First Amendment to Amended and Restated Note Purchase Agreement between Granite Construction Incorporated and Noteholders (June 15, 2003)
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Granite Construction Incorporated and its institutional noteholders have agreed to amend their existing Note Purchase Agreement for $60 million in 6.54% Senior Notes due March 15, 2010. The amendment clarifies when Wilder Construction Co. must guarantee the notes, adds a definition for Wilder, and confirms the company's representations and warranties. The amendment becomes effective once certain conditions are met, including execution by the required parties and payment of specified amounts and legal fees.
EX-10.3 5 f91753exv10w3.txt EXHIBIT 10.3 EXHIBIT 10.3 ================================================================================ GRANITE CONSTRUCTION INCORPORATED ---------------------------------- FIRST AMENDMENT Dated as of June 15, 2003 to AMENDED AND RESTATED NOTE PURCHASE AGREEMENT Dated as of November 1, 2001 ---------------------------- Re: $60,000,000 6.54% Senior Notes due March 15, 2010 ================================================================================ FIRST AMENDMENT TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT THIS FIRST AMENDMENT dated as of June 15, 2003 (the or this "First Amendment") to that certain Amended and Restated Note Purchase Agreement dated as of November 1, 2001 is between GRANITE CONSTRUCTION INCORPORATED, a Delaware corporation (the "Company"), and each of the institutional investors listed on the signature pages hereto (collectively, the "Noteholders") RECITALS: A. The Company and each of the Noteholders have heretofore entered into that certain Amended and Restated Note Purchase Agreement dated as of November 1, 2001 (the "Note Purchase Agreement"). The Company has heretofore issued $60,000,000 aggregate principal amount of its 6.54% Senior Notes due March 15, 2010 (the "Notes"} pursuant to the Note Purchase Agreement. The Noteholders are the holders of 100% of the outstanding principal amount of the Notes. B. The Company and the Noteholders now desire to amend the Note Purchase Agreement in the respects, but only in the respects, hereinafter set forth. C. Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement unless herein defined or the context shall otherwise require. D. All requirements of law have been fully complied with and all other acts and things necessary to make this First Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed. Now, THEREFORE, upon the full and complete satisfaction of the conditions precedent to the effectiveness of this First Amendment set forth in Section 3.1 hereof, and in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and the Noteholders do hereby agree as follows: SECTION 1. AMENDMENTS. 1.1. Section 9.6(a)(I) of the Note Purchase Agreement shall be and is hereby amended by inserting the following new sentence at the end of such Section. "Notwithstanding the foregoing, Wilder shall not be required to execute a supplement to the Guaranty Agreement or otherwise Guaranty the Notes until the earliest to occur of: (A) Wilder becoming an obligor or guarantor of any Debt existing under the Bank Credit Agreement, (B)(I) the total net revenues of Wilder and its Subsidiaries for the period of the immediately preceding four fiscal quarters is equal to or greater than 15% 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 (II) the total assets of Wilder and its Subsidiaries, as of the last day of the immediately preceding fiscal quarter, is equal to or greater than 15% 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 and (C) Wilder becoming a Wholly-Owned Subsidiary of the Company." 1.2. SCHEDULE B to the Note Purchase Agreement shall be and is hereby amended by inserting the following new definition in the proper alphabetical order: ""Wilder" shall mean Wilder Construction Co., a Washington corporation, and any successor thereto." SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. 2.1. To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company represents and warrants to the Noteholders that: (a) this First Amendment has been duly authorized, executed and delivered by it and this First Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally; (b) the Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally; (c) the execution, delivery and performance by the Company of this First Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.l(c); - 2 - (d) as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing and no waiver of Default or Event of Default is in effect; and (e) except as set forth on SCHEDULE 2 hereto, all the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by the Company on and as of the date hereof. SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT. 3.1. Upon satisfaction of each and every one of the following conditions, this First Amendment shall become effective as of June 27, 2003: (a) executed counterparts of this First Amendment, duly executed by the Company and the holders of at least 51% of the outstanding principal of the Notes, shall have been delivered to the Noteholders; (b) each Guarantor shall have duly executed the reaffirmation of Guaranty Agreement attached hereto; (c) the representations and warranties of the Company set forth in Section 2 hereof are true and correct on and with respect to the date hereof; (d) each Noteholder shall have received evidence satisfactory to it that (i) Wilder Construction Co. is not an obligor or guarantor of Debt under the Credit Agreement dated as of June 27, 2003 among the Company, each lender from time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and (ii) the Amended and Restated Note Purchase Agreement dated as of November 1, 2001 by and among the Company and the institutional investors named therein has been amended in the same manner as the Note Purchase Agreement has been amended by this First Amendment; (e) each Noteholder shall have received, by payment in immediately available funds to the account of such holder set forth in SCHEDULE A to the Note Purchase Agreement the amount set forth opposite such holder's name in SCHEDULE 1 attached hereto; and (f) the Company shall have paid the fees and expenses of Schiff Hardin & Waite, special counsel to the Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this First Amendment. Upon receipt of all of the foregoing, this First Amendment shall become effective. - 3 - SECTION 4. MISCELLANEOUS. 4.1. This First Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this First Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect. 4.2. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this First Amendment may refer to the Note Purchase Agreement without making specific reference to this First Amendment but nevertheless all such references shall include this First Amendment unless the context otherwise requires. 4.3. The descriptive headings of the various Sections or parts of this First Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof. 4.4. This First Amendment shall he governed by and construed in accordance with the laws of the State of Illinois. [Remainder of page intentionally left blank.] - 4 - 4.5. The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this First Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement. GRANITE CONSTRUCTION INCORPORATED By /s/ William G. Dorey --------------------- William G. Dorey President By /s/ William E. Barton ---------------------- William E. Barton Chief Financial Officer SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE MARCH 1, 1998 PURCHASE AGREEMENT Accepted and Agreed to: ALLSTATE LIFE INSURANCE COMPANY By __________________________ Name: By___________________________ Name: Authorized Signatories UNITED OF OMAHA LIFE INSURANCE COMPANY By /s/ Curtis R. Caldwell --------------------------- Its Vice President MUTUAL OF OMAHA INSURANCE COMPANY By /s/ Curtis R. Caldwell --------------------------- Its Vice President COMPANION LIFE INSURANCE COMPANY By /s/ Curtis R. Caldwell --------------------------- Name: Curtis R. Caldwell Title: Authorized Signer SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE MARCH 1, 1998 NOTE PURCHASE AGREEMENT NATIONWIDE LIFE INSURANCE COMPANY By /s/ Mark W. Poeppelman ---------------------------------------- Name: Mark W. Poeppelman Title: Vice President THRIVENT FINANCIAL FOR LUTHERANS, successor by merger to Lutheran Brotherhood By _________________________________________ Name: Glen J. Vanic TITLE: Portfolio Manager AMERICAN UNITED LIFE INSURANCE COMPANY By _________________________________________ Its SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE MARCH 1, 1998 NOTE PURCHASE AGREEMENT NATIONWIDE LIFE INSURANCE COMPANY By_______________________________________ Name: Title: THRIVENT FINANCIAL FOR LUTHERANS, successor by merger to Lutheran Brotherhood By /s/ Glen J. Vanic ----------------------------------------- Name: Glen J. Vanic Title: Portfolio Manager AMERICAN UNITED LIFE INSURANCE COMPANY By_________________________________________ Its SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE MARCH 1, 1998 NOTE PURCHASE AGREEMENT Accepted and Agreed to: ALLSTATE LIFE INSURANCE COMPANY By /s/ Rhonda L. Hopps -------------------------------------- Name: Rhonda L. Hopps By /s/ Jerry D. Zinkula -------------------------------------- Name: Jerry D. Zinkula Authorized Signatories UNITED OF OMAHA LIFE INSURANCE COMPANY By ______________________________________ Its MUTUAL OF OMAHA INSURANCE COMPANY By ______________________________________ Its COMPANION LIFE INSURANCE COMPANY By_______________________________________ Name: Title: SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE MARCH 1, 1998 NOTE PURCHASE AGREEMENT NATIONWIDE LIFE INSURANCE COMPANY By_______________________________________ Name: Title: THRIVENT FINANCIAL FOR LUTHERANS, successor by merger to Lutheran Brotherhood By __________________________________________ Name: Glen J. Vanic Title: Portfolio Manager AMERICAN UNITED LIFE INSURANCE COMPANY By /s/ CHRISTOPHER PAHLKE ------------------------------------------ Its CHRISTOPHER PAHLKE VP PRIVATE PLACEMENTS SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE MARCH 1, 1998 NOTE PURCHASE AGREEMENT REAFFIRMATION OF GUARANTY AGREEMENT The undersigned Guarantors hereby acknowledge and agree to the foregoing First Amendment to Note Purchase Agreement and reaffirm the Guaranty Agreement dated as of March 1, 1998 given in favor of each Noteholder and their respective successors and assigns: GRANITE CONSTRUCTION COMPANY By /s/ William G. Dorey --------------------------- William G. Dorey President BY /s/ William E. Barton --------------------------- William E. Barton Chief Financial Officer GRANITE LAND COMPANY BY /s/ Scott D. Wolcott --------------------------- Scott D. Wolcott President By /s/ William G. Dorey --------------------------- William G. Dorey President, Granite Construction Incorporated GRANITE HALMAR CONSTRUCTION COMPANY, INC. By /s/ William G. Dorey --------------------------- William G. Dorey President By /s/ William E. Barton ----------------------------- William E. Barton Chief Financial Officer SIGNATURE PAGE TO THE REAFFIRMATION OF GUARANTY TO THE MARCH 1, 1998 GUARANTY AGREEMENT INTERMOUNTAIN SLURRY SEAL, INC. By /s/ Michael L. Thomas -------------------------------- Michael L. Thomas President By /s/ David J. Brunton -------------------------------- David J. Brunton Chief Financial Officer POZZOLAN PRODUCTS COMPANY (P.P.C.) By /s/ Michael L. Thomas --------------------------------- Michael L. Thomas President By /s/ David J. Brunton --------------------------------- David J. Brunton Chief Financial Officer GILC, L.P. By: GILC Incorporated, its sole General Partner By /s/ William E. Barton --------------------------------- William E. Barton Chief Executive Officer By /s/ R.C. Allbritton --------------------------------- R.C. Allbritton Chief Financial Officer SIGNATURE PAGE TO THE REAFFIRMATION OF GUARANTY TO THE MARCH 1, 1998 GUARANTY AGREEMENT FEE SCHEDULE
SCHEDULE 1 (to First Amendment) VARIANCES TO REPRESENTATIONS AND WARRANTIES The Company represents and warrants to each holder that except as hereinafter set forth in this Schedule 2, each of the representations and warranties set forth in Section 5 of the Note Purchase Agreement is true and correct as of the date hereof. The Section references hereinafter set forth correspond to the similar sections of the Note Purchase Agreement which are supplemented hereby: Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates. (a) Schedule 5.4 to the First Amendment 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 to the First Amendment 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 to the First Amendment). (c) Each Subsidiary identified in Schedule 5.4 to the First Amendment 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 to the First Amendment 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 5.8. Litigation; Observance of Agreements, Statutes and Orders. (a) Except as disclosed in Schedule 5.8 to the First Amendment, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or SCHEDULE 2 (to First Amendment) 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. Section 5.15. Existing Debt. Except as described therein, Schedule 5.15 to the First Amendment sets forth a complete and correct list of all outstanding Debt of the Company and its Subsidiaries as of May 31, 2003 (other than with respect to the Debt of Wilder and Presidio Vista which are as of April 30, 2003), 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 to the First Amendment sets forth a complete and correct list of all outstanding Investments of the Company and its Subsidiaries as of May 31, 2003, since which date there has been no Material change in the amounts of such Investments. 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 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 First Amendment: (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 (l)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. S-2-2 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.4 SUBSIDIARIES, OTHER AFFILIATES, AND DIRECTORS AND OFFICERS
Schedule 5.4 Page 1 of 2 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.4 SUBSIDIARIES, OTHER AFFILIATES, AND DIRECTORS AND OFFICERS
3 DIRECTORS David H. Watts - Chairman of the David H. Kelsey - Director Board & CEO Joseph J. Barclay - Director Rebecca A. McDonald - Director Richard M. Brooks - Director Raymond E. Miles - Director Linda Griego - Director J. Fernando Niebla - Director Brian C. Kelly - Director George B. Searle - Director SENIOR OFFICERS William G. Dorey - President & COO Mark E. Boitano - Executive Vice President & Branch Division Manager Patrick M. Costanzo - Senior Vice President & Heavy Construction Division Manager William E. Barton - Senior Vice President & CFO R.C. Allbritton - Vice President & Treasurer Michael Futch - Vice President, Secretary & General Counsel Garry M. Higdem - Vice President & Heavy Construction Division Asstistant Manager James H. Roberts - Vice President & Branch Division Assistant Manager Michael L. Thomas - Vice President & Director of Human Resources Schedule 5.4 Page 2 of 2 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.8 LITIGATION 5.8(a)
5.8(b) NONE Schedule 5.8 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.15 EXISTING INDEBTEDNESS
(1) - Wilder debt is not guaranteed by Granite Construction Incorporated or any of it non-Wilder Subsidiaries or Affiliates (2) - This debt is non-recourse debt secured by the assets of the development project and is not guaranteed by Granite Construction Incorporated or any of its Subsidiaries or Affiliates. Schedule 5.15 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.16 EXISTING INVESTMENTS
Schedule 5.16 Page 3 of 6 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.16 EXISTING INVESTMENTS
Schedule 5.16 Page 4 of 6 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.18 ENVIRONMENTAL MATTERS 5.18(a) 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 of operations have the potential of creating exposure to environmental clean up requirements. All underground tanks meet current requirements. There are no pending governmental ordered clean up requirements. 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. Items indicated with an " * " are carried on the books as a liability.
Schedule 5.18 Page 5 of 6 GRANITE CONSTRUCTION INCORPORATED SCHEDULE 5.18 ENVIRONMENTAL MATTERS 5.18(a) 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 of operations have the potential of creating exposure to environmental clean up requirements. All underground tanks meet current requirements. There are no pending governmental ordered clean up requirements. 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. Items indicated with an " * " are carried on the books as a liability.
5.18 (b) AND (c) NONE Schedule 5.18 Page 6 of 6
