SECURITIES PLEDGE AGREEMENT
Exhibit 10.3
THIS SECURITIES PLEDGE AGREEMENT dated as of December 23, 2010 (this “Pledge
Agreement”), is being entered into among GRANITE CONSTRUCTION INCORPORATED, a Delaware
corporation (the “Company” and a “Borrower”), GRANITE CONSTRUCTION COMPANY, a
California corporation (“GCC” and a “Borrower”), GILC INCORPORATED, a California
corporation (“GILC” and a “Borrower”, and together with the Company and GCC,
collectively, the “Borrower”), EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE COMPANY AND EACH
OTHER PERSON THAT SHALL BECOME A PARTY HERETO BY EXECUTION OF A PLEDGE JOINDER AGREEMENT (each a
“Guarantor” and, together with the Borrowers, collectively, the “Pledgors”), and
BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) for each of the Secured Parties (as defined in the Credit Agreement referenced below).
RECITALS:
A. Pursuant to a Credit Agreement dated as of June 22, 2010 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrowers, the Administrative Agent, Bank of America, N.A., as L/C Issuer, and the lenders now or
hereafter party thereto (the “Lenders”), the Lenders have agreed to provide to the
Borrowers a revolving credit facility with a letter of credit sublimit and swing line facility.
B. Certain additional extensions of credit may be made from time to time for the benefit
of the Pledgors pursuant to certain Secured Cash Management Agreements, Secured Hedge Agreements
and Secured Cash Related Products Agreements (each as defined in Section 1 below).
C. It is a condition precedent to the Secured Parties’ obligations to make and maintain
such extensions of credit that the Pledgors shall have executed and delivered this Pledge Agreement
to the Administrative Agent.
In order to induce the Secured Parties to from time to time make and maintain extensions of
credit under the Credit Agreement and such Secured Cash Management Agreements, Secured Hedge
Agreements and Secured Cash Related Products Agreements, the parties hereto agree as follows:
1. Certain Definitions. All capitalized terms used but not otherwise defined
herein shall have the meanings assigned thereto in the Credit Agreement. Terms used in this Pledge
Agreement that are not otherwise expressly defined herein or in the Credit Agreement, and for which
meanings are provided in the Uniform Commercial Code of the State of California (the
“UCC”), shall have such meanings unless the context requires otherwise. In addition, for
purposes of this Pledge Agreement, the following terms have the following definitions:
“Card Related Products Agreement” means any agreement to provide credit, purchasing,
debit and other credit related card arrangements.
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“Card Related Products Bank” means any Person that, (a) at the time it enters into a
Card Related Products Agreement, is a Lender or an Affiliate of a Lender, or (b) is party to a Card
Related Products Agreement on the date that such Person or its Affiliate becomes a Lender, in each
case in its capacity as a party to such Card Related Products Agreement.
“Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, electronic funds transfer and other cash management
arrangements.
“Cash Management Bank” means any Person that, (a) at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, or (b) is party to a Cash Management
on the date that such Person or its Affiliate becomes a Lender, in each case in its capacity as a
party to such Cash Management Agreement.
“Direct Foreign Subsidiary” means a Foreign Subsidiary a majority of whose Voting
Securities, or a majority of whose Subsidiary Securities, are owned by any Borrower or a Domestic
Subsidiary.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.
“Facility Termination Date” means the date as of which all of the following shall have
occurred: (a) the Aggregate Commitments have been terminated, (b) all Obligations have been paid
in full, other than (i) contingent indemnification obligations, (ii) the undrawn portion of Letters
of Credit and (iii) all fees relating to any Letters of Credit accruing after such date (which fees
shall be payable solely for the account of the L/C Issuer and shall be computed (based on interest
rates and the Applicable Rate then in effect) on such undrawn amounts to the respective expiry
dates of the Letters of Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative Agent and the L/C Issuer
shall have been made, (b) the Commitments of all Lenders, if any, shall have terminated or expired,
(c) the obligations and liabilities of the Borrowers and each other Loan Party under all Secured
Hedge Agreements and Secured Cash Management Agreements shall have been fully, finally and
irrevocably paid and satisfied in full and the Secured Hedge Agreements and Secured Cash Management
Agreements shall have expired or been terminated, or other arrangements satisfactory to the
applicable Cash Management Bank or Hedge Bank shall have been made with respect thereto, (d) the
obligations and liabilities of the Borrowers and each other Loan Party under all Secured Cash
Related Products Agreements shall have been fully, finally and irrevocably paid and satisfied in
full and the Secured Card Related Products Agreements shall have expired or been terminated, or
other arrangements satisfactory to the Applicable Card Related Agreements Banks shall have been
made with respect thereto, and (e) each Guarantor shall have fully, finally and irrevocably paid
and satisfied in full its respective obligations and liabilities arising under the Loan Documents
(except for future obligations consisting of continuing indemnities and other contingent
Obligations of the Borrowers or any Loan Party that may be owing to any Related Party of the
Administrative Agent or any Lender pursuant to the Loan Documents and expressly survive termination
of the Credit Agreement).
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“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.
“Hedge Bank” means any Person that (a) at the time that it enters into any Swap
Contract, is a Lender or an Affiliate of a Lender, or (b) is party to an interest rate Swap
Contract on the date that such Person or its Affiliate becomes a Lender, in each case in such
Person’s capacity as a party to such Swap Contract.
“Person” means any natural person, corporation, limited liability company, trust,
Joint Venture, association, company, partnership, Governmental Authority or other entity.
“Secured Card Related Products Agreement” means any Card Related Products Agreement
permitted by Article VII of the Credit Agreement that is entered into by and between any
Loan Party and any Card Related Products Bank.
“Secured Cash Management Agreement” means any Cash Management Agreement permitted by
Article VII of the Credit Agreement that is entered into by and between any Loan Party and
any Cash Management Bank.
“Secured Hedge Agreement” means any Swap Contract permitted by Article VII of
the Credit Agreement that is entered into by and between any Loan Party and any Hedge Bank.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Hedge Banks, the Cash Management Banks, the Card Related Products Banks, each co-agent
or sub-agent appointed by the Administrative Agent from time to time pursuant to Section
9.05 of the Credit Agreement and the other Persons the Obligations owing to which are or are
purported to be secured by the Collateral under the terms hereof.
“Subsidiary” of a Person means a corporation, partnership, Joint Venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Company.
“Subsidiary Securities” means the shares of capital stock or other equity interests
issued by or equity participations in any Subsidiary, whether or not constituting a “security”
under Article 8 of the Uniform Commercial Code as in effect in any jurisdiction.
“Voting Securities” means shares of capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening of such
a contingency.
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2. Pledge of Pledged Interests; Other Collateral.
(a) Each Borrower hereby grants as collateral security for the payment, performance
and satisfaction of all of the Obligations and the obligations and liabilities of any Loan
Party now existing or hereafter arising, and each Guarantor hereby grants as collateral
security for the payment, performance and satisfaction of all of its Guarantor’s Obligations
(as defined in the Guaranty) and the payment and performance of its obligations and
liabilities (whether now existing or hereafter arising) hereunder or under any of the other
Loan Documents and any Secured Cash Management Agreements, Secured Hedge Agreements and
Secured Card Related Products Agreements to which it is now or hereafter becomes a party
(such obligations and liabilities of the Borrowers and the other Pledgors are referred to
collectively as the “Secured Obligations”), to the Administrative Agent for the
benefit of the Secured Parties a first priority security interest (subject only to Permitted
Liens) in all of the following items of property in which it now has or may at any time
hereafter acquire an interest or the power to transfer rights therein, and wheresoever
located:
(i) all Subsidiary Securities in all of its Material Subsidiaries (limited,
in the case of Foreign Subsidiaries to Subsidiary Securities that, when taken with
all other Subsidiary Securities pledged hereunder, constitute no more than (x) 65%
of the Voting Securities of each Direct Foreign Subsidiary and (y) 100% of the other
Subsidiary Securities of such Pledgor in each Direct Foreign Subsidiary), in each
case, whether now existing or hereafter created or acquired (collectively, the
“Pledged Interests”), including without limitation the Pledged Interests
more particularly described on Schedule I hereto (such Subsidiaries,
together with all other Subsidiaries whose Subsidiary Securities may be required to
be subject to this Pledge Agreement from time to time, are referred to collectively
as the “Pledged Subsidiaries”);
(ii) all money, securities, security entitlements and other investment
property, dividends, rights, general intangibles and other property at any time and
from time to time (x) declared or distributed in respect of or in exchange for or on
conversion of any Pledged Interest, or (y) by its or their terms exchangeable or
exercisable for or convertible into any Pledged Interest;
(iii) all other property of whatever character or description, including
money, securities, security entitlements and other investment property, and general
intangibles hereafter delivered to the Administrative Agent in substitution for or
as an addition to any of the foregoing;
(iv) all securities accounts to which may at any time be credited any or
all of the foregoing or any proceeds thereof and all certificates and instruments
representing or evidencing any of the foregoing or any proceeds thereof; and
(v) all proceeds of any of the foregoing.
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All such Pledged Interests, certificates, instruments, cash, securities, interests,
dividends, rights and other property referred to in clauses (i) through (v)
of this Section 2 are herein collectively referred to as the “Collateral.”
(b) Subject to Section 11(a), each Pledgor agrees to deliver all
certificates, instruments or other documents representing any Collateral to the
Administrative Agent at such location as the Administrative Agent shall from time to time
designate by written notice pursuant to Section 23 for its custody at all times
until termination of this Pledge Agreement, together with such instruments of assignment and
transfer as requested by the Administrative Agent.
(c) Each Pledgor agrees to execute and deliver, or cause to be executed and
delivered by other Persons, at Pledgor’s expense, all share certificates, documents,
instruments, agreements, financing statements (and amendments thereto and continuations
thereof), assignments, control agreements, or other writings as the Administrative Agent may
request from time to time to carry out the terms of this Pledge Agreement or to protect or
enforce the Administrative Agent’s Lien and security interest in the Collateral hereunder
granted to the Administrative Agent for the benefit of the Secured Parties and further
agrees to do and cause to be done upon the Administrative Agent’s request, at Pledgor’s
expense, all things reasonably determined by the Administrative Agent to be necessary or
advisable to perfect and keep in full force and effect the Lien in the Collateral hereunder
granted to the Administrative Agent for the benefit of the Secured Parties, including the
prompt payment of all out-of-pocket fees and reasonable expenses incurred in connection with
any filings made to perfect or continue the Lien and security interest in the Collateral
hereunder granted in favor of the Administrative Agent for the benefit of the Secured
Parties.
(d) All filing fees, advances, charges, costs and expenses, including all fees and
expenses of counsel (collectively, “Attorneys’ Costs”), incurred or paid by the
Administrative Agent or any Lender in exercising any right, power or remedy conferred by
this Pledge Agreement, or in the enforcement thereof, shall become a part of the Secured
Obligations secured hereunder and shall be paid to the Administrative Agent for the benefit
of the Secured Parties by the Pledgor in respect of which the same was incurred immediately
upon demand therefor, and any amounts not so paid on demand (in addition to other rights and
remedies resulting from such nonpayment) shall bear interest from the date of demand until
paid in full at the Default Rate.
(e) Each Pledgor agrees to register and cause to be registered the interest of the
Administrative Agent, for the benefit of the Secured Parties, in the Collateral on its own
books and records and the registration books of each of the Pledged Subsidiaries.
3. Status of Pledged Interests. Each Pledgor hereby represents, warrants and
covenants to the Administrative Agent for the benefit of the Secured Parties, with respect to
itself and the Collateral as to which it has or acquires any interest, that:
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(a) All of the Pledged Interests are, as of the date of execution of this Pledge
Agreement or Pledge Joinder Agreement by each Pledgor pledging such Pledged Interests (such
date as applicable with respect to each Pledgor, its “Applicable Date”), and shall
at all times thereafter be validly issued and outstanding, fully paid and non-assessable and
constitute (i) 65% of the issued and outstanding Voting Securities (or if any Pledgor shall
own less than 65% of such Voting Securities, then 100% of the Voting
Securities owned by such Pledgor) and 100% of the other issued and outstanding
Subsidiary Securities of each Direct Foreign Subsidiary constituting a Pledged Subsidiary
and (ii) all of the issued and outstanding Subsidiary Securities of all Domestic
Subsidiaries constituting Pledged Subsidiaries, and are accurately described on Schedule
I.
(b) The Pledgor is at its Applicable Date and shall at all times thereafter
(subject to Dispositions permitted under the Credit Agreement) be the sole registered and
record and beneficial owner of the Pledged Interests, free and clear of all Liens, charges,
equities, options, hypothecations, encumbrances and restrictions on pledge or transfer,
including transfer of voting rights (other than Permitted Liens, the pledge hereunder and
applicable restrictions pursuant to federal and state and applicable foreign securities
laws). Without limiting the foregoing, the Pledged Interests are not and will not be
subject to any voting trust, shareholders agreement, right of first refusal, voting proxy,
power of attorney or other similar arrangement (other than the rights hereunder in favor of
the Administrative Agent).
(c) At no time shall any Pledged Interests (i) be held or maintained in the form of
a security entitlement or credited to any securities account and (ii) which constitute a
“security” (or as to which the related Pledged Subsidiary has elected to have treated as a
“security”) under Article 8 of the UCC (including, for the purposes of this Section, the
Uniform Commercial Code of any other applicable jurisdiction) be maintained in the form of
uncertificated securities. With respect to Pledged Interests that are “securities” under
the UCC, or as to which the issuer has elected at any time to have such interests treated as
“securities” under the UCC, such Pledged Interests are, and shall at all times be,
represented by the share certificates listed on Schedule I hereto, which share
certificates, with stock powers duly executed in blank by the Pledgor, have been delivered
to the Administrative Agent or are being delivered to the Administrative Agent
simultaneously herewith or, in the case of Additional Interests as defined in Section
22, shall be delivered pursuant to Section 22. In addition, with respect to all
Pledged Interests, including Pledged Interests that are not “securities” under the UCC and
as to which the applicable Pledged Subsidiary has not elected to have such interests treated
as “securities” under the UCC, the Pledgor has at its Applicable Date delivered to the
Administrative Agent (or has previously delivered to the Administrative Agent or, in case of
Additional Interests shall deliver pursuant to Section 22) Uniform Commercial Code
financing statements (or appropriate amendments thereto) duly authorized by the Pledgor and
naming the Administrative Agent for the benefit of the Secured Parties as “secured party,”
in form, substance and number sufficient in the reasonable opinion of the Administrative
Agent to be filed in all UCC filing offices and in all jurisdictions in which
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filing is necessary or advisable to perfect in favor of the Administrative Agent for the benefit of
the Secured Parties the Lien on such Pledged Interests, together with all required filing
fees. Without limiting the foregoing provisions of this Section 3(c), with respect
to any Pledged Interests issued by any Direct Foreign Subsidiary, Pledgor shall deliver or
cause to be delivered, (i) in addition to or in substitution for all or any of the foregoing
items, as the Administrative Agent may elect, such other instruments, certificates,
agreements, notices, filings, and other documents, and take or cause to be
taken such other action, as the Administrative Agent may determine to be necessary or
advisable under the laws of the jurisdiction of formation of such Direct Foreign Subsidiary,
to grant, perfect and protect as a first priority lien (subject to Permitted Liens) in such
Collateral in favor of the Administrative Agent for the benefit of the Secured Parties, and
(ii) if requested by the Administrative Agent, an opinion of counsel acceptable in form and
substance to the Administrative Agent issued by a law firm acceptable to the Administrative
Agent licensed to practice law in such foreign jurisdiction, addressing with respect to such
Pledged Interests the matters described in Section 6.14 of the Credit Agreement.
(d) It has full corporate power, legal right and lawful authority to execute this
Pledge Agreement (and any Pledge Joinder Agreement applicable to it) and to pledge, assign
and transfer its Pledged Interests in the manner and form hereof.
(e) The pledge, assignment and delivery of its Pledged Interests (along with
undated stock powers executed in blank, financing statements and other agreements referred
to in Section 3(c) hereof) to the Administrative Agent for the benefit of the
Secured Parties pursuant to this Pledge Agreement (or any Pledge Joinder Agreement) creates
or continues, as applicable, a valid and perfected first priority security interest (subject
to Permitted Liens) in such Pledged Interests in favor of the Administrative Agent for the
benefit of the Secured Parties, securing the payment of the Secured Obligations, assuming,
in the case of the Pledged Interests which constitute certificated “securities” under the
UCC (including, for the purposes of this Section, the Uniform Commercial Code of any other
applicable jurisdiction), continuous and uninterrupted possession by or on behalf of the
Administrative Agent. The Pledgor will at its own cost and expense defend the Secured
Parties’ right, title and security interest in and to the Collateral against the claims and
demands of all persons whomsoever.
(f) Except as otherwise expressly provided herein pursuant to a Disposition
permitted under the Credit Agreement, none of the Pledged Interests (nor any interest
therein or thereto) shall be sold, transferred or assigned without the Administrative
Agent’s prior written consent, which may be withheld for any reason.
(g) It shall at all times cause the Pledged Interests of such Pledgor that
constitute “securities” (or as to which the issuer elects to have treated as “securities”)
under the UCC to be represented by the certificates now and hereafter delivered to the
Administrative Agent in accordance with Sections 2, 3 and 22 hereof
and that it shall cause each of the Pledged Subsidiaries as to which it is the Pledgor not
to issue any Subsidiary Securities, or securities convertible into, or exchangeable or
exercisable for,
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Subsidiary Securities, at any time during the term of this Pledge Agreement
unless the Pledged Interests of such Pledge Subsidiary are issued solely to either (y) such
Pledgor who shall immediately comply with Sections 3 and 22 hereof with
respect to such property or (z) any Borrower or another Guarantor who shall immediately
pledge such additional Subsidiary Securities to the Administrative Agent for the benefit of
the Secured Parties pursuant to Section 22 or 24 hereof, as applicable, on
substantially identical terms as are contained herein and deliver or cause to be delivered
the appropriate documents described in Section 3(c) hereof to the Administrative
Agent and take such further actions as the Administrative Agent may deem necessary in order to
perfect a first priority security interest (subject to Permitted Liens) in such Subsidiary
Securities.
(h) The exact legal name and address, type of Person, jurisdiction of formation,
jurisdiction of formation identification number (if any), and location of the chief
executive office of such Pledgor are as specified on Schedule II attached hereto.
No Pledgor shall change its name, jurisdiction of formation (whether by reincorporation,
merger or otherwise), or the location of its chief executive office, except upon giving not
less than thirty (30) days’ prior written notice to the Administrative Agent and taking or
causing to be taken all such action at such Pledgor’s expense as may be reasonably requested
by the Administrative Agent to perfect or maintain the perfection of the Lien of the
Administrative Agent in Collateral.
4. Preservation and Protection of Collateral.
(a) The Administrative Agent shall be under no duty or liability with respect to
the collection, protection or preservation of the Collateral, or otherwise, beyond the use
of reasonable care in the custody and preservation thereof while in its possession.
(b) Each Pledgor agrees to pay when due all taxes, charges, Liens and assessments
against the Collateral in which it has an interest, unless being contested in good faith by
appropriate proceedings diligently conducted and against which adequate reserves have been
established in accordance with GAAP applied on a basis consistent with that used in
preparing the Audited Financial Statements and evidenced to the satisfaction of the
Administrative Agent and provided that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of any Pledgor to so pay or contest
such taxes, charges, Liens or assessments, or upon the failure of any Pledgor to pay any
amount pursuant to Section 2(c), the Administrative Agent at its option may pay or
contest any of them (the Administrative Agent having the sole right to determine the
legality or validity and the amount necessary to discharge such taxes, charges, Liens or
assessments) but shall not have any obligation to make any such payment or contest. All
sums so disbursed by the Administrative Agent, including Attorneys’ Costs, court costs,
expenses and other charges related thereto, shall be payable on demand by the applicable
Pledgor to the Administrative Agent and shall be additional Secured Obligations secured by
the Collateral, and any amounts not so paid on demand (in addition to other rights and
remedies resulting from such nonpayment) shall bear interest from the date of demand until
paid in full at the Default Rate.
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(c) Each Pledgor hereby (i) irrevocably authorizes the Administrative Agent to file
(with, or to the extent permitted by applicable law, without the signature of the Pledgor
appearing thereon) financing statements (including amendments thereto and continuations and
copies thereof) showing such Pledgor as “debtor” at such time or times and in all filing
offices as the Administrative Agent may from time to time reasonably determine to be
necessary or advisable to perfect or protect the rights of the Administrative Agent and the
Secured Parties hereunder, or otherwise to give effect to the transactions herein
contemplated, and (ii) irrevocably ratifies and acknowledges all
such actions taken by or on behalf of the Administrative Agent prior to the Applicable
Date.
5. Default. Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent is given full power and authority, then or at any time
thereafter, to sell, assign, deliver or collect the whole or any part of the Collateral, or any
substitute therefor or any addition thereto, in one or more sales, with or without any previous
demands or demand of performance or, to the extent permitted by law, notice or advertisement, in
such order as the Administrative Agent may elect; and any such sale may be made either at public or
private sale at the Administrative Agent’s place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price or prices as the Administrative Agent may reasonably
deem fair; and the Administrative Agent or any other Secured Party may be the purchaser of any or
all Collateral so sold and hold the same thereafter in its own right free from any claim of any
Pledgor or right of redemption. Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent permissible by law. Any sale hereunder
may be conducted by an auctioneer or any officer or agent of the Administrative Agent. Each
Pledgor recognizes that the Administrative Agent may be unable to effect a public sale of the
Collateral by reason of certain prohibitions contained in the Securities Act of 1933, as amended
(the “Securities Act”), and applicable state law, and may be otherwise delayed or adversely
affected in effecting any sale by reason of present or future restrictions thereon imposed by
governmental authorities, and that as a consequence of such prohibitions and restrictions the
Administrative Agent may be compelled (i) to resort to one or more private sales to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire the Collateral for
their own account, for investment and not with a view to the distribution or resale thereof, or
(ii) to seek regulatory approval of any proposed sale or sales, or (iii) to limit the amount of
Collateral sold to any Person or group. Each Pledgor agrees and acknowledges that private sales so
made may be at prices and upon terms less favorable to such Pledgor than if such Collateral was
sold either at public sales or at private sales not subject to other regulatory restrictions, and
that the Administrative Agent has no obligation to delay the sale of any of the Collateral for the
period of time necessary to permit the Pledged Subsidiary to register or otherwise qualify the
Collateral, even if such Pledged Subsidiary would agree to register or otherwise qualify such
Collateral for public sale under the Securities Act or applicable state law. Each Pledgor further
agrees, to the extent permitted by applicable law, that the use of private sales made under the
foregoing circumstances to dispose of the Collateral shall be deemed to be dispositions in a
commercially reasonable manner. Each Pledgor hereby acknowledges that a ready market may not exist
for the Pledged Interests if they are not traded on a national securities exchange or quoted on an
automated quotation system and agrees and acknowledges that in such
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event the Pledged Interests may be sold for an amount less than a pro rata share of the fair market value of the Pledged
Subsidiary’s assets minus its liabilities. In addition to the foregoing, the Secured Parties may
exercise such other rights and remedies as may be available under the Loan Documents, at law
(including without limitation the UCC) or in equity.
6. Proceeds of Sale. The net cash proceeds resulting from the collection,
liquidation, sale, or other disposition of the Collateral shall be applied first to the expenses
(including all Attorneys’ Costs) of retaking, holding, storing, processing and preparing for sale,
selling, collecting, liquidating and the like, and then to the satisfaction of all Secured
Obligations in accordance with the terms of Section 8.03 of the Credit Agreement. Each Pledgor shall
be liable to the Administrative Agent, for the benefit of the Secured Parties, and shall pay to the
Administrative Agent, for the benefit of the Secured Parties, on demand any deficiency which may
remain after such sale, disposition, collection or liquidation of the Collateral.
7. Presentments, Demands and Notices. The Administrative Agent shall not be under
any duty or obligation whatsoever to make or give any presentments, demands for performances,
notices of nonperformance, protests, notice of protest or notice of dishonor in connection with any
obligations or evidences of indebtedness held thereby as collateral, or in connection with any
obligations or evidences of indebtedness which constitute in whole or in part the Secured
Obligations secured hereunder.
8. Attorney-in-Fact. Each Pledgor hereby appoints the Administrative Agent as the
Pledgor’s attorney-in-fact for the purposes of carrying out the provisions of this Pledge Agreement
and taking any action and executing any instrument which the Administrative Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and
coupled with an interest; provided, that the Administrative Agent shall have and may
exercise rights under this power of attorney only upon the occurrence and during the continuance of
an Event of Default. Without limiting the generality of the foregoing, upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent shall have the right and
power to receive, endorse and collect all checks and other orders for the payment of money made
payable to any Pledgor representing any dividend, interest payment, principal payment or other
distribution payable or distributable in respect to the Collateral or any part thereof and to give
full discharge for the same.
9. Reinstatement. The granting of a security interest in the Collateral and the
other provisions hereof shall continue to be effective or be reinstated, as the case may be, if at
any time any payment of any of the Secured Obligations is rescinded or must otherwise be returned
by any Secured Party or is repaid by any Secured Party in whole or in part in good faith settlement
of a pending or threatened avoidance claim, whether upon the insolvency, bankruptcy or
reorganization of any Pledgor or any other Loan Party or otherwise, all as though such payment had
not been made. The provisions of this Section 9 shall survive repayment of all of the
Secured Obligations and the termination or expiration of this Pledge Agreement in any manner,
including but not limited to termination upon occurrence of the Facility Termination Date.
10. Waiver by the Pledgors. Each Pledgor waives to the extent permitted by
applicable law (a) any right to require any Secured Party or any other obligee of the Secured
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Obligations to (i) proceed against any Person or entity, including without limitation any Loan
Party, (ii) proceed against or exhaust any Collateral or other collateral for the Secured
Obligations, or (iii) pursue any other remedy in its power, (b) any defense arising by reason of
any disability or other defense of any other Person, or by reason of the cessation from any cause
whatsoever of the liability of any other Person or entity, (c) any right of subrogation, (d) any
right to enforce any remedy which any Secured Party or any other obligee of the Secured Obligations
now has or may hereafter have against any other Person and any benefit of and any right to
participate in any collateral or security whatsoever now or hereafter held by the Administrative
Agent for the benefit of the Secured Parties. Each Pledgor authorizes each Secured Party and each
other obligee of the Secured Obligations without notice (except notice
required by applicable law) or demand and without affecting its liability hereunder or under
the Loan Documents from time to time to: (x) take and hold security, other than the Collateral
herein described, for the payment of such Secured Obligations or any part thereof, and exchange,
enforce, waive and release the Collateral herein described or any part thereof or any such other
security; and (y) apply such Collateral or other security and direct the order or manner of sale
thereof as such Secured Party or obligee in its discretion may determine.
The Administrative Agent may at any time deliver (without representation, recourse or
warranty) the Collateral or any part thereof to a Pledgor and the receipt thereof by such Pledgor
shall be a complete and full acquittance for the Collateral so delivered, and the Administrative
Agent shall thereafter be discharged from any liability or responsibility therefor.
11. Dividends and Voting Rights.
(a) All dividends and other distributions with respect to any of the Pledged
Interests shall be subject to the pledge hereunder, provided, however, that
cash dividends paid to a Pledgor as record owner of the Pledged Interests, to the extent
permitted by the Credit Agreement to be declared and paid, may be retained by such Pledgor
so long as no Event of Default shall have occurred and be continuing, free from any Liens
hereunder.
(b) So long as no Event of Default shall have occurred and be continuing, the
registration of the Collateral in the name of a Pledgor as record and beneficial owner shall
not be changed and such Pledgor shall be entitled to exercise all voting and other rights
and powers pertaining to the Collateral for all purposes not inconsistent with the terms of
the Loan Documents.
(c) Upon the occurrence and during the continuance of any Event of Default, all
rights of the Pledgors to receive and retain cash dividends and other distributions upon the
Collateral pursuant to subsection (a) above shall cease and shall thereupon be
vested in the Administrative Agent for the benefit of the Secured Parties, and each Pledgor
shall promptly deliver, or shall cause to be promptly delivered, all such cash dividends and
other distributions with respect to the Pledged Interests to the Administrative Agent
(together, if the Administrative Agent shall request, with the documents described in
Sections 2(c) and 3(c) hereof or other negotiable documents or instruments
so distributed) to be held by it hereunder or, at the option of the Administrative Agent, to
be applied to the Secured Obligations. Pending delivery to the Administrative Agent of such
property,
11
each Pledgor shall keep such property segregated from its other property and shall
be deemed to hold the same in trust for the benefit of the Secured Parties.
(d) Upon the occurrence and during the continuance of any Event of Default, at the
option of the Administrative Agent, all rights of each of the Pledgors to exercise the
voting or consensual rights and powers which it is authorized to exercise pursuant to
subsection (b) above shall cease and the Administrative Agent may thereupon (but shall not
be obligated to), at its request, cause such Collateral to be registered in the name of the
Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or
exercise such voting or consensual rights and powers as appertain to ownership of such
Collateral, and to that end each Pledgor hereby appoints the Administrative Agent as
its proxy, with full power of substitution, to vote and exercise all other rights as a
shareholder with respect to such Pledged Interests hereunder upon the occurrence and during
the continuance of any Event of Default, which proxy is coupled with an interest and is
irrevocable until the Facility Termination Date, and each Pledgor hereby agrees to provide
such further proxies as the Administrative Agent may request; provided,
however, that the Administrative Agent in its discretion may from time to time
refrain from exercising, and shall not be obligated to exercise, any such voting or
consensual rights or such proxy.
12. Continued Powers. Until the Facility Termination Date shall have occurred,
the power of sale and other rights, powers and remedies granted to the Administrative Agent for the
benefit of the Secured Parties hereunder shall continue to exist and may be exercised by the
Administrative Agent at any time and from time to time irrespective of the fact that any of the
Secured Obligations or any part thereof may have become barred by any statute of limitations or
that any part of the liability of any Pledgor may have ceased.
13. Other Rights. The rights, powers and remedies given to the Administrative
Agent for the benefit of the Secured Parties by this Pledge Agreement shall be in addition to all
rights, powers and remedies given to the Administrative Agent or any Secured Party under any other
Loan Document or by virtue of any statute or rule of law. Any forbearance or failure or delay by
the Administrative Agent in exercising any right, power or remedy hereunder shall not be deemed to
be a waiver of such right, power or remedy, and any single or partial exercise of any right, power
or remedy hereunder shall not preclude the further exercise thereof; and every right, power and
remedy of the Secured Parties shall continue in full force and effect until such right, power or
remedy is specifically waived in accordance with the terms of the Credit Agreement.
14. Anti-Marshaling Provisions. The right is hereby given by each Pledgor to the
Administrative Agent, for the benefit of the Secured Parties, to make releases (whether in whole or
in part) of all or any part of the Collateral agreeable to the Administrative Agent without notice
to, or the consent, approval or agreement of other parties and interests, including junior lienors,
which releases shall not impair in any manner the validity of or priority of the Liens and security
interests in the remaining Collateral conferred hereunder, nor release any Pledgor from personal
liability for the Secured Obligations. Notwithstanding the existence of any other security
interest in the Collateral held by the Administrative Agent, for the benefit of the Secured
12
Parties, the Administrative Agent shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in this Pledge Agreement. Each
Pledgor hereby waives any and all right to require the marshaling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein or in any Loan
Document.
15. Entire Agreement. This Pledge Agreement and each Pledge Joinder Agreement,
together with the Credit Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter hereof, and supersedes
all prior negotiations, agreements and understandings, inducements, commitments or conditions,
express or implied, oral or written, except as herein contained. The express terms hereof and of
the Pledge Joinder Agreements control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof and thereof. Neither this Pledge
Agreement nor any Pledge Joinder Agreement nor any portion or provision hereof or thereof may
be changed, altered, modified, supplemented, discharged, canceled, terminated, or amended orally or
in any manner other than as provided in the Credit Agreement.
16. Further Assurances. Each Pledgor agrees at its own expense to do such further
acts and things, and to execute and deliver, and cause to be executed and delivered as may be
necessary or advisable to give effect thereto, such additional conveyances, assignments, financing
statements, control agreements, documents, certificates, stock powers, agreements and instruments,
as the Administrative Agent may at any time reasonably request in connection with the
administration or enforcement of this Pledge Agreement or any Pledge Joinder Agreement or related
to the Collateral or any part thereof or in order better to assure and confirm unto the
Administrative Agent its rights, powers and remedies for the benefit of the Secured Parties
hereunder or thereunder. Each Pledgor hereby consents and agrees that the Pledged Subsidiaries and
all other Persons, shall be entitled to accept the provisions hereof and of the Pledge Joinder
Agreements as conclusive evidence of the right of the Administrative Agent, on behalf of the
Secured Parties, to exercise its rights, privileges, and remedies hereunder and thereunder with
respect to the Collateral, notwithstanding any other notice or direction to the contrary heretofore
or hereafter given by any Pledgor or any other Person to any of such Pledged Subsidiaries or other
Persons.
17. Binding Agreement; Assignment. This Pledge Agreement and each Pledge Joinder
Agreement, and the terms, covenants and conditions hereof and thereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their respective successors and assigns, except
that no Pledgor shall be permitted to assign this Pledge Agreement, any Pledge Joinder Agreement or
any interest herein or therein or in the Collateral, or any part thereof or interest therein, or
otherwise pledge, encumber or grant any option with respect to the Collateral, or any part thereof,
or any cash or property held by the Administrative Agent as Collateral under this Pledge Agreement.
Without limiting the generality of the foregoing sentence of this Section 17, any Lender
may assign to one or more Persons, or grant to one or more Persons participations in or to, all or
any part of its rights and obligations under the Credit Agreement (to the extent permitted by the
Credit Agreement); and to the extent of any such assignment or participation such other Person
shall, to the fullest extent permitted by law, thereupon become vested with all
13
the benefits in respect thereof granted to such Lender herein or otherwise, subject however, to the provisions of
the Credit Agreement, including Article IX thereof (concerning the Administrative Agent)
and Section 10.06 thereof (concerning assignments and participations). All references
herein to the Administrative Agent and to the Secured Parties shall include any successor thereof
or permitted assignee, and any other obligees from time to time of the Secured Obligations.
18. Secured Cash Management Agreements, Secured Hedge Agreements and Secured Card
Related Products Agreements. No Secured Party (other than the Administrative Agent) that
obtains the benefit of this Pledge Agreement shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in its capacity as a Lender and,
in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any
other provision of this Pledge Agreement to the contrary, the
Administrative Agent shall only be required to verify the payment of, or that other
satisfactory arrangement have been made with respect to, the Secured Obligations arising under
Secured Cash Management Agreements, Secured Hedge Agreements and Secured Cash Related Products
Agreements to the extent the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as it may request, from the applicable Cash Management
Bank, Hedge Bank and Card Related Products Bank, as the case may be. Each Secured Party not a
party to the Credit Agreement that obtains the benefit of this Pledge Agreement shall be deemed to
have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of
the Credit Agreement, and that with respect to the actions and omissions of the Administrative
Agent hereunder or otherwise relating hereto that do or may affect such Secured Party, the
Administrative Agent and each of its Related Parties shall be entitled to all the rights, benefits
and immunities conferred under Article IX of the Credit Agreement.
19. Severability. The provisions of this Pledge Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, but this Pledge Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
20. Counterparts. This Pledge Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Pledge Agreement to produce or account for more than one
such counterpart executed by the Pledgor against whom enforcement is sought. Without limiting the
foregoing provisions of this Section 20, the provisions of Section 10.10 of the
Credit Agreement shall be applicable to this Pledge Agreement.
21. Termination. Subject to the provisions of Section 9, this Pledge
Agreement and each Pledge Joinder Agreement, and all obligations of the Pledgors hereunder
(excluding those obligations and liabilities that expressly survive such termination) shall
terminate without delivery of any instrument or performance of any act by any party on the Facility
Termination Date. Upon such termination of this Pledge Agreement, the Administrative Agent shall,
at the
14
sole expense of the Pledgors, promptly deliver to the Pledgors the certificates
evidencing its shares of Pledged Interests (and any other property received as a dividend or
distribution or otherwise in respect of such Pledged Interests to the extent then held by the
Administrative Agent as additional Collateral hereunder), together with any cash then constituting
the Collateral not then sold or otherwise disposed of in accordance with the provisions hereof, and
take such further actions at the request of the Pledgors as may be necessary to effect the same.
22. Additional Interests. If any Pledgor shall at any time acquire or hold any
additional Pledged Interests, including any Pledged Interests issued by any Subsidiary not listed
on Schedule I hereto which are required to be subject to a Lien pursuant to a Pledge
Agreement by the terms hereof or of any provision of the Credit Agreement (any such shares being
referred to herein as the “Additional Interests”), such Pledgor shall deliver to the
Administrative Agent for the benefit of the Secured Parties (i) a Pledge Agreement Supplement in
the form of Exhibit A hereto with respect to such Additional Interests duly completed and
executed by such Pledgor and (ii) any other document required in connection with such Additional
Interests as described in Section 3(c). Each Pledgor shall comply with the requirements of
this Section 22 concurrently with the acquisition of any such Additional Interests or, in
the case of Additional Interests to which Section 6.14 of the Credit Agreement applies,
within the time period specified in such Section or elsewhere in the Credit Agreement with respect
to such Additional Interests; provided, however, that the failure to comply with
the provisions of this Section 22 shall not impair the Lien on Additional Interests
conferred hereunder.
23. Notices. Any notice required or permitted hereunder shall be given (a) with
respect to any Borrower, at the address of the Borrowers indicated in Schedule 10.02 of the
Credit Agreement, (b) with respect to each Subsidiary which is a Pledgor hereunder, at the address
then in effect for the giving of notices to such Subsidiary under the Guaranty to which it is a
party, and (c) with respect to the Administrative Agent or a Lender, at the Administrative Agent’s
address indicated in Schedule 10.02 of the Credit Agreement. All such addresses may be
modified, and all such notices shall be given and shall be effective, as provided in Section
10.02 of the Credit Agreement for the giving and effectiveness of notices and modifications of
addresses thereunder.
24. Joinder. Each Person who shall at any time execute and deliver to the
Administrative Agent a Pledge Joinder Agreement substantially in the form attached as Exhibit
B hereto shall thereupon irrevocably, absolutely and unconditionally become a party hereto and
obligated hereunder as a Pledgor and shall have thereupon pursuant to Section 2 hereof
granted a security interest in and collaterally assigned and pledged to the Administrative Agent
for the benefit of the Secured Parties all Pledged Interests which it has at its Applicable Date or
thereafter acquires any interest or the power to transfer, and all references herein and in the
other Loan Documents to the Pledgors or to the parties to this Pledge Agreement shall be deemed to
include such Person as a Pledgor hereunder. Each Pledge Joinder Agreement shall be accompanied by
the Supplemental Schedules referred to therein, appropriately completed with information relating
to the Pledgor executing such Pledge Joinder Agreement and its property. Each of the applicable
Schedules attached hereto shall be deemed amended and supplemented without further action by such
information reflected on the Supplemental Schedules.
15
25. Rules of Interpretation. The rules of interpretation contained in Section
1.02 of the Credit Agreement shall be applicable to this Pledge Agreement and each Pledge
Joinder Agreement and are hereby incorporated by reference. All representations and warranties
contained herein shall survive the delivery of documents and any Credit Extensions referred to
herein or secured hereby.
26. Governing Law; Waivers.
(a) THIS PLEDGE AGREEMENT AND EACH PLEDGE JOINDER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(b) EACH PLEDGOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA SITTING IN THE
CITY AND COUNTY OF SAN FRANCISCO AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN
DISTRICT OF CALIFORNIA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR A PLEDGE JOINDER
AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS PLEDGE AGREEMENT OR ANY PLEDGE JOINDER AGREEMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS PLEDGE AGREEMENT OR A PLEDGE JOINDER AGREEMENT AGAINST ANY PLEDGOR OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) EACH PLEDGOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR
ANY PLEDGE JOINDER AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
16
(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 23. NOTHING IN THIS PLEDGE AGREEMENT OR ANY PLEDGE JOINDER
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR
RELATED TO THIS PLEDGE AGREEMENT OR ANY PLEDGE JOINDER AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE ARBITRATED IN ACCORDANCE
WITH SECTION 10.15 OF THE CREDIT AGREEMENT.
[Signature pages follow.]
17
IN WITNESS WHEREOF, the parties have duly executed this Pledge Agreement on the day and year
first written above.
| PLEDGORS: GRANITE CONSTRUCTION INCORPORATED |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | V.P. Treasurer | |||
| GRANITE CONSTRUCTION COMPANY |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | V.P. Treasurer | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | V.P. CFO | |||
| GILC INCORPORATED |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | V.P. and CFO | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | President and CEO | |||
SECURITIES PLEDGE AGREEMENT
Signature Page
Signature Page
| GRANITE CONSTRUCTION NORTHEAST, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | V.P. Treasurer | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | VP and CFO | |||
| GRANITE NORTHWEST, INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxxxxxx | |||
| Title: | V.P., Treasurer and Asst. Secretary | |||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Authorized Officer | |||
| GRANITE LAND COMPANY |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | V.P. Treasurer | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | V.P. | |||
SECURITIES PLEDGE AGREEMENT
Signature Page
Signature Page
| INTERMOUNTAIN SLURRY SEAL, INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxxxxxx | |||
| Title: | V.P., Treasurer and Asst. Secretary | |||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Authorized Officer | |||
| POZZOLAN PRODUCTS COMPANY (P.P.C.) |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxxxxxx | |||
| Title: | V.P., Treasurer and Asst. Secretary | |||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Authorized Officer | |||
SECURITIES PLEDGE AGREEMENT
Signature Page
Signature Page
| ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
SECURITIES PLEDGE AGREEMENT
Signature Page
Signature Page
SCHEDULE I
| Total Amount | ||||||||||||||||||||||||||||
| of Class or | Total | |||||||||||||||||||||||||||
| Name, Jurisdiction of | Class or | Type of | Amount of | Name of | ||||||||||||||||||||||||
| Formation and Type of | Type of | Pledged | Class or | Total | Certificate | Par Value | Transfer | |||||||||||||||||||||
| Entity of Pledged | Pledged | Interests | Type | Amount | Number (if | (if | Agent | |||||||||||||||||||||
| Name of Pledgor | Subsidiary | Interest | Authorized | Outstanding | Pledged | applicable) | applicable) | (if any) | ||||||||||||||||||||
| Granite Construction Company | Common Stock | 30,000,000 | 10,000,000 | 10,000,000 | 38 | $ | 0.01 | |||||||||||||||||||||
| Granite Land Company | Common Stock | 100 | 100 | $ | 1,000.00 | |||||||||||||||||||||||
| Granite SR 91 Corporation | Common Stock | 1,000 | 1,000 | $ | 100.00 | |||||||||||||||||||||||
| GILC Incorporated | Common Stock | 5,000 | 5,000 | $ | 100.00 | |||||||||||||||||||||||
| Intermountain Slurry Seal, Inc. | Common Stock | 250,000 | 103,035 | 103,035 | $ | 1.00 | ||||||||||||||||||||||
| Granite Construction International | Common Stock | 1,000,000 | 1,040 | 1,040 | 2 | $ | 10.00 | |||||||||||||||||||||
| Pozzolan Products Company | Common Stock | 1,000 | 1,000 | $ | 1.00 | |||||||||||||||||||||||
| Granite Construction Northeast, Inc. | Common Stock | 400 | 300 | 300 | None | |||||||||||||||||||||||
Granite Construction Inc. |
Granite Northwest, Inc. | Common Stock | 1,000,000 | 100 | 100 | 1 | None | |||||||||||||||||||||
SCHEDULE II
EXHIBIT A
PLEDGE AGREEMENT SUPPLEMENT
THIS PLEDGE AGREEMENT SUPPLEMENT dated as of _____________, 20__ (this “Pledge Agreement
Supplement”), is made by _____________________, a ________________ (the “Pledgor”), in
favor of BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the “Administrative
Agent”) for the Secured Parties.
RECITALS:
A. The Pledgor is party to that certain Securities Pledge Agreement dated as of December 23,
2010 (as in effect on the date hereof, the “Pledge Agreement”; all capitalized terms used
but not defined herein shall have the meanings provided therefor such Pledge Agreement), among
Granite Construction Incorporated, a Delaware corporation (the “Company” and a
“Borrower”), Granite Construction Company, a California corporation (“GCC” and a
“Borrower”), GILC Incorporated, a California corporation (“GILC” and a
“Borrower”, and together with the Company and GCC, collectively, the “Borrower”),
certain Subsidiaries of the Company and the Administrative Agent.
B. The Pledgor has acquired rights in the Pledged Interests listed on Annex A to this
Supplement (the “Additional Interests”) and desires to pledge, and evidence its prior
pledge, to the Administrative Agent for the benefit of the Secured Parties all of the Additional
Interests in accordance with the terms of the Credit Agreement and the Pledge Agreement.
In order to induce the Secured Parties to from time to time make and maintain extensions of
credit under the Credit Agreement, Secured Cash Management Agreements, Secured Hedge Agreements and
Secured Cash Related Products Agreements, the Pledgor hereby agrees as follows:
1. Affirmations. The Pledgor hereby reaffirms and acknowledges the pledge and
collateral assignment to, and the grant of security interest in, the Additional Interests contained
in the Pledge Agreement and pledges and collaterally assigns to the Administrative Agent for the
benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the
Secured Parties a first priority lien and security interest (subject to Permitted Liens) in, the
Additional Interests and all of the following:
(a) all money, securities, security entitlements and other investment property,
dividends, rights, general intangibles and other property at any time and from time to time
(x) declared or distributed in respect of or in exchange for or on conversion of any or all
of the Additional Interests or (y) by its or their terms exchangeable or exercisable for or
convertible into any Additional Interest or other Pledged Interest;
(b) all other property of whatever character or description, including money,
securities, security entitlements and other investment property, and general intangibles
hereafter delivered to the Administrative Agent in substitution for or as an addition to any
of the foregoing;
(c) all securities accounts to which may at any time be credited any or all of the
foregoing or any proceeds thereof and all certificates and instruments representing or
evidencing any of the foregoing or any proceeds thereof; and
(d) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms by its execution of this Supplement that the
Additional Interests constitute “Pledged Interests” under and are subject to the Pledge Agreement,
and the items of property referred to in clauses (a) through (d) above (the
“Additional Collateral”) shall collectively constitute “Collateral” under and are subject
to the Pledge Agreement. Each of the representations and warranties with respect to Pledged
Interests and Collateral contained in the Pledge Agreement is hereby made by the Pledgor with
respect to the Additional Interests and the Additional Collateral, respectively. The Pledgor
further represents and warrants that Annex A attached to this Supplement contains a true,
correct and complete description of the Additional Interests, and that all other documents required
to be furnished to the Administrative Agent pursuant to Section 3(c) of the Pledge
Agreement in connection with the Additional Collateral have been delivered or are being delivered
simultaneously herewith to the Administrative Agent. The Pledgor further acknowledges that
Schedule I to the Pledge Agreement shall be deemed, as to it, to be supplemented as of the
date hereof to include the Additional Interests as described on Annex A to this Supplement.
2. Counterparts. This Pledge Agreement Supplement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Pledge Agreement Supplement to produce or account for more
than one such counterpart executed by the Pledgor. Without limiting the foregoing provisions of
this Section 2, the provisions of Section 10.10 of the Credit Agreement shall be
applicable to this Pledge Agreement.
3. Governing Law; Venue; Waiver of Jury Trial. The provisions of Section 26
of the Pledge Agreement are hereby incorporated by reference as if fully set forth herein.
[Signature page follows.]
IN WITNESS WHEREOF, the Pledgor has caused this Supplement to be duly executed by it’s
authorized officer as of the day and year first above written.
| PLEDGOR: |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
ANNEX A
(to Pledge Agreement Supplement of __________ dated __________)
(to Pledge Agreement Supplement of __________ dated __________)
Additional Interests
| Name, | Total Amount | |||||||||||||||||||||||||||||||
| Jurisdiction of | of Class or | |||||||||||||||||||||||||||||||
| Formation and | Type of | Total Amount | ||||||||||||||||||||||||||||||
| Type of Entity | Class or Type | Additional | of Class or | Certificate | Name of | |||||||||||||||||||||||||||
| Name of | of Pledged | of Additional | Interests | Type | Total Amount | Number (if | Par Value (if | Transfer Agent | ||||||||||||||||||||||||
| Pledgor | Subsidiary | Interest | Authorized | Outstanding | Pledged | applicable) | applicable) | (if any) | ||||||||||||||||||||||||
EXHIBIT
B
PLEDGE JOINDER AGREEMENT
THIS PLEDGE JOINDER AGREEMENT dated as of _____________, 20__ (this “Pledge Joinder
Agreement”), is made by _____________________, a ________________ (the “Joining
Pledgor”), in favor of BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the
“Administrative Agent”) for the Secured Parties.
RECITALS:
A. Granite Construction Incorporated, a Delaware corporation, [___________], a [___________],
and [___________], a [___________] (collectively, the “Borrower”), certain Subsidiaries of
the Company and the Administrative Agent, are party to a Pledge Agreement dated as of December 23,
2010 (as in effect on the date hereof, the “Pledge Agreement”; all capitalized terms used
but not defined herein shall have the meanings provided therefor in such Pledge Agreement).
B. The Joining Pledgor is a Subsidiary of the Borrower and is required by the terms of the
Credit Agreement to become a Guarantor and be joined as a party to the Pledge Agreement as a
Pledgor.
C. The Joining Pledgor will materially benefit directly and indirectly from the making and
maintenance of the extensions of credit made from time to time under the Credit Agreement, Secured
Cash Management Agreements, Secured Hedge Agreements and Secured Cash Related Products Agreements.
In order to induce the Secured Parties to from time to time make and maintain extensions of
credit under the Credit Agreement, Secured Cash Management Agreements, Secured Hedge Agreements and
Secured Cash Related Products Agreements, the Joining Pledgor hereby agrees as follows:
1. Joinder. The Subsidiary hereby irrevocably, absolutely and unconditionally becomes
a party to the Pledge Agreement as a Pledgor and bound by all the terms, conditions, obligations,
liabilities and undertakings of each Pledgor or to which each Pledgor is subject thereunder,
including without limitation the grant pursuant to Section 2 of the Pledge Agreement of a
security interest to the Administrative Agent for the benefit of the Secured Parties in, and
collateral assignment and pledge to the Administrative Agent of, the Pledged Interests and other
property constituting Collateral of such Pledgor or in which such Pledgor has or may have or
acquire an interest or the power to transfer rights therein, whether now owned or existing or
hereafter created, acquired or arising and wheresoever located, as security for the payment and
performance of the Secured Obligations, all with the same force and effect as if the Joining
Pledgor were a signatory to the Pledge Agreement.
2. Affirmations. The Joining Pledgor hereby acknowledges and affirms as of the date
hereof with respect to itself, its properties and its affairs each of the waivers,
representations, warranties, acknowledgements and certifications applicable to any Pledgor
contained in the Pledge Agreement.
3. Supplemental Schedules. Attached to this Pledge Joinder Agreement are duly
completed schedules (the “Supplemental Schedules”) supplementing as thereon indicated the
respective Schedules to the Pledge Agreement. The Joining Pledgor represents and warrants that the
information contained on each of the Supplemental Schedules with respect to such Joining Pledgor
and its properties and affairs is true, complete and accurate as of its Applicable Date.
4. Severability. The provisions of this Pledge Joinder Agreement are independent of
and separable from each other. If any provision hereof shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, but this Pledge Joinder Agreement shall be construed as if such
invalid or unenforceable provision had never been contained herein.
5. Counterparts. This Pledge Joinder Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Pledge Joinder Agreement to produce or account for more
than one such counterpart executed by the Joining Pledgor. Delivery of an executed counterpart of
a signature page of this Pledge Joinder Agreement by facsimile or electronic transmission
(including .pdf file) shall be effective as delivery of a manually executed counterpart hereof.
6. Delivery. The Joining Pledgor hereby irrevocably waives notice of acceptance of
this Pledge Joinder Agreement and acknowledges that the Secured Obligations are and shall be deemed
to be incurred, and credit extensions under the Loan Documents, Secured Cash Management Agreements,
Secured Hedge Agreements and Secured Cash Related Products Agreements made and maintained, in
reliance on this Pledge Joinder Agreement and the Pledgor’s joinder as a party to the Pledge
Agreement as herein provided.
7. Governing Law; Venue; Waiver of Jury Trial. The provisions of Section 26
of the Pledge Agreement are hereby incorporated by reference as if fully set forth herein.
[Signature page follows.]
IN WITNESS WHEREOF, the Joining Pledgor has duly executed and delivered this Pledge Joinder
Agreement as of the day and year first written above.
| JOINING PLEDGOR: |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SUPPLEMENTAL
SCHEDULE I
SCHEDULE I
| Name, | Total Amount | |||||||||||||||||||||||||||||||
| Jurisdiction of | of Class or | |||||||||||||||||||||||||||||||
| Formation and | Type of | Total Amount | ||||||||||||||||||||||||||||||
| Type of Entity | Class or Type | Pledged | of Class or | Certificate | Name of | |||||||||||||||||||||||||||
| Name of | of Pledged | of Pledged | Interests | Type | Total Amount | Number (if | Par Value (if | Transfer Agent | ||||||||||||||||||||||||
| Pledgor | Subsidiary | Interest | Authorized | Outstanding | Pledged | applicable) | applicable) | (if any) | ||||||||||||||||||||||||
Delivered Pursuant to Pledge Joinder Agreement of: ________________________
Applicable Date: __________, 20__
Applicable Date: __________, 20__
SUPPLEMENTAL
SCHEDULE II
SCHEDULE II
| Name and | Jurisdiction of Formation | Jurisdiction of Formation | Address of Chief | |||||||||||||
| Address of Pledgor | Type of Person | of Pledgor | Identification Number | Executive Office | ||||||||||||
Delivered Pursuant to Pledge Joinder Agreement of: ________________________
Applicable Date: __________, 20__
Applicable Date: __________, 20__
