Subsidiary Guaranty AgreementGuarantee Agreement |
|
|
You are currently viewing: This Guarantee Agreement involves
GRANITE CONSTRUCTION INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit
10.10
Subsidiary Guaranty Agreement
Dated
as of December 12, 2007
Re:
Table of Contents
(Not
a part of the Agreement)
Subsidiary
Guaranty Agreement
Re: $200,000,000
6.11% Series 2007-A Senior Notes
Due
December 12, 2019
and
Additional
Notes
of
Granite Construction
Incorporated
This
Subsidiary Guaranty Agreement dated as of December 12, 2007
(the or this “Guaranty”
) is entered into on a joint and several basis by each of the
undersigned, together with any entity which may become a party
hereto by execution and delivery of a Subsidiary Guaranty
Supplement in substantially the form set forth as
Exhibit A hereto (a “Guaranty
Supplement” ) (which parties are hereinafter
referred to individually as a “Guarantor”
and collectively as the “Guarantors”
).
Recitals
A. Each
Guarantor is a subsidiary of Granite Construction
Incorporated, a Delaware corporation (the “Company”
), and a Material Subsidiary (as defined in the hereinafter
defined Note Agreement).
B. The
Company has entered into that certain Note Purchase Agreement
dated as of December 12, 2007 (as the same may be amended,
supplemented, restated or otherwise modified from time to
time, the “Note
Agreement” ) between the Company and each of the
purchasers named on Schedule A attached to said Note
Agreement (the “2007-A Note
Purchasers” ), providing for, among other things,
the issue and sale by the Company to the 2007-A Note
Purchasers of $200,000,000 aggregate principal amount of its
6.11% Series 2007-A Senior Notes, due December 12, 2019 (as
amended, modified, supplemented or restated from time to time,
the “Series 2007-A
Notes” ).
C. Pursuant
to the Note Agreement, the Company may, from time to time,
issue one or more additional Series (as defined in the Note
Agreement) of its unsecured promissory notes (as amended,
modified, supplemented or restated from time to time, the
“Additional
Notes,” and collectively with the Series 2007-A
Notes, the “Notes”
) to purchasers ( “Additional
Purchasers” ) pursuant to a supplement (a
“Supplement”
), provided that the
aggregate principal amount of Additional Notes issued pursuant
to Supplements in accordance with the terms of Section 2.2 of
the Note Agreement shall not exceed
$100,000,000. In connection with the issuance of
each Series of Additional Notes, the Guarantors will execute
and deliver a Guaranty Accession Agreement in the form
attached hereto as Exhibit B confirming that such Series of
Additional Notes constitutes Notes hereunder and are entitled
to the benefits hereof. The 2007-A Note Purchasers
and the Additional Purchasers together with their respective
successors and assigns are collectively referred to herein as
the “Holders.”
D. The
2007-A Note Purchasers have required as a condition of their
purchase of the Series 2007-A Notes and it is a condition of
each Additional Purchaser’s purchase of Additional Notes
that the Company cause each of the undersigned to enter into
this Guaranty and to cause from time to time each Material
Subsidiary to enter into a Guaranty Supplement, in each case
as security for the Notes, and the Company has agreed to cause
each of the undersigned to execute this Guaranty and to cause
each from time to time Material Subsidiary to execute a
Guaranty Supplement, in each case in order to induce the
2007-A Note Purchasers and the Additional Purchasers to
purchase the Notes and thereby benefit the Company and its
Subsidiaries (as defined in the Note Agreement) by providing
funds to the Company for the purposes described in Section
5.14 of the Note Agreement or in the case of any Additional
Notes, for the purposes described in the related
Supplement.
Now,
therefore, as required by Section 4.4 of the Note
Agreement and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, each Guarantor does hereby
covenant and agree, jointly and severally, as
follows:
Capitalized
terms used herein shall have the meanings set forth in the
Note Agreement unless herein defined or the context shall
otherwise require.
(a) Each
Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the
Holders: (1) the full and prompt payment of
the principal of, premium, if any, and interest on the Notes
from time to time outstanding, as and when such payments shall
become due and payable whether by lapse of time, upon
redemption or prepayment, by extension or by acceleration or
declaration or otherwise (including (to the extent legally
enforceable) interest due on overdue payments of principal,
premium, if any, or interest at the rate set forth in the
Notes) in federal or other immediately available funds of the
United States of America which at the time of payment or
demand therefor shall be legal tender for the payment of
public and private debts, (2) the full and prompt performance
and observance by the Company of each and all of the
obligations, covenants and agreements required to be performed
or owed by the Company under the terms of the Notes and the
Note Agreement (including any Supplement) and (3) the
full and prompt payment, upon demand by any Holder of all
costs and expenses, legal or otherwise (including reasonable
attorneys’ fees), if any, as shall have been expended or
incurred in the protection or enforcement of any rights,
privileges or liabilities in favor of the Holders under or in
respect of the Notes, the Note Agreement (including any
Supplement) or under this Guaranty or in any consultation or
action in connection therewith or herewith.
(b) To
the extent that any Guarantor shall make a payment hereunder
(a “Payment”
) which, taking into account all other Payments previously or
concurrently made by any of the other Guarantors, exceeds the
amount which such Guarantor would otherwise have paid if each
Guarantor had paid the aggregate obligations satisfied by such
Payment in the same proportion as such Guarantor’s
Allocable Amount (as hereinafter defined) in effect
immediately prior to such Payment bore to the Aggregate
Allocable Amount (as hereinafter defined) of all of the
Guarantors in effect immediately prior to the making of such
Payment, then such Guarantor shall be entitled to contribution
and indemnification from, and be reimbursed by, each of the
other Guarantors for the amount of such excess, pro rata based
upon their respective Allocable Amounts in effect immediately
prior to such Payment; provided that
each Guarantor covenants and agrees that such right of
contribution and indemnification and any and all claims of
such Guarantor against any other Guarantor, any endorser or
against any of their property shall be junior and subordinate
in right of payment to the prior indefeasible final payment in
cash in full of all of the Notes and satisfaction by the
Company of its obligations under the Note Purchase Agreement
(including each Supplement) and by the Guarantors of their
obligations under this Guaranty and the Guarantors shall not
take any action to enforce such right of contribution and
indemnification, and the Guarantors shall not accept any
payment in respect of such right of contribution and
indemnification, until all of the Notes and all amounts
payable by the Guarantors hereunder have indefeasibly been
finally paid in cash in full and all of the obligations of the
Company under the Note Purchase Agreement (including each
Supplement) and of the Guarantors under this Guaranty have
been satisfied
As
of any date of determination, (1) the “Allocable
Amount” of any Guarantor shall be equal to the
maximum amount which could then be claimed by the Holders
under this Guaranty without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the United States
Bankruptcy Code (11 U.S.C. Sec. 101 et. seq.) or under any
applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law;
and (2) the “Aggregate
Allocable Amount” shall be equal to the sum of
each Guarantor’s Allocable Amount.
This
clause (b) is intended only to define the relative rights of
the Guarantors, and nothing set forth in this clause (b) is
intended to or shall impair the obligations of the Guarantors,
jointly and severally, to pay any amounts to the Holders as
and when the same shall become due and payable in accordance
herewith.
Each
Guarantor acknowledges that the rights of contribution and
indemnification hereunder shall constitute an asset in favor
of any Guarantor to which such contribution and
indemnification is owing.
This
is a guarantee of payment and performance and each Guarantor
hereby waives, to the fullest extent permitted by law, any
right to require that any action on or in respect of any Note
or the Note Agreement (including any Supplement) be brought
against the Company or any other Person or that resort be had
to any direct or indirect security for the Notes or for this
Guaranty or any other remedy. Any Holder may, at
its option, proceed hereunder against any Guarantor in the
first instance to collect monies when due, the payment of
which is guaranteed hereby, without first proceeding against
the Company or any other Person and without first resorting to
any direct or indirect security for the Notes or for this
Guaranty or any other remedy. The liability of each
Guarantor hereunder shall in no way be affected or impaired by
any acceptance by any Holder of any direct or indirect
security for, or other guaranties of, any Debt, liability or
obligation of the Company or any other Person to any Holder or
by any failure, delay, neglect or omission by any Holder to
realize upon or protect any such guarantees, Debt, liability
or obligation or any notes or other instruments evidencing the
same or any direct or indirect security therefor or by any
approval, consent, waiver, or other action taken, or omitted
to be taken by any such Holder.
The
covenants and agreements on the part of the Guarantors herein
contained shall take effect as joint and several covenants and
agreements, and references to the Guarantors shall take effect
as references to each of them and none of them shall be
released from liability hereunder by reason of the guarantee
ceasing to be binding as a continuing security on any other of
them.
(a) Each
Guarantor hereby consents and agrees that any Holder or
Holders from time to time, with or without any further notice
to or assent from any other Guarantor may, without in any
manner affecting the liability of any Guarantor under this
Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1)
extend in
whole or in part (by renewal or otherwise), modify, change,
compromise, release or extend the duration of the time for the
performance or payment of any Debt, liability or obligation of
the Company or of any other Person secondarily or otherwise
liable for any Debt, liability or obligations of the Company
on the Notes, or waive any Default with respect thereto, or
waive, modify, amend or change any provision of any other
agreement or waive this Guaranty; or
(2)
sell,
release, surrender, modify, impair, exchange or substitute any
and all property, of any nature and from whomsoever received,
held by, or for the benefit of, any such Holder as direct or
indirect security for the payment or performance of any Debt,
liability or obligation of the Company or of any other Person
secondarily or otherwise liable for any Debt, liability or
obligation of the Company on the Notes; or
(3)
settle,
adjust or compromise any claim of the Company against any
other Person secondarily or otherwise liable for any Debt,
liability or obligation of the Company on the
Notes.
Each
Guarantor hereby ratifies and confirms any such extension,
renewal, change, sale, release, waiver, surrender, exchange,
modification, amendment, impairment, substitution, settlement,
adjustment or compromise and that the same shall be binding
upon it, and hereby waives, to the fullest extent permitted by
law, any and all defenses, counterclaims or offsets which it
might or could have by reason thereof, it being understood
that such Guarantor shall at all times be bound by this
Guaranty and remain liable hereunder.
(b) Each
Guarantor hereby waives, to the fullest extent permitted by
law:
(1)
notice of
acceptance of this Guaranty by the Holders or of the creation,
renewal or accrual of any liability of the Company, present or
future, or of the reliance of such Holders upon this Guaranty
(it being understood that every Debt, liability and obligation
described in Section 2 hereof shall conclusively be
presumed to have been created, contracted or incurred in
reliance upon the execution of this Guaranty);
(2)
notice of
the issuance of any Additional Notes pursuant to the Note
Agreement or any Supplement thereto;
(3)
demand of
payment by any Holder from the Company or any other Person
indebted in any manner on or for any of the Debt, liabilities
or obligations hereby guaranteed; and
(4)
presentment
for the payment by any Holder or any other Person of the Notes
or any other instrument, protest thereof and notice of its
dishonor to any party thereto and to such
Guarantor.
The
obligations of each Guarantor under this Guaranty and the
rights of any Holder to enforce such obligations by any
proceedings, whether by action at law, suit in equity or
otherwise, shall not be subject to any reduction, limitation,
impairment or termination, whether by reason of any claim of
any character whatsoever or otherwise and shall not be subject
to any defense, set-off, counterclaim (other than any
compulsory counterclaim), recoupment or termination
whatsoever.
(c) The
obligations of the Guarantors hereunder shall be binding upon
the Guarantors and their successors and assigns, and shall
remain in full force and effect irrespective of:
(1)
the
genuineness, validity, regularity or enforceability of the
Notes, the Note Agreement, any Supplement or any other
agreement or any of the terms of any thereof, the continuance
of any obligation on the part of the Company or any other
Person on or in respect of the Notes or under the Note
Agreement, any Supplement or any other agreement or the power
or authority or the lack of power or authority of the Company
to issue the Notes or the Company to execute and deliver the
Note Agreement, any Supplement or any other agreement or of
any Guarantor to execute and deliver this Guaranty or to
perform any of its obligations hereunder or the existence or
continuance of the Company or any other Person as a legal
entity; or
(2)
any default,
failure or delay, willful or otherwise, in the performance by
the Company, any Guarantor or any other Person of any
obligations of any kind or character whatsoever under the
Notes, the Note Agreement, any Supplement, this Guaranty or
any other agreement; or
(3)
any
creditors’ rights, bankruptcy, receivership or other
insolvency proceeding of the Company, any Guarantor or any
other Person or in respect of the property of the Company, any
Guarantor or any other Person or any merger, consolidation,
reorganization, dissolution, liquidation, the sale of all or
substantially all of the assets of or winding up of the
Company, any Guarantor or any other Person; or
(4)
impossibility or illegality of performance on the part of the
Company, any Guarantor or any other Person of its obligations
under the Notes, the Note Agreement, any Supplement, this
Guaranty or any other agreements; or
(5)
in respect
of the Company or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether
or not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion,
accident, labor disturbance, floods, droughts, embargoes, wars
(whether or not declared), civil commotion, acts of God or the
public enemy, delays or failure of suppliers or carriers,
inability to obtain materials, action of any federal or state
regulatory body or agency, change of law or any other causes
affecting performance, or any other force majeure ,
whether or not beyond the control of the Company or any other
Person and whether or not of the kind hereinbefore specified;
or
(6)
any
attachment, claim, demand, charge, Lien, order, process,
encumbrance or any other happening or event or reason, similar
or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments,
expenses, Debt, obligations or liabilities of any character,
foreseen or unforeseen, and whether or not valid, incurred by
or against the Company, any Guarantor or any other Person or
any claims, demands, charges or Liens of any nature, foreseen
or unforeseen, incurred by the Company, any Guarantor or any
other Person, or against any sums payable in respect of the
Notes or under the Note Agreement, any Supplement or this
Guaranty, so that such sums would be rendered inadequate or
would be unavailable to make the payments herein provided;
or
(7)
any order,
judgment, decree, ruling or regulation (whether or not valid)
of any court of any nation or of any political subdivision
thereof or any body, agency, department, official or
administrative or regulatory agency of any thereof or any
other action, happening, event or reason whatsoever which
shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Company, any
Guarantor or any other Person of its respective obligations
under or in respect of the Notes, the Note Agreement, any
Supplement, this Guaranty or any other agreement;
or
(8)
the failure
of any Guarantor to receive any benefit from or as a result of
its execution, delivery and performance of this Guaranty;
or
(9)
any failure
or lack of diligence in collection or protection, failure in
presentment or demand for payment, protest, notice of protest,
notice of default and of nonpayment, any failure to give
notice to any Guarantor of failure of the Company, any
Guarantor or any other Person to keep and perform any
obligation, covenant or agreement under the terms of the
Notes, the Note Agreement, any Supplement, this Guaranty or
any other agreement or failure to resort for payment to the
Company, any Guarantor or to any other Person or to any other
guaranty or to any property, security, Liens or other rights
or remedies; or
(10)
the
acceptance of any additional security or other guaranty, the
advance of additional money to the Company or any other
Person, the renewal or extension of the Notes or amendments,
modifications, consents or waivers with respect to the Notes,
the Note Agreement, any Supplement or any other agreement, or
the sale, release, substitution or exchange of any security
for the Notes; or
(11)
the failure
to execute a Guaranty Accession Agreement in connection with
the issuance of any Series of Additional Notes;
or
(12)
any merger
or consolidation of the Company, any Guarantor or any other
Person into or with any other Person or any sale, lease,
transfer or other disposition of any of the assets of the
Company, any Guarantor or any other Person to any other
Person, or any change in the ownership of any shares of the
Company, any Guarantor or any other Person; or
(13)
any defense
whatsoever that: (i) the Company or any other
Person might have to the payment of the Notes (principal,
premium, if any, or interest), other than payment thereof in
federal or other immediately available funds or (ii) the
Company or any other Person might have to the performance or
observance of any of the provisions of the Notes, the Note
Agreement, any Supplement or any other agreement, whether
through the satisfaction or purported satisfaction by the
Company or any other Person of its debts due to any cause such
as bankruptcy, insolvency, receivership, merger,
consolidation, reorganization, dissolution, liquidation,
winding-up or otherwise; or
(14)
any act or
failure to act with regard to the Notes, the Note Agreement,
any Supplement, this Guaranty or any other agreement or
anything which might vary the risk of any Guarantor or any
other Person; or
(15)
any other
circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor or any other
Person in respect of the obligations of any Guarantor or other
Person under this Guaranty or any other
agreement;
provided that the specific enumeration of the
above-mentioned acts, failures or omissions shall not be deemed to
exclude any other acts, failures or omissions, though not
specifically mentioned above, it being the purpose and intent of
this Guaranty and the parties hereto that the obligations of each
Guarantor shall be absolute and unconditional and shall not be
discharged, impaired or varied except by the payment of the
principal of, premium, if any, and interest on the Notes in
accordance with their respective
|
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
