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EXHIBIT 10.3
EXECUTION COPY
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GRANITE CONSTRUCTION INCORPORATED
$75,000,000 6.96% Senior Notes due May 1, 2013
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NOTE PURCHASE AGREEMENT
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Dated as of May 1, 2001
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THE INFORMATION SET FORTH ON SCHEDULES 5.15, 5.16 AND 5.18 TO THIS NOTE PURCHASE
AGREEMENT IS "CONFIDENTIAL INFORMATION" SUBJECT TO THE REQUIREMENTS OF SECTION
20 HEREOF.
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AUTHORIZATION OF NOTES.................................................1
SECTION 2. SALE AND PURCHASE OF NOTES; GUARANTY...................................1
Section 2.1. Sale and Purchase of Notes.............................................1
Section 2.2. Guaranty of Notes......................................................1
SECTION 3. CLOSING................................................................2
SECTION 4. CONDITIONS TO CLOSING..................................................2
Section 4.1. Representations and Warranties.........................................2
Section 4.2. Performance; No Default................................................2
Section 4.3. Compliance Certificates................................................2
Section 4.4. Guaranty Agreement.....................................................3
Section 4.5. Opinions of Counsel....................................................3
Section 4.6. Purchase Permitted by Applicable Law, Etc..............................3
Section 4.7. Payment of Special Counsel Fees........................................3
Section 4.8. Private Placement Number...............................................4
Section 4.9. Changes in Corporate Structure.........................................4
Section 4.10. Proceedings and Documents..............................................4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................4
Section 5.1. Organization; Power and Authority......................................4
Section 5.2. Authorization, Etc.....................................................4
Section 5.3. Disclosure.............................................................4
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.......5
Section 5.5. Financial Statements...................................................5
Section 5.6. Compliance with Laws, Other Instruments, Etc...........................5
Section 5.7. Governmental Authorizations, Etc.......................................6
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders..............6
Section 5.9. Taxes..................................................................6
Section 5.10. Title to Property; Leases..............................................6
Section 5.11. Licenses, Permits, Etc.................................................7
Section 5.12. Compliance with ERISA..................................................7
Section 5.13. Private Offering by the Company........................................8
Section 5.14. Use of Proceeds; Margin Regulations....................................8
Section 5.15. Existing Debt..........................................................8
Section 5.16. Existing Investments...................................................8
Section 5.17. Status under Certain Statutes..........................................8
Section 5.18. Environmental Matters..................................................8
Section 5.19. Foreign Assets Control Regulations, Etc................................9
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SECTION 6. REPRESENTATIONS OF THE PURCHASERS......................................9
Section 6.1. Purchase for Investment................................................9
Section 6.2. Source of Funds........................................................9
SECTION 7. INFORMATION AS TO COMPANY.............................................11
Section 7.1. Financial and Business Information....................................11
Section 7.2. Officer's Certificate.................................................13
Section 7.3. Inspection............................................................14
SECTION 8. PREPAYMENT OF THE NOTES...............................................14
Section 8.1. Required Prepayments..................................................14
Section 8.2. Optional Prepayments with Make-Whole Amount...........................14
Section 8.3. Allocation of Partial Prepayments.....................................15
Section 8.4. Maturity; Surrender, Etc..............................................15
Section 8.5. Purchase of Notes.....................................................15
Section 8.6. Make-Whole Amount.....................................................15
SECTION 9. AFFIRMATIVE COVENANTS.................................................17
Section 9.1. Compliance with Law...................................................17
Section 9.2. Insurance.............................................................17
Section 9.3. Maintenance of Properties.............................................17
Section 9.4. Payment of Taxes and Claims...........................................17
Section 9.5. Corporate Existence, Etc..............................................17
Section 9.6. Guaranty Agreement....................................................18
SECTION 10. NEGATIVE COVENANTS....................................................19
Section 10.1. Nature of Business....................................................19
Section 10.2. Consolidated Net Worth................................................19
Section 10.3. Incurrence of Debt....................................................19
Section 10.4. Subsidiary Debt.......................................................19
Section 10.5. Liens.................................................................20
Section 10.6. Restrictions on Dividends of Subsidiaries, Etc........................22
Section 10.7. Mergers, Consolidations, Etc..........................................22
Section 10.8. Sale of Assets, Etc...................................................23
Section 10.9. Disposal of Ownership of a Subsidiary.................................24
Section 10.10. Sale-and-Leasebacks...................................................24
Section 10.11. Transactions with Affiliates..........................................24
SECTION 11. EVENTS OF DEFAULT.....................................................24
SECTION 12. REMEDIES ON DEFAULT, ETC..............................................26
Section 12.1. Acceleration..........................................................26
Section 12.2. Other Remedies........................................................27
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Section 12.3. Rescission............................................................27
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc.....................27
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.........................28
Section 13.1. Registration of Notes.................................................28
Section 13.2. Transfer and Exchange of Notes........................................28
Section 13.3. Replacement of Notes..................................................28
SECTION 14. PAYMENTS ON NOTES.....................................................29
Section 14.1. Place of Payment......................................................29
Section 14.2. Home Office Payment...................................................29
SECTION 15. EXPENSES, ETC.........................................................29
Section 15.1. Transaction Expenses..................................................29
Section 15.2. Survival..............................................................30
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT..........30
SECTION 17. AMENDMENT AND WAIVER..................................................30
Section 17.1. Requirements..........................................................30
Section 17.2. Solicitation of Holders of Notes......................................30
Section 17.3. Binding Effect, Etc...................................................31
Section 17.4. Notes Held by Company, Etc............................................31
SECTION 18. NOTICES...............................................................31
SECTION 19. REPRODUCTION OF DOCUMENTS.............................................32
SECTION 20. CONFIDENTIAL INFORMATION..............................................32
SECTION 21. SUBSTITUTION OF A PURCHASER...........................................33
SECTION 22. MISCELLANEOUS.........................................................33
Section 22.1. Successors and Assigns................................................33
Section 22.2. Payments Due on Non-Business Days.....................................33
Section 22.3. Severability..........................................................33
Section 22.4. Construction..........................................................34
Section 22.5. Counterparts..........................................................34
Section 22.6. Governing Law.........................................................34
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ATTACHMENTS TO THE NOTE PURCHASE AGREEMENT:
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, Etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Debt
SCHEDULE 5.16 -- Existing Investments
SCHEDULE 5.18 -- Environmental Matters
EXHIBIT 1 -- Form of 6.96% Senior Note due May 1, 2013
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
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GRANITE CONSTRUCTION INCORPORATED
585 WEST BEACH STREET
WATSONVILLE, CALIFORNIA 95076
6.96% Senior Notes due May 1, 2013
Dated as of
May 1, 2001
TO THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
GRANITE CONSTRUCTION INCORPORATED, a Delaware corporation (the "Company"),
agrees with the Purchasers listed in the attached Schedule A as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $75,000,000 aggregate
principal amount of its 6.96% Senior Notes due May 1, 2013 (the "Notes," such
term to include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement (as hereinafter defined)). The Notes shall be
substantially in the form set out in Exhibit 1, with such changes therefrom, if
any, as may be approved by each Purchaser and the Company. Certain capitalized
terms used in this Agreement are defined in Schedule B; references to a
"Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or an
Exhibit attached to this Agreement.
SECTION 2. SALE AND PURCHASE OF NOTES; GUARANTY.
Section 2.1. Sale and Purchase of Notes. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to each Purchaser
and each Purchaser will purchase from the Company, at the Closing provided for
in Section 3, Notes in the principal amount specified opposite such Purchaser's
name in Schedule A at the purchase price of 100% of the principal amount
thereof. The obligations of each Purchaser hereunder are several and not joint
obligations and each Purchaser shall have no obligation and no liability to any
Person for the performance or nonperformance by any other Purchaser hereunder.
Section 2.2. Guaranty of Notes. The payment by the Company of all amounts
due with respect to the Notes and the performance by the Company of its
obligations under this Agreement are fully and unconditionally guaranteed by
Granite Construction Company, a California corporation, Wilcott Corporation, a
Colorado corporation, Granite Land Company, a California corporation, Granite SR
91 Corporation, a California corporation, Intermountain Slurry Seal, Inc., a
Wyoming corporation, Pozzolan Products Company, a Utah corporation,
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GILC Incorporated, a California corporation, Granite SR 91, L.P., a California
limited partnership, GILC, L.P., a California limited partnership, G.G.&R.,
Inc., a Utah corporation, and GTC, Inc., a Texas corporation, and each other
from time to time Material Subsidiary (collectively, the "Guarantors") pursuant
to that certain Subsidiary Guaranty Agreement dated as of May 1, 2001 (the
"Guaranty Agreement") from the initial Guarantors to each Purchaser and each
other from time to time holder of Notes substantially in the form attached
hereto as Exhibit 2.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by each Purchaser shall
occur at the offices of Schiff Hardin & Waite, 6600 Sears Tower, Chicago,
Illinois 60606, at 10:00 A.M. Chicago time, at a closing on May 14, 2001 (the
"Closing"). At the Closing, the Company will deliver to each Purchaser the Notes
to be purchased by such Purchaser in the form of a single Note (or such greater
number of Notes in denominations of at least $1,000,000 as such Purchaser may
request) dated the date of the Closing and registered in such Purchaser's name
(or in the name of such Purchaser's nominee), against delivery by such Purchaser
to the Company or its order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for the
account of the Company to account number 12334-16946 at Bank of America National
Trust and Savings Association Bank, NAD Corporate Service Center #1233, ABA No.
121000358. If at the Closing the Company shall fail to tender such Notes to any
Purchaser as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to any Purchaser's
satisfaction, such Purchaser shall, at such Purchaser's election, be relieved of
all further obligations under this Agreement, without thereby waiving any rights
such Purchaser may have by reason of such failure or such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
The obligation of each Purchaser to purchase and pay for the Notes to be
sold to such Purchaser at the Closing is subject to the fulfillment to such
Purchaser's satisfaction, prior to or at the Closing, of the following
conditions:
Section 4.1. Representations and Warranties. (a) The representations and
warranties of the Company in this Agreement shall be correct when made and at
the time of the Closing.
(b) The representations and warranties of each Guarantor in the Guaranty
Agreement shall be correct when made and at the time of the Closing.
Section 4.2. Performance; No Default. The Company shall have performed and
complied with all agreements and conditions contained in this Agreement required
to be performed or complied with by it prior to or at the Closing, and after
giving effect to the issue and sale of the Notes (and the application of the
proceeds thereof as contemplated by Schedule 5.14), no Default or Event of
Default shall exist.
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Section 4.3. Compliance Certificates.
(a) Officer's Certificate. (1) The Company shall have delivered to
such Purchaser an Officer's Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1(a), 4.2 and 4.9
have been fulfilled.
(2) Each Guarantor shall have delivered to such Purchaser a
certificate of an authorized officer, dated the date of the Closing,
certifying that the condition specified in Section 4.1(b) has been
fulfilled.
(b) Secretary's Certificate. (1) The Company shall have delivered to
such Purchaser a certificate certifying as to the resolutions attached
thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Notes and this Agreement.
(2) Each Guarantor shall have delivered to such Purchaser a
certificate certifying as to the resolutions attached thereto and the
other corporate or partnership proceedings relating to the authorization,
execution and delivery of the Guaranty Agreement.
(c) ERISA Certificate. If such Purchaser shall have made the
disclosures referred to in Section 6.2(b), (c) or (e), such Purchaser
shall have received the certificate from the Company described in the
penultimate paragraph of Section 6.2 and such certificate shall state that
(1) the Company is neither a "party in interest" nor a "disqualified
person" (as defined in Section 4975(e)(2) of the Code), with respect to
any plan identified pursuant to Section 6.2(b) or (e) or (2) with respect
to any plan, identified pursuant to Section 6.2(c), neither the Company
nor any "affiliate" (as defined in Section V(c) of the QPAM Exemption)
has, at such time or during the immediately preceding one year, exercised
the authority to appoint or terminate the QPAM as manager of the assets of
any plan identified in writing pursuant to Section 6.2(c) or to negotiate
the terms of said QPAM's management agreement on behalf of any such
identified plans.
Section 4.4. Guaranty Agreement. The Guaranty Agreement shall have been
duly authorized, executed and delivered by each Guarantor and shall be in full
force and effect.
Section 4.5. Opinions of Counsel. Such Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser, dated the date of
the Closing (a) from Michael Futch, Esq., General Counsel for the Company and
the Guarantors, covering the matters set forth in Exhibit 4.5(a) and covering
such other matters incident to the transactions contemplated hereby as such
Purchaser or such Purchaser's counsel may reasonably request, (b) from Gray Cary
Ware & Freidenrich, special counsel for the Company and the Guarantors, covering
the matters set forth in Exhibit 4.5(b) and covering such other matters incident
to the transactions contemplated hereby as such Purchaser or such Purchaser's
counsel may reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to such Purchaser) and (c) from Schiff Hardin & Waite, such
Purchaser's special counsel in connection with such transactions,
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substantially in the form set forth in Exhibit 4.5(c) and covering such other
matters incident to such transactions as such Purchaser may reasonably request.
Section 4.6. Purchase Permitted by Applicable Law, Etc. On the date of the
Closing, such Purchaser's purchase of Notes shall (a) be permitted by the laws
and regulations of each jurisdiction to which such Purchaser is subject, without
recourse to provisions (such as Section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (b) not violate any applicable
law or regulation (including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and (c) not subject such
Purchaser to any tax, penalty or liability under or pursuant to any applicable
law or regulation. If requested by such Purchaser, such Purchaser shall have
received an Officer's Certificate certifying as to such matters of fact as such
Purchaser may reasonably specify to enable such Purchaser to determine whether
such purchase is so permitted.
Section 4.7. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the Closing
the fees, charges and disbursements of Schiff Hardin & Waite, the Purchasers'
special counsel referred to in Section 4.5 and the only counsel retained by the
Purchasers in connection with the preparation, negotiation, execution and
delivery of this Agreement, to the extent reflected in a statement of such
counsel rendered to the Company at least one Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement Number issued
by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
Section 4.9. Changes in Corporate Structure. Except as specified in
Schedule 4.9, the Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and shall not have
succeeded to all or any substantial part of the liabilities of any other entity,
at any time following the date of the most recent financial statements referred
to in Schedule 5.5.
Section 4.10. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to such Purchaser and such Purchaser's special counsel, and such
Purchaser and such Purchaser's special counsel shall have received all such
counterpart originals or certified or other copies of such documents as such
Purchaser or such Purchaser's special counsel may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of
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incorporation, and is duly qualified as a foreign corporation and is in good
standing in each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has the corporate power
and authority to own or hold under lease the properties it purports to own or
hold under lease, to transact the business it transacts and proposes to
transact, to execute and deliver this Agreement and the Notes and to perform the
provisions hereof and thereof.
Section 5.2. Authorization, Etc. This Agreement and the Notes have been
duly authorized by all necessary corporate action on the part of the Company,
and this Agreement constitutes, and upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agent, Banc of America
Securities LLC, has delivered to each Purchaser a copy of a Private Placement
Memorandum, dated April 2001 (the "Memorandum"), relating to the transactions
contemplated hereby. The Memorandum fairly describes, in all material respects,
the general nature of the business and principal properties of the Company and
its Subsidiaries. This Agreement, the Memorandum, the documents, certificates or
other writings identified in Schedule 5.3 and the financial
statements listed in Schedule 5.5, taken as a whole, do not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading in light of the circumstances under
which they were made. Except as disclosed in the Memorandum or as expressly
described in Schedule 5.3, or in one of the documents, certificates or other
writings identified therein, or in the financial statements listed in Schedule
5.5, since December 31, 2000, there has been no adverse Material change in the
financial condition, operations, business, properties or prospects of the
Company or any of its Subsidiaries, taken as a whole.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (1) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (2) of the
Company's Affiliates, other than Subsidiaries and (3) of the Company's directors
and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and are owned by the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
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(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement or instrument (other than this Agreement, the
agreements listed on Schedule 5.4 and customary limitations imposed by corporate
law statutes) restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the Company or any
of its Subsidiaries that own outstanding shares of capital stock or similar
equity interests of such Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to each
Purchaser copies of the consolidated financial statements of the Company listed
on Schedule 5.5. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such financial statements and the consolidated
results of their operations and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP consistently applied
throughout the periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements, to normal year-end
adjustments).
Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution,
delivery and performance by the Company of this Agreement and the Notes will not
(a) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Company or
any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, corporate charter or by-laws, or any other agreement or
instrument to which the Company or any Subsidiary is bound or by which the
Company or any Subsidiary or any of their respective properties may be bound or
affected, (b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary
or (c) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement or the Notes.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits or
proceedings pending or, to the
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knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term of
any agreement or instrument to which it is a party or by which it is bound, or
any order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including, without limitation, Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all income
tax returns that are required to have been filed in any jurisdiction, and have
paid all taxes shown to be due and payable on such returns and all other taxes
and assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any
taxes and assessments (a) the amount of which is not individually or in the
aggregate Material or (b) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The Company knows of no
basis for any other tax or assessment that could reasonably be expected to have
a Material Adverse Effect. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of Federal, state or other taxes for
all fiscal periods are adequate. The Federal income tax liabilities of the
Company and its Subsidiaries have been determined by the Internal Revenue
Service up to and including the fiscal year ended December 31, 1991 and the
Federal income tax liabilities of the Company and its Subsidiaries have been
paid for all fiscal years up to and including the fiscal year ended December 31,
1999.
Section 5.10. Title to Property; Leases. The Company and its Subsidiaries
have good and sufficient title to their respective properties that individually
or in the aggregate are Material, including all such properties reflected in the
most recent audited balance sheet referred to in Section 5.5 or purported to
have been acquired by the Company or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and are
in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed in Schedule
5.11,
(a) the Company and its Subsidiaries own or possess all Material licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto;
(b) to the best knowledge of the Company, no product of the Company or any
Subsidiary infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or other
right with respect thereto owned by any other Person; and
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(c) to the best knowledge of the Company, there is no Material violation
by any Person of any right of the Company or any of its Subsidiaries with
respect to any patent, copyright, service mark, trademark, trade name or other
right with respect thereto owned or used by the Company or any of its
Subsidiaries.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws in all material respects. Neither the Company nor any ERISA
Affiliate has incurred any Material liability pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that could reasonably be expected to result in the
incurrence of any such Material liability by the Company or any ERISA Affiliate,
or in the imposition of any Material Lien on any of the rights, properties or
assets of the Company or any ERISA Affiliate, in either case pursuant to Title I
or IV of ERISA or to such penalty or excise tax provisions or to Section
401(a)(29) or 412 of the Code.
(b) The present value of the aggregate benefit liabilities under each of
the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities by more than $5,000,000 in the aggregate
for all Plans. The term "benefit liabilities" has the meaning specified in
Section 4001 of ERISA and the terms "current value" and "present value" have the
meanings specified in Section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred Material
withdrawal liabilities (and are not subject to Material contingent withdrawal
liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer
Plans.
(d) The expected postretirement benefit obligation (determined as of the
last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by Section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and sale
of the Notes hereunder will not involve any transaction that is subject to the
prohibitions of Section 406 of ERISA or in connection with which a tax could be
imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code. The representation by
the Company in the first sentence of this Section 5.12(e) is made in reliance
upon and subject to the accuracy of each Purchaser's representation in Section
6.2 as to the source of the funds to be used to pay the purchase price of the
Notes to be purchased by such Purchaser.
Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Notes or the Guaranty Agreement or
any similar Securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than the Purchasers and not more than five other
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Institutional Investors, each of which has been offered the Notes and the
Guaranty Agreement at a private sale for investment pursuant to an exemption
from the registration requirements under the Securities Act. Neither the Company
nor anyone acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes or the delivery of the Guaranty
Agreement to the registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply
the proceeds of the sale of the Notes as set forth in Schedule 5.14. No part of
the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
Securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). The Company does not own
any margin stock and the Company does not have any present intention to acquire
any margin stock; provided, however, that, pursuant to the Bank Credit
Agreement, the Company may acquire margin stock in an amount not to exceed 25%
of the value of the consolidated assets of the Company and its Subsidiaries. As
used in this Section, the terms "margin stock" and "purpose of buying or
carrying" shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt. Except as described therein, Schedule 5.15
sets forth a complete and correct list of all outstanding Debt of the Company
and its Subsidiaries as of May 1, 2001, since which date there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Company or its Subsidiaries. Neither
the Company nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Debt of
the Company or such Subsidiary and no event or condition exists with respect to
any Debt of the Company or any Subsidiary that would permit (or that with notice
or the lapse of time, or both, would permit) one or more Persons to cause such
Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
Section 5.16. Existing Investments. Schedule 5.16 sets forth a complete
and correct list of all outstanding Investments of the Company and its
Subsidiaries as of March 31, 2001, since which date there has been no Material
change in the amounts of such Investments.
Section 5.17. Status under Certain Statutes. Neither the Company nor any
Subsidiary is an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, or is subject to
regulation under the Public Utility Holding Company Act of 1935, as amended, the
ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended.
Section 5.18. Environmental Matters. Neither the Company nor any
Subsidiary has knowledge of any Material claim or has received any notice of any
Material claim, and no proceeding has been instituted raising any Material claim
against the Company or any of its Subsidiaries or any of their respective real
properties now or formerly owned, leased or operated
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by any of them or other assets, alleging any damage to the environment or
violation of any Environmental Laws. Except as otherwise disclosed in Schedule
5.18:
(a) neither the Company nor any Subsidiary has knowledge of any
facts which would give rise to any Material claim, public or private, or
Material violation of Environmental Laws or damage to the environment
emanating from, occurring on or in any way related to real properties now
or formerly owned, leased or operated by any of them or to other assets or
their use;
(b) neither the Company nor any of its Subsidiaries (1) has stored
any Hazardous Materials on real properties now or formerly owned, leased
or operated by any of them or (2) has disposed of any Hazardous Materials
in a manner contrary to any Environmental Laws; in each case in any manner
that could reasonably be expected to result in a Material Adverse Effect;
and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in material
compliance with applicable Environmental Laws.
Section 5.19. Foreign Assets Control Regulations, Etc. Neither the sale of
the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto.
SECTION 6. REPRESENTATIONS OF THE PURCHASERS.
Section 6.1. Purchase for Investment. Each Purchaser represents that it is
purchasing the Notes for its own account or for one or more separate accounts
maintained by it or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, provided that the disposition of
such Purchaser's or such pension or trust funds' property shall at all times be
within such Purchaser's or such pension or trust funds' control. Each Purchaser
understands that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Notes.
Section 6.2. Source of Funds. Each Purchaser represents that at least one
of the following statements is an accurate representation as to each source of
funds (a "Source") to be used by it to pay the purchase price of the Notes to be
purchased by it hereunder:
(a) the Source is an "insurance company general account" within the
meaning of Department of Labor Prohibited Transaction Exemption ("PTE")
95-60 (issued July 12, 1995) and, as of the date of the Closing or as of
the date of transfer, as applicable, there is no employee benefit plan,
treating as a single plan, all plans maintained by
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the same employer or employee organization or affiliate thereof, with
respect to which the amount of the general account reserves and
liabilities for all contracts held by or on behalf of such plan, exceeds
10% of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set forth in
the NAIC Annual Statement filed with such Purchaser's state of domicile;
or
(b) the Source is either (1) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (2)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, as of the date of the Closing or as of the
date of transfer, as applicable, except as such Purchaser has disclosed to
the Company in writing pursuant to this paragraph (b), no employee benefit
plan or group of plans maintained by the same employer or employee
organization or affiliate thereof beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund" (within
the meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the
QPAM Exemption), no employee benefit plan's assets that are included in
such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM, the
conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a Person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (1) the identity
of such QPAM and (2) the names of all employee benefit plans whose assets
are included in such investment fund have been disclosed to the Company in
writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans,
each of which has been identified to the Company in writing pursuant to
this paragraph (e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
If any Purchaser or any subsequent transferee of the Notes indicates that
such Purchaser or such transferee is relying on any representation contained in
paragraph (b), (c) or (e) above, the Company shall deliver on the date of the
Closing or on the date of transfer, as applicable, a certificate, which shall
state whether (i) it is a party in interest or a "disqualified person" (as
defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended),
with respect to any plan identified pursuant to paragraphs (b) or (e) above, or
(ii) with respect to any plan, identified pursuant to paragraph (c) above,
whether it or any "affiliate" (as defined in
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Section V(c) of the QPAM Exemption) has at such time, and during the immediately
preceding one year, exercised the authority to appoint or terminate the QPAM as
manager of any plan identified in writing pursuant to paragraph (c) above or to
negotiate the terms of said QPAM's management agreement on behalf of any such
identified plan.
As used in this Section 6.2, the terms "employee benefit plan,"
"governmental plan," "party in interest" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information. The Company shall deliver
to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of,
(1) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(2) consolidated statements of income, stockholders' equity
and cash flows of the Company and its Subsidiaries, for such quarter
and (in the case of the second and third quarters) for the portion
of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer as
fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash
flows, subject to changes resulting from year-end adjustments, provided
that delivery within the time period specified above of copies of the
Company's Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a);
(b) Annual Statements -- within 105 days after the end of each
fiscal year of the Company, duplicate copies of,
(1) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(2) consolidated statements of income, stockholders' equity
and cash flows of the Company and its Subsidiaries, for such year,
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setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(i) an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall
state that such financial statements present fairly, in all material
respects, the financial position of the companies being reported
upon and their results of operations and cash flows and have been
prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards, and
that such audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Company's Annual Report on Form 10-K for such
fiscal year (together with the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor
and filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 7.1(b), and
(ii) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making their
audit, they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are aware
that any such condition or event then exists, specifying the nature
and period of the existence thereof (it being understood that such
accountants shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Default or Event of Default
unless such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit);
(c) SEC and Other Reports -- promptly upon their becoming available,
one copy of (1) each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to public Securities
holders generally, (2) each regular or periodic report, each registration
statement that shall have become effective (without exhibits except as
expressly requested by such holder), and each final prospectus and all
amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and (3) all press releases and other
statements made available generally by the Company or any Subsidiary to
the public concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in any
event within five Business Days after a Responsible Officer becoming aware
of the existence of any Default or Event of Default, a written notice
specifying the nature and period of existence thereof and what action the
Company is taking or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five Business
Days after a Responsible Officer becoming aware of any of the following, a
written notice
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setting forth the nature thereof and the action, if any, that the Company or an
ERISA Affiliate proposes to take with respect thereto:
(1) with respect to any Plan, any reportable event, as defined
in Section 4043(b) of ERISA and the regulations thereunder, for
which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(2) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan; or
(3) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit
plans, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or such penalty or excise tax provisions,
if such liability or Lien, taken together with any other such
liabilities or Liens then existing, would exceed $5,000,000 in the
aggregate;
(f) Notices from Governmental Authority -- promptly, and in any
event within 30 days of receipt thereof, copies of any notice to the
Company or any Subsidiary from any Federal or state Governmental Authority
relating to any order, ruling, statute or other law or regulation that
could reasonably be expected to have a Material Adverse Effect;
(g) Rule 144A -- except at such times as the Company is a reporting
company under Section 13 or 15(d) of the Exchange Act or has complied with
the requirements for the exemption from registration under the Exchange
Act set forth in Rule 12g3-2(b) under the Exchange Act, such financial or
other information as any holder of Notes or any Person designated by such
holder may reasonably determine is required to permit such holder to
comply with the requirements of Rule 144A promulgated under the Exchange
Act in connection with the resale by it of the Notes, in any such case
promptly after the same is requested; and
(h) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company to perform its
obligations hereunder and under the Notes as from time to time may be
reasonably requested by any such holder of Notes.
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Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.2 through Section 10.5
hereof, inclusive, Section 10.8 and Section 10.10 during the quarterly or
annual period covered by the statements then being furnished (including
with respect to each such Section, where applicable, the calculations of
the maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed
the relevant terms hereof and has made, or caused to be made, under his or
her supervision, a review of the transactions and conditions of the
Company and its Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or
an Event of Default or, if any such condition or event existed or exists
(including, without limitation, any such event or condition resulting from
the failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with
respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and, with the consent of the
Company (which consent will not be unreasonably withheld) to visit the
other offices and properties of the Company and each Subsidiary, all at
such reasonable times and as often as may be reasonably requested in
writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company, to visit and inspect any of the offices or
properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the Company
and its Subsidiaries), all at such times and as often as may be requested.
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SECTION 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayments. On May 1, 2005 and on each May 1
thereafter to and including May 1, 2012 the Company will prepay $8,333,333
principal amount (or such lesser principal amount as shall then be outstanding)
of the Notes at par and without payment of the Make-Whole Amount or any premium,
provided that upon any partial prepayment of the Notes pursuant to Section 8.2
or purchase of the Notes permitted by Section 8.5 the principal amount of each
required prepayment of the Notes becoming due under this Section 8.1 on and
after the date of such prepayment or purchase shall be reduced in the same
proportion as the aggregate unpaid principal amount of the Notes is reduced as a
result of such prepayment or purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company may,
at its option, upon notice as provided below, prepay at any time all, or from
time to time any part of, the Notes, in an amount not less than $1,000,000 in
the case of a partial prepayment, at 100% of the principal amount so prepaid,
together with interest accrued thereon to the date of such prepayment, plus the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount. The Company will give each holder of Notes written notice of
each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such date, the aggregate principal amount of the Notes to be
prepaid on such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.3), and the interest to be
paid on the prepayment date with respect to such principal amount being prepaid,
and shall be accompanied by a certificate of a Senior Financial Officer as to
the estimated Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the prepayment),
setting forth the details of such computation. Five Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a certificate of a
Senior Financial Officer (the "Make-Whole Amount Calculation Certificate")
specifying the method of computation and the calculation of such Make-Whole
Amount in respect of such holder's Notes as of the specified prepayment date.
The method of computation of the Make-Whole Amount in respect of the Notes set
forth in the Make-Whole Amount Calculation Certificate shall be subject to the
review and approval of the holders of the Notes and, in the case of any
disagreement between the Required Holders and the Company with respect to such
method of computation, the conclusion of the Required Holders shall, in the
absence of manifest error, be deemed binding and conclusive. The calculation of
the Make-Whole Amount in respect of the Note or Notes set forth in a Make-Whole
Amount Calculation Certificate shall also be subject to the review and approval
of the holder of such Note or Notes and, in the case of any disagreement between
such holder and the Company with respect to such calculation, the conclusion of
such holder shall, in the absence of manifest error, be deemed binding and
conclusive. It is understood and agreed that the failure of any holder to
respond to the Make-Whole Amount Calculation Certificate in respect of its Notes
by the date fixed for prepayment shall be deemed to be a concurrence by such
holder to the method of computation and the calculation of the Make-Whole Amount
in respect of such Notes.
Section 8.3. Allocation of Partial Prepayments. In the case of each
partial prepayment of the Notes, the principal amount of the Notes to be prepaid
shall be allocated
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among all of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of
Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date
and the applicable Make-Whole Amount, if any. From and after such date, unless
the Company shall fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid in full
shall be surrendered to the Company and cancelled and shall not be reissued, and
no Note shall be issued in lieu of any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not, and will not permit
any Affiliate to, purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement and the
Notes or (b) pursuant to an offer to purchase made by the Company or an
Affiliate pro rata to the holders of all Notes at the time outstanding upon the
same terms and conditions. Any such offer shall provide each holder with
sufficient information to enable it to make an informed decision with respect to
such offer, and shall remain open for at least 30 Business Days. If the holders
of more than 10% of the principal amount of the Notes then outstanding accept
such offer, the Company shall promptly notify the remaining holders of such fact
and the expiration date for the acceptance by holders of Notes of such offer
shall be extended by the number of days necessary to give each such remaining
holder at least 30 Business Days from its receipt of such notice to accept such
offer. The Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to
any provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
Section 8.6. Make-Whole Amount. The term "Make-Whole Amount" means, with
respect to any Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the Called Principal
of such Note over the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" shall mean, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" shall mean, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
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"Reinvestment Yield" shall mean, with respect to the Called
Principal of any Note, .50% over the yield to maturity implied by (a) the
yields reported, as of 10:00 a.m. (New York City time) on the fifth
Business Day preceding the Settlement Date with respect to such Called
Principal, on the applicable "PX" page of the Bloomberg Financial Market
Service's Screen (or such other page as may replace the applicable PX page
of the Bloomberg Financial Market Service's Screen) for actively traded
U.S. Treasury Securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or (b) if such
yields are not reported as of such time or the yields reported as of such
time are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported
as of the fifth Business Day preceding the Settlement Date with respect to
such Called Principal, in Federal Reserve Statistical Release H.15 (519)
(or any comparable successor publication) for actively traded U.S.
Treasury Securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date. Such
implied yield in clauses (a) and (b) above will be determined, if
necessary, by (1) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial practice and
(2) interpolating linearly between (i) the actively traded U.S. Treasury
Security with the maturity closest to and greater than the Remaining
Average Life and (ii) the actively traded U.S. Treasury Security with the
maturity closest to and less than the Remaining Average Life.
"Remaining Average Life" shall mean, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (a) such Called Principal into (b) the sum of
the products obtained by multiplying (1) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (2)
the number of years (calculated to the nearest one-twelfth year) that will
elapse between the Settlement Date with respect to such Called Principal
and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with respect
to such Called Principal if no payment of such Called Principal were made
prior to its scheduled due date, provided that if such Settlement Date is
not a date on which interest payments are due to be made under the terms
of the Notes, then the amount of the next succeeding scheduled interest
payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date pursuant
to Section 8.2 or 12.1.
"Settlement Date" shall mean, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context requires.
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SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law. The Company will, and will cause each of
its Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect.
Section 9.2. Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
Section 9.3. Maintenance of Properties. The Company will, and will cause
each of its Subsidiaries to, maintain and keep, or cause to be maintained and
kept, their respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times, provided that this
Section shall not prevent the Company or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and the Company has concluded that such
discontinuance could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will, and will cause
each of its Subsidiaries to, file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and payable and before they
have become delinquent and all claims for which sums have become due and payable
that have or might become a Lien on properties or assets of the Company or any
Subsidiary, provided that neither the Company nor any Subsidiary need pay any
such tax or assessment or claims if (a) the amount, applicability or validity
thereof is contested by the Company or such Subsidiary on a timely basis in good
faith and in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on the books of
the Company or such Subsidiary or (b) the nonpayment of any such taxes or
assessments could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. The Company will at all times
preserve and keep in full force and effect its corporate existence. Subject to
Sections 10.7, 10.8 and 10.9, the
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Company will at all times preserve and keep in full force and effect the
corporate existence of each of its Subsidiaries (unless merged into the Company
or a Wholly-Owned Subsidiary) and all rights and franchises of the Company and
its Subsidiaries unless, in the good faith judgment of the Company, the
termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 9.6. Guaranty Agreement. (a) (1) The Company shall promptly, and
in any event within three Business Days after (i) a Subsidiary becomes a
Material Subsidiary, (ii) the formation or acquisition of a new Subsidiary that
is a Material Subsidiary or (iii) the occurrence of any other event creating a
new Subsidiary that is a Material Subsidiary, cause such Material Subsidiary to
execute and deliver a supplement to the Guaranty Agreement in the form of
Exhibit A to the Guaranty Agreement.
(2) Within ten Business Days of any Material Subsidiary being required to
execute and deliver a supplement to the Guaranty Agreement pursuant to Section
9.6(a)(1), the Company shall cause such Material Subsidiary to deliver to each
holder of Notes (i) such documents and evidence with respect to such Material
Subsidiary as any holder may reasonably request in order to establish the
existence and good standing of such Material Subsidiary and evidence that the
Board of Directors of such Material Subsidiary has adopted resolutions
authorizing the execution and delivery of a supplement to the Guaranty
Agreement, (ii) evidence of compliance with such Material Subsidiary's
outstanding debt instruments in the form of (A) a compliance certificate from
such Material Subsidiary to the effect that such Material Subsidiary has
complied with all terms and conditions of its outstanding debt instruments, (B)
consents or approvals of the holder or holders of any evidence of Debt or
Security, and/or (C) amendments of agreements pursuant to which any evidence of
Debt or Security may have been issued, all as may be reasonably deemed necessary
by the holders of Notes to permit the execution and delivery of a supplement to
the Guaranty Agreement by such Material Subsidiary, (iii) an opinion of counsel
to the effect that (A) such Material Subsidiary is a corporation or other
business entity, duly organized, validly existing and in good standing, if
applicable, under the laws of its jurisdiction of organization, has the power
and the authority to execute and deliver a supplement to the Guaranty Agreement
and to perform the Guaranty Agreement, (B) the execution and delivery of a
supplement to the Guaranty Agreement and performance of the Guaranty Agreement
has been duly authorized by all necessary action on the part of such Material
Subsidiary, a supplement to the Guaranty Agreement has been duly executed and
delivered by such Material Subsidiary and the Guaranty Agreement constitutes the
legal, valid and binding contract of such Material Subsidiary enforceable
against such Material Subsidiary in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law), (C) the execution and delivery of a supplement to the
Guaranty Agreement and the performance by such Material Subsidiary of the
Guaranty Agreement 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 of a Lien
upon any of the property of such Material Subsidiary pursuant to the provisions
of its charter documents or any agreement or other instrument known to such
counsel to which such Material Subsidiary is a party to or by which such
Material Subsidiary may be bound and (D) no approval, consent or withholding of
objection on the part of, or filing, registration or qualification with, any
governmental body, Federal or
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state, is necessary in connection with the lawful execution and delivery of a
supplement to the Guaranty Agreement by such Material Subsidiary or the
performance of the Guaranty Agreement by such Material Subsidiary, which opinion
may contain such assumptions and qualifications as are reasonably acceptable to
the Required Holders, and (iv) all other documents and showings reasonably
requested by the holders of Notes in connection with the execution and delivery
of a supplement to the Guaranty Agreement, which documents shall be satisfactory
in form and substance to such holders and their special counsel, and each holder
of Notes shall have received a copy (executed or certified as may be
appropriate) of all of the foregoing legal documents.
(b) If at any time, pursuant to the terms and conditions of the Bank
Credit Agreement, any Guarantor is released from its liability under the Bank
Guaranty and (1) such Guarantor is not a co-obligor under the Bank Credit
Agreement, (2) such Guarantor does not qualify as a Material Subsidiary under
clause (a) or (b) of the definition thereof and (3) the Company shall have
delivered to each holder of Notes an Officer's Certificate certifying that (i)
the conditions specified in clauses (1) and (2) above have been satisfied and
(ii) immediately preceding the release of such Guarantor from the Guaranty
Agreement and after giving effect thereto, no Default or Event of Default shall
have existed or would exist, then, upon receipt by the holders of Notes of such
Officer's Certificate, such Guarantor shall be discharged from its obligations
under the Guaranty Agreement.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Nature of Business. The Company will not, and will not
permit any Subsidiary to, engage in any business if, as a result thereof, the
general nature of the business, taken on a consolidated basis, which would then
be engaged in by the Company and its Subsidiaries would be substantially changed
from the general nature of the business engaged in by the Company and its
Subsidiaries on the date of the Closing.
Section 10.2. Consolidated Net Worth. The Company will not, at any time,
permit Consolidated Net Worth to be less than the sum of (a) $275,000,000, plus
(b) an aggregate amount equal to 50% of its Consolidated Net Income (but, in
each case, only if a positive number) for each completed fiscal quarter
beginning with the fiscal quarter ended December 31, 2000.
Section 10.3. Incurrence of Debt. The Company will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become directly or indirectly liable with respect to,
any Debt, unless on the date the Company or such Subsidiary becomes liable with
respect to any such Debt and immediately after giving effect thereto and the
concurrent retirement of any other Debt,
(a) no Default or Event of Default exists, and
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(b) Consolidated Total Debt does not exceed 55% of Consolidated
Total Capitalization.
For the purposes of this Section 10.3, any Person becoming a Subsidiary after
the date of the Closing shall be deemed, at the time it becomes a Subsidiary, to
have incurred all of its then outstanding Debt, and any Person extending,
renewing or refunding any Debt shall be deemed to have incurred such Debt at the
time of such extension, renewal or refunding.
Section 10.4. Subsidiary Debt. The Company will not at any time permit any
Subsidiary to, directly or indirectly, create, incur, assume, guarantee, have
outstanding, or otherwise become or remain directly or indirectly liable with
respect to, any Debt other than:
(a) Debt of a Subsidiary (1) outstanding on the date of the Closing
and disclosed in Schedule 5.15, provided that such Debt may not be
extended, renewed or refunded except as otherwise permitted by this
Agreement and (2) outstanding pursuant to the Guaranty Agreement;
(b) Debt of a Subsidiary owed to the Company or a Wholly-Owned
Subsidiary;
(c) Debt of a Subsidiary outstanding at the time such Subsidiary
becomes a Subsidiary, provided that (1) such Debt shall not have been
incurred in contemplation of such Subsidiary becoming a Subsidiary and (2)
immediately after such Subsidiary becomes a Subsidiary no Default or Event
of Default would exist, and provided, further, that such Debt may not be
extended, renewed or refunded except as otherwise permitted by this
Agreement; and
(d) Debt of a Subsidiary in addition to that otherwise permitted by
the foregoing provisions of this Section 10.4, provided that on the date
the Subsidiary incurs or otherwise becomes liable with respect to any such
additional Debt and immediately after giving effect thereto and the
concurrent retirement of any other Debt,
(1) no Default or Event of Default exists, and
(2) Priority Debt does not exceed 20% of Consolidated Net
Worth determined at such time.
Section 10.5. Liens. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly create, incur, assume or permit to exist
(upon the happening of a contingency or otherwise) any Lien on or with respect
to any property or asset (including, without limitation, any document or
instrument in respect of goods or accounts receivable) of the Company or any
such Subsidiary, whether now owned or held or hereafter acquired, or any income
or profits therefrom, or assign or otherwise convey any right to receive income
or profits, except:
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(a) Liens for taxes, assessments or other governmental charges which
are not yet due and payable or the payment of which is not at the time
required by Section 9.4;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens, in each
case, incurred in the ordinary course of business for sums not yet due and
payable;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (1) in connection with
workers' compensation, unemployment insurance and other types of social
security or retirement benefits, or (2) to secure (or to obtain letters of
credit that secure) the performance of tenders, statutory obligations,
surety bonds, appeal bonds, bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection with
the borrowing of money, the obtaining of advances or credit or the payment
of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, in each case
incidental to, and not interfering with, the ordinary conduct of the
business of the Company or any of its Subsidiaries, provided that such
Liens do not, in the aggregate, materially detract from the value of such
property;
(f) Liens on property or assets of the Company or any of its
Subsidiaries securing Debt owing to the Company or to a Wholly-Owned
Subsidiary;
(g) Liens existing on the date of the Closing and securing the Debt
of the Company and its Subsidiaries referred to on Schedule 5.15;
(h) any Lien created to secure all or any part of the purchase
price, or to secure Debt incurred or assumed to pay all or any part of the
purchase price or cost of construction, of property acquired or
constructed by the Company or a Subsidiary after the date of the Closing,
provided that
(1) any such Lien shall extend solely to the item or items of
such property so acquired or constructed,
(2) the principal amount of the Debt secured by any such Lien
shall at no time exceed an amount equal to the lesser of (i) the
cost to the Company or such Subsidiary of the property so acquired
or constructed and (ii) the Fair Market Value
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Value (as determined in good faith by the Board of Directors of the
Company) of such property at the time of such acquisition or
construction,
(3) any such Lien shall be created contemporaneously with, or
within 180 days after, the acquisition or construction of such
property, and
(4) immediately after giving effect the creation of such Lien
and giving effect thereto, (i) no Default or Event of Default would
exist and (ii) the Company would be permitted by the provisions of
Section 10.3(b) to incur at least $1.00 of additional Debt;
(i) any Lien existing on property of a Person immediately prior to
its being consolidated with or merged into the Company or a Subsidiary, or
any Lien existing on any property acquired by the Company or any
Subsidiary at the time such property is so acquired (whether or not the
Debt secured thereby shall have been assumed), provided that (1) no such
Lien shall have been created or assumed in contemplation of such
consolidation or merger or such acquisition of property, (2) each such
Lien shall extend solely to the item or items of property so acquired and
(3) immediately after giving effect to the acquisition of the property
subject to such Lien and giving effect thereto, (i) no Default or Event of
Default would exist and (ii) the Company would be permitted by the
provisions of Section 10.3(b) to incur at least $1.00 of additional Debt;
(j) any Lien renewing, extending or refunding any Lien permitted by
paragraphs (g), (h) or (i) of this Section 10.5, provided that (1) the
principal amount of Debt secured by such Lien immediately prior to such
extension, renewal or refunding is not increased or the maturity thereof
reduced, (2) such Lien is not extended to any other property and (3)
immediately after such extension, renewal or refunding no Default or Event
of Default would exist; and
(k) other Liens not otherwise permitted by paragraphs (a) through
(i), provided that, after giving effect thereto and to the application of
the proceeds of any Debt secured thereby, Priority Debt does not exceed
20% of Consolidated Net Worth determined at such time.
For the purposes of this Section 10.5, any Person becoming a Subsidiary
after the date of the Closing shall be deemed to have incurred all of its then
outstanding Liens at the time it becomes a Subsidiary, and any Person extending,
renewing or refunding any Debt secured by any Lien shall be deemed to have
incurred such Lien at the time of such extension, renewal or refunding.
Section 10.6. Restrictions on Dividends of Subsidiaries, Etc. The Company
will not, and will not permit any of its Subsidiaries to, enter into any
agreement which would restrict any Subsidiary's ability or right to pay
dividends to, or make advances to or Investments in, the Company or, if such
Subsidiary is not directly owned by the Company, the "parent" Subsidiary of such
Subsidiary.
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Section 10.7. Mergers, Consolidations, Etc. The Company will not, and will
not permit any Subsidiary to, consolidate with or merge with any other
corporation or convey, transfer or lease substantially all of its assets in a
single transaction or series of transactions to any Person; provided that the
foregoing restriction does not apply to:
(a) the consolidation or merger of a Subsidiary with, or the
conveyance, transfer or lease of substantially all of the assets of a
Subsidiary to, the Company or a Wholly-Owned Subsidiary; or
(b) the consolidation or merger of a Subsidiary with any Person
other than the Company or a Wholly-Owned Subsidiary; provided that such
Subsidiary shall be the surviving Person and immediately after giving
effect to such transaction (1) no Default or Event of the Default would
exist, (2) the Company would be permitted by the provisions of Section
10.3(b) to incur at least $1.00 of additional Debt, (3) such Subsidiary
would be permitted by the provisions of Section 10.4(d)(2) to incur at
least $1.00 of additional Priority Debt and (4) the Company shall own the
same percentage of the equity or voting interests in such Subsidiary as
the Company owned in such Subsidiary immediately preceding such
transaction; or
(c) the conveyance, transfer or lease of all of the assets of a
Subsidiary to a Person other than the Company or a Wholly-Owned Subsidiary
in compliance with the provisions of Section 10.8 and Section 10.9; or
(d) the consolidation or merger of the Company with, or the
conveyance, transfer or lease of substantially all of the assets of the
Company in a single transaction or series of transactions to, any Person
so long as:
(1) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an
entirety, as the case may be (the "Successor Corporation"), shall be
a solvent corporation organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia;
(2) if the Company is not the Successor Corporation, (i) such
corporation shall have executed and delivered to each holder of the
Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement and the
Notes (pursuant to such agreements and instruments as shall be
reasonably satisfactory to the Required Holders), (ii) the Company
shall have caused to be delivered to each holder of the Notes an
opinion of nationally recognized independent counsel, or other
independent counsel reasonably satisfactory to the Required Holders,
to the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and comply
with the terms hereof and (iii) each Guarantor shall have delivered
to each holder of the Notes a certificate whereby such Guarantor
shall have reaffirmed its obligations under the Guaranty Agreement;
and
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(3) immediately after giving effect to such transaction (i) no
Default or Event of Default would exist and (ii) the Successor
Corporation would be permitted by the provisions of Section 10.3(b)
to incur at least $1.00 of additional Debt.
No such conveyance, transfer or lease of substantially all of the assets
of the Company shall have the effect of releasing the Company or any Successor
Corporation from its liability under this Agreement or the Notes.
Section 10.8. Sale of Assets, Etc. Except as permitted under Section 10.7,
Section 10.9 and Section 10.10, the Company will not, and will not permit any
Subsidiary to, make any Asset Disposition unless:
(a) in the good faith opinion of the Company, the Asset Disposition
is in exchange for consideration having a Fair Market Value at least equal
to that of the property exchanged and is in the best interest of the
Company or such Subsidiary;
(b) immediately after giving effect to the Asset Disposition, no
Default or Event of Default would exist; and
(c) immediately after giving effect to the Asset Disposition, the
Disposition Value of all property that was the subject of any Asset
Disposition occurring during the immediately preceding 12 consecutive
calendar month period would not exceed 15% of Consolidated Total Assets
determined as of the end of the then most recently ended fiscal year of
the Company.
If the Net Proceeds Amount for any Transfer is applied to a Debt
Prepayment Application or a Property Reinvestment Application within 180 days
after such Transfer, then such Transfer, only for the purpose of determining
compliance with subsection (c) of this Section 10.8 as of any date on or after
the Net Proceeds Amount is so applied, shall be deemed not to be an Asset
Disposition.
Section 10.9. Disposal of Ownership of a Subsidiary. The Company will not,
and will not permit any Subsidiary to, sell or otherwise dispose of any shares
of Subsidiary Stock, nor will the Company permit any such Subsidiary to issue,
sell or otherwise dispose of any shares of its own Subsidiary Stock, provided
that the foregoing restrictions do not apply to:
(a) the issue of directors' qualifying shares by any such
Subsidiary;
(b) any such Transfer of Subsidiary Stock constituting a Transfer
described in clause (a) of the definition of "Asset Disposition"; and
(c) the Transfer of all of the Subsidiary Stock of a Subsidiary
owned by the Company and its other Subsidiaries if:
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(1) such Transfer satisfies the requirements of Section 10.8
hereof,
(2) in connection with such Transfer the entire Investment
(whether represented by stock, Debt, claims or otherwise) of the
Company and its other Subsidiaries in such Subsidiary is sold,
transferred or otherwise disposed of to a Person other than (i) the
Company, (ii) another Subsidiary not being simultaneously disposed
of or (iii) an Affiliate, and
(3) the Subsidiary being disposed of has no continuing
Investment in any other Subsidiary of the Company not being
simultaneously disposed of or in the Company.
Section 10.10. Sale-and-Leasebacks. The Company will not, and will not
permit any Subsidiary to, enter into any Sale-and-Leaseback Transaction unless,
(a) the lease which is the subject of such Sale-and-Leaseback Transaction is not
a Long-Term Lease or (b) immediately after giving effect to such
Sale-and-Leaseback Transaction, the aggregate amount of Priority Debt does not
exceed 20% of Consolidated Net Worth determined at such time.
Section 10.11. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, enter into directly or indirectly any
Material transaction or Material group of related transactions (including,
without limitation, the purchase, lease, sale or exchange of properties of any
kind or the rendering of any service) with any Affiliate (other than the Company
or another Subsidiary), except upon fair and reasonable terms no less favorable
to the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note
for more than five Business Days after the same becomes due and payable;
or
(c) the Company defaults in the performance of or compliance with
any term contained in Sections 10.1 through 10.4, inclusive, or Sections
10.6 through 10.9, inclusive; or
(d) the Company defaults in the performance of or compliance with
any term contained herein (other than those referred to in paragraphs (a),
(b) and (c) of this Section 11) and such default is not remedied within 30
days after the earlier of (1) a
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Responsible Officer obtaining actual knowledge of such default and (2) the
Company receiving written notice of such default from any holder of a Note
(any such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf
of the Company or any Guarantor or by any officer of the Company or any
Guarantor in this Agreement or in the Guaranty Agreement, respectively, or
in any writing furnished in connection with the transactions contemplated
hereby or thereby proves to have been false or incorrect in any material
respect on the date as of which made; or
(f) (1) the Company or any Subsidiary is in default (as principal or
as guarantor or other surety) in the payment of any principal of or
premium or make-whole amount or interest on any Debt that is outstanding
in an aggregate principal amount of at least $10,000,000 beyond any period
of grace provided with respect thereto, or (2) the Company or any
Subsidiary is in default in the performance of or compliance with any term
of any evidence of any Debt in an aggregate outstanding principal amount
of at least $10,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of
such default or condition such Debt has become, or has been declared due
and payable before its stated maturity or before its regularly scheduled
dates of payment or (3) as a consequence of the occurrence or continuation
of any event or condition (other than the passage of time or the right of
the holder of Debt to convert such Debt into equity interests), (i) the
Company or any Subsidiary has become obligated to purchase or repay Debt
before its regular maturity or before its regularly scheduled dates of
payment in an aggregate outstanding principal amount of at least
$10,000,000 or (ii) one or more Persons have the right to require the
Company or any Subsidiary so to purchase or repay such Debt; or
(g) the Company or any Subsidiary (1) is generally not paying, or
admits in writing its inability to pay, its debts as they become due, (2)
files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other petition
in bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (3) makes an assignment for the benefit of its creditors,
(4) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (5) is adjudicated as insolvent or to be
liquidated or (6) takes corporate action for the purpose of any of the
foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any of its
Subsidiaries, a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, or constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of
any jurisdiction, or ordering the dissolution, winding-up or liquidation
of the Company or any of its Subsidiaries, or
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any such petition shall be filed against the Company or any of its
Subsidiaries and such petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $5,000,000 are rendered against one or more of
the Company and its Subsidiaries and which judgments are not fully covered
by insurance or, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(j) If (1) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought
or granted under Section 412 of the Code, (2) a notice of intent to
terminate any Plan shall have been or is reasonably expected to be filed
with the PBGC or the PBGC shall have instituted proceedings under ERISA
Section 4042 to terminate or appoint a trustee to administer any Plan or
the PBGC shall have notified the Company or any ERISA Affiliate that a
Plan may become a subject of any such proceedings, (3) the aggregate
"amount of unfunded benefit liabilities" (within the meaning of Section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title
IV of ERISA, shall exceed $5,000,000, (4) the Company or any ERISA
Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, (5) the Company
or any ERISA Affiliate withdraws from any Multiemployer Plan or (6) the
Company or any ERISA Affiliate establishes or amends any employee welfare
benefit plan that provides post-employment welfare benefits in a manner
that would increase the liability of the Company or any ERISA Affiliate
thereunder; and any such event or events described in clauses (1) through
(6) above, either individually or together with any other such event or
events, would reasonably be expected to have a Material Adverse Effect; or
(k) (1) default shall occur under the Guaranty Agreement and such
default shall continue beyond the period of grace, if any, allowed with
respect thereto or (2) the Guaranty Agreement shall cease to be in full
force and effect for any reason whatsoever, including, without limitation,
a determination by any Governmental Authority or court that such agreement
is invalid, void or unenforceable or any Guarantor shall contest or deny
in writing the validity or enforceability of any of its obligations under
the Guaranty Agreement.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default with respect to the
Company described in paragraph (g) or (h) of Section 11 (other than an Event of
Default described in clause (1) of paragraph (g) or described in clause (6) of
paragraph (g) by virtue of the fact that
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such clause encompasses clause (1) of paragraph (g)) exists, all the Notes then
outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default exists, any holder or holders of more
than 25% in principal amount of the Notes at the time outstanding may at any
time at its or their option, by notice or notices to the Company, declare all
the Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section
11 exists, any holder or holders of Notes at the time outstanding affected by
such Event of Default may at any time, at its or their option, by notice or
notices to the Company, declare all the Notes held by it or them to be
immediately due and payable.
Upon any Note's becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (1) all accrued and unpaid interest
thereon and (2) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
Section 12.2. Other Remedies. If any Event of Default exists, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or (c) of Section 12.1, the holders of
not less than 76% in principal amount of the Notes then outstanding, by written
notice to the Company, may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17 and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
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36
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course
of dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder's rights, powers or remedies. No right, power or remedy conferred by
this Agreement or by any Note upon any holder thereof shall be exclusive of any
other right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 15, the Company will pay to the holder
of each Note on demand such further amount as shall be sufficient to cover all
costs and expenses of such holder incurred in any enforcement or collection
under this Section 12, including, without limitation, reasonable attorneys'
fees, expenses and disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note
at the principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by the
registered holder of such Note or its attorney duly authorized in writing and
accompanied by the address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be substantially in
the form of Exhibit 1. Each such new Note shall be dated and bear interest from
the date to which interest shall have been paid on the surrendered Note or dated
the date of the surrendered Note if no interest shall have been paid thereon.
The Company may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $1,000,000, provided that
if necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $1,000,000. Any
transferee, by its acceptance of a Note registered in its name (or the name of
its nominee), shall be deemed to have made the representation set forth in
Section 6.2, provided, however, that, such transferee will not be deemed to have
chosen the options set forth in Section 6.2(b), (c) or (e) unless such
transferee shall have made the disclosures referred to therein at least five
Business Days prior to its acceptance of such Note and shall have received prior
to such acceptance of such Note the certificate provided for in the penultimate
paragraph of Section 6.2 and such certificate shall contain the statement set
forth in either Section 4.3(c)(1) or (2), as applicable; and provided,
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further, that, such transferee will not be deemed to have chosen an option set
forth in Section 6.2(a), (b) or (d) unless the applicable Class Exemption
referred to therein remains in effect at that time or another similar Class
Exemption is then available. The Company shall exercise reasonable due diligence
as is necessary to respond to any such disclosure, provided that, if the Company
shall not respond within five Business Days following receipt of any such
disclosure, it shall be deemed to have made the statement set forth in either
Section 4.3(c)(1) or (2), as applicable.
Section 13.3. Replacement of Notes. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or another holder of a Note
with a minimum net worth of at least $50,000,000, such Person's own
unsecured agreement of indemnity shall be deemed to be satisfactory) or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in Chicago, Illinois at the principal office of Bank of
America in such jurisdiction. The Company may at any time, by notice to each
holder of a Note, change the place of payment of the Notes so long as such place
of payment shall be either the principal office of the Company in such
jurisdiction or the principal office of a bank or trust company in such
jurisdiction.
Section 14.2. Home Office Payment. So long as any Purchaser or such
Purchaser's nominee shall be the holder of any Note, and notwithstanding
anything contained in Section 14.1 or in such Note to the contrary, the Company
will pay all sums becoming due on such Note for principal, Make-Whole Amount, if
any, and interest by the method and at the address specified for such purpose
for such Purchaser on Schedule A, or by such other method or at such other
address as such Purchaser shall have from time to time specified to the Company
in writing for such purpose, without the presentation or surrender of such Note
or the making of any notation thereon, except that upon written request of the
Company made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal
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38
executive office or at the place of payment most recently designated by the
Company pursuant to Section 14.1. Prior to any sale or other disposition of any
Note held by any Purchaser or such Purchaser's nominee such Purchaser will, at
its election, either endorse thereon the amount of principal paid thereon and
the last date to which interest has been paid thereon or surrender such Note to
the Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Company will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by any
Purchaser under this Agreement and that has made the same agreement relating to
such Note as such Purchaser has made in this Section 14.2.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and expenses
(including reasonable attorneys' fees of a special counsel and, if reasonably
required, local or other counsel) incurred by each Purchaser or holder of a Note
in connection with such transactions and in connection with any amendments,
waivers or consents under or in respect of this Agreement, the Guaranty
Agreement or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the costs and expenses incurred
in enforcing or defending (or determining whether or how to enforce or defend)
any rights under this Agreement, the Guaranty Agreement or the Notes or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Guaranty Agreement or the
Notes, or by reason of being a holder of any Note or a beneficiary of the
Guaranty Agreement, and (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby, by the Guaranty Agreement and by the
Notes. The Company will pay, and will save each Purchaser and each other holder
of a Note harmless from, all claims in respect of any fees, costs or expenses if
any, of brokers and finders (other than those retained by such Purchaser or
holder).
Section 15.2. Survival. The obligations of the Company under this Section
15 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes, and the termination
of this Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by any Purchaser of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of such
Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant to this Agreement shall be deemed representations and warranties of the
Company under this Agreement. Subject to the preceding sentence, this Agreement
and the Notes embody the entire agreement and understanding between
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each Purchaser and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. This Agreement and the Notes may be amended,
and the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Company and the Required Holders, except that (a) no amendment or waiver of any
of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term
(as it is used therein), will be effective as to any Purchaser unless consented
to by such Purchaser in writing, and (b) no such amendment or waiver may,
without the written consent of the holder of each Note at the time outstanding
affected thereby, (1) subject to the provisions of Section 12 relating to
acceleration or rescission, change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the time of payment or
method of computation of interest or of the Make-Whole Amount on, the Notes, (2)
change the percentage of the principal amount of the Notes the holders of which
are required to consent to any such amendment or waiver or (3) amend any of
Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to
be paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes of any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to as
provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term "this
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Agreement" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(1) if to a Purchaser or such Purchaser's nominee, to such Purchaser
or such Purchaser's nominee at the address specified for such
communications in Schedule A, or at such other address as such Purchaser
or such Purchaser's nominee shall have specified to the Company in
writing,
(2) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(3) if to the Company, to the Company at its address set forth at
the beginning hereof to the attention of Chief Financial Officer, or at
such other address as the Company shall have specified to the holder of
each Note in writing.
Notwithstanding the foregoing, in the case of communications
required to be delivered pursuant to Section 7.1(c)(3), the Company may
provide notice by electronic mail, provided that the recipient of such
communication shall have previously provided the Company with an
electronic mail address for such purpose.
Notices under this Section 18 will be deemed given only when actually received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by each Purchaser at the Closing (except the
Notes themselves) and (c) financial statements, certificates and other
information previously or hereafter furnished to each Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, microfilm,
microcard, miniature
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photographic or other similar process and such Purchaser may destroy any
original document so reproduced. The Company agrees and stipulates that, to the
extent permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such Purchaser in the regular course of business) and
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to such Purchaser prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by such Purchaser
or any Person acting on such Purchaser's behalf, (c) otherwise becomes known to
such Purchaser other than through disclosure by the Company or any Subsidiary or
(d) constitutes financial statements delivered to such Purchaser under Section
7.1 that are otherwise publicly available. Each Purchaser will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by such Purchaser in good faith to protect confidential information of
third parties delivered to such Purchaser, provided that such Purchaser may
deliver or disclose Confidential Information to (1) such Purchaser's directors,
trustees, officers, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by such Purchaser's Notes), (2) such Purchaser's financial advisors
and other professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20, (3)
any other holder of any Note, (4) any Institutional Investor to which such
Purchaser sells or offers to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this Section
20), (5) any Person from which such Purchaser offers to purchase any Security of
the Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (6)
any Federal or state regulatory authority having jurisdiction over such
Purchaser, (7) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about such Purchaser's investment portfolio or (8) any
other Person to which such delivery or disclosure may be necessary or
appropriate (i) to effect compliance with any law, rule, regulation or order
applicable to such Purchaser, (ii) in response to any subpoena or other legal
process, (iii) in connection with any litigation to which such Purchaser is a
party or (iv) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of the
rights and remedies under such Purchaser's Notes and this Agreement. Each holder
of a Note, by its acceptance of a
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Note, will be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to any holder
of a Note of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.
SECTION 21. SUBSTITUTION OF A PURCHASER.
Each Purchaser shall have the right to substitute any one of such
Purchaser's Affiliates as the purchaser of the Notes that such Purchaser has
agreed to purchase hereunder, by written notice to the Company, which notice
shall be signed by both such Purchaser and such Purchaser's Affiliate, shall
contain such Affiliate's agreement to be bound by this Agreement and shall
contain a confirmation by such Affiliate of the accuracy with respect to it of
the representations set forth in Section 6. Upon receipt of such notice,
wherever the word "Purchaser" is used in this Agreement (other than in this
Section 21), such word shall be deemed to refer to such Affiliate in lieu of
such Purchaser. In the event that such Affiliate is so substituted as a
purchaser hereunder and such Affiliate thereafter transfers to such Purchaser
all of the Notes then held by such Affiliate, upon receipt by the Company of
notice of such transfer, wherever the word "Purchaser" is used in this Agreement
(other than in this Section 21), such word shall no longer be deemed to refer to
such Affiliate, but shall refer to such Purchaser, and such Purchaser shall have
all the rights of an original holder of the Notes under this Agreement.
SECTION 22. MISCELLANEOUS.
Section 22.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 22.2. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Make-Whole Amount or interest on any Note that is due on a date other than
a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
Section 22.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22.4. Construction. (a) Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary
-37-
43
provision) be deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.
(b) Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, the same shall be done in accordance with GAAP, to the extent
applicable, except where such principles are inconsistent with the requirements
of this Agreement.
Section 22.5. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.
Section 22.6. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of Illinois excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
* * * * *
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44
The execution hereof by the Purchasers shall constitute a contract among
the Company and the Purchasers for the uses and purposes hereinabove set forth.
This Agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
Very truly yours,
GRANITE CONSTRUCTION INCORPORATED
By /s/ DAVID H. WATTS
------------------------------------
David H. Watts
Its President
By /s/ WILLIAM E. BARTON
-------------------------------------
William E. Barton
Its Senior Vice President
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Accepted as of May 1, 2001:
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK
By /s/ ROBERT B. BODETT
-------------------------------------
Name: Robert B. Bodett
By /s/ PATRICIA W. WILSON
-------------------------------------
Name: Patricia W. Wilson
Authorized Signatories
UNITED OF OMAHA LIFE INSURANCE COMPANY
By /s/ EDWIN H. GARRISON, JR.
-------------------------------------
Its First Vice President
COMPANION LIFE INSURANCE COMPANY
By /s/ EDWIN H. GARRISON, JR.
-------------------------------------
Its Assistant Treasurer
LUTHERAN BROTHERHOOD
By /s/ KERI L. REICH
-------------------------------------
Keri L. Reich
Its Portfolio Manager
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Accepted as of May 1, 2001:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.
------------------------------------
By /s/ STEPHEN A. OSBORN
-------------------------------------
Stephen A. Osborn
Its Managing Director
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ MARK W. POEPPELMAN
-------------------------------------
Mark W. Poeppelman
Its Associate Vice President
NATIONWIDE INDEMNITY COMPANY
By /s/ MARK W. POEPPELMAN
-------------------------------------
Mark W. Poeppelman
Its Associate Vice President
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
By /s/ MARK W. POEPPELMAN
-------------------------------------
Mark W. Poeppelman
Its Associate Vice President
NATIONWIDE MUTUAL INSURANCE COMPANY
By /s/ MARK W. POEPPELMAN
-------------------------------------
Mark W. Poeppelman
Its Associate Vice President
ALLSTATE LIFE INSURANCE COMPANY
By /s/ ROBERT B. BODETT
-------------------------------------
Name: Robert B. Bodett
By /s/ PATRICIA W. WILSON
-------------------------------------
Name: Patricia W. Wilson
Authorized Signatories
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47
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
CONNECTICUT GENERAL LIFE $10,000,000
INSURANCE COMPANY $3,500,000
c/o CIGNA Investments, Inc. $3,300,000
Hartford, Connecticut 06152 $3,000,000
Attention: Private Securities Division $1,200,000
$1,000,000
Payments
All payments on or in respect of the Notes to be by Federal Funds Wire Transfer
to:
Chase NYC/CTR/
BNF = CIGNA Private Placements/AC=9009001802
ABA #021000021
OBI = Granite Construction Incorporated 6.96% Senior Notes due May 1,
2013, PPN 387328 A@ 6 principal premium or interest; contact name and
phone.
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
900 Cottage Grove Road
Hartford, Connecticut 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities S-307
Operations Group
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
with a copy to:
Chase Manhattan Bank
Private Placement Servicing
P.O. Box 1508
Bowling Green Station
New York, New York 10081
Attention: CIGNA Private Placements
Fax: 212-552-3107/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
SCHEDULE A
(to Note Purchase Agreement)
48
Attention: Private Securities Division - S-307
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number for CIG & Co.: 13-3574027
A-2
49
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
NATIONWIDE LIFE INSURANCE COMPANY $10,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Granite Construction Incorporated, 6.96% Senior Notes due May 1, 2013, PPN
387328 A@ 6, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attention: P&I Department
PPN #383723 A@ 6
Security Description: ______________________
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-4156830
A-3
50
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
NATIONWIDE INDEMNITY COMPANY $5,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Granite Construction Incorporated, 6.96% Senior Notes due May 1, 2013, PPN
387328 A@ 6, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Indemnity Company
Attention: P&I Department
PPN #387328 A@ 6 Security Description: ____________
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Indemnity Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Indemnity Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-1399201
A-4
51
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY $4,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Granite Construction Incorporated, 6.96% Senior Notes due May 1, 2013, PPN
387328 A@ 6, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Mutual Fire Insurance Company
Attention: P&I Department
PPN # 387328 A@ 6
Security Description: ________________
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Mutual Fire Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Mutual Fire Insurance Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-4177110
A-5
52
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
NATIONWIDE MUTUAL INSURANCE COMPANY $3,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Granite Construction Incorporated, 6.96% Senior Notes due May 1, 2013, PPN
387328 A@ 6, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Mutual Insurance Company
Attention: P&I Department
PPN # 387328 A@ 6
Security Description: ____________________
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Mutual Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Mutual Insurance Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-4177100
A-6
53
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
ALLSTATE LIFE INSURANCE COMPANY $9,000,000
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
Attention: Private Placements Department
Telecopier Number: (847) 402-3092
Telephone Number: (847) 402-8922
Payments
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds (identifying each payment with name of the Issuer,
the Private Placement Number preceded by "DPP" and the payment as principal,
interest or premium) in the exact format as follows:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account #168-117-0
ORG = Granite Construction Incorporated
OBI = DPP - 387328 A@ 6 --
Payment Due Date (MM/DD/YY) --
P _____ (enter "P" and the amount of principal being remitted,
for example, P5000000.00) --
I _____ (enter "I" and the amount of interest being remitted,
for example, I225000.00)
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations--Private Placements
3075 Sanders Road, STE G4A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 36-2554642
A-7
54
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
ALLSTATE LIFE INSURANCE COMPANY $9,000,000
OF NEW YORK
c/o Allstate Life Insurance Company
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
Attention: Private Placements Department
Telephone Number: (847) 402-8922
Telefacsimile Number: (847) 402-3092
Payments
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds (identifying each payment with name of the Issuer
(and the Credit, if any), the Private Placement Number preceded by "DPP" and the
payment as principal, interest or premium) in the exact format as follows:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company of New York
Collection Account #168-120-4
ORG = Granite Construction Incorporated
OBI = DPP - 387328 A@ 6 --
Payment Due Date (MM/DD/YY) --
P _____ (enter "P" and the amount of principal being remitted,
for example, P5000000.00) --
I _____ (enter "I" and the amount of interest being remitted,
for example, I225000.00)
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations--Private Placements
3075 Sanders Road, STE G4A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 36-2608394
A-8
55
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
UNITED OF OMAHA LIFE INSURANCE COMPANY $6,000,000
Mutual of Omaha Plaza
Omaha, Nebraska 68175-1011
Attention: Investment Division/Securities Accounting
Telecopier Number: (402) 351-2913
Telephone Number (402) 351-2504
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Granite Construction Incorporated, 6.96% Senior Notes due May 1, 2013") to:
Chase Manhattan Bank
ABA #021000021
Private Income Processing
for credit to:
United of Omaha Life Insurance Company
Account Number 900-9000200
a/c: G07097
CUSIP/PPN: 387328 A@ 6
Interest Amount: ___________
Principal Amount: __________
Notices
All notices in respect of payment of principal and interest, corporate actions
and reorganization notifications to:
The Chase Manhattan Bank
4 New York Plaza - 13th Floor
New York, New York 10004
Attn: Income Processing - J. Piperatto
a/c: G07097
All other communications to:
4-Investment Loan Administration
Mutual of Omaha Insurance Company
Mutual of Omaha Plaza
Omaha, Nebraska 68175-1011
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 47-0322111
A-9
56
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
COMPANION LIFE INSURANCE COMPANY $2,000,000
c/o Mutual of Omaha Insurance Company
Mutual of Omaha Plaza
Omaha, Nebraska 68175-1011
Attention: 4 - Investment Loan Administration
Telefacsimile: (402) 351-2913
Confirmation: (402) 351-2583
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds to:
Chase Manhattan Bank
ABA #021000021
Private Income Processing
for credit to: Companion Life Insurance Company
Account Number 900-9000200
a/c G07903
PPN: 387328 A@ 6
Interest Amount: __________________
Principal Amount: _________________
Notices
All notices of payments, on or in respect of the Notes and written confirmation
of each such payment, corporate actions and reorganization notifications to:
The Chase Manhattan Bank
4 New York Plaza-11th Floor
New York, New York 10004
Attention: Income Processing-J. Pipperato
a/c: G07903
All other notices and communications (i.e., quarterly/annual reports, tax
filings, modifications, waivers regarding the indenture) to be addressed as
first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-1595128
A-10
57
PRINCIPAL AMOUNT OF
NAMES OF PURCHASER NOTES TO BE PURCHASED
LUTHERAN BROTHERHOOD $5,000,000
625 Fourth Avenue South, 10th Floor
Minneapolis, Minnesota 55415
Attention: Investment Division
Telecopier Number: (612) 340-5756
Telephone Number: (612) 340-5757
Payments
All payments of principal, interest and premium on the account of the Notes
shall be made by bank wire transfer (in immediately available funds) to:
Norwest Bank Minnesota, N.A.
ABA #091000019
For Credit to Trust Clearing Account #08-40-245
Attention: Sarah Corcoran
For credit to: Lutheran Brotherhood
Account Number 12651300
All payments must include the following information:
A/C Lutheran Brotherhood
Account No.: 12561300
Security Description
PPN Number
Reference Purpose of Payment
Interest and/or Principal Breakdown
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 41-0385700
A-11
58
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
"Affiliate" shall mean, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, (b) any other Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of such
first Person or any other Person of which such first Person beneficially owns or
holds, in the aggregate, directly or indirectly, 10% or more of any class of
voting or equity interests and (c) any officer or director of such first Person
and any Person fulfilling an equivalent function of an officer or director;
provided that "Affiliate," in relation to the Company, shall not include any
Subsidiary. As used in this definition, "Control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting Securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"Asset Disposition" shall mean any Transfer except:
(a) any
(1) Transfer from a Subsidiary to the Company or to a
Wholly-Owned Subsidiary; and
(2) Transfer from the Company to a Wholly-Owned Subsidiary
so long as immediately before and immediately after the consummation of
any such Transfer and after giving effect thereto, no Default or Event of
Default would exist;
(b) any Transfer made in the ordinary course of business and
involving only property that is either (1) inventory held for sale or (2)
equipment, fixtures, supplies or materials no longer required in the
operation of the business of the Company or any of its Subsidiaries or
that is obsolete; and
(c) any Transfer in one lot of all of the voting Securities of TIC,
directly or indirectly, owned or held by the Company to TIC pursuant to
that certain Stock Purchase Agreement dated as of December 23, 1996
between the Company and TIC, as amended, supplemented, restated or
otherwise modified from time to time.
"Attributable Debt" shall mean, as to any particular Long-Term Lease
relating to a Sale-and-Leaseback Transaction, the present value of all Lease
Rentals required to be paid by the Company or any Subsidiary under such lease
during the remaining term thereof (determined in accordance with generally
accepted financial practice using a discount factor equal to the interest rate
implicit in such lease if known or, if not known, of 12% per annum).
"Bank Credit Agreement" shall mean that certain Credit Agreement dated as
of June 30, 1997 among the Company, Bank of America National Trust and Savings
Association, as agent, and each of the financial institutions a party thereto,
as amended by that certain First Amendment
SCHEDULE B
(to Note Purchase Agreement)
59
to Credit Agreement dated as of January 16, 1998, that certain Second Amendment
to Credit Agreement dated as of June 30, 1998 and that certain Third Amendment
to Credit Agreement dated as of June 30, 1999 as the same may be further
amended, supplemented, restated or otherwise modified from time to time, and any
credit agreement or other like agreement entered into by the Company which is
substantially similar to or replaces the Credit Agreement.
"Bank Guaranty" shall mean any Guaranty of the Debt outstanding under the
Bank Credit Agreement by a Subsidiary.
"Business Day" shall mean (a) for the purposes of Section 8.6 only, any
day other than a Saturday, a Sunday or a day on which commercial banks in New
York City are required or authorized to be closed and (b) for the purposes of
any other provision of this Agreement, any day other than a Saturday, a Sunday
or a day on which commercial banks in Chicago, Illinois or San Francisco,
California are required or authorized to be closed.
"Capital Lease" shall mean, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" shall mean, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"Closing" is defined in Section 3.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
"Company" shall mean Granite Construction Incorporated, a Delaware
corporation, and any Person who succeeds to all, or substantially all, of the
assets and business of Granite Construction Incorporated.
"Confidential Information" is defined in Section 20.
"Consolidated Net Income" for any period shall mean the gross revenues of
the Company and its Subsidiaries for such period less all expenses and other
proper charges (including taxes on income), determined on a consolidated basis
after eliminating earnings or losses attributable to outstanding Minority
Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets (other than fixed or capital assets
sold or disposed of in the ordinary course of business), and any taxes on
such excluded gains and any tax deductions or credits on account of any
such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued prior to the
date it became a Subsidiary;
B-2
60
(d) net earnings and losses of any corporation (other than a
Subsidiary), substantially all the assets of which have been acquired in
any manner by the Company or any Subsidiary, realized by such corporation
prior to the date of such acquisition;
(e) net earnings and losses of any corporation (other than a
Subsidiary) with which the Company or a Subsidiary shall have consolidated
or which shall have merged into or with the Company or a Subsidiary prior
to the date of such consolidation or merger;
(f) net earnings of any business entity (other than a Subsidiary or
a joint venture) in which the Company or any Subsidiary has an ownership
interest unless such net earnings shall have actually been received by the
Company or such Subsidiary in the form of cash distributions;
(g) earnings resulting from any reappraisal, revaluation or write-up
of assets;
(h) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the
amount invested in such Subsidiary;
(i) any gain arising from the acquisition of any Securities of the
Company or any Subsidiary; and
(j) any other extraordinary gain or loss.
"Consolidated Net Worth" shall mean, as of the date of any determination
thereof,
(a) the sum of (1) the par value (or value stated on the books of
the corporation) of the capital stock (but excluding treasury stock and
capital stock subscribed and unissued) of the Company and its Subsidiaries
plus (2) the amount of the paid-in capital and retained earnings of the
Company and its Subsidiaries, in each case as such amounts would be shown
on a consolidated balance sheet of the Company and its Subsidiaries as of
such time prepared in accordance with GAAP, minus
(b) unearned compensation, minus
(c) to the extent included in clause (a) above, all amounts properly
attributable to Minority Interests, if any, in the stock and surplus of
Subsidiaries, minus
(d) the book value of all Restricted Investments of the Company and
its Subsidiaries acquired after the date of the Closing in excess of an
amount equal to 10% of the amount determined pursuant to clauses (a), (b)
and (c) of this definition.
"Consolidated Total Assets" shall mean, as of the date of any
determination thereof, (a) the total assets of the Company and its Subsidiaries
which would be shown as assets on a consolidated balance sheet of the Company
and its Subsidiaries as of such time prepared in accordance with GAAP, after
eliminating all amounts properly attributable to Minority Interests, if any, in
the stock and surplus of Subsidiaries.
B-3
61
"Consolidated Total Capitalization" shall mean, as the date of any
determination thereof, the sum of (a) Consolidated Net Worth and (b)
Consolidated Total Debt.
"Consolidated Total Debt" shall mean, as of the date of any determination
thereof, the total of all Debt of the Company and its Subsidiaries (including,
without limitation, all Subsidiaries that are organized as joint ventures)
outstanding on such date, after eliminating all offsetting debits and credits
between the Company and its Subsidiaries, and all other items required to be
eliminated in the course of the preparation of consolidated financial statements
of the Company and its Subsidiaries in accordance with GAAP.
"Debt" shall mean, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its account
by banks and other financial institutions (whether or not representing
obligations for borrowed money);
(f) Swaps of such Person;
(g) its recourse obligations under Receivables Securitization
Transactions;
(h) in respect of the Company or any Subsidiary, its Attributable
Debt; and
(i) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (h) hereof in an amount equal
to the amount guaranteed.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (i) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"Debt Prepayment Application" shall mean, with respect to any Transfer of
property, the application by the Company or its Subsidiaries of cash in an
amount equal to the Net Proceeds Amount with respect to such Transfer to pay
Senior Debt (other than Senior Debt owing to the Company, any of its
Subsidiaries or any Affiliate).
B-4
62
"Default" shall mean an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" shall mean that rate of interest that is the greater of (a)
2% per annum above the rate of interest stated in clause (a) of the first
paragraph of the Notes and (b) 2% over the rate of interest publicly announced
by Bank of America in San Francisco, California as its "reference" rate.
"Disposition Value" shall mean, as of any date of determination, with
respect to any property
(a) in the case of property that does not constitute Subsidiary
Stock, the Fair Market Value thereof, valued at the time of such
disposition in good faith by the Company, and
(b) in the case of property that constitutes Subsidiary Stock, an
amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that the
book value of such Subsidiary Stock represents of the book value of all of
the outstanding capital stock of such Subsidiary (assuming, in making such
calculations, that all Securities convertible into such capital stock are
so converted and giving full effect to all transactions that would occur
or be required in connection with such conversion) determined at the time
of the disposition thereof in good faith by the Company.
"Environmental Laws" shall mean any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under Section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean, as of any date of determination and with
respect to any property, the sale value of such property that would be realized
in an arm's-length sale at such time between an informed and willing buyer and
an informed and willing seller (neither being under a compulsion to buy or
sell).
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time in the United States of America.
B-5
63
"Governmental Authority" shall mean
(a) the government of
(1) the United States of America or any State or other
political subdivision thereof, or
(2) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary,
or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guarantors" is defined in Section 2.2.
"Guaranty Agreement" is defined in Section 2.2.
"Guaranty" shall mean, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Debt, dividend or other obligation of any other Person in any manner, whether
directly or indirectly, including (without limitation) obligations incurred
through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or obligation or any property constituting
security therefor;
(b) to advance or supply funds (1) for the purchase or payment of
such Debt or obligation, or (2) to maintain any working capital or other
balance sheet condition or any income statement condition of any other
Person or otherwise to advance or make available funds for the purchase or
payment of such Debt or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt or obligation
of the ability of any other Person to make payment of the Debt or
obligation; or
(d) otherwise to assure the owner of such Debt or obligation against
loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under any
Guaranty, the Debt or other obligations that are the subject of such Guaranty
shall be assumed to be direct obligations of such obligor.
"Hazardous Material" shall mean any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
B-6
64
"holder" shall mean, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Company pursuant to
Section 13.1.
"Institutional Investor" shall mean (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
of the Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Investment" shall mean any investment, made in cash or by delivery of
property, by the Company or any of its Subsidiaries (a) in any Person, whether
by acquisition of stock, Debt or other obligation or Security, or by loan,
Guaranty, advance, capital contribution or otherwise, or (b) in any property.
"Lease Rentals" shall mean, with respect to any period, the sum of the
rental and other obligations required to be paid during such period by the
Company or any Subsidiary, as lessee, under all leases of real or personal
property (other than Capital Leases), excluding any amount required to be paid
by the lessee (whether or not therein designated as rental or additional rental)
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges, provided that, if at the date of determination, any
such rental or other obligations (or portion thereof) are contingent or not
otherwise definitely determinable by the terms of the related lease, the amount
of such obligations (or such portion thereof) (1) shall be assumed to be equal
to the amount of such obligations for the period of 12 consecutive calendar
months immediately preceding the date of determination or (2) if the related
lease was not in effect during such preceding 12-month period, shall be the
amount estimated by a Senior Financial Officer of the Company on a reasonable
basis and in good faith.
"Lien" shall mean, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Long-Term Lease" shall mean any lease of property having an original
term, including any period for which the lease may be renewed or extended at the
option of the lessee, of more than three years.
"Make-Whole Amount" is defined in Section 8.6.
"Make-Whole Amount Calculation Certificate" is defined in Section 8.2.
"Material" shall mean material in relation to the business, operations,
affairs, financial condition, assets, properties or prospects of the Company and
its Subsidiaries taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, affairs, financial condition, assets, properties or
prospects of the Company and its Subsidiaries taken as a whole, or (b) the
ability of the Company to perform its obligations under this Agreement and the
Notes, or (c) the validity or enforceability of this Agreement, the Guaranty
Agreement or the Notes.
B-7
65
"Material Subsidiary" shall mean each Subsidiary identified as a Material
Subsidiary on Schedule 5.4, each Subsidiary that is an obligor or guarantor of
any Debt existing under the Bank Credit Agreement and each other Subsidiary
which meets either of the following conditions:
(a) such Subsidiary's total net revenues for the period of the
immediately preceding four fiscal quarters is equal to or greater than 10%
of the consolidated total net revenues of the Company and its Subsidiaries
for such period determined in accordance with GAAP, in each case as
reflected in the most recent annual or quarterly financial statements of
the Company and its Subsidiaries; or
(b) such Subsidiary's total assets, as of the last day of the
immediately preceding fiscal quarter, is equal to or greater than 10% of
consolidated total assets of the Company and its Subsidiaries as of such
date determined in accordance with GAAP, in each case as reflected in the
most recent annual or quarterly financial statements of the Company and
its Subsidiaries.
"Memorandum" is defined in Section 5.3.
"Minority Interests" shall mean any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law) that are
not owned by the Company and/or one or more of its Subsidiaries. Minority
Interests shall be valued by valuing Minority Interests constituting preferred
stock at the voluntary or involuntary liquidating value of such preferred stock,
whichever is greater, and by valuing Minority Interests constituting common
stock at the book value of capital and surplus applicable thereto adjusted, if
necessary, to reflect any changes from the book value of such common stock
required by the foregoing method of valuing Minority Interests in preferred
stock.
"Multiemployer Plan" shall mean any Plan that is a "multiemployer plan"
(as such term is defined in Section 4001(a)(3) of ERISA).
"Net Proceeds Amount" shall mean, with respect to any Transfer of any
property by any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer) allocated to such Person in respect of such Transfer, net of any
applicable taxes incurred in connection with such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer.
"Notes" is defined in Section 1.
"Officer's Certificate" shall mean a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
B-8
66
"Person" shall mean an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" shall mean an "employee benefit plan" (as defined in Section 3(3)
of ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" shall mean any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Priority Debt" shall mean the sum of (a) all Debt of the Company secured
by Liens permitted by Section 10.5(k), (b) all Debt of Subsidiaries permitted by
Section 10.4(d), and (c) all Attributable Debt of the Company and its
Subsidiaries permitted by Section 10.10(b).
"property" or "properties" shall mean, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"Property Reinvestment Application" shall mean, with respect to any
Transfer of property, the application of an amount equal to the Net Proceeds
Amount with respect to such Transfer to the acquisition by the Company or any
Subsidiary of operating assets of the Company or any Subsidiary to be used in
the principal business of such Person.
"PTE" is defined in Section 6.2(a).
"QPAM Exemption" shall mean Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Receivables Securitization Transaction" shall mean any transaction
pursuant to which (a) accounts receivables are sold or transferred and (b) the
seller either (1) retains an interest in the receivables so sold or transferred
or (2) assumes any liability in connection with such sale or transfer.
"Required Holders" shall mean, at any time, the holders of at least 51% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company, any of its Subsidiaries or any of its Affiliates).
"Responsible Officer" shall mean any Senior Financial Officer and any
other officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Restricted Investments" (a) shall mean all Investments except the
following:
(1) property to be used in the ordinary course of business of the
Company and its Subsidiaries;
B-9
67
(2) current assets arising from the sale of goods and services in
the ordinary course of business of the Company and its Subsidiaries;
(3) Investments in one or more Subsidiaries or any Person that
concurrently with such Investment becomes a Subsidiary;
(4) Investments existing on the date of the Closing and disclosed in
Schedule 5.16;
(5) Investments permitted by the Company's "Investment Policy
Guidelines" as in effect on the date hereof set forth on Exhibit 3
attached hereto and such additional Investments as may from time to time
be permitted under the Company's investment policy guidelines; provided
that the Required Holders shall have consented to such additional
Investments; and
(6) Investments in Wilder Construction, a Washington corporation,
made after the date of Closing in an aggregate amount not to exceed
$30,000,000.
(b) As of any date of determination, each Restricted Investment shall be
valued at the greater of:
(1) the amount at which such Restricted Investment is shown on the
books of the Company or any of its Subsidiaries (or zero if such
Restricted Investment is not shown on any such books); and
(2) either
(i) in the case of any Guaranty of the obligation of any
Person, the amount which the Company or any of its Subsidiaries has
paid on account of such obligation less any recoupment by the
Company or such Subsidiary of any such payments, or
(ii) in the case of any other Restricted Investment, the
excess of (A) the greater of (I) the amount originally entered on
the books of the Company or any of its Subsidiaries with respect
thereto and (II) the cost thereof to the Company or its Subsidiary
over (B) any return of capital (after income taxes applicable
thereto) upon such Restricted Investment through the sale or other
liquidation thereof or part thereof or otherwise.
(c) As used in this definition of "Restricted Investments":
"Acceptable Bank" shall mean any bank or trust company (1) which is
organized under the laws of the United States of America or any State
thereof, (2) which has capital, surplus and undivided profits aggregating
at least $250,000,000, and (3) whose long-term unsecured debt obligations
(or the long-term unsecured debt obligations of the bank holding company
owning all of the capital stock of such bank or trust company) are given
one of the two highest ratings by Moody's or S&P or another credit rating
agency of recognized national standing.
"Moody's" shall mean Moody's Investors Service, Inc.
B-10
68
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
"United States Governmental Security" shall mean any direct
obligation of, or obligation guaranteed by, the United States of America,
or any agency controlled or supervised by or acting as an instrumentality
of the United States of America pursuant to authority granted by the
Congress of the United States of America, so long as such obligation or
guarantee shall have the benefit of the full faith and credit of the
United States of America which shall have been pledged pursuant to
authority granted by the Congress of the United States of America.
"Sale-and-Leaseback Transaction" shall mean a transaction or series of
transactions pursuant to which the Company or any Subsidiary shall sell or
transfer to any Person (other than the Company or a Subsidiary) any property,
whether now owned or hereafter acquired, and, as part of the same transaction or
series of transactions, the Company or any Subsidiary shall, within 180 days of
such sale or transfer, rent or lease, as lessee, (other than pursuant to a
Capital Lease), or similarly acquire the right to possession or use of, such
property or one or more properties which it intends to use for the same purpose
or purposes as such property.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Security" has the meaning set forth in Section 2(1) of the Securities Act
of 1933, as amended.
"Senior Debt" shall mean all Debt of the Company, other than Subordinated
Debt.
"Senior Financial Officer" shall mean the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Subordinated Debt" shall mean any Debt of the Company that is in any
manner subordinated in right of payment or security in any respect to the Debt
evidenced by the Notes.
"Source" is defined in Section 6.2.
"Subsidiary" shall mean, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Stock" shall mean, with respect to any Person, the stock (or
any options or warrants to purchase stock or other Securities exchangeable for
or convertible into stock) of any Subsidiary of such Person.
"Successor Corporation" is defined in Section 10.7(d).
B-11
69
"Swaps" shall mean, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined. For purposes of this
Agreement, any such interest rate swap, currency swap, or other similar
obligation which is or will be entered into and is being or will be used by such
Person in the ordinary course of its business to hedge an existing or future
risk or exposure of such Person in respect of its liabilities or assets (and not
for speculative purposes) shall not be deemed a "Swap" for purposes of this
definition.
"TIC" shall mean TIC Holdings, Inc., a Delaware corporation.
"Transfer" shall mean, with respect to any Person, any transaction in
which such Person sells, conveys, transfers or leases (as lessor) any of its
property, including, without limitation, Subsidiary Stock. For purposes of
determining the application of the Net Proceeds Amount in respect of any
Transfer, the Company may designate any Transfer as one or more separate
Transfers each yielding a separate Net Proceeds Amount. In any such case, (a)
the Disposition Value of any property subject to each such separate Transfer and
(b) the amount of Consolidated Total Assets attributable to any property subject
to each such separate Transfer shall be determined by ratably allocating the
aggregate Disposition Value of, and the aggregate Consolidated Total Assets
attributable to, all property subject to all such separate Transfers to each
such separate Transfer on a proportionate basis.
"Wholly-Owned" when used in connection with any Subsidiary shall mean, at
any time, any Subsidiary one hundred percent (100%) of all of the equity
interests (except directors' qualifying shares) and voting interests of which
are owned by any one or more of the Company and the Company's other Wholly-Owned
Subsidiaries at such time.
B-12
70
CHANGES IN CORPORATE STRUCTURE
NONE
SCHEDULE 4.9
(to Note Purchase Agreement)
71
DISCLOSURE MATERIALS
NONE
SCHEDULE 5.3
(to Note Purchase Agreement)
72
SUBSIDIARIES OF THE COMPANY AND
OWNERSHIP OF SUBSIDIARY STOCK*
1. Subsidiaries - Organization and Capital Structure
OWNERSHIP BY
JURISDICTION OF COMPANY AND/OR
NAME ORGANIZATION CAPITAL STRUCTURE SUBSIDIARIES
Granite Construction California Corporation 100% wholly owned
Company* subsidiary of GCI
Wilcott Corporation* Colorado Corporation 100% wholly owned
subsidiary of GCI
Granite Land Company* California Corporation 100% wholly owned
subsidiary of GCI
Granite SR 91 California Corporation 100% wholly owned
Corporation* subsidiary of GCI
Granite SR 91, L.P.* California Limited Partnership 99% limited partner of
GCI and 1% general
partner of Granite SR 91
Corporation
GILC Incorporated* California Corporation 100% wholly owned
subsidiary of GCI
GILC, L.P.* California Limited Partnership 99% limited partner of
GCC and 1% general
partner of GILC
Incorporated
G.G. & R., Inc.* Utah Corporation 100% wholly owned
subsidiary of GCI
Intermountain Slurry Wyoming Corporation 100% wholly owned
Seal, Inc.* subsidiary of G.G. & R.,
Inc.
Pozzolan Products Utah Corporation 100% wholly owned
Company* subsidiary of G.G. & R.,
Inc.
GTC, Inc.* Texas Corporation 100% wholly owned
subsidiary of GCI
Granite Construction California Corporation 100% wholly owned
International subsidiary of GCI
Waters Ridge II Texas Limited Partnership 69% interest owned by GCI
- ------------
* Material Subsidiary
SCHEDULE 5.4
(to Note Purchase Agreement)
73
Granite Mandalay Finance California Limited Liability Company 70% interest owned by GLC
Granite/Kiewit (Tongue Montana Joint Venture 76% partnership
River) interest by GCC
Granite/Sundt (I-17) Arizona Joint Venture 55% partnership
interest by GCC
Minn.Transit Constrs Minnesota Joint Venture 56.5% partnership
(Light Rail) interest by GCC
Granite Rizzani Florida Joint Venture 60% partnership
(Hathaway Bridge) interest by GCC
River Mountain Arkansas Joint Venture 60% partnership
Constructors interest by GCC
Granite2 Sundt Arizona Joint Venture 65% partnership
(Supersition Hwy) interest by GCC
Granite/PCL (I-4 St Florida Joint Venture 64.6% partnership
Johns River) interest by GCC
S-5.4-2
74
2. Affiliates - Organization and Capital Structure
OWNERSHIP BY
JURISDICTION OF COMPANY AND/OR
NAME ORGANIZATION CAPITAL STRUCTURE SUBSIDIARIES
Paramount-Nevada California LLP 50% Interest owned by
Asphalt GCI
Wilders Construction Washington Minority Interest 46% Interest owned by GCI
Company
TIC Holdings, Inc. Delaware Minority Interest 30% Interest owned by
GCI
Williamson Ranch Plaza California LP 25% Interest owned by
GLC
Oly Mandalay Bay California LLC 9% Interest owned by GLC
Granite Regional Park California LP 25% partnership
interest by GLC
CPTC L.P. California LLP 22% Interest owned by GCI
Kiewit/Granite (TCA) California Joint Venture 30% partnership interest by GCC
KG Leasing (TCA) California Joint Venture 30% partnership interest by GCC
Kiewit/Granite California Joint Venture 25% partnership
(East Dam) interest by GCC
Kiewit/Granite/ Utah Joint Venture 23% partnership
Washington(Wasatch) interest by GCC
KGW Leasing (Wasatch) Utah Joint Venture 23% partnership
interest by GCC
Yonkers/Granite (Atlantic New Jersey Joint Venture 40% partnership
City) interest by GCC
Western Summit/TIC/ Granite Georgia Joint Venture 15% partnership
(UTOY) interest by GCC
Sampson/Granite (Cabrillo California Joint Venture 40% partnership
College) interest by GCC
Washington Granite California Joint Venture 40% partnership
interest by GCC
Las Vegas Monorail (Light Nevada Joint Venture 44.8% partnership
Rail) interest by GCC
3. The Company's Directors and Officers
DIRECTORS OFFICERS
Watts, David H. Watts, David H.
Barclay, Joseph J. Dorey, William G.
S-5.4-3
75
Brooks, Richard M. Costanzo, Patrick M.
Griego, Linda Barton, William E.
Kelly, Brian C. Boitano, Mark E.
McDonald, Rebecca Allbritton, R.C.
Miles, Raymond E. Futch, Michael
Niebla, J. F. Higdem, Garry M.
Searle, George Roberts, James H.
Thomas, Michael L.
Grazian, David R.
McCann-Jenni, Mary
Cady, James
S-5.4-4
76
4. Agreements Restricting Dividend Payments
NONE
S-5.4-5
77
FINANCIAL STATEMENTS
SEC Form 10-K for the fiscal years ended
December 31, 1995
December 31, 1996
December 31, 1997
December 31, 1998
December 31, 1999
December 31, 2000
SEC Form 10-Q for the fiscal quarters ended
September 30, 1999
September 30, 2000
SCHEDULE 5.5
(to Note Purchase Agreement)
78
CERTAIN LITIGATION
NONE
SCHEDULE 5.8
(to Note Purchase Agreement)
79
PATENTS, ETC.
NONE
SCHEDULE 5.11
(to Note Purchase Agreement)
80
USE OF PROCEEDS
The proceeds from the sale of the Notes will be used to refinance existing
Debt and for general corporate purposes.
SCHEDULE 5.14
(to Note Purchase Agreement)
81
EXISTING DEBT
ITEM BALANCE
NO. LENDER'S NAME DESCRIPTION INTEREST RATE MATURITY MAY 1, 2001
1. Benna Investments Aggregate 6.50% 04/14/02 $1,579,633
property
2. Benna Investments Real Estate 6.50% 12/01/07 1,438,937
property
3. Rosemary's Mountain Aggregate property 8.82% 06/01/01 1,700,000
4. Private Placement Due Refinance debt & 6.54% 03/15/10 60,000,000
03/15/10 general corporate
purposes
5. Bank of America Letter Self insured 100.0 bps 04/30/02 1,562,962
of Credit Worker's
Compensation
6. Bank of America Letter SR91 L.P. 50.0 bps 07/14/01 3,299,861
of Credit
7. Bank of America Letter Camino Columbia 87.5 bps 05/25/01 10,016,400
of Credit Toll Road
(performance LC)
8. Raymond Flaschbarth Aggregate property 8.00% 05/12/01 260,000
9. Syndicated Bank Facility For general 5.50% 06/01/01 10,000,000
(Revolver) corporate purposes
Total $89,857,793
SCHEDULE 5.15
(to Note Purchase Agreement)
82
EXISTING INVESTMENTS
MARKET VALUE
COMPANY DESCRIPTIONS MARCH 31, 2001
Perini Corporation Common Stock $2,878
Vulcan Materials Company Common Stock 2,813
Cascade Corporation Common Stock 2,384
Paramount-Nevada Asphalt LLP 3,026,591
Wilder Construction Company Minority Interest 17,738,190
TIC Holdings, Inc. Minority Interest 21,899,250
Williamson Ranch Plaza LP 534,488
Oly Mandalay Bay LLC 1,695,357
Granite Regional Park LP 224,525
CPTC L.P./SR91 L.P. Joint Venture 1,239,835
Granite/Groves Joint Venture 184,893
Kiewit/Granite (TCA) Joint Venture 324,236
Kiewit/Granite (KG Leasing) Joint Venture 1,459,589
Kiewit/Granite (E. Dam) Joint Venture 385,438
Kiewit/Granite (Wasatch) Joint Venture 2,024,960
Kiewit/Granite (KGW Leasing) Joint Venture 6,698,970
Yonkers/Granite (Atlantic City) Joint Venture 11,464,330
Western Summit/TIC/Granite Joint Venture 109,351
Sampson/Granite Joint Venture 251,320
Washington Granite Joint Venture 0
Las Vegas Monorail (Light Rail) Joint Venture 0
Total $69,269,398
SCHEDULE 5.16
(to Note Purchase Agreement)
83
ENVIRONMENTAL MATTERS
Granite Construction in the normal course of business utilizes petroleum
(hydrocarbon) products which may be considered hazardous materials when
encountered at regulatory levels established by the Federal EPA or the Regional
State EPA. The utilization of these asphalt products, diesel, and gasoline over
the years has the potential of creating exposure to environmental clean up
requirements. All underground tanks meet current requirements. There is no
pending governmental ordered clean up. However, the following represents
estimates based on construction industry housekeeping practices as encountered
during our normal course of business. Except as indicated with an "*", these
costs do not represent actual identified exposures.
LOCATIONS DESCRIPTIONS AMOUNT
Arvin, CA Asphalt Batch Plant $100,000
Arvin, CA Surface Spills 50,000
Bakersfield, CA Surface Spills 100,000
Bakersfield, CA Diesel Aboveground Storage Tanks 25,000
Bakersfield, CA Asphalt Batch Plant 100,000
Coalinga, CA Asphalt Batch Plant 50,000
Felton, Ca Asphalt Batch plant 200,000
French Camp, CA Diesel/Gasoline Underground Storage Tanks 100,000
Gardnerville, NV Surface Spills 25,000
Gardnerville, NV Asphalt Batch Plant 50,000
Indio, CA Massey Shop/Smitty's Garage Cleanup 50,000
Palmdale, CA Surface Spills 10,000
Palmdale, CA Asphalt Batch Plant 50,000
Patrick, NV Asphalt Batch Plant 75,000
Patrick, NV Surface Spills 50,000
Sacramento, CA Diesel/Gasoline Underground Storage Tanks 50,000
Sacramento, CA Asphalt Batch Plant 300,000
Sacramento, CA Surface Spills 200,000
Sacramento, CA Diesel Aboveground Storage Tanks 50,000
Sacramento, CA Shop Area Cleanup 50,000
Salinas, CA Surface Spills 250,000
Santa Barbara, CA Surface Spills 200,000
Santa Barbara, CA Diesel/Gasoline Underground Storage Tanks 75,000
Santa Barbara, CA Asphalt Batch Plant 50,000
Santa Cruz, CA Santa Cruz Yard Cleanup 250,000
Sparks, NV Diesel/Gasoline Underground Storage Tanks 100,000
Tracy, CA Asphalt Batch Plant 75,000
Tracy, CA Surface Spills 25,000
Tucson, AZ Surface Spills 25,000
Tucson, AZ Diesel/Gasoline Underground Storage Tanks 50,000
Watsonville, CA Diesel/Gasoline Underground Storage Tanks 150,000
Watsonville, CA Surface Spills 50,000
Webb, UT *Asphalt Batch Plant 500,000
Whitehall, UT *Asphalt Batch Plant 55,000
Salt Lake City, UT *Concrete Batch Plant 250,000
Salt Lake County, UT *Surface Spills 30,000
Weber County, UT
(Ogden) *Surface Spills 100,000
Salt Lake County, UT
(CPC) *Aggregate and smelter site 1,250,000
Cahoon, UT *Surface Spills 100,000
Fireclay Battery, UT *Surface Spills 25,000
SCHEDULE 5.18
(to Note Purchase Agreement)
84
LOCATIONS DESCRIPTIONS AMOUNT
Total $5,295,000
S-5.18-2
85
FORM OF NOTE
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No.________ ___________, 20__
$____________ PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to _____________________
or registered assigns, the principal sum of ______________ DOLLARS on May 1,
2013 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.96% per annum from
the date hereof, payable semiannually, on the first day of May and November in
each year, commencing with the May 1 or November 1 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.96% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in San Francisco, California as
its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the
EXHIBIT 1
(to Note Purchase Agreement)
86
Guaranty Agreement (as such term is defined in the Note Purchase Agreement).
Reference is hereby made to the Guaranty Agreement for a statement of the nature
and extent of the benefits and security for the Notes afforded thereby and the
rights of the holders of the Notes and the Company in respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By
-------------------------------------
Its
By
-------------------------------------
Its
E-1-2
87
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
FOR WORKING CAPITAL PORTFOLIO
EFFECTIVE: JANUARY 1, 2001
PURPOSE
Within the spectrum of activities of this Corporation, it is necessary to
provide a framework for the regular and continuous management of its investment
funds. Short term and intermediate term investments provide earnings on excess
cash while maintaining liquidity and working funds for the present and future
operations.
INVESTMENT OBJECTIVES
In order to provide control of all investments and cash, the Corporation has
established the following objectives regarding its investment policy:
- - 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.
- - 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.
- - Diversification - the investment activity must ensure diversification of
investments that minimizes risk exposure to any one security and/or
issuer.
- - Investment Return - the Corporation seeks to maximize the return on all
investments within the constraints of safety and liquidity.
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 the average duration of one (1) year from date of settlement. Any
investments with longer maturity than one year must be invested in instruments
issued by, guaranteed by, or insured by the U.S. Government or any of its
agencies. The average portfolio duration of escrows and deposit agreements shall
not exceed five (5) years.
Short-term investments shall be defined as instruments maturing in ninety-one
(91) days or more.
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.
TRADING
The following individuals are authorized traders:
EXHIBIT 3
(to Note Purchase Agreement)
88
[FORM OF SUBSIDIARY GUARANTY AGREEMENT]
SUBSIDIARY GUARANTY AGREEMENT
Dated as of May 1, 2001
Re: $75,000,000 6.96% Senior Notes
Due May l, 2013
of
Granite Construction Incorporated
EXHIBIT 2
(to Note Purchase Agreement)
89
TABLE OF CONTENTS
(Not a part of the Agreement)
Section Heading Page
Parties 1
Recitals 1
SECTION 1 DEFINITIONS 2
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENT 2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE 2
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY 3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE
GUARANTORS 8
SECTION 6 AMENDMENTS, WAMRS AND CONSENTS 12
SECTION 7 NOTICES 13
Signature 15
ATTACHMENTS TO SUBSIDIARY GUARANTY AGREEMENT:
Exhibit A - Subsidiary Guaranty Supplement
</Table>
90
SUBSIDIARY GUARANTY AGREEMENT
Re: $75,000,000 6.96% Senior Notes
Due May 1, 2013
of
Granite Construction Incorporated
This SUBSIDIARY GUARANTY AGREEMENT dated as of May 1, 2001 (the or
this "Guaranty") is entered into on a joint and several basis by each of the
undersigned, together with any entity which may become a party hereto by
execution and delivery of a Subsidiary Guaranty Supplement in substantially the
form set forth as Exhibit A hereto (a "Guaranty Supplement") (which parties are
hereinafter referred to individually as a "Guarantor" and collectively as the
"Guarantors").
RECITALS
A. Each Guarantor is a subsidiary of Granite Construction
incorporated, a Delaware corporation (the "Company"), and a Material Subsidiary
(as defined in the hereinafter defined Note Agreement).
B. "In order to refinance existing Debt (as defined in the Note
Agreement) and for general corporate purposes, the Company has entered into that
certain Note Purchase Agreement dated as of May 1, 2001 (the "Note Agreement")
between the Company and each of the purchasers named on Schedule A attached to
said Note Agreement (the "Initial Note Purchasers," together with their
successors and assigns, the "Holders"), providing for, among other things, the
issue and sale by the Company to the Initial Note Purchasers of the Company's
6.96% Senior Notes, due May 1, 2013 in the aggregate principal amount of
$75,000,000 (the "Notes").
C. The initial Note Purchasers have required as a condition of
their purchase of the Notes that the Company cause each of the undersigned to
enter into this Guaranty and to cause each from time to time Material Subsidiary
to enter into a Guaranty Supplement, in each case as security for the Notes, and
the Company has agreed to cause each of the undersigned to execute this Guaranty
and to cause each from time to time Material Subsidiary to execute a Guaranty
Supplement, in each case in order to induce the Initial Note Purchasers to
purchase the Notes and thereby benefit the Company and its Subsidiaries (as
defined in the Note Agreement) by providing funds to enable the Company to
refinance existing Debt and to enable the Company and its Subsidiaries to have
funds available for general corporate purposes.
NOW, THEREFORE, as required by Section 4.4 of the Note Agreement and in
consideration of the premises and other good and valuable consideration, the
receipt and
91
sufficiency whereof are hereby acknowledged, each Guarantor does hereby covenant
and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Agreement unless herein defined or the context shall otherwise require.
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENT.
(a) Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, premium, if any, and interest on the Notes
from time to time outstanding, as and when such payments shall become due and
payable whether by lapse of time, upon redemption or prepayment, by extension or
by acceleration or declaration or otherwise (including (to the extent legally
enforceable) interest due on overdue payments of principal, premium, if any, or
interest at the rate set forth in the Notes) in Federal or other immediately
available funds of the United States of America which at the time of payment or
demand therefor shall be legal tender for the payment of public and private
debts, (2) the full and prompt performance and observance by the Company of each
and all of the obligations, covenants and agreements required to be performed or
owed by the Company under the terms of the Notes and the Note Agreement and (3)
the full and prompt payment, upon demand by any Holder of all costs and
expenses, legal or otherwise (including reasonable attorneys' fees), if any, as
shall have been expended or incurred in the protection or enforcement of any
rights, privileges or liabilities in favor of the Holders under or in respect of
the Notes, the Note Agreement or under this Guaranty or in any consultation or
action in connection therewith or herewith.
(b) The liability of each Guarantor under this Guaranty shall not
exceed an amount equal to a maximum amount as will, after giving effect to such
maximum amount and all other liabilities of such Guarantor, contingent or
otherwise, result in the obligations of such Guarantor hereunder not
constituting a fraudulent transfer, obligation or conveyance.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guarantee of payment and performance and each Guarantor hereby waives,
to the fullest extent permitted by law, any right to require that any action on
or in respect of any Note or the Note Agreement be brought against the Company
or any other Person or that resort be had to any direct or indirect security for
the Notes or for this Guaranty or any other remedy. Any Holder may, at its
option, proceed hereunder against any Guarantor in the first instance to collect
monies when due, the payment of which is guaranteed hereby, without first
proceeding against the Company or any other Person and without first resorting
to any direct or indirect security for the Notes or for this Guaranty or any
other remedy. The liability of each Guarantor hereunder shall in no way be
affected or impaired by any acceptance by any Holder of any direct or indirect
security for, or other guaranties of; any Debt, liability or obligation of the
Company or any other Person to any Holder or by any failure, delay, neglect or
omission by any Holder to realize upon
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or protect any such guarantees, Debt, liability or obligation or any notes or
other instruments evidencing the same or any direct or indirect security
therefor or by any approval, consent, waiver, or other action taken, or omitted
to be taken by any such Holder.
The covenants and agreements on the part of the Guarantors herein
contained shall take effect as joint and several covenants and agreements, and
references to the Guarantors shall take effect as references to each of them and
none of them shall be released from liability hereunder by reason of the
guarantee ceasing to be binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that any Holder or
Holders from time to time, with or without any further notice to or assent from
any other Guarantor may, without in any manner affecting the liability of any
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise),
modify, change, compromise, release or extend the duration of the time
for the performance or payment of any Debt, liability or obligation of
the Company or of any other Person secondarily or
otherwise liable for any Debt, liability or obligations of the Company
on the Notes, or waive any Default with respect thereto, or waive,
modify, amend or change any provision of any other agreement or waive
this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, any such Holder as direct
or indirect security for the payment or performance of any Debt,
liability or obligation of the Company or of any other Person
secondarily or otherwise liable for any Debt, liability or obligation
of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company
against any other Person secondarily or otherwise liable for any
Debt, liability or obligation of the Company on the Notes.
Each Guarantor hereby ratifies and confirms any such extension,
renewal, change, sale, release, waiver, surrender, exchange, modification,
amendment, impairment, substitution, settlement, adjustment or compromise and
that the same shall be binding upon it, and hereby waives, to the fullest extent
permitted by law, any and all defenses, counterclaims or offsets which it might
or could have by reason thereof, it being understood that such Guarantor shall
at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by
law:
(1) notice of acceptance of this Guaranty by the Holders or of the
creation, renewal or accrual of any liability of the Company, present
or future, or of the reliance of such Holders upon this Guaranty (it
being understood that every Debt, liability and
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obligation described in Section 2 hereof shall conclusively be
presumed to have been created, contracted or incurred in reliance upon
the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other
Person indebted in any manner on or for any of the Debt, liabilities
or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person
of the Notes or any other instrument, protest thereof and notice of
its dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights
of any Holder to enforce such obligations by any proceedings, whether by action
at law, suit in equity or otherwise, shall not be subject to any reduction,
limitation, impairment or termination, whether by reason of any claim of any
character whatsoever or otherwise and shall not be subject to any defense,
set-off, counterclaim (other than any compulsory counterclaim), recoupment or
termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding
upon the Guarantors and their successors and assigns, and shall remain in full
force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the
Notes, the Note Agreement or any other agreement or any of the terms
of any thereof; the continuance of any obligation on the part of the
Company or any other Person on or in respect of the Notes or under the
Note Agreement or any other agreement or the power or authority or the
lack of power or authority of the Company to issue the Notes or the
Company to execute and deliver the Note Agreement or any other
agreement or of any Guarantor to execute and deliver this Guaranty or
to perform any of its obligations hereunder or the existence or
continuance of the Company or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the
performance by the Company, any Guarantor or any other Person of any
obligations of any kind or character whatsoever under the Notes, the
Note Agreement, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company, any Guarantor or any other
Person or in respect of the property of the Company, any Guarantor or
any other Person or any merger, consolidation, reorganization,
dissolution, liquidation, the sale of all or substantially all of the
assets of or winding up of the Company, any Guarantor or any other
Person; or
(4) impossibility or illegality of performance on the part of the
Company, any Guarantor or any other Person of its obligations under
the Notes, the Note Agreement, this Guaranty or any other agreements;
or
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(5) in respect of the Company or any other Person, any
change of circumstances, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion, accident, labor
disturbance, floods, droughts, embargoes, wars (whether or not
declared), civil commotion, acts of God or the public enemy, delays or
failure of suppliers or carriers, inability to obtain materials, action
of any Federal or state regulatory body or agency, change of law or any
other causes affecting performance, or any other force majeure, whether
or not beyond the control of the Company or any other Person and
whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason, similar
or dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, Debt,
obligations or liabilities of any character, foreseen or unforeseen,
and whether or not valid, incurred by or against the Company, any
Guarantor or any other Person or any claims, demands, charges or Liens
of any nature, foreseen or unforeseen, incurred by the Company, any
Guarantor or any other Person, or against any sums payable in respect
of the Notes or under the Note Agreement or this Guaranty, so that such
sums would be rendered inadequate or would be unavailable to make the
payments herein provided; or
(7) any order, judgment, decree, ruling or regulation
(whether or not valid) of any court of any nation or of any political
subdivision thereof or any body, agency, department, official or
administrative or regulatory agency of any thereof or any other action,
happening, event or reason whatsoever which shall delay, interfere
with, hinder or prevent, or in any way adversely affect, the
performance by the Company, any Guarantor or any other Person of its
respective obligations under or in respect of the Notes, the Note
Agreement, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from
or as a result of its execution, delivery and performance of this
Guaranty; or
(9) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, any failure to
give notice to any Guarantor of failure of the Company, any Guarantor
or any other Person to keep and perform any obligation, covenant or
agreement under the terms of the Notes, the Note Agreement, this
Guaranty or any other agreement or failure to resort for payment to the
Company, any Guarantor or to any other Person or to any other guaranty
or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other
guaranty, the advance of additional money to the Company or any other
Person, the renewal or extension of the Notes or amendments,
modifications, consents or waivers with respect to the Notes, the Note
Agreement or any other agreement, or the sale, release, substitution or
exchange of any security for the Notes; or
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(11) any merger or consolidation of the Company, any
Guarantor or any other Person into or with any other Person or any
sale, lease, transfer or other disposition of any of the assets of the
Company, any Guarantor or any other Person to any other Person, or any
change in the ownership of any shares of the Company, any Guarantor or
any other Person; or
(12) any defense whatsoever that: (i) the Company or
any other Person might have to the payment of the Notes (principal,
premium, if any, or interest), other than payment thereof in Federal
or other immediately available funds or (ii) the Company or any other
Person might have to the performance or observance of any of the
provisions of the Notes, the Note Agreement or any other agreement,
whether through the satisfaction or purported satisfaction by the
Company or any other Person of its debts due to any cause such as
bankruptcy, insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the
Note Agreement, this Guaranty or any other agreement or anything which
might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, any Guarantor or
any other Person in respect of the obligations of any Guarantor or
other Person under this Guaranty or any other agreement;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty and the parties hereto that the obligations of each Guarantor shall be
absolute and unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, premium, if any, and interest on the
Notes in accordance with their respective terms whenever the same shall become
due and payable as in the Notes provided, at the place specified in and all in
the manner and with the effect provided in the Notes and the Note Agreement, as
each may be amended or modified from time to time. Without limiting the
foregoing, it is understood that repeated and successive demands may be made and
recoveries may be had hereunder as and when, from time to time, the Company
shall default under or in respect of the terms of the Notes or the Note
Agreement and that notwithstanding recovery hereunder for or in respect of any
given default or defaults by the Company under the Notes or the Note Agreement,
this Guaranty shall remain in full force and effect and shall apply to each and
every subsequent default.
(d) All rights of any Holder may be transferred or assigned at
any time and shall be considered to be transferred or assigned at any time or
from time to time upon the transfer of such Note whether with or without the
consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the
Guarantors shall be subrogated to the rights of the Holder or Holders upon whose
Notes such payment was made, but each Guarantor covenants and agrees that such
right of subrogation shall be junior and
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subordinate in right of payment to the prior indefeasible final payment in cash
in full of all amounts due and owing by the Company with respect to the Notes
and the Note Agreement and by the Guarantors under this Guaranty, and the
Guarantors shall not take any action to enforce such right of subrogation, and
the Guarantors shall not accept any payment in respect of such right of
subrogation, until all amounts due and owing by the Company under or in respect
of the Notes and the Note Agreement and all amounts due and owing by the
Guarantors hereunder have indefeasibly been finally paid in cash in full. If any
amount shall be paid to any Guarantor in violation of the preceding sentence at
any time prior to the later of the indefeasible payment in cash in full of the
Notes and all other amounts payable under the Notes, the Note Agreement and this
Guaranty, such amount shall be held in trust for the benefit of the Holders and
shall forthwith be paid to the Holders to be credited and applied to the amounts
due or to become due with respect to the Notes and all other amounts payable
under the Note Agreement and this Guaranty, whether matured or unmatured.
(f) Each Guarantor agrees that to the extent the Company or any other
Person makes any payment on any Note, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential, set
aside, recovered, rescinded or is required to be retained by or repaid to a
trustee, receiver, or any other Person under any bankruptcy code, common law, or
equitable cause, then and to the extent of such payment, the obligation or the
part thereof intended to be satisfied shall be revived and continued in full
force and effect with respect to the Guarantors' obligations hereunder, as if
said payment had not been made. The liability of the Guarantors hereunder shall
not be reduced or discharged, in whole or in part, by any payment to any Holder
from any source that is thereafter paid, returned or refunded in whole or in
part by reason of the assertion of a claim of any kind relating thereto,
including, but not limited to, any claim for breach of contract, breach of
warranty, preference, illegality, invalidity or fraud asserted by any account
debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to marshall any assets
in favor of the Guarantors or in payment of any or all of the liabilities of the
Company under or in respect of the Notes or the obligations of the Guarantors
hereunder or (2) to pursue any other remedy that the Guarantors may or may not
be able to pursue themselves and that may lighten the Guarantors' burden, any
right to which each Guarantor hereby expressly waives.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.
Each Guarantor represents and warrants to each Holder that:
(a) Such Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on (1) the
business, operations, affairs, financial condition, assets, properties or
prospects of such Guarantor and its subsidiaries, taken as a whole, or (2) the
ability of such Guarantor to perform its obligations under this Guaranty or (3)
the validity or enforceability of this Guaranty (herein in this Section 5, a
"Material Adverse
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Effect"). Such Guarantor has the power and authority to own or hold under lease
the properties it purports to own or hold under lease, to transact the business
it transacts and proposes to transact, to execute and deliver this Guaranty and
to perform the provisions hereof.
(b) Each subsidiary of such Guarantor is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, and is duly qualified as a foreign corporation
or other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each
subsidiary of such Guarantor has the power and authority to own or hold under
lease the properties it purports to own or hold under lease and to transact the
business it transacts and proposes to transact.
(c) This Guaranty has been duly authorized by all necessary action on
the part of such Guarantor, and this Guaranty constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as such enforceability may be limited by (1)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(d) This Guaranty, the documents, certificates or other writings
identified in Schedule 5.3 to the Note Agreement and the financial statements
listed in Schedule 5.5 to the Note Agreement, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Except as disclosed in the Memorandum
or as expressly described in Schedule 5.3 to the Note Agreement, or in one of
the documents, certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5 to the Note Agreement, since
December 31, 2000, there has been no adverse Material (as hereinafter defined)
change in the financial condition, operations, business, properties or prospects
of such Guarantor or any of its subsidiaries, taken as a whole.
(e) The execution, delivery and performance by such Guarantor of this
Guaranty will not (1) contravene, result in any breach of; or constitute a
default under, or result in the creation of any Lien in respect of any property
of such Guarantor or any of its subsidiaries under any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, charter document or by-law,
or any other agreement or instrument to which such Guarantor or any of its
subsidiaries is bound or by which such Guarantor or any of its subsidiaries or
any of their respective -properties may be bound or affected, (2) conflict with
or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to such Guarantor or any of its subsidiaries or (3) violate
any provision of any statute or other rule or regulation of any Governmental
Authority applicable to such Guarantor or any of its subsidiaries.
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(f) No consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority is required in connection with
the execution, delivery or performance by such Guarantor of this Guaranty.
(g) (1) Except as disclosed in Schedule 5.8 to the Note Agreement,
there are no actions, suits or proceedings pending or, to the knowledge of such
Guarantor, threatened against or affecting such Guarantor or any of its
subsidiaries or any property of such Guarantor or any of its subsidiaries in any
court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(2) Neither such Guarantor nor any of its subsidiaries is in
default under any term of any agreement or instrument to which it is a party or
by which it is bound, or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of any applicable law,
ordinance, Rule or regulation (including without limitation Environmental Laws)
of any Governmental Authority, which default or violation, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
(h) Such Guarantor and its subsidiaries have filed all income tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and
assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any
taxes and assessments (1) the amount of which is not individually or in the
aggregate material to the business, operations, affairs, financial condition,
assets, properties or prospects of such Guarantor and its subsidiaries taken as
a whole (herein in this Section 5, "Material") or (2) the amount, applicability
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which such Guarantor or one of its subsidiaries,
as the case may be, has established adequate reserves in accordance with GAAP.
Such Guarantor knows of no basis for any other tax or assessment that could
reasonably be expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of such Guarantor and its subsidiaries in respect of
Federal, state or other taxes for all fiscal periods are adequate. The Federal
income tax liabilities of such Guarantor and its subsidiaries have been
determined by the Internal Revenue Service up to and including the fiscal year
ended December 31, 1991 and the Federal income tax liabilities of such Guarantor
and its subsidiaries have been paid for all fiscal years up to and including the
fiscal year ended December 31, 1999.
(i) Such Guarantor and its subsidiaries have good and sufficient title
to their respective properties that individually or in the aggregate are
Material, including all such properties reflected in the most recent audited
balance sheet referred to in Section 5.5 of the Note Agreement or purported to
have been acquired by such Guarantor or any of its subsidiaries after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by the Note Agreement. All leases
that individually or in the aggregate are Material are valid and subsisting and
are in full force and effect in all material respects.
(j) Except as disclosed in Schedule 5.11 to the Note Agreement,
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(1) such Guarantor and its subsidiaries own or possess
all Material licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto;
(2) to the best knowledge of such Guarantor, no product of
such Guarantor or any of its subsidiaries infringes in any material respect any
license, permit, franchise, authorization, patent, copyright, service mark,
trademark, trade name or other right with respect thereto owned by any other
Person; and
(3) to the best knowledge of such Guarantor, there is no
Material violation by any Person of any right of such Guarantor or any of its
subsidiaries with respect to any patent, copyright, service mark, trademark,
trade name or other right with respect thereto owned or used by such Guarantor
or any of its subsidiaries.
(k) (1) Such Guarantor and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws in all material
respects. Neither such Guarantor nor any ERISA Affiliate has incurred any
Material liability pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans (as defined in
Section 3 of ERISA), and no event, transaction or condition has occurred or
exists that could reasonably be expected to result in the incurrence of any such
Material liability by such Guarantor or any ERISA Affiliate, or in the
imposition of any Material Lien on any of the rights, properties or assets of
such Guarantor or any ERISA Affiliate, in either case pursuant to Title I or IV
of ERISA or to such penalty or excise tax provisions or to Section 401(a)(29) or
412 of the Code.
(2) The present value of the aggregate benefit liabilities under
each of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities by more than $5,000,000 in the
aggregate for all Plans. The term "benefit liabilities" has the meaning
specified in Section 4001 of ERISA and the terms "current value" and "present
value" have the meanings specified in Section 3 of ERISA.
(3) Such Guarantor and its ERISA Affiliates have not incurred
Material withdrawal liabilities (and are not subject to Material contingent
withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of
Multiemployer Plans.
(4) The expected postretirement benefit obligation (determined as
of the last day of such Guarantor's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No. 106, without
regard to liabilities attributable to continuation coverage mandated by Section
4980B of the Code) of such Guarantor and its subsidiaries is not Material.
(5) The execution and delivery of this Guaranty will not involve
any transaction that is subject to the prohibitions of Section 406 of ERISA or
in connection with
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which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code.
The representation by such Guarantor in the first sentence of this Section
5(k)(5) is made in reliance upon and subject to the accuracy of each Holder's
representation in Section 6.2 of the Note Agreement as to the source of the
funds to be used to pay the purchase price of the Notes to be purchased by such
Holder.
(l) Neither such Guarantor nor any of its subsidiaries is an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, or is subject to regulation under
the Public Utility Holding Company Act of 1935, as amended, the ICC Termination
Act of 1995, as amended, or the Federal Power Act, as amended.
(m) Neither such Guarantor nor any of its subsidiaries has knowledge of
any Material claim or has received any notice of any Material claim, and no
proceeding has been instituted raising any Material claim against such Guarantor
or any of its subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets, alleging any
damage to the environment or violation of any Environmental Laws. Except as
otherwise disclosed in Schedule 5.18 to the Note Agreement:
(1) neither such Guarantor nor any of its subsidiaries has
knowledge of any facts which would give rise to any Material claim,
public or private, or Material violation of Environmental Laws or
damage to the environment emanating from, occurring on or in any way
related to real properties now or formerly owned, leased or operated
by any of them or to other assets or their use;
(2) neither the Company nor any of its subsidiaries (i) has stored
any Hazardous Materials on real properties now or formerly owned,
leased or operated by any of them or (ii) has disposed of any
Hazardous Materials in a manner contrary to any Environmental Laws; in
each case in any manner that could reasonably be expected to result in
a Material Adverse Effect; and
(3) all buildings on all real properties now owned, leased or
operated by such Guarantor or any of its subsidiaries are in material
compliance with applicable Environmental Laws.
(n) Such Guarantor, when viewed on a consolidated basis with the
Company and its other Subsidiaries, is solvent, has capital not unreasonably
small in relation to its business or any contemplated or undertaken transaction
and has assets having a value both at fair valuation and at present fair salable
value greater than the amount required to pay its debts as they become due and
greater than the amount that will be required to pay its probable liability on
its existing debts as they become absolute and matured. Such Guarantor does not
intend to incur, or believe or should have believed that it will incur, debts
beyond its ability to pay such debts as they become due. Such Guarantor, when
viewed on a consolidated basis with the Company and its other Subsidiaries, will
not be rendered insolvent by the execution and delivery of' and performance of
its obligations under, this Guaranty. Such Guarantor does not intend to hinder,
delay or defraud its creditors by or through the execution and delivery of' or
performance of its obligations under, this Guaranty.
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SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS.
(a) This Guaranty may be amended, and the observance of any term hereof
may be waived (either retroactively or prospectively), with (and only with) the
written consent of each Guarantor and the Required Holders, except that (1) no
amendment or waiver of any of the provisions of Sections 3, 4 or 5, or any
defined term (as it is used therein), will be effective as to any Holder unless
consented to by such Holder in writing, and (2) no such amendment or waiver may,
without the written consent of each Holder, (i) change the percentage of the
principal amount of the Notes the Holders of which are required to consent to
any such amendment or waiver, or (ii) amend Section 2 or this Section 6.
(b) The Guarantors will provide each Holder (irrespective of the amount
of Notes then owned by it) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such Holder to make an
informed and considered decision with respect to any proposed amendment, waiver
or consent in respect of any of the provisions hereof. The Guarantors will
deliver executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 6 to each Holder promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of; the requisite Holders.
(c) The Company will not directly or indirectly pay or cause to be paid
any remuneration, whether by way of fee or otherwise, or grant any security, to
any Holder as consideration for or as an inducement to the entering into by any
Holder of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each Holder even if such Holder did not
consent to such waiver or amendment.
(d) Any amendment or waiver consented to as provided in this Section 6
applies equally to all Holders and is binding upon them and upon each future
holder and upon the Guarantors. No such amendment or waiver will extend to or
affect any obligation, covenant or agreement not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Guarantors
and any Holder nor any delay in exercising any rights hereunder shall operate as
a waiver of any rights of any Holder. As used herein, the term "this Guaranty"
and references thereto shall mean this Guaranty as it may from time to time be
amended or supplemented.
(e) Solely for the purpose of determining whether the Holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Guaranty, Notes directly or indirectly owned by any Guarantor, the Company or
any of their respective subsidiaries or Affiliates shall be deemed not to be
outstanding.
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SECTION 7. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid) or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(1) if to an Initial Note Purchaser or such Initial
Note Purchaser's nominee, to such initial Note Purchaser or such
Initial Note Purchaser's nominee at the address specified for such
communications below such Initial Note Purchaser's signature at the
foot of the Note Agreement, or at such other address as such Initial
Note Purchaser or such Initial Note Purchaser's nominee shall have
specified to any Guarantor or the Company in writing,
(2) if to any other Holder, to such Holder at such address
as such Holder shall have specified to any Guarantor or the Company in
writing, or
(3) if to any Guarantor, to such Guarantor c/o the
Company at its address set forth at the beginning of the Note
Agreement to the attention of Chief Financial Officer, or at such
other address as such Guarantor shall have specified to the Holders in
writing.
Notices under this Section 7 will be deemed given only when actually received.
SECTION 8. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. in
order to entitle any Holder to exercise any remedy reserved to it under the
Guaranty, it shall not be necessary for such Holder to physically produce its
Note in any proceedings instituted by it or to give any notice, other than such
notice as may be herein expressly required.
(b) The Guarantors will pay all sums becoming due under this Guaranty
by the method and at the address specified for such purpose below each Holder's
signature at the foot of the Note Agreement, or by such other method or at such
other address as any Holder shall have from time to time specified to the
Guarantors in writing for such purpose, without the presentation or surrender of
this Guaranty or any Note.
(c) Any provision of this Guaranty that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or
E-2-13
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unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or hereafter
become unenforceable against any one or more of the Guarantors for any reason
whatsoever or if it is not executed by any one or more of the Guarantors, this
Guaranty shall nevertheless be and remain fully binding upon and enforceable
against each other Guarantor as if it had been made and delivered only by such
other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of each Holder and its
successors and assigns so long as its Notes remain outstanding and unpaid.
(f) This Guaranty may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
(g) This Guaranty shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the law of the State of
Illinois excluding choice-of-law principles of the law of such State that would
require the application of the laws of a jurisdiction other than such State.
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
duly executed by an authorized representative as of this ______ day of May,
2001.
GRANITE CONSTRUCTION COMPANY
By _______________________________
Its
By _______________________________
Its
WILCOTT CORPORATION
By _______________________________
Its
By _______________________________
Its
GRANITE LAND COMPANY
By _______________________________
Its
By _______________________________
Its
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GRANITE SR 91 CORPORATION
By _______________________________
Its
By _______________________________
Its
INTERMOUNTAIN SLURRY SEAL, INC.
By _______________________________
Its
POZZOLAN PRODUCTS COMPANY
By _______________________________
Its
GILC INCORPORATED
By _______________________________
Its
By _______________________________
Its
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GRANITE SR 91, L.P.
By: Granite SR 91 Corporation, its sole
General Partner
By _______________________________
Its
By _______________________________
Its
GILC, L.P.
By: GILC Incorporated, its sole General
Partner
By _______________________________
Its
By _______________________________
Its
G.G.&R., INC.
By _______________________________
Its
By _______________________________
Its
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107
GTC, INC.
By _______________________________
Its
By _______________________________
Its
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108
SUBSIDIARY GUARANTY SUPPLEMENT
To the Holders of the 6.96% Senior Notes
due May 1, 2013
of Granite Construction Incorporated
(the "Company")
Ladies and Gentlemen:
WHEREAS, in order to refinance existing indebtedness and for general
corporate purposes, the Company issued its 6.96% Senior Notes due May 1, 3013 in
the aggregate principal amount of $75,000,000 (the "Notes") pursuant to that
certain Note Purchase Agreement dated as of May 1, 2001 (the "Note Agreement")
between the Company and each of the purchasers named on Schedule A attached to
said Note Agreement (the "Initial Note Purchasers").
WHEREAS, as a condition precedent to their purchase of the Notes, the
Initial Note Purchasers required that certain from time to time subsidiaries of
the Company enter into a Subsidiary Guaranty Agreement as security for the Notes
(the "Subsidiary Guaranty").
Pursuant to Section 9.6 of the Note Agreement, the Company has agreed
to cause the undersigned, _____________, a corporation organized under the laws
of ________________ (the "Additional Guarantor"), to join in the Subsidiary
Guaranty. In accordance with the requirements of the Subsidiary Guaranty, the
Additional Guarantor desires to amend the definition of Guarantor (as the same
may have been heretofore amended) set forth in the Subsidiary Guaranty attached
hereto so that at all times from and after the date hereof, the Additional
Guarantor shall be jointly and severally liable as set forth in the Subsidiary
Guaranty for the obligations of the Company under the Note Agreement and Notes
to the extent and in the manner set forth in the Subsidiary Guaranty.
The undersigned is the duly elected ______________ of the Additional
Guarantor, a subsidiary of the Company, and is duly authorized to execute and
deliver this Guaranty Supplement to each of you. The execution by the
undersigned of this Guaranty Supplement shall evidence its consent to and
acknowledgment and approval of the terms set forth herein and in the Subsidiary
Guaranty and by such execution the Additional Guarantor shall be
Exhibit A
(to Subsidiary Guaranty Agreement)
109
deemed to have made in favor of the Holders the representations and warranties
set forth in Section 5 of the Subsidiary Guaranty.
Upon execution of this Subsidiary Guaranty Supplement, the Subsidiary
Guaranty shall be deemed to be amended as set forth above. Except as amended
herein, the terms and provisions of the Subsidiary Guaranty are hereby ratified,
confirmed and approved in all respects.
Any and all notices, requests, certificates and other instruments
(including the Notes) may refer to the Subsidiary Guaranty without making
specific reference to this Subsidiary Guaranty Supplement, but nevertheless all
such references shall be deemed to include this Subsidiary Guaranty Supplement
unless the context shall otherwise require.
Dated: __________________, 20__.
[NAME OF ADDITIONAL GUARANTOR]
By _________________________________
Its
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110
Roxane C. Allbritton, Vice President/Treasurer
Jigisha Desai, Cash Manager
Michael D. Kevorkian, Treasury Analyst
Mary McCann-Jenni, Controller
Any individual transaction conforming to the policy set forth herein or, any
transaction of an Investment Manager not conforming to the respective Investment
Manager's policy shall be approved by one of the following officers or, any
transaction not conforming to the policy set forth herein must be approved by
any two of the following officers:
D. H. Watts W. E. Barton P. M. Costanzo
W. G. Dorey M. E. Boitano
DEALERS AND BANKS FOR TRADING
The following institutions are authorized dealers:
BA Securities
Lehman Brothers
Merrill Lynch
Salomon Smith Barney
All purchased investments will be delivered to Bank of New York for safekeeping
and paid for upon receipt.
SAFEKEEPING
The banks designated as safekeeping depositories in order of choice are:
Bank of America, Glendale, CA (Wentworth, Hauser & Violich)
Bank of New York (BNY Western Trust Company)
Each financial institution must provide timely confirmation/safekeeping receipts
on all investment transactions and provide monthly transaction reports.
ESCROW
Escrows in lieu of retention are allowed at the following:
Bank of America (formerly Nations Bank, Texas)*
Bank One, Arizona*
Comerica Bank*
First Union Bank of North Carolina*
Merrill Lynch Trust Company
Nevada Highway Fund (State of Nevada Treasury)*
SunTrust Bank, Georgia*
Union Bank of California
US Trust of California
Zions Bank, Utah* *Required by Owner
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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. *Required by
Owner. Banks not listed, but required by escrow agreement, will also be
acceptable.
REPORTING
- - Daily - An investment transaction sheet, sequentially numbered will be
processed for approval by an authorized offer.
- - Weekly and Monthly - A portfolio will be provided to the President, Chief
Operating Officer, Chief Financial Officer and all traders.
- - Monthly - The fixed income portfolio will be monitored against the
performance of Merrill Lynch U.S. Domestic Master 1-3 years index.
- - For FASB 115 purposes, the Corporation classifies all fixed income
investments as "Held to Maturity."
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GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
FOR WORKING CAPITAL PORTFOLIO
EFFECTIVE: JANUARY 1, 2001
- --------------------------------------------------------------------------------------------------
ELIGIBLE INVESTMENTS MINIMUM CREDIT QUALITY CONCENTRATION CONCENTRATION BY
BY PORTFOLIO
ISSUER
- --------------------------------------------------------------------------------------------------
Obligations issued by U.S. N/A No Maximum No Maximum
Government limited to:
U.S. Treasury
Bills/Bonds/Notes
- --------------------------------------------------------------------------------------------------
Obligations of agencies of N/A $ 5,000,000 or 40%
the U.S. Government limited 10% of total
to: portfolio
(whichever is
Federal Farm Credit Bank greater)
Federal Home Loan Bank
Federal Home Loan Mortgage
Corp.
Federal National Mortgage
Association
Student Loan Marketing
Association
- --------------------------------------------------------------------------------------------------
Obligations collateralized Fully collateralized by $ 5,000,000 or 25%
by U.S. Government U.S. Gov't and Agency 10% of total
securities limited to: securities included in portfolio
these guidelines. (whichever is
Repurchase Agreements Collateral value plus greater)
Reverse Repurchase Agreements accrued interest must
exceed and be maintained
at level exceeding value
of agreement.
- --------------------------------------------------------------------------------------------------
Obligations issued by U.S. Limited to Top 25 U.S. $ 5,000,000 or 50%
owned domestic commercial Banks by deposit and 10% of total
banks limited to: assets. portfolio
Short-Term rating of (whichever is
Banker's Acceptance A-1/P-1, or greater)
Certificate of Deposit Long-Term rating of
AAA/NR or AA/Aa
(at the time of purchase)
- --------------------------------------------------------------------------------------------------
Obligations issued by U.S. Limited to Top 25 World $ 5,000,000 or 40%
bank subsidiaries of Non Banks by deposit and 10% of total
U.S. Bank limited to: assets. portfolio
Short-Term rating of (whichever is
Yankee Banker's Acceptance A-1/P-1, or greater)
Yankee Certificates of Long-Term rating of
Deposit AAA/NR or AA/Aa
(all securities U.S. dollar (at the time of purchase)
denominated)
- --------------------------------------------------------------------------------------------------
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113
GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
FOR WORKING CAPITAL PORTFOLIO
EFFECTIVE: JANUARY 1, 2001
- --------------------------------------------------------------------------------------------------
ELIGIBLE INVESTMENTS MINIMUM CREDIT QUALITY CONCENTRATION CONCENTRATION BY
BY PORTFOLIO
ISSUER
- --------------------------------------------------------------------------------------------------
Obligations of major U.S. Any TWO of three rating $5,000,000 or 10% 75%
corporations and U.S. services: of total
holding companies limited to: A-1/P-1/D-1 portfolio
S&P, Moody's, Duff & (whichever is
Commercial Paper Phelps greater)
(at the time of purchase)
Any split-rated of three $5,000,000 or 10% 30% of Overall
rating services: A1/P2, of Commercial Commercial Paper
A2/P1 Paper portfolio portfolio
S&P, Moody's, Duff & (whichever is or
Phelps greater) 22.5% of Total
(at the time of purchase) Portfolio
Must be publicly traded
Corporation
Must have at least $20B
in Market Capitalization
(at the time of purchase)
Any TWO of three rating $5,000,000 or 10% 20% of Overall
services: of Commercial Commercial Paper
A-2/P-2/D-2 S&P, Paper portfolio portfolio
Moody's, Duff & Phelps (whichever is or
Must be publicly traded greater) 15% of Total
Corporation Portfolio
Must have at least $20B
in Market Capitalization
(at the time of purchase)
Loan Participation Same as commercial paper $5,000,000 or 25%
Master Notes credit quality 10% of total
requirements portfolio
(whichever is
greater)
- --------------------------------------------------------------------------------------------------
Money Market Funds Any TWO of three rating $5,000,000 or 50%
services: AAAm/Aaa/AAA 10% of total
S&P, Moody's, Duff & portfolio
Phelps (whichever is
(at the time of purchase) greater)
- --------------------------------------------------------------------------------------------------
Tax-exempt investments S&P: A-1, AA or better, $5,000,000 or 25%
limited to: Sp-1 10% of total
AND portfolio
Commercial Paper Moody's: P-1, Aa or (whichever is
Floating Rate Put Bonds better, VMIG-1 greater)
Floating Rate Put Notes
Municipal Notes
Municipal Bonds
- --------------------------------------------------------------------------------------------------
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GRANITE CONSTRUCTION INCORPORATED
INVESTMENT POLICY GUIDELINES
FOR HIGH-YIELD PORTFOLIO
EFFECTIVE: FEBRUARY 1, 2001
STATEMENT OF PURPOSE
Cash is the major source of working capital for the present and future
operations of Granite. Managing the cash to ensure the liquidity necessary to
meet Granite's business needs is of paramount importance. Any cash balances
above those necessary for day-to-day working capital requirements are available
for longer-term investments. These investments can be held for a longer interval
to enhance the portfolio yield, and add diversification, without loosing sight
of capital preservation within this policy's guidelines.
INVESTMENT OBJECTIVES
The investment objective of this portfolio is to seek consistency of investment
return with emphasis on capital appreciation and secondarily capital
preservation with a goal of either equaling or exceeding the Composite Policy
Index. The Composite Policy Index is defined, as an Index comprised of several
indices corresponding to the various mutual funds being used in this portfolio
as per the asset allocation study. Therefore, the investment objectives are:
- Investment Return: Optimize the investment returns within the
constraints of this policy.
- Safety: Emphasize preservation of capital assets over economic
business cycles.
- Diversification:
- Provide investments in mutual fund companies that have
sufficient number of funds with different investment
characteristics.
- Select funds from mutual fund companies that provide a
balanced investment approach that can be diversified among the
major assets classes and will provide sufficiently varied
risk/return characteristics (see Exhibit A).
PERFORMANCE MEASUREMENT GUIDELINES
Normally, investment performance should be judged over a complete economic cycle
(typically 3 to 5 years). Since short-term results are not usually meaningful,
true investment success will be looked at as a long-term proposition. To
accomplish this, the performance measurement guidelines are:
- - To manage the concentration in any one class of mutual funds, the
portfolio will be invested based on an asset allocation study prepared by
an outside investment advisory firm and managed accordingly. Periodically,
the Composite Policy Index will be modified to coincide to the most recent
asset allocation study.
- - To invest in funds that will have ratings from Morningstar of 3, 4, or 5
and will be comparable in performance to the respective indices, e.g.
growth fund index, growth and income index, etc. (see Exhibit B)
- - To determine if the investment guidelines are being followed, a review of
fund performance will be prepared each quarter by an outside investment
advisory firm. The review will take into consideration overall economic
conditions as well as the risk and return objectives of these guidelines.
MARKETABILITY
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115
Investments should be of sufficient size and be held in issues, which are traded
actively to facilitate transactions at minimum cost and accurate market
valuations.
TRADING
The following individuals are authorized traders:
Roxane C. Allbritton, Vice President/Treasurer
Jigisha Desai, Cash Manager
Michael D. Kevorkian, Treasury Analyst
Mary McCann-Jenni, Controller
Any individual transaction conforming to the policy set forth herein shall be
approved by one of the following officers or, any transaction not conforming to
the policy set forth herein must be approved by any two of the following
officers:
D. H. Watts W. E. Barton P.M. Costanzo
W. G. Dorey M. E. Boitano
MUTUAL FUNDS
The following mutual funds are authorized:
Franklin Small Cap Fund
Loomis Sayles
Pimco Bond Fund
Putnam Mutual Funds
All purchased investments will be delivered to the custodian bank for
safekeeping and paid for upon receipt.
SAFEKEEPING
The institutions designated as a safekeeping depository are:
Fleet Bank
Merrill Lynch
The custodian bank must provide timely confirmation/safekeeping receipts on all
investment transactions and provide monthly transaction reports.
REPORTING
- Daily - Upon a settlement of trade, an investment transaction sheet,
sequentially numbered will be processed for approval by an
authorized officer.
- Monthly and quarterly - Financial reporting requirements for GAAP.
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116
- Monthly - The mutual fund portfolio will be evaluated based on a
unit-based performance analysis and will be distributed to the
President, Chief Operating Officer, Chief Financial Officer and all
traders.
- Quarterly - A risk-adjusted performance analysis and a composite
policy index analysis of funds will be prepared by an outside
advisory firm.
- Quarterly - An asset allocation status, indicating out of balance
funds rebalancing (if any) that is required.
- An outside firm will do an asset allocation study every three (3)
years.
- For FASB 115 purposed, the Corporation classifies mutual fund
investments as "Available for Sale."
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117
FORM OF OPINION OF GENERAL COUNSEL
TO THE COMPANY AND THE GUARANTORS
The closing opinion of Michael Futch, Esq., General Counsel for the
Company and the Guarantors, which is called for by Section 4.5(a) of the
Agreement, shall be dated the date of the Closing and addressed to each
Purchaser, shall be satisfactory in scope and form to each Purchaser and shall
be to the effect that:
1. The Company is duly licensed or qualified and is in good standing
as a foreign corporation in each jurisdiction in which the character of
the properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary.
2. Each Subsidiary which is not organized under the laws of the
State of California (the "Non-California Subsidiaries") is a corporation
or other business entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and is duly
licensed or qualified and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or the nature
of the business transacted by it makes such licensing or qualification.
3. The issuance and sale of the Notes and the execution, delivery
and performance by the Company of the Agreement 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 the Company pursuant to the provisions of any agreement or
other instrument to which the Company is a party or by which the Company
may be bound.
4. The execution, delivery and performance by each Guarantor of the
Guaranty Agreement 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 Guarantor
pursuant to the provisions of any agreement or other instrument to which
such Guarantor is a party or by which such Guarantor may be bound.
The opinion of Michael Futch, Esq., shall cover such other matters
relating to the sale of the Notes as any Purchaser may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers of
the Company and the Guarantors.
EXHIBIT 4.5(a)
(to Note Purchase Agreement)
118
FORM OF OPINION OF SPECIAL COUNSEL
TO THE COMPANY AND THE GUARANTORS
The closing opinion of Gray Cary Ware & Freidenrich, special counsel for
the Company and the Guarantors, which is called for by Section 4.5(b) of the
Agreement, shall be dated the date of the Closing and addressed to each
Purchaser, shall be satisfactory in scope and form to each Purchaser and shall
be to the effect that:
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
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 is in qualification as a foreign
corporation in California.
2. Each Subsidiary organized under the laws of the State of
California (the "California Subsidiaries") is a corporation or other
business entity duly organized, validly existing and in good standing
under the laws of the State of California. Each Subsidiary is duly
licensed or qualified and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or the nature
of the business transacted by it makes such licensing or qualification
necessary. All of the issued and outstanding shares of capital stock or
other equity interests of each Subsidiary have been duly issued, are fully
paid and non-assessable and are owned by the Company, by one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
3. The 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 contract of the
Company enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law).
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, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a
proceeding in equity or at law).
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 necessary in connection with the execution and
delivery by the Company of the Agreement or the Notes.
EXHIBIT 4.5(b)
(to Note Purchase Agreement)
119
6. The issuance and sale of the Notes and the execution, delivery
and performance by the Company of the Agreement 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 the Company pursuant to the provisions of the Certificate of
Incorporation or By-laws of the Company or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company may be bound.
7. Each Guarantor has the power and the authority to execute,
deliver and perform the Guaranty Agreement and has the full power and the
authority to conduct the activities in which it is now engaged.
8. The Guaranty Agreement has been duly authorized by all necessary
action on the part of each Guarantor, has been duly executed and delivered
by each Guarantor and constitutes the legal, valid and binding contract of
each Guarantor enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a
proceeding in equity or at law).
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 necessary in connection with the execution and
delivery by any Guarantor of the Guaranty Agreement.
10. The execution, delivery and performance by each Guarantor of the
Guaranty Agreement 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 Guarantor
pursuant to the provisions of the charter documents or by-laws of such
Guarantor or any agreement or other instrument known to such counsel 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 Agreement under the circumstances
contemplated by the Agreement do not, under existing law, require the
registration of the Notes or the Guaranty Agreement under the Securities
Act or the qualification of an indenture under the Trust Indenture Act of
1939, as amended.
The opinion of Gray Cary Ware & Freidenrich shall cover such other matters
relating to the sale of the Notes as any Purchaser may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers of
the Company and the Guarantors.
E-4.5(b)-2
120
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of Schiff Hardin & Waite, special counsel to the
Purchasers, called for by Section 4.5(c) of the Agreement, shall be dated the
date of the Closing and addressed to the Purchasers, shall be satisfactory in
form and substance to the Purchasers and shall be to the effect that:
1. The Company is a corporation, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
the corporate authority to execute and deliver the Agreement and to issue the
Notes.
2. The 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 contract of the Company
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary corporate
action on the part of the Company, and the Notes being delivered on the date
hereof 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, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Agreement do not, under existing law, require
the registration of the Notes under the Securities Act or the qualification of
an indenture under the Trust Indenture Act of 1939, as amended.
The opinion of Schiff Hardin & Waite shall also state that the opinions of
Michael Futch, Esq., and Gray Cary Ware & Freidenrich are satisfactory in scope
and form to Schiff Hardin & Waite and that, in their opinion, the Purchasers are
justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above, Schiff Hardin &
Waite may rely, as to matters referred to in paragraph 1, solely upon an
examination of the Certificate of Incorporation certified by, and a certificate
of good standing of the Company from, the Secretary of State of the State of
Delaware, the By-laws of the Company and the general business corporation law of
the State of Delaware. The opinion of Schiff Hardin & Waite is limited to the
laws of the State of Illinois, the general business corporation law of the State
of Delaware and the Federal laws of the United States.
With respect to matters of fact upon which such opinion is based, Schiff
Hardin & Waite may rely on appropriate certificates of public officials and
officers of the Company and upon representations of the Company and the
Purchasers delivered in connection with the issuance and sale of the Notes.
EXHIBIT 4.5(c)
(to Note Purchase Agreement)
121
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-1 May 14, 2001
$10,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to NATIONWIDE LIFE
INSURANCE COMPANY or registered assigns, the principal sum of TEN MILLION
DOLLARS on May 1, 2013 with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per
annum from the date hereof, payable semiannually, on the first day of May and
November in each year, commencing with the May 1 or November 1 next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by Bank of America from time to time in San
Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
122
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
123
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-2 May 14, 2001
$5,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to NATIONWIDE INDEMNITY
COMPANY or registered assigns, the principal sum of FIVE MILLION DOLLARS on May
1, 2013 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.96% per annum from
the date hereof, payable semiannually, on the first day of May and November in
each year, commencing with the May 1 or November 1 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.96% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in San Francisco, California as
its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
124
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
William E. Barton
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
R. C. Allbritton
Its Treasurer
-2-
125
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-3 May 14, 2001
$4,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY or registered assigns, the principal sum of FOUR MILLION
DOLLARS on May 1, 2013 with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per
annum from the date hereof, payable semiannually, on the first day of May and
November in each year, commencing with the May 1 or November 1 next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by Bank of America from time to time in San
Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the
126
purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
127
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-4 May 14, 2001
$3,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to NATIONWIDE MUTUAL
INSURANCE COMPANY or registered assigns, the principal sum of THREE MILLION
DOLLARS on May 1, 2013 with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per
annum from the date hereof, payable semiannually, on the first day of May and
November in each year, commencing with the May 1 or November 1 next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by Bank of America from time to time in San
Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
128
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
129
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-5 May 14, 2001
$3,300,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to CIG & CO. or registered
assigns, the principal sum of THREE MILLION THREE HUNDRED THOUSAND DOLLARS on
May 1, 2013 with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per annum
from the date hereof, payable semiannually, on the first day of May and November
in each year, commencing with the May 1 or November 1 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.96% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in San Francisco, California as
its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
130
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
131
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-6 May 14, 2001
$3,500,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to CIG & CO. or registered
assigns, the principal sum of THREE MILLION FIVE HUNDRED THOUSAND DOLLARS on May
1, 2013 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.96% per annum from
the date hereof, payable semiannually, on the first day of May and November in
each year, commencing with the May 1 or November 1 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.96% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in San Francisco, California as
its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
132
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
133
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-7 May 14, 2001
$1,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to CIG & CO. or registered
assigns, the principal sum of ONE MILLION DOLLARS on May 1, 2013 with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 6.96% per annum from the date hereof,
payable semiannually, on the first day of May and November in each year,
commencing with the May 1 or November 1 next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 8.96% or (ii) 2% over the rate of interest publicly announced by Bank of
America from time to time in San Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
134
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
135
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-8 May 14, 2001
$3,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to CIG & CO. or registered
assigns, the principal sum of THREE MILLION DOLLARS on May 1, 2013 with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 6.96% per annum from the date hereof,
payable semiannually, on the first day of May and November in each year,
commencing with the May 1 or November 1 next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 8.96% or (ii) 2% over the rate of interest publicly announced by Bank of
America from time to time in San Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
136
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
137
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-9 May 14, 2001
$1,200,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to CIG & CO. or registered
assigns, the principal sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS on May 1,
2013 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.96% per annum from
the date hereof, payable semiannually, on the first day of May and November in
each year, commencing with the May 1 or November 1 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.96% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in San Francisco, California as
its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
138
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
139
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-10 May 14, 2001
$10,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to CIG & CO. or registered
assigns, the principal sum of TEN MILLION DOLLARS on May 1, 2013 with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 6.96% per annum from the date hereof,
payable semiannually, on the first day of May and November in each year,
commencing with the May 1 or November 1 next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 8.96% or (ii) 2% over the rate of interest publicly announced by Bank of
America from time to time in San Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
140
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
141
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-11 May 14, 2001
$9,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to ALLSTATE LIFE INSURANCE
COMPANY or registered assigns, the principal sum of NINE MILLION DOLLARS on May
1, 2013 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.96% per annum from
the date hereof, payable semiannually, on the first day of May and November in
each year, commencing with the May 1 or November 1 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.96% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in San Francisco, California as
its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
142
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
143
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-12 May 14, 2001
$9,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to ALLSTATE LIFE INSURANCE
COMPANY OF NEW YORK or registered assigns, the principal sum of NINE MILLION
DOLLARS on May 1, 2013 with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per
annum from the date hereof, payable semiannually, on the first day of May and
November in each year, commencing with the May 1 or November 1 next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by Bank of America from time to time in San
Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the
144
purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
145
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-13 May 14, 2001
$6,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to UNITED OF OMAHA LIFE
INSURANCE COMPANY or registered assigns, the principal sum of SIX MILLION
DOLLARS on May 1, 2013 with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per
annum from the date hereof, payable semiannually, on the first day of May and
November in each year, commencing with the May 1 or November 1 next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by Bank of America from time to time in San
Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
146
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
147
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-14 May 14, 2001
$2,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to COMPANION LIFE
INSURANCE COMPANY or registered assigns, the principal sum of TWO MILLION
DOLLARS on May 1, 2013 with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96% per
annum from the date hereof, payable semiannually, on the first day of May and
November in each year, commencing with the May 1 or November 1 next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by Bank of America from time to time in San
Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
148
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-
149
GRANITE CONSTRUCTION INCORPORATED
6.96% Senior Note due May 1, 2013
No. R-15 May 14, 2001
$5,000,000 PPN 387328 A@ 6
FOR VALUE RECEIVED, the undersigned, GRANITE CONSTRUCTION INCORPORATED
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to LUTHERAN BROTHERHOOD or
registered assigns, the principal sum of FIVE MILLION DOLLARS on May 1, 2013
with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 6.96% per annum from the date
hereof, payable semiannually, on the first day of May and November in each year,
commencing with the May 1 or November 1 next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 8.96% or (ii) 2% over the rate of interest publicly announced by Bank of
America from time to time in San Francisco, California as its "reference" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to that certain Note Purchase Agreement, dated as of May 1, 2001
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and each of the respective Purchasers named therein and is entitled to
the benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement to the
extent provided in Section 13.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
150
This Note and the holders hereof are entitled equally and ratably with the
holders of all other Notes to the rights and benefits provided pursuant to the
terms and provisions of the Guaranty Agreement (as such term is defined in the
Note Purchase Agreement). Reference is hereby made to the Guaranty Agreement for
a statement of the nature and extent of the benefits and security for the Notes
afforded thereby and the rights of the holders of the Notes and the Company in
respect thereof.
The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, exists,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GRANITE CONSTRUCTION INCORPORATED
By /s/ WILLIAM E. BARTON
-------------------------------------
Its Senior Vice President
By /s/ R. C. ALLBRITTON
-------------------------------------
Its Treasurer
-2-