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EXHIBIT 10.3.b
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated
as of June 30, 1998, is entered into by and among GRANITE CONSTRUCTION
INCORPORATED, a Delaware corporation (the "Company"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Issuing Bank, and as agent for itself and the
Banks (in such capacity, the "Agent"), and the several financial institutions
party to the Credit Agreement (collectively, the "Banks").
RECITALS
A. The Company, the Banks, the Issuing Bank and the Agent are
parties to a Credit Agreement dated as of June 30, 1997, as amended by a First
Amendment to the Credit Agreement dated as of January 16, 1998 (as so amended,
the "Prior Credit Agreement"). The Prior Credit Agreement, as amended by this
Amendment, is herein referred to as the "Credit Agreement".
B. Pursuant to the Prior Credit Agreement, the Banks have extended
and are continuing to extend certain credit facilities to the Company.
C. The Company has requested that the Banks agree to certain
amendments of the Prior Credit Agreement.
D. The Banks are willing to amend the Prior Credit Agreement,
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 Prior
Credit Agreement.
2. Amendments to Prior Credit Agreement
(a) Section 1.01 of the Prior Credit Agreement shall be amended
by adding the following defined term in appropriate alphabetical order:
"Material Subsidiary" means any Subsidiary which
meets any 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
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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.
(b) Section 1.01 of the Prior Credit Agreement shall be amended
by adding the following defined term in appropriate alphabetical order:
"Non-Guarantor Subsidiary" has the meaning specified
in Section 2.14.
(c) Section 1.01 of the Prior Credit Agreement shall be amended
by amending and restating the defined term "Interest Payment Date" to read as
follows:
"Interest Payment Date" means, with respect to any CD Rate
Loan or Eurodollar Loan, the last Business Day of each
Interest Period applicable to such Loan and, with respect
to Reference Rate Loans, the last Business Day of each
calendar quarter and the date on which the final payment of
Revolving Loans is due hereunder, provided, however, that
if any Interest Period for a CD Rate Loan or Eurodollar
Rate Loan exceeds 90 days or three months, respectively,
"Interest Payment Date" with respect to such Loans shall
include the date which falls 90 days or three months after
the beginning of such Interest Period, respectively.
(d) Section 1.01 of the Prior Credit Agreement shall be amended
at the defined term "Interest Period" by deleting the date "June 30, 2002" in
clause (iii) thereof and inserting the phrase "the last Business Day of June,
2005" in lieu thereof.
(e) Section 1.01 of the Prior Credit Agreement shall be amended
by amending and restating the defined term "Revolving Termination Date" to read
as follows.
"Revolving Termination Date" means the earlier to occur of:
(a) June 30, 2000; 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.
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(f) Section 2.06 of the Prior Credit Agreement shall be
amended by amending and restating the fourth sentence thereof to read as
follows:
If such notice is given, the Company shall make such
prepayment and the payment amount specified in such
notice shall be due and payable on the date specified
therein, together with accrued interest to each such
date on the amount of Eurodollar Rate Loans prepaid and
the amounts required pursuant to Section 4.04.
(g) Subsection 2.07(b) of the Prior Credit Agreement
shall be amended and restated in its entirety to read 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 the last Business Day in December, 2000 (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 the last
Business Day of June and December of each year thereafter, through and
including the last Business Day of June, 2005 (as such date may be
extended pursuant to the terms of and subject to the conditions of
subsection 2.15(b)).
(h) Section 2.08 of the Prior Credit Agreement shall be
amended by amending and restating the second sentence thereof to read as
follows:
Interest shall also be payable on the date of any
payment or prepayment of Eurodollar Rate Loans pursuant
to Sections 2.06 and 2.07 for the portion of the
Eurodollar Rate Loans so prepaid and upon payment
(including prepayment) in full thereof and, after the
occurrence and during the continuance of any Event of
Default, interest shall be payable on demand.
(i) Subsection 2.09(b) of the Prior Credit Agreement
shall be amended by deleting the word "average" and inserting the word "actual"
in lieu thereof.
(j) Section 2.14 of the Prior Credit Agreement shall be
amended and restated in its entirety to read as follows:
2.14 Guaranty of Obligations. The
Obligations shall be jointly and severally guaranteed by the Guarantors pursuant
to one or more Guaranties. Promptly after the date that any Subsidiary or other
Person becomes a Material Subsidiary of the Company, and, in any event, within
ten Business Days following receipt by the Company from the Agent of a request
therefor, the Company will cause such Material Subsidiary to execute and deliver
to the Agent and the Banks a guaranty of the Obligations in substantially the
form of the Guaranty. In addition, promptly after any date that the total
revenues or total assets of all Subsidiaries which are not Guarantors (each, a
"Non-Guarantor Subsidiary") together exceed 20% of the total revenues or total
assets, as the case may be, of the Company and its Subsidiaries measured on a
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consolidated basis, and, in any event, within ten Business Days following
receipt by the Company from the Agent of a request therefor, the Company
will cause one or more Non-Guarantor Subsidiaries to execute and deliver
to the Agent and the Banks a guaranty or guarantees of the Obligations in
substantially the form of the Guaranty, such that after delivery of such
guaranty or guarantees, the total revenues or total assets of all
remaining Non-Guarantor Subsidiaries together are less than 20% of the
total revenues or total assets, as the case may be, of the Company and
its Subsidiaries measured on a consolidated basis. The Company shall in
each case deliver or cause to be delivered such other items as may be
reasonably requested by the Agent, at the request of any Bank, in
connection with the foregoing, including resolutions, incumbency and
officers certificates and opinions of counsel.
(k) Subsection 2.15(a) of the Prior Credit Agreement
shall be amended and restated in its entirety to read as follows:
(a) Not earlier than April 30, 1999 and
not later than April 28, 2000, and, if the Revolving Termination Date has
previously been extended pursuant to this Section 2.15, not earlier than the
April 30 of the year immediately prior to the year in which the Revolving
Termination Date then occurs, and not later than the April 30 of the year in
which the Revolving Termination Date then occurs, the Company may, at its
option, request that all the Banks extend the Revolving Termination Date by one
year by means of a letter, addressed to the Agent and each Bank, substantially
in the form of Exhibit I; provided, however, that notwithstanding the foregoing,
the Revolving Termination Date shall occur on the date that the Commitments
terminate pursuant to Section 9.02 or the Revolving Commitments are terminated
pursuant to Section 2.05. The Revolving Termination Date shall be extended by
one year if all of the Banks consent (in each Bank's sole and absolute
discretion) to such extension, such consent to be given by executing and
delivering to the Agent, no later than 15 Business Days after its receipt of
such letter, a counterpart of such letter; provided, that, if, one or more Banks
decline to consent to the extension of the Revolving Termination Date, any
Bank's consent to such extension shall be nullified, and the Revolving
Termination Date shall not be extended. If any Bank fails to execute and deliver
such letter on or before the expiration of the aforesaid 15 Business Day period,
such Bank shall be deemed to have declined to consent to extend the Revolving
Termination Date, and the Revolving Termination Date shall not be extended.
(1) Subsection 7.03(i) of the Prior Credit Agreement
shall be amended and restated in its entirety to read as follows:
(i) within three Business Days after
the date of such occurrence, if (A) any Person shall become a Subsidiary of the
Company, (B) any Subsidiary or other Person shall become a Material Subsidiary
of the Company, or (C) the total revenues or total assets of all Non-Guarantor
Subsidiaries shall at any time together exceed 20% of the total revenues or
total assets, as the case may be of the Company and its Subsidiaries measured on
a consolidated basis; and
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3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Banks as follows:
(a) Both before and after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the
Company of this Amendment and by the Guarantors of their acknowledgment and
consent to this Amendment have been duly authorized by all necessary corporate,
partnership 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 Approvals) in order to be effective and enforceable. Each of the
Prior Credit Agreement as amended by this Amendment, the Guaranty and the other
Loan Documents to which the Company or any of its Subsidiaries is a party
constitutes and continues to constitute the legal, valid and binding obligations
of the Company and such Subsidiary party thereto, enforceable against the
Company and such Subsidiaries in accordance with their respective terms, without
defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Prior Credit Agreement are true and correct and will be true
and correct on the Effective Date.
(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.
4. Effective Date. This Amendment will become effective the
date first above written (the "Effective Date"), provided that each of the
following conditions precedent is satisfied:
(a) The Agent has received in sufficient number for each
Bank, duly executed originals (or, if elected by the Agent, an executed
facsimile copy):
(i) of this Amendment, executed by the
Company and each of the Banks; and
(ii) of the Guarantors' Acknowledgment and
Consent in the form attached hereto,
executed by each Guarantor; and
(b) The Agent has received from the Company and each
Guarantor a copy of a resolution passed by the board of directors (or similar
governing body) of each such Person or its general partner, certified by the
Secretary or an Assistant Secretary of such corporation as being in full force
and effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment or the Guarantors' Acknowledgment and Consent, as
applicable.
5. 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
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create a course of dealing or otherwise obligate the Agent or
the Banks to execute similar amendments under the same or similar circumstances
in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Prior Credit Agreement are and shall remain in full force and
effect and all references therein and in the other Loan Documents to such Credit
Agreement shall henceforth refer to the Prior Credit Agreement as amended by
this Amendment. This Amendment shall be deemed incorporated into, and a part of,
the Credit Agreement. This Amendment is one of the Loan Documents.
(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.
(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 delivery 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 or any Guarantor shall bind such
Bank, the Company, or such Guarantor, 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
Prior Credit Agreement, respectively.
(g) Each of the provisions set forth in Article XI of the Prior
Credit Agreement is incorporated herein by this reference and made applicable to
this Amendment.
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(h) The Company covenants to pay to or reimburse the Agent,
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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
GRANITE CONSTRUCTION INCORPORATED
By: /s/ WILLIAM E. BARTON
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Title: William E. Barton
Vice President
By: /s/ R.C. ALLBRITTON
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Title: RC Allbritton
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ [SIG ILLEGIBLE]
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Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
and as Issuing Bank
By: /s/ [SIG ILLEGIBLE]
--------------------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ DEBRA WRIGHT
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Title: Debra Wright
Vice President
By: /s/ KATHERINE WOLFE
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Title: Katherine Wolfe
Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ DAVID TAYLOR
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Title: David E. Taylor
Vice President
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GUARANTORS' ACKNOWLEDGMENT AND CONSENT
Each of the undersigned Guarantors hereby acknowledges the foregoing
Second Amendment to Credit Agreement (the "Amendment"), consents (without
implying the need for any such acknowledgment or consent) to its terms, and
represents and warrants to the Agent and the Banks that, both before and after
giving effect to the Amendment, its Guaranty remains in full force and effect as
an enforceable obligation of the Guarantor, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affected the enforceability of creditor rights. Each Guarantor further
represents that the execution, delivery and performance by such Guarantor of
this Acknowledgment and Consent have been duly authorized by all necessary
corporate, partnership 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 Approvals) in order to be effective and enforceable.
Each Guarantor remakes as of the Effective Date (as defined in the Amendment)
all of the representations and warranties made by it pursuant to the Guaranty.
Capitalized terms used herein and not otherwise defined have the respective
meanings defined in the Credit Agreement (as defined in the Amendment).
IN WITNESS WHEREOF, each Guarantor has executed this Acknowledgment
and Consent by its duly authorized officers as of this 30th day of June, 1998.
GRANITE CONSTRUCTION COMPANY DESERT AGGREGATES, INC.
By: /s/ WILLIAM E. BARTON By: /s/ DAVID J. BRUNTON
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Name: William E. Barton Name: David J. Brunton
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Title: Vice President & CFO Title: CFO and Assistant Secretary
----------------------------- ---------------------------------
By: /s/ R.C. ALLBRITTON By: /s/ KATHLEEN KENAN
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Name: R.C. Allbritton Name: Kathleen Kenan
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Title: Vice President & Treasurer Title: Assistant Secretary
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GRANITE SR91 CORPORATION GG&R, INC.
By: /s/ DAVID H. WATTS By: /s/ DAVID H. WATTS
------------------------------- ----------------------------------
Name: David H. Watts Name: David H. Watts
----------------------------- ---------------------------------
Title: President & CEO Title: President & CEO
----------------------------- ---------------------------------
By: /s/ WILLIAM E. BARTON By: /s/ WILLIAM E. BARTON
------------------------------- ----------------------------------
Name: William E. Barton Name: William E. Barton
----------------------------- ---------------------------------
Title: Vice President & CFO Title: Vice President & CFO
----------------------------- ---------------------------------
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WILCOTT CORPORATION INTERMOUNTAIN SLURRY SEAL, INC.
By: /s/ DAVID H. WATTS By: /s/ DAVID J. BRUNTON
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Name: David H. Watts Name: David J. Brunton
----------------------------- ---------------------------------
Title: President & CEO Title: CFO & Assistant Secretary
----------------------------- ---------------------------------
By: /s/ WILLIAM E. BARTON By: /s/ KATHLEEN KENAN
------------------------------- ----------------------------------
Name: William E. Barton Name: Kathleen Kenan
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Title: Vice President & CFO Title: Assistant Secretary
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BEAR RIVER CONTRACTORS GILC, L.P.
By: GILC, INCORPORATED
sole general partner
By: /s/ DAVID J. BRUNTON By: /s/ WILLIAM E. BARTON
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Name: David J. Brunton Name: William E. Barton
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Title: Chief Financial Officer Title: President & CEO
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By: /s/ KATHLEEN KENAN By: /s/ R.C. ALLBRITTON
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Name: Kathleen Kenan Name: R.C. Allbritton
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Title: Assistant Secretary Title: Vice President& CFO
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POZZOLAN PRODUCTS COMPANY GRANITE SR91, L.P.
(P.P.C.) By: GRANITE SR91 CORPORATION
sole general partner
By: /s/ DAVID J. BRUNTON By: /s/ DAVID H. WATTS
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Name: David J. Brunton Name: David H. Watts
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Title: CEO & Assistant Secretary Title: President & CEO
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By: /s/ KATHLEEN KENAN By: /s/ WILLIAM E. BARTON
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Name: Kathleen Kenan Name: William E. Barton
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Title: Assistant Secretary Title: Vice President & CFO
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GILC INCORPORATED GTC, INC.
By: /s/ WILLIAM E. BARTON By: /s/ WILLIAM E. BARTON
------------------------------- ----------------------------------
Name: William E. Barton Name: William E. Barton
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Title: President & CEO Title: President & Treasurer
----------------------------- ---------------------------------
By: /s/ R.C. ALLBRITTON By: /s/ R.C. ALLBRITTON
------------------------------- ----------------------------------
Name: R.C. Allbritton Name: R.C. Allbritton
----------------------------- ---------------------------------
Title: Vice President & CEO Title: Vice President & Asst Secretary
----------------------------- ---------------------------------
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