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EXHIBIT 10.5.a
FIRST AMENDMENT TO THE CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment"), is
entered into as of January 16,1998, by and among GRANITE CONSTRUCTION
INCORPORATED, a Delaware corporation, (the "Company"), the Banks signatory
hereto and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Issuing
Bank and as agent for itself and the Banks (in such capacity, the "Agent").
RECITALS
A. The Company, the several financial institutions named as "Banks"
therein, the Issuing Bank and the Agent are parties to a Credit Agreement dated
as of June 30, 1997 (the "Prior Credit Agreement"). The Prior Credit Agreement,
as amended by this Amendment, is herein referred to as the "Credit Agreement."
Unless otherwise defined herein, all capitalized terms used in this Amendment
shall have the respective meanings assigned to them in 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 informed the Agent and the Banks that the Company
and certain of its Subsidiaries propose to issue in one or more private
placements unsecured notes (collectively, the "Private Placement Notes"). Any
Private Placement Notes issued by the Company may be unconditionally guaranteed
by Subsidiaries of the Company. The proceeds of the Private Placement Notes are
to be used for general corporate purposes.
D. The Company has requested that the Majority Banks and the Agent
agree to amend the Prior Credit Agreement to permit the Company and its
Subsidiaries to incur up to $100,000,000 in additional Indebtedness and to
permit the Subsidiaries of the Company to guaranty up to $100,000,000 of such
Indebtedness incurred by the Company. The Majority Banks and the Agent are
willing to agree to such request, but only on the terms, conditions and
understandings as set forth herein.
AGREEMENT
THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Prior Credit Agreement. The Prior Credit Agreement
is hereby amended as follows:
(a) Section 8.06 of the Prior Credit Agreement is hereby
amended by deleting "or" where it appears at the end of subsection (h) thereof,
by deleting "." where it appears at the end of subsection (I) thereof and
substituting in its place "; or" and by inserting immediately after subsection
(I) thereof the following:
(i) guaranties by one or more Subsidiaries of the
Company of obligations of the Company in an aggregate amount
outstanding not to exceed $100,000,000.
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(b) Section 8.18 of the Prior Credit Agreement is hereby
amended by deleting "and" where it appears at the end of subsection (g) thereof,
by deleting "." where it appears at the end of subsection (h) thereof and
substituting in its place "; and" and by inserting immediately after subsection
(h) thereof the following:
(i) Indebtedness (including Guaranty Obligations
permitted pursuant to subsection 8.06(j)) in an aggregate amount
outstanding not to exceed $100,000,000.
2. 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 exists.
(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 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 business judgment, without reliance upon the Agent, any Bank or any
other Person.
3. Effective Date. This Amendment will become effective as of the
date first written above (the "Effective Date"), provided that each of the
following conditions precedent has been and remains satisfied on such date:
(a) The Agent has received in sufficient number for each Bank,
duly executed originals (or an executed facsimile copy, to be followed promptly
by delivery of executed originals):
(i) of this Amendment, executed by the Company and each
of Banks; and
(ii) of each Guarantors' Acknowledgment and Consent in
the form attached hereto, executed by each Guarantor; and
(b) all representations and warranties contained (or
incorporated by reference) herein are true and correct as of the
Effective Date.
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4. 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 to the 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) 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.
(f) 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 similar amendments under the same or
similar circumstances in the future.
(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.
(h) 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.
(i) 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered in the State of California by their proper and
duly authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: /s/ XXXXXXX X. XXXXXX By:
-------------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx
Title: Vice President & Chief Title:
Financial Officer ----------------------------
By: /s/ X.X. XXXXXXXXXX By:
-------------------------------------- -------------------------------
X.X. Xxxxxxxxxx Title:
----------------------------------- ----------------------------
Title: Vice President & Treasurer
BANK OF AMERICA NATIONAL TRUST AND ABN-AMRO BANK N.V., San Francisco
SAVINGS ASSOCIATION, as Agent International Branch
By: [SIG] By:
-------------------------------------- -------------------------------
Title: Vice President Title:
----------------------------------- ----------------------------
BANK OF AMERICA NATIONAL TRUST AND By:
SAVINGS ASSOCIATION, as a Bank and as -------------------------------
Issuing Bank Title:
----------------------------
By: [SIG]
--------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------------
Title:
-----------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered in the State of California by their proper and
duly authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By:
-------------------------------------- -------------------------------
Title: Title:
----------------------------------- ----------------------------
By: By:
-------------------------------------- -------------------------------
Title: Title:
----------------------------------- ----------------------------
BANK OF AMERICA NATIONAL TRUST AND ABN-AMRO BANK N.V., San Francisco
SAVINGS ASSOCIATION, as Agent International Branch
By: By:
-------------------------------------- -------------------------------
Title: Vice President Title:
----------------------------------- ----------------------------
BANK OF AMERICA NATIONAL TRUST AND By:
SAVINGS ASSOCIATION, as a Bank and as -------------------------------
Issuing Bank Title:
----------------------------
By:
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: Vice President
-----------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By: /s/ XXXXX XXXXXX
-------------------------------------- -------------------------------
Xxxxx Xxxxxx
Title: Title: Vice President
----------------------------------- ----------------------------
By: By: /s/ XXXXXXX X. XXXXX
-------------------------------------- -------------------------------
Xxxxxxx X. Xxxxx
Title: Title: Assistant Vice President
----------------------------------- ----------------------------
BANK OF AMERICA NATIONAL TRUST AND ABN-AMRO BANK N.V., San Francisco
SAVINGS ASSOCIATION, as Agent International Branch
By: By:
-------------------------------------- -------------------------------
Title: Vice President Title:
----------------------------------- ----------------------------
BANK OF AMERICA NATIONAL TRUST AND By:
SAVINGS ASSOCIATION, as a Bank and as --------------------------------
Issuing Bank Title:
----------------------------
By:
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------------
Title:
-----------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered in the State of California by their proper and duly
authorized officers as of the day and year first above written.
GRANITE CONSTRUCTION INCORPORATED BANQUE NATIONALE DE PARIS
By: By:
------------------------------ ----------------------------------
Title: Title:
----------------------------- -------------------------------
By: By: /s/ XXXXXXX X. FRENCH
----------------------------- ----------------------------------
Xxxxxxx X. French
Title: Title: Group Vice President & Director
---------------------------- --------------------------------
BANK OF AMERICA NATIONAL TRUST AND ABN-AMRO BANK N.V., San Francisco
SAVINGS ASSOCIATION, as Agent International Branch
By: By: XXXXXXXX X. LESBY
------------------------------- -----------------------------------
Xxxxxxxx X. Lesby
Title: Vice President Title: Assistant Vice President
---------------------------- --------------------------------
BANK OF AMERICA NATIONAL TRUST AND By: XXXXXXX X. FRENCH
SAVINGS ASSOCIATION, as a Bank ----------------------------------
and as Issuing Bank Xxxxxxx X. French
By: Title: Group Vice President & Director
------------------------------- -------------------------------
Title: Vice President
----------------------------
UNION BANK OF CALIFORNIA, N.A.
By:
-------------------------------
Title:
----------------------------
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GUARANTOR'S ACKNOWLEDGMENT AND CONSENT
Each of the undersigned hereby acknowledges the foregoing Amendment (the
"Amendment"), consents (without implying the need for any such 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 affecting the enforceability of creditor rights. 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
assigned to them in the Credit Agreement (as defined in the Amendment).
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by its
duly authorized officers as of this 16th day of January, 1998.
GRANITE CONSTRUCTION COMPANY DESERT AGGREGATES, INC.
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Title: Vice President & Chief Title: Chief Financial Officer &
Financial Officer Asst. Secretary
By: /s/ X.X. XXXXXXXXXX By: /s/ XXXXXXXX XXXXX
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X.X. Xxxxxxxxxx Xxxxxxxx Xxxxx
Title: Vice President & Treasurer Title: Assistant Secretary
GRANITE SR 91 CORPORATION G.G. & R., INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Title: President & CEO Title: President & CEO
By : /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Title: Vice President & Title: Vice President &
Chief Financial Officer Chief Financial Officer
XXXXXXX CORPORATION INTERMOUNTAIN SLURRY SEAL, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Title: President & CEO Title: Chief Financial Officer &
Asst. Secretary
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXXXX XXXXX
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Xxxxxxx X. Xxxxxx Xxxxxxxx Xxxxx
Title: Vice President & Title: Assistant Secretary
Chief Financial Officer
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BEAR RIVER CONTRACTORS GILC, L.P.
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXX
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Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer Title: President & CEO
By: /s/ XXXXXXXX XXXXX By: /s/ X.X. XXXXXXXXXX
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Xxxxxxxx Xxxxx X.X. Xxxxxxxxxx
Title: Assistant Secretary Title: Vice President &
Chief Financial Officer
POZZOLAN PRODUCTS COMPANY (P.P.C.) GRANITE SR91, L.P.
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxxxx Xxxxx X. Xxxxx
Title: Chief Financial Officer & Title: President & CEO
Asst Secretary
By: /s/ XXXXXXXX XXXXX By: XXXXXXX X. XXXXXX
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Title: Xxxxxxxx Xxxxx Title: Xxxxxxx X. Xxxxxx
Assistant Secretary Vice President &
Chief Financial Officer
GILC INCORPORATED GTC, INC.
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Title: President & CEO Title: President & Treasurer
By: /s/ X.X. XXXXXXXXXX By: /s/ X.X. XXXXXXXXXX
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X.X. Xxxxxxxxxx X.X. Xxxxxxxxxx
Title: Vice President & Title: Vice President &
Chief Financial Officer Asst. Treasurer
