1
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment"), dated as of May 31, 1996, effective on June 30, 1996, is
entered into by and among GRANITE CONSTRUCTION INCORPORATED the "Company", BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for itself and the
Banks (the "Agent"), and the several financial institutions party to the Credit
Agreement (collectively, the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Second Amended
and Restated Credit Agreement dated as of June 15, 1995 (the "Credit
Agreement") pursuant to which the Agent and the Banks have extended certain
credit facilities to the Company.
B. Pursuant to Section 2.15 of the Credit Agreement, the
Revolving Termination Date has been extended to June 30, 1998.
C. The Company has requested that the Banks agree to certain
amendments of the Credit Agreement.
D. The Banks are willing to amend the Credit Agreement including
a confirmation of the extension of the Revolving Termination Date and certain
related amendments, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any assigned to them in the
Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended
at the defined term "Applicable Margin" by amending and restating such defined
term in its entirety as follows:
"'Applicable Margin' means the per annum rates of interest
specified in the chart below:
28
2
Revolving Commitment
Term Revolving
Commitment Period Term Period
Reference Rate Loans +0% +0% +0%
Eurodollar Rate Loans +0.500% +0.500% +0.750%
CD Rate Loans +0.725% +0.625% +0.875%
Where:
'Revolving Period' means the period from the Closing Date to the
Revolving Termination Date; and
'Term Period' means the period from the Revolving Termination Date to
the date of the final semi-annual payment under Section 2.07(b)."
(b) Subsection 2.09(b) of the Credit Agreement shall be
amended and restated in its entirety as follows:
"(b) Commitment Fees. The Company shall pay to the Agent for
the account of each Bank a commitment fee on the average daily unused
portion of such Bank's Revolving Commitment equal to 0.250% per annum
from the Closing Date through June 30, 1996 and thereafter equal to
0.1875% per annum. Such commitment fee shall accrue from the Closing
Date to the Revolving Termination Date and shall be payable quarterly
in arrears on the last day of each calendar quarter commencing on June
30, 1995, and on the Revolving Termination Date. The Company shall
also pay, on June 30, 1995, to the Agent for the account of each Bank,
any unpaid commitment fees due and owing under subsection 2.09(b) of
the Original Credit Agreement through and including the Closing Date."
(c) Subsection 2.15(b) of the Credit Agreement shall be amended
and restated in its entirety as follows:
(b) In each instance that the Revolving Termination Date
shall have been extended pursuant to subsection (a) of this Section,
the date on which the first installment of principal is due under
clause (i) of subsection 2.07(b) shall be extended to the December 31
of the year in which the Revolving Termination Date (as so extended)
occurs (such December 31, the "First Principal Payment Date"), and the
date on which the last installment of principal is due under clause
(ii) of subsection 2.07(b) shall be extended to June 30 of the year
which is five years after the year in which the First Principal
Payment Date occurs."
29
3
(d) Subsection 3.08 of the Credit Agreement shall be amended and
restated in its entirety as follows:
"3.08 Letter of Credit Fees. The Company shall pay to the
Agent for the benefit of the Banks letter of credit fees equal to i)
0.550% per annum from the Closing Date through June 30, 1996 and
thereafter 0.500% per annum, in each case of the face amount of
outstanding Letters of Credit other than Retention Letters of Credit,
and (ii) 0.375% per annum from the Closing Date through June 30, 1996
and thereafter 0.325% per annum, in each case of the face amount of
outstanding Retention Letters of Credit. Such fees shall be payable
quarterly in arrears on the last day of each calendar quarter. The
Company shall pay BofA, in its capacity as Issuing Bank, a letter of
credit fronting fee in the amount and at the times as set forth in a
letter agreement between the Company and BofA, as Issuing Bank, dated
June 15, 1995, and shall pay any other Issuing Bank a letter of credit
fronting fee as agreed to from time to time by the Company and such
Issuing Bank."
3. Amendments to Credit Agreement Confirming Extension of
Revolving Termination Date. The following amendments confirm the extension of
the Revolving Termination Date pursuant to Section 2.15 as requested by the
Company's letter to the Agent dated as of April 30, 1996 and agreed to
previously by all the Banks.
(a) Section 1.01 of the Credit Agreement shall be amended
at the defined term "Revolving Termination Date" by amended and restating in
its entirety such defined term as follows:
"'Revolving Termination Date' means the earlier to occur of:
(a) June 30, 1998; and
(b) the date on which the Commitments shall
terminate in accordance with the provisions of this Agreement.
Subject to clause (b) of this definition, the term "Revolving
Termination Date" shall be deemed to refer to any such Revolving
Termination Date as extended from time to time pursuant to, and
subject to the conditions of, Section 2.15."
(b) Subsection 2.07(b) of the Credit Agreement shall be
amended and restated in its entirety as follows:
"(b) The Revolving Credit. The Company agrees to repay
the principal amount outstanding as of the Revolving Termination Date
of the Revolving Loans in ten equal semi annual installments (i)
beginning on December 31, 1998 (as such date may be extended pursuant
to the terms of and subject to the conditions of subsection 2.15(b)),
and (ii) thereafter on June 30 and December 31 of each year
thereafter,
30
4
through and including June 30, 2003 (as such date may be extended
pursuant to the terms of and subject to the conditions of subsection
2.15(b)).
4. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligations
of the Company, enforceable against it in accordance with its respective terms.
without defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Agent and the Banks or any other Person.
5. Effective Date. This Amendment will become effective on June
30, 1996 (the "Effective Date"), provided that the Agent has received from the
Company, each Guarantor, and each of the Banks a duly executed original (or, if
elected by the Agent, an executed facsimile copy) of this Amendment.
6. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Banks of this Amendment
shall not be deemed to create a course of dealing or otherwise obligate the
Agent or the Banks to execute or agree to similar amendments under the same or
similar circumstances in the future.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
31
5
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank or the Company shall bind such Bank or the
Company, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Agent to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document of the party whose
hard copy page was not received by the Agent.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This Amendment
supersedes all prior drafts and communications with respect thereto. This
Amendment may not be amended except in accordance with the provisions of
Section 11.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the
Agent and the Banks, upon demand, for all costs and expenses (including
allocated costs of in-house counsel) incurred in connection with the
development, preparation, negotiation, execution and delivery of this
Amendment.
32
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
GRANITE CONSTRUCTION INCORPORATED
By:
--------------------------------
Title: William E. Barton
--------------------------------
Vice President & Chief Financial
Officer
By:
--------------------------------
Title: R.C. Allbritton
--------------------------------
Vice President & Treasurer
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
As Agent
By:
----------------------------------
Title: Vice President
----------------------------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as a Bank and as Issuing Bank
By:
----------------------------------
Title: Vice President
----------------------------------
33
7
UNION BANK
a division of Union Bank of California, N.A.
By:
-----------------------------------------
Title: Vice President
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
BANQUE NATIONALE DE PARIS
By:
-----------------------------------------
Title: Katherine Wolfe
--------------------------------------
Vice President
By:
-----------------------------------------
Title: Debra Hermsmeyer
--------------------------------------
Vice President
ARN-ANRO BANK N.V.,
San Francisco International Branch
By:
-----------------------------------------
Title: Bradford H. Leahy
--------------------------------------
Officer
By:
-----------------------------------------
Title: Jeffrey A. French
--------------------------------------
Vice President
34
8
The following Guarantors acknowledge and consent to this Amendment, and agree
that their respective Guaranties remain in full force and effect.
GRANITE CONSTRUCTION COMPANY
By:
------------------------------
Title: William E. Barton
------------------------------
Vice President, Chief Financial Officer
By:
------------------------------
Title: R.C. Allbritton
------------------------------
Vice President, Treasurer
GRANITE SR9l CORPORATION
By:
------------------------------
Title: David H. Watts
------------------------------
President, Chief Executive Officer
By:
------------------------------
Title: William E. Barton
------------------------------
Vice President, Chief Financial Officer
WILCOTT CORPORATION
By:
------------------------------
Title: David H. Watts
------------------------------
President, Chief Executive Officer
------------------------------
By:
Title: William E. Barton
------------------------------
Vice President, Chief Financial Officer
------------------------------
DESERT AGGREGATES. INC.
By:
------------------------------
Title: William E. Barton
------------------------------
Authorized Representative
By:
------------------------------
Title: R.C. Allbritton
------------------------------
Authorized Representative
35
9
G.G. & R., Inc.
By:
------------------------------
Title: David H. Watts
----------------------
President
By:
------------------------------
Title: William E. Barton
----------------------
Vice President
GIBBONS AND REED COMPANY
By:
------------------------------
Title:
----------------------
By:
------------------------------
Title:
----------------------
INTERMOUNTAIN SLURRY SEAL, INC.
By:
------------------------------
Title: William E. Barton
----------------------
Authorized Representative
By:
------------------------------
Title: R.C. Allbritton
------------------------
Authorized Representative
BEAR RIVER CONTRACTORS
By:
------------------------------
Title: William E. Barton
----------------------
Authorized Representative
By:
------------------------------
Title: R.C. Allbritton
------------------------
Authorized Representative
36
10
POZZOLAN PRODUCTS COMPANY (P.P.C.)
By:
------------------------------
Title: William E. Barton
----------------------
Authorized Representative
By:
------------------------------
Title: R.C. Allbritton
------------------------
Authorized Representative
GILC INCORPORATED
By:
------------------------------
Title: William E. Barton
----------------------
Authorized Representative
By:
------------------------------
Title: R.C. Allbritton
------------------------
Authorized Representative
GILC, L.P.
By: GILC INCORPORATED
By:
------------------------------
Title: William E. Barton
----------------------
Authorized Representative
By:
------------------------------
Title: R.C. Allbritton
------------------------
Authorized Representative
GRANITE SR9l, L.P.
By: GRANITE SR9l CORPORATION
By:
------------------------------
Title: David H. Watts
----------------------
President, Chief Executive Officer
By:
------------------------------
Title: William E. Barton
----------------------
Vice President, Chief Financial Officer
37