiver, each Guarantor specifically acknowledges that it understands and is
aware that, under Sections 580b and 580d of the California Code of Civil
Procedure, if the Guaranteed Parties (or any of them) conducted a nonjudicial
foreclosure sale of real property collateral: (i) such Guaranteed Party(ies)
would lose the right to pursue the Company for any deficiency that might remain
following such sale; (ii) if such Guarantor were to pay such deficiency
following such sale, it would be precluded from pursuing the Company for
reimbursement; and (iii) as a result, such Guaranteed Party(ies) would be
prevented from pursuing such Guarantor for such deficiency following such sale;
(d) the benefit of any statute of limitations affecting such Guarantor's
liability hereunder (or the enforcement thereof);
(e) any defense based on any alteration, impairment, or release of the
Guaranteed Obligations or any security therefor, irrespective of whether
resulting from any act or failure to act by the Guaranteed Parties (or any of
them); and
(f) any right to require the Guaranteed Parties (or any of them): (i) to
institute suit or otherwise proceed against the Company or any other Person; or
(ii) to exhaust any rights and remedies which the Guaranteed Parties (or any of
them) have or may have against the Company or any other Person.
Section 8.5 Marshalling. Each Guarantor absolutely, unconditionally,
knowingly, and expressly waives any rights it has to require the Guaranteed
Parties (or any of them) to marshal, foreclose upon, sell, or otherwise realize
upon or collect or apply any particular part of any other assets securing any of
the Guaranteed Obligations (including any rights arising by virtue of Sections
2899 and 3433 of the California Civil Code).
Section 8.6 Claims Against the Company and Others. Each Guarantor
absolutely, unconditionally, knowingly, and expressly agrees that, until the
Guaranteed Obligations have been indefeasibly repaid in full, such Guarantor
will not in any manner enforce or pursue, or seek to enforce or pursue, any or
all of the following rights (it being expressly agreed that all such rights are
subordinate to any claims of the Guaranteed Parties (or any of them)): (a) any
right of subrogation, indemnity, or
9
contribution such Guarantor has or may have as against the Company or any other
Person with respect to any of the Guaranteed Obligations; (b) any right to
proceed against the Company or any other Person, now or hereafter, for
contribution, indemnity, reimbursement, or any other suretyship rights and
claims (irrespective of whether direct or indirect, liquidated or contingent)
with respect to any of the Guaranteed Obligations; and (c) any right to proceed
or to seek recourse against or with respect to any assets of the Company or any
other Person with respect to any of the Guaranteed Obligations.
Section 8.7 Certain Additional Statutory Rights. Without limiting the
generality of any other waiver or other provision set forth in this agreement,
each Guarantor absolutely, unconditionally, knowingly, and expressly waives any
and all benefits or defenses, if any, arising directly or indirectly under any
one or more of Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822,
2838, 2839, 2845, 2848, 2849, and 2850 of the California Civil Code, Sections
580a, 580b, 580c, 580d, and 726 of the California Code of Civil Procedure, and
Sections 3116, 3118, 3119, 3419, 3605, 9504, 9505, and 9507 of the California
Uniform Commercial Code.
ARTICLE IX
GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF TRIAL BY JURY
Section 9.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF CALIFORNIA,
PROVIDED THAT THE GUARANTEED PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
Section 9.2 Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT 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 AGREEMENT, EACH GUARANTOR AND
EACH OF THE GUARANTEED PARTIES CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GUARANTOR AND
EACH OF THE GUARANTEED PARTIES 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. EACH GUARANTOR AND EACH OF THE GUARANTEED PARTIES WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
Section 9.3. Waiver of Jury Trial. EACH GUARANTOR AND EACH OF THE
GUARANTEED PARTIES WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY INDEMNIFIED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH GUARANTOR AND EACH
OF THE GUARANTEED PARTIES AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH
10
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
EACH GUARANTOR WARRANTS AND AGREES THAT EACH OF THE WAIVERS SET FORTH
ABOVE IS MADE WITH SUCH GUARANTOR'S FULL KNOWLEDGE OF ITS SIGNIFICANCE AND
CONSEQUENCE AND THAT, UNDER THE CIRCUMSTANCES, THE WAIVERS ARE REASONABLE AND
NOT CONTRARY TO PUBLIC POLICY OR LAW. IF ANY SUCH WAIVER IS DETERMINED TO BE
CONTRARY TO ANY APPLICABLE LAW OR PUBLIC POLICY, SUCH WAIVER SHALL BE EFFECTIVE
ONLY TO THE EXTENT, BUT TO THE FULLEST EXTENT, PERMITTED BY LAW OR PUBLIC
POLICY.
[Document continues with signature page]
11
EACH GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF
THIS AGREEMENT AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS
THAT THIS AGREEMENT IS EFFECTIVE UPON SUCH GUARANTOR'S EXECUTION AND DELIVERY OF
THIS AGREEMENT TO THE ADMINISTRATIVE AGENT ON BEHALF OF ALL OF THE GUARANTEED
PARTIES (AND THE SATISFACTION OF ALL OF THE CONDITIONS SET FORTH IN SECTION 5.1
OF THE CREDIT AGREEMENT). NO FORMAL ACCEPTANCE BY THE GUARANTEED PARTIES IS
NECESSARY TO MAKE THIS AGREEMENT EFFECTIVE.
IN WITNESS WHEREOF, each Guarantor has executed this Agreement as
of the date first written above.
Granite Construction Company,
a California corporation
By: /s/ WILLIAM E. BARTON
--------------------------------
William E. Barton
Chief Financial Officer
Granite Land Company,
a California corporation
By: /s/ WILLIAM E. BARTON
--------------------------------
William E. Barton
Chief Financial Officer
G.G. & R., Inc.,
a Utah corporation
By: /s/ WILLIAM E. BARTON
--------------------------------
William E. Barton
Chief Financial Officer
Intermountain Slurry Seal, Inc.,
a Wyoming corporation
By: /s/ MICHAEL L. THOMAS
--------------------------------
Michael L. Thomas
Chief Executive Officer
12
Pozzolan Products company (P.P.C.),
a Utah corporation
By: /s/ MICHAEL L. THOMAS
--------------------------------
Michael L. Thomas
Chief Executive Officer
GILC, L.P.,
a California limited partnership
By: GILC Incorporated
Its General Partner
a California corporation
By: /s/ WILLIAM E. BARTON
--------------------------------
William E. Barton
Chief Executive Officer
13
NOTICE INFORMATION FOR ALL GUARANTORS
c/o Granite Construction Incorporated
P. O. Box 50085
Watsonville, CA 95077
Attention: William Barton, Vice President/Chief Financial Officer
Telephone: (831) 761-4704
Facsimile: (831) 722-9657
Email: bbarton@gcinc.com
Website: http:/www.graniteconstruction.com
WITH A COPY TO:
Granite Construction Incorporated
585 West Beach Street
Watsonville, CA 95076
Attention: Roxane Allbritton, Treasurer
Telephone: (831) 761-4772
Facsimile: (831) 761-1701
Email: rallbritton@granite-net.com