exv10w1



 






Exhibit 10.1




Execution Version




 

 






     Published CUSIP Number:                    



CREDIT AGREEMENT




Dated as of June 24, 2005




among




GRANITE CONSTRUCTION INCORPORATED,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, as Swing Line Lender, as L/C Issuer,

and

as a Lender,




BNP PARIBAS,

HARRIS N.A.,

UNION BANK OF CALIFORNIA, N.A.

and

U.S. BANK, N.A.,

as Co-Syndication Agents




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Sole Book Manager




 

 








 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE I.	 	   DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.01	 	 	Defined Terms 	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.02	 	 	Other Interpretive Provisions 	 	 	25	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.03	 	 	Accounting Terms 	 	 	25	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.04	 	 	Rounding 	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.05	 	 	References to Agreements and Laws 	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.06	 	 	Change of Currency 	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.07	 	 	Times of Day 	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.08	 	 	Letter of Credit Amounts 	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.09	 	 	Exchange Rates; Currency Equivalents 	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.10	 	 	Additional Alternative Currencies 	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE II.	 	   THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.01	 	 	Loans 	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.02	 	 	Borrowings, Conversions and Continuations of Revolving Loans 	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.03	 	 	Letters of Credit 	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.04	 	 	Swing Line Loans 	 	 	38	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.05	 	 	Prepayments 	 	 	41	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.06	 	 	Reduction or Termination of Commitments 	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.07	 	 	Repayment of Loans 	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.08	 	 	Interest 	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.09	 	 	Fees 	 	 	43	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.10	 	 	Computation of Interest and Fees 	 	 	44	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.11	 	 	Evidence of Debt 	 	 	44	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.12	 	 	Payments Generally 	 	 	45	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.13	 	 	Sharing of Payments 	 	 	46	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.14	 	 	Increase in Commitments 	 	 	47	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	2.15	 	 	Guaranty of Obligations 	 	 	48	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE III.    TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	49	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.01	 	 	Taxes 	 	 	49	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.02	 	 	Illegality 	 	 	51	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.03	 	 	Inability to Determine Rates 	 	 	52	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.04	 	 	Increased Cost and Reduced Return; Capital Adequacy 	 	 	52	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.05	 	 	Funding Losses 	 	 	54	 






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	 	 	3.06	 	 	Matters Applicable to all Requests for Compensation 	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	3.07	 	 	Survival 	 	 	55	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV.	 	   CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	55	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	4.01	 	 	Conditions to Effectiveness and Initial Credit Extension 	 	 	55	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	4.02	 	 	Conditions to all Credit Extensions 	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE V.	 	   REPRESENTATIONS AND WARRANTIES	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.01	 	 	Existence, Qualification and Power; Compliance with Laws 	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.02	 	 	Authorization; No Contravention 	 	 	58	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.03	 	 	Governmental Authorization 	 	 	58	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.04	 	 	Binding Effect 	 	 	58	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.05	 	 	Financial Statements; No Material Adverse Effect 	 	 	58	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.06	 	 	Litigation 	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.07	 	 	No Default 	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.08	 	 	Ownership of Property; Liens 	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.09	 	 	Environmental Compliance 	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.10	 	 	Insurance 	 	 	60	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.11	 	 	Taxes 	 	 	60	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.12	 	 	ERISA Compliance 	 	 	60	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.13	 	 	Subsidiaries 	 	 	61	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.14	 	 	Margin Regulations; Investment Company Act; Public Utility Holding Company Act	 	 	61	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.15	 	 	Disclosure 	 	 	61	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.16	 	 	Intellectual Property; Licenses, Etc 	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.17	 	 	Swap Contracts 	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.18	 	 	Labor Relations 	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.19	 	 	Use of Proceeds 	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.20	 	 	Solvency 	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.21	 	 	Unrestricted Subsidiary Matters 	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	5.22	 	 	Burdensome Agreements 	 	 	63	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI.	 	   AFFIRMATIVE COVENANTS	 	 	63	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.01	 	 	Financial Statements 	 	 	63	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.02	 	 	Certificates; Other Information 	 	 	64	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.03	 	 	Notices 	 	 	65	 
	 
	 	 	 	 	 	 	 	 	 	 





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	 	 	6.04	 	 	Payment of Obligations 	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.05	 	 	Preservation of Existence, Etc 	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.06	 	 	Maintenance of Properties 	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.07	 	 	Maintenance of Insurance 	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.08	 	 	Compliance with Laws 	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.09	 	 	Books and Records 	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.10	 	 	Inspection Rights 	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.11	 	 	Compliance with ERISA 	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.12	 	 	Environmental Laws 	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.13	 	 	Use of Proceeds 	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.14	 	 	Tax Clearance Certificates 	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	6.15	 	 	Internal Control Events 	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VII.	 	   NEGATIVE COVENANTS	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.01	 	 	Liens 	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.02	 	 	Investments 	 	 	70	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.03	 	 	Indebtedness 	 	 	71	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.04	 	 	Fundamental Changes 	 	 	73	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.05	 	 	Dispositions 	 	 	74	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.06	 	 	Lease Obligations 	 	 	74	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.07	 	 	Restricted Payments 	 	 	75	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.08	 	 	ERISA 	 	 	75	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.09	 	 	Change in Nature of Business or in Structure 	 	 	76	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.10	 	 	Transactions with Affiliates 	 	 	76	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.11	 	 	Burdensome Agreements 	 	 	76	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.12	 	 	Use of Proceeds 	 	 	76	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.13	 	 	Financial Covenants 	 	 	77	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	7.14	 	 	Unrestricted Subsidiary Matters 	 	 	77	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII.	 	   EVENTS OF DEFAULT AND REMEDIES	 	 	77	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	8.01	 	 	Events of Default 	 	 	77	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	8.02	 	 	Remedies Upon Event of Default 	 	 	79	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	8.03	 	 	Application of Funds 	 	 	80	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX.	 	   ADMINISTRATIVE AGENT	 	 	81	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.01	 	 	Appointment and Authority 	 	 	81	 





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	 	 	9.02	 	 	Rights as a Lender 	 	 	81	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.03	 	 	Exculpatory Provisions 	 	 	81	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.04	 	 	Reliance by Administrative Agent 	 	 	82	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.05	 	 	Delegation of Duties 	 	 	82	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.06	 	 	Resignation of Administrative Agent 	 	 	83	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.07	 	 	Non-Reliance on Administrative Agent and Other Lenders 	 	 	84	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.08	 	 	No Other Duties, Etc 	 	 	84	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.09	 	 	Administrative Agent May File Proofs of Claim 	 	 	84	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	9.10	 	 	Guaranty Matters 	 	 	85	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE X.	 	   GENERAL PROVISIONS	 	 	85	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.01	 	 	Amendments, Etc 	 	 	85	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.02	 	 	Notices; Effectiveness; Electronic Communication 	 	 	86	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.03	 	 	No Waiver; Cumulative Remedies 	 	 	88	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.04	 	 	Expenses; Indemnity; Damage Waiver 	 	 	88	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.05	 	 	Indemnification by the Borrower 	 	 	89	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.06	 	 	Payments Set Aside 	 	 	90	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.07	 	 	Successors and Assigns 	 	 	91	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.08	 	 	Confidentiality 	 	 	94	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.09	 	 	Set-off 	 	 	95	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.10	 	 	Interest Rate Limitation 	 	 	95	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.11	 	 	Counterparts; Integration; Effectiveness 	 	 	96	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.12	 	 	Survival of Representations and Warranties 	 	 	96	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.13	 	 	Severability 	 	 	96	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.14	 	 	Removal and Replacement of Lenders 	 	 	96	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.15	 	 	Governing Law; Jurisdiction; Etc 	 	 	97	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.16	 	 	Waiver of Jury Trial 	 	 	98	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.17	 	 	Time of the Essence 	 	 	98	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.18	 	 	Judgment Currency 	 	 	98	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	10.19	 	 	USA PATRIOT Act Notice 	 	 	99	 





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	SCHEDULES	 	 
	 
	 	 	 	 
	 
	 	1.01(e)	 	Existing Letters of Credit
	 
	 	1.01(g)	 	Guarantors
	 
	 	1.01(m)	 	Mandatory Cost
	 
	 	2.01	 	Commitments and Pro Rata Shares
	 
	 	5.05(d)	 	Project Debt
	 
	 	5.06	 	Litigation
	 
	 	5.09	 	Environmental Matters
	 
	 	5.13(a)	 	Subsidiaries and Other Equity Investments
	 
	 	5.13(b)	 	Senior Note Guarantors
	 
	 	5.16	 	Intellectual Property Matters
	 
	 	5.21	 	Unrestricted Subsidiary Matters
	 
	 	5.22	 	Burdensome Agreements
	 
	 	7.01	 	Existing Liens
	 
	 	7.02(a)	 	Existing Investments
	 
	 	7.02(b)	 	Investment Policy
	 
	 	7.02(j)	 	Wilder Investments
	 
	 	7.03	 	Existing Indebtedness
	 
	 	7.06	 	Existing Leases
	 
	 	10.02	 	Eurodollar and Domestic Lending Offices; Addresses for Notices
	 
	 	10.07	 	Processing and Recordation Fees
	 
	 	 	 	 
	EXHIBITS	 	 
	 
	 	 	 	 
	 
	 	Exhibit A	 	Form of Revolving Loan Notice
	 
	 	Exhibit B	 	Form Swing Line Loan Notice
	 
	 	Exhibit C	 	Form of Note
	 
	 	Exhibit D	 	Form of Compliance Certificate
	 
	 	Exhibit E	 	Form of Assignment and Assumption
	 
	 	Exhibit F	 	Form of Guaranty
	 
	 	Exhibit G	 	Form of Closing Opinion
	 
	 	Exhibit H	 	Form of Lender Joinder Agreement






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CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of June 24, 2005, by and among GRANITE CONSTRUCTION
INCORPORATED, a Delaware corporation (the “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and, individually, a
“Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, as Swing Line Lender and as L/C Issuer.



     A. The Borrower has requested that the Lenders provide a revolving credit facility,
and the Lenders are willing to do so on the terms and conditions set forth herein.



     B. In consideration of the mutual covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



     As used in this Agreement, the following terms shall have the meanings set forth below:



     “Administrative Agent” means the sole administrative agent under the Loan Documents
or any successor administrative agent, which initially shall be Bank of America.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



     “Affiliate” means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.



     “Agent-Related Persons” means the Administrative Agent (including any successor
administrative agent), together with its Affiliates (including, in the case of Bank of America in
its capacity as the Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.



     “Aggregate Commitments” means, as of any date of determination, the aggregate amount
of all Lenders’ Commitments hereunder.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Canadian Dollars, Euro, and each other currency
(other than Dollars) that is approved in accordance with Section 1.10.



 









 





     “Alternative Currency Equivalent” means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.



     “Applicable Rate” means, with respect to commitment fees, Base Rate Loans,
Eurodollar Rate Loans and utilization fees, as applicable, the following percentages per
annum, each based upon the Pricing Level Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant
to Section
6.02(b); provided, however, that notwithstanding the foregoing (but subject to the
proviso in the following paragraph), until such date on which the Borrower shall have
delivered to the Administrative Agent a Compliance Certificate for the fiscal quarter
ending on June 30 2005, Pricing Level 3 shall apply:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Applicable	 	Applicable	 	 
	 	 	 	 	Applicable	 	Applicable	 	Applicable	 	Rate (Financial	 	Rate (Performance	 	Applicable
	Pricing	 	Pricing Level Leverage	 	Rate (Commitment	 	Rate (Eurodollar	 	Rate (Base Rate	 	Letter of Credit	 	Letter of Credit	 	Rate (Utilization
	Level	 	Ratio	 	Fee)	 	Rate Loans)	 	Loans)	 	Fee)	 	Fee)	 	Fee)
	1

	 	Less than 0.50 to 1.00
	 	 	0.150	%	 	 	0.625	%	 	 	00.0	%	 	 	0.625	%	 	 	0.46875	%	 	 	0.125	%
	2

	 	Less than 1.00 to 1.00 but
greater than or equal to 0.50 to
1.00
	 	 	0.175	%	 	 	0.750	%	 	 	00.0	%	 	 	0.750	%	 	 	0.56250	%	 	 	0.125	%
	3

	 	Less than 2.00 to 1.00 but
greater than or equal to 1.00 to
1.00
	 	 	0.225	%	 	 	0.875	%	 	 	00.0	%	 	 	0.875	%	 	 	0.65625	%	 	 	0.125	%
	4

	 	Greater than or equal to
2.00 to 1.00
	 	 	0.300	%	 	 	1.125	%	 	 	00.0	%	 	 	1.125	%	 	 	0.84375	%	 	 	0.125	%






     Any increase or decrease in the Applicable Rate resulting from a change in
the Pricing Level Leverage Ratio shall become effective as of the date that is the
earlier of: (a) the last date by which the Borrower is otherwise required to deliver a
Compliance Certificate in accordance with Section 6.02(b) with reference to
Section 6.01 for a given fiscal period (each such date, a
“Calculation Date”):
and (b) the date that is two Business Days after the date (prior to the related
Calculation Date) on which the Borrower actually delivers a Compliance Certificate in
accordance with Section 6.02(b) with reference to Section 6.01 for such
fiscal period; provided that, if any Compliance Certificate for any fiscal period
is not delivered to the Administrative Agent on or before the related Calculation Date,
then Pricing Level 4 shall apply, effective on the related Calculation Date until two
Business Days after such Compliance Certificate is actually received by the
Administrative Agent.



     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case
may be, to be necessary for timely settlement on the relevant date in accordance with
normal banking procedures in the place of payment.



     “Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.



2









 





     “Arranger” means the Person acting as sole lead arranger and sole book manager, which,
initially, shall be Banc of America Securities LLC.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.07(b), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.



     “Attorney Costs” means and includes all fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services and all disbursements of
internal counsel.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease
of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2004, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Auditor” has the meaning set forth in Section 6.01(a)(i).



     “Auto-Renewal Letter of Credit” has the meaning set forth in Section
2.03(b)(iii).



     “Bank of America” means Bank of America, N.A.



     “Bankruptcy
Code” means the federal Bankruptcy Reform Act of 1978 (11
U.S.C. §101 et
seq.).



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set
by Bank of America based upon various factors including Bank of America’s costs and desired
return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Base Rate Revolving Loan” means a Revolving Loan that is a Base Rate
Loan.



3









 





     “Borrower” has the meaning set forth in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section
6.02.



     “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context may require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:




     (a) if such day relates to any interest rate settings as to a Eurodollar Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in
Dollars in respect of any such Eurodollar Rate Loan, or any other dealings in Dollars
to
be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted by and
between banks in the London interbank eurodollar market;




     (b) if such day relates to any interest rate settings as to a Eurodollar Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such Eurodollar Rate Loan, or any other dealings in Euro to be carried
out
pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means a
TARGET Day;




     (c) if such day relates to any interest rate settings as to a Eurodollar Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which
dealings in deposits in the relevant currency are conducted by and between banks in the
London or other applicable offshore interbank market for such currency; and




     (d) if such day relates to any fundings, disbursements, settlements and
payments in a currency other than Dollars or Euro in respect of a Eurodollar Rate Loan
denominated in a currency other than Dollars or Euro, or any other dealings in any
currency other than Dollars or Euro to be carried out pursuant to this Agreement in
respect of any such Eurodollar Rate Loan (other than any interest rate settings), means
any such day on which banks are open for foreign exchange business in the principal
financial center of the country of such currency.



     “Calculation Date” has the meaning set forth in the definition of “Applicable Rate” contained herein.



     “Canadian Dollars” means the lawful currency of Canada.



     “Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term shall have corresponding meaning. The Borrower hereby




4









 








grants the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a Lien on all
such cash and deposit account balances. Cash collateral shall be maintained in blocked,
noninterest bearing deposit accounts at Bank of America.




     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means, with respect to any Person, an event or series of events
by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act, but excluding any employee benefit plan of such person or
its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or
other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be
deemed to have “beneficial ownership” of all securities that such person or group has
the
right to acquire (such right, an “option right”), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 25% or more
of
the equity securities of such Person entitled to vote for members of the board of
directors
or equivalent governing body of such Person on a partially-diluted basis (i.e., taking
into
account all such securities that such person or group has the right to acquire pursuant
to
any option right); or




     (b) during any period of 12 consecutive months, a majority of the members of
the board of directors or other equivalent governing body of such Person cease to be
composed of individuals (i) who were members of that board or equivalent governing
body on the first day of such period, (ii) whose election or nomination to that board
or
equivalent governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of that
board or
equivalent governing body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (i) and
(ii)
above constituting at the time of such election or nomination at least a majority of
that
board or equivalent governing body.



     “Closing Date” means the first date on which all the conditions precedent in Section 4.01are satisfied or waived in accordance with Section 4.01 (or, in the case of
Section 4.01(b), waived by the Person entitled to receive the applicable payment).



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender as of any date of determination, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase participations
in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such




5









 








Lender’s name on Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be reduced or adjusted from time
to time in accordance with this Agreement.




     “Compensation Period” has the meaning set forth in Section 2.12(c)(ii).



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consolidated Cash Taxes” means, for any Subject Period, for the Consolidated
Restricted Group on a consolidated basis (excluding, however, any Project Debt Entity), the
aggregate of all taxes actually paid by such Persons in cash during such period.



     “Consolidated EBITDA” means, for any Subject Period, for the Consolidated Restricted
Group on a consolidated basis (excluding, however, any Project Debt Entity), an amount equal to
Consolidated Net Income for such period plus the following to the extent deducted in
calculating such Consolidated Net Income: (a) Consolidated Interest Expense for such period, (b)
Consolidated Cash Taxes for such period, and (c) depreciation and amortization expense for such
period.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Consolidated Restricted Group on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, with or without recourse, but not including Project Debt, plus (b)
Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, but not
including Project Debt, plus (c) without duplication, all Guaranty Obligations of the
Consolidated Restricted Group with respect to Indebtedness of the types specified in subsections
(a) and (b) above of Persons other than the Borrower or any Subsidiary in the Consolidated
Restricted Group.



     “Consolidated Interest Expense” means, for any Subject Period, for the Consolidated
Restricted Group on a consolidated basis, the sum of (a) all interest, premium payments, fees,
charges and related expenses of the Consolidated Restricted Group in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP, plus (b)
the portion of rent expense of the Consolidated Restricted Group with respect to such period under
capital leases that is treated as interest in accordance with GAAP and the portion of Synthetic
Lease Obligations payable by the Consolidated Restricted Group with respect to such period that
would be treated as interest in accordance with GAAP if such lease were treated as a capital lease
under GAAP; excluding for purposes of clause (a) and (b) hereof, such amounts in respect of
Project Debt.



     “Consolidated Net Income” means, for any Subject Period, for the Consolidated
Restricted Group on a consolidated basis, the net income of the Consolidated Restricted Group from
continuing operations, excluding extraordinary items and excluding gains and losses from
Dispositions for that period; not including, however, net income in respect of or attributable to
any Project Debt Entity.



6









 





     “Consolidated Restricted Group” means, at any time, the Borrower and its consolidated
Subsidiaries at such time, other than any Unrestricted Subsidiary at such time.



     “Consolidated Stockholders’ Equity” means, as of any date of determination for the
Consolidated Restricted Group on a consolidated basis, stockholders’ equity as of that date,
determined in accordance with GAAP.



     “Consolidated Tangible Net Worth” means, as of any date of determination, the amount
equal to Consolidated Stockholders’ Equity on that date minus the Intangible Assets of the
Consolidated Restricted Group (determined on a consolidated basis in accordance with GAAP) on that
date.



     “Construction JV” means any Joint Venture entered into by the Borrower or any of its
Subsidiaries with any one or more other Persons in the Ordinary Course of Business solely for
purposes of undertaking or completing a construction project.



     “Construction JV Investments” means Investments in any Joint Venture arising upon any
initial capital contribution to or subsequent capital contribution in such Joint Venture, and
participated in ratably by all co joint venturers having an interest in such Joint Venture, solely
for purposes of undertaking or completing a construction project; provided Construction JV
Investments shall not include the incurrence, directly or indirectly, of any Guaranty Obligation
by the Borrower or any of its Restricted Subsidiaries.



     “Contractual Obligation” means, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States of
America or other applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit
Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any,
applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that
with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the
interest rate




7









 








(including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus 2%
per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.




     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Revolving Loans, participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject
of a bankruptcy or insolvency proceeding.



     “Disposition”or “Dispose” means the sale, transfer, license or other disposition (including
any sale and leaseback transaction) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



     “Dollar” and “$” means lawful money of the United States of America.



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     “EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as
amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of
1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Environmental Claims” means all claims, however asserted, by any Governmental
Authority or any other Person alleging potential liability or responsibility for violation of any
Environmental Law or for release or injury to the environment or threat to public health, personal
injury (including sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or otherwise), cleanup,
removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon (a) the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent and non-negligent, sudden




8









 









or non-sudden, accidental or non-accidental placement, spills, leaks, discharges, emissions or
releases) of any Hazardous Material at, in or from property, whether or not owned by the Borrower
or any of its Subsidiaries, or (b) any other circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.




     “Environmental Laws” means any and all federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to waste or public
systems.



     “Environmental Permits” has the meaning set forth in Section 5.09(b).




     “ERISA” means the Employee Retirement Income Security Act of 1974 and any regulations issued
pursuant thereto.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).



     “ERISA Event” means any of the following: (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



     “Euro” means the lawful currency of the Participating Member States introduced in accordance
with the EMU Legislation.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar
Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate Loan, a
rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 
	 
	 	 	 	 

	 	 
	 
	 	Eurodollar Rate =
	 	Eurodollar Base Rate	 	 
	 
	 	 	1.00 – Eurodollar Reserve Percentage	 	 	 







9









 








     Where,




     “Eurodollar Base Rate” means, for any Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the “Eurodollar
Base Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of the Eurodollar
Rate Loan being made, continued or converted by Bank of America and with a term equivalent
to such Interest Period would be offered by Bank of America’s London Branch to major banks
in the London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest Period.




     “Eurodollar Reserve Percentage” means, for any day during any Interest Period,
the reserve percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations issued from
time to time by the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date
of any change in the Eurodollar Reserve Percentage.



     “Eurodollar Rate Loan” means a Revolving Loan that bears interest at a rate based on
the Eurodollar Rate.



     “Event of Default” means any of the events or circumstances specified in Section
8.01.



     “Exchange Act” means the Securities Exchange Act of 1934 and the regulations promulgated
thereunder.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer
or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrower is located and (c) except as
provided in the following sentence, in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 10.14), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or
inability




10









 








(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower
with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything
to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding
tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender shall have complied
with the last paragraph of Section 3.01(e).




     “Existing Credit Agreement” means that Credit Agreement dated as of June 27, 2003, as
amended by the First Amendment Agreement dated as of September 15, 2004, by and among the
Borrower, Bank of America, N.A. as “Administrative Agent”, and the “Lenders” thereunder.



     “Existing Letters of Credit” means the letters of credit issued by Bank of America
(as the financial institution issuing letters of credit under the Existing Credit Agreement) that
are outstanding immediately prior to the effectiveness of this Agreement, as more particularly
described on Schedule 1.01(e).



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means that certain letter agreement relating to fees, dated as of May 16, 2005,
among the Borrower, the Arranger and the Administrative Agent.



     “Financial Letter of Credit” means any Letter of Credit that is a “financial standby
letter of credit” as set forth in applicable Laws promulgated from time to time by the FRB.



     “Foreign Lender” means, with respect to any Borrower, any Lender that is organized under the
laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For
purposes of this definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.



     “FRB” means the Board of Governors of the Federal Reserve System of the United States of
America.



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.



11









 





     “GAAP” means generally accepted accounting principles in the United States set forth in
the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “GLC Venture” means any Joint Venture, now or hereafter formed by any Land Development
Company or any of its Subsidiaries with any other Person in the Ordinary Course of Business of
such Land Development Company or Subsidiary.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Granite Land Company” means Granite Land Company, a California corporation, and any
successor thereto.



     “Guarantors” means all of the Subsidiaries listed on Schedule l.0l(g), together with
all other Persons who, following the Closing Date, execute and deliver a Guaranty pursuant to
Section 2.15.



     “Guaranty” means the guaranty substantially in the form of Exhibit F, or otherwise in
form and substance satisfactory to the Required Lenders.



     “Guaranty Obligation” means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guarantying or having the economic effect of guarantying any
Indebtedness or other obligation payable or performable by another Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of such Person, direct
or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services
for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the

payment or performance of such Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to protect such obligee
against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person. The amount of any Guaranty Obligation
shall be deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guaranty Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guarantying Person in good faith.



12









 





     “Hazardous Materials” means, collectively, as of any date: (a) any petroleum or
petroleum products, flammable explosives, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, and transformers or other equipment that
contain dielectric fluid containing polychlorinated biphenyls (PCB’s); (b) any chemicals or other
materials or substances which as of such date are defined as or included in the definition of
“hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,”
“restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants,” “infectious
wastes,” “pollutants” or words of similar import under any Environmental Law; and (c) any other
chemical or other material or substance, exposure to which or use of which as of such date is
prohibited, limited or regulated under any Environmental Law.



     “Honor Date” has the meaning set forth in Section 2.03(c)(i).




     “Indebtedness”
means, as to any Person at a particular time, all of the following, whether or
not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;




     (b) all direct or contingent obligations of such Person arising under letters of
credit (including standby and commercial), reimbursement agreements, bankers’
acceptances, bank guaranties, surety bonds and similar instruments (in each case,
whether
or not such obligations are contingent or absolute); provided that the amount
of any such
contingent obligation shall be deemed to be equal to the maximum reasonably anticipated
liability in respect thereof;




     (c) net obligations under any Swap Contract in an amount equal to the Swap
Termination Value thereof;




     (d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the Ordinary Course of
Business);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness
shall have been assumed by such Person or is limited in recourse;




     (f) capital leases and Synthetic Lease Obligations; and




     (g) all Guaranty Obligations of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
Joint Venture (other than a Joint Venture that is itself a corporation or limited liability
company) in which such Person is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person and to such Person’s assets (subject only to customary
exceptions acceptable to the Required Lenders). The amount of any net obligation




13









 








under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of
such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.




     “Indemnified Liabilities” has the meaning set forth in
Section 10.05.



     “Indemnified Taxes” means Taxes other than
Excluded Taxes.



     “Indemnitees” has the meaning set forth in Section 10.05.



     “Information” has the meaning set forth in Section
10.08.



     “Intangible Assets” means assets that are considered to be intangible assets under GAAP,
including customer lists, goodwill, computer software, copyrights, trade names, trade marks,
patents, unamortized deferred charges, unamortized debt discount, and capitalized research and
development costs.



     “Interest Coverage Ratio” means, as of any date of determination, the ratio
of
(a) Consolidated EBITDA, measured for the Subject Period ending on such date, to
(b) Consolidated Interest Expense, measured for the Subject Period ending on such date.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan; provided that, if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September, and
December, and the Maturity Date.



     “Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on the date
such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan, and
ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Revolving Loan Notice; provided that:




     (a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;




     (b) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the
last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end
on
the last Business Day of the calendar month at the end of such Interest Period; and




     (c) no Interest Period shall extend beyond the scheduled Maturity Date.



     “Internal Control Event” means a material weakness in the Borrower’s internal
controls over financial reporting if such material weakness is required to be reported in any
Exchange Act report.



14









 





     “Investment” means, as to any Person, any acquisition or investment by such Person, whether by
means of (a) the purchase or other acquisition of capital stock or other securities of another
Person, (b) a loan, advance or capital contribution to, guaranty of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in or with such other Person, (c) the provision of goods or
services to another Person for consideration other than cash payable in full upon the delivery or
provision of such goods or services (other than trade accounts payable in the Ordinary Course of
Business), or (d) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit of that Person. For
purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment.



     “IP Rights” has the meaning set forth in Section 5.16.



     “IRS” means the United States Internal Revenue Service.



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor the L/C Issuer and relating to any such Letter of
Credit.



     “Joint Venture” means a single-purpose corporation, partnership, limited liability company,
joint venture or other similar legal arrangement (whether created by contract or conducted through
a separate legal entity) now or hereafter formed by one Person with another Person in order to
conduct a common venture or enterprise with such Person.



     “Land Development Company” means Granite Land Company and any and all other
Subsidiaries of the Borrower (or the Borrower itself) now or hereafter engaged, directly, or
indirectly through Subsidiaries or Joint Ventures, in the business of land or real estate
development.



     “Laws” means, collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having
the force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s participation in any L/C
Borrowing in accordance with its Pro Rata Share.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.



15









 





     “L/C Issuer” means each financial institution acting as issuer of Letters of Credit hereunder
(or any successor issuer of Letters of Credit hereunder). Bank of America shall initially act as
L/C Issuer, and the Borrower may appoint up to two additional Lenders that are approved by the
Administrative Agent to be L/C Issuers, provided that at no time shall there be more than
three L/C Issuers. At any time there is more than one L/C Issuer, all singular references to the
L/C Issuer shall mean any L/C Issuer, either L/C Issuer, each L/C Issuer, the L/C Issuer that has
issued the applicable Letter of Credit, or all L/C Issuers, as the context may require.



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn face amount of
all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including
all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.08. For all purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.



     “Lender” has the meaning set forth in the introductory paragraph hereto and, as the context
requires, includes the L/C Issuer and the Swing Line Lender, as applicable.



     “Lending
Office” means, as to any Lender, the office or offices of such Lender described as
such on Schedule 10.02, or such other office or offices as a Lender may from time to time
notify the Borrower and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder, and shall include
each Existing Letter of Credit. Letters of Credit may be issued in Dollars or in an Alternative
Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a letter of credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is thirty-five (35) Business
Days prior to the Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day).



     “Letter of Credit Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $100,000,000. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded
Indebtedness as of such date to (b) Consolidated EBITDA, measured for the Subject Period ending on
such date.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease having substantially the same economic




16









 








effect as any of the foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable Laws of any jurisdiction), including the interest of a purchaser of
accounts receivable.




     “Loan” means an extension of credit by a Lender to the Borrower under Article II in
the form of a Revolving Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, all Notes, the Fee Letter, all Requests for Credit
Extensions, all Compliance Certificates, each Guaranty, and all other agreements, documents and
instruments, executed and delivered by a Loan Party in connection with the transactions
contemplated hereby (other than Swap Contracts) in favor of the Administrative Agent, the
Arranger, the L/C Issuer or any Lender.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum determined
in accordance with Schedule l.01(m).



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, condition (financial or otherwise) or
prospects of the Borrower or the Borrower and its Restricted Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which it is a
party.



     “Material Subsidiary” means, at any time, any Subsidiary, other than an Unrestricted
Subsidiary, that meets either of the following conditions at such time: (a) such Subsidiary’s
consolidated total revenues for the period of the immediately preceding four fiscal quarters is
equal to or greater than 10% of the consolidated total revenues of the Borrower and its
Subsidiaries for such period, determined in accordance with GAAP, in each case as reflected in the
most recent annual or quarterly (as applicable) financial statements required to be delivered
pursuant to Section 6.01; or (b) such Subsidiary’s total consolidated assets, as of the
last day of the immediately preceding fiscal quarter, are equal to or greater than 10% of the
consolidated total assets of the Borrower and its Subsidiaries as of such date, determined in
accordance with GAAP, in each case as reflected in the most recent annual or quarterly (as
applicable) financial statements of the Borrower required to be delivered pursuant to Section
6.01; provided, however, that at all times prior to the date on which the Borrower shall have
delivered the quarterly financial statements for the fiscal quarter ending June 30, 2005 in
accordance with Section 6.01, each of the entities listed on Schedule l.0l(g)
shall be deemed a “Material Subsidiary.”



     “Material Unrestricted Subsidiary” means, at any time, any Unrestricted Subsidiary
that meets either of the following conditions at such time: (a) such Unrestricted Subsidiary’s
consolidated total revenues for the period of the immediately preceding four fiscal quarters is
equal to or greater than 10% of the consolidated total revenues of the Borrower and its
Subsidiaries for such period, determined in accordance with GAAP, in each case as reflected in the
most recent annual or quarterly (as applicable) financial statements required to be delivered
pursuant to Section 6.01; or (b) such Unrestricted Subsidiary’s total consolidated assets,
as of the




17









 








last day of the immediately preceding fiscal quarter, are equal to or greater than 10% of the
consolidated total assets of the Borrower and its Subsidiaries as of such date, determined in
accordance with GAAP, in each case as reflected in the most recent annual or quarterly (as
applicable) financial statements of the Borrower required to be delivered pursuant to Section 6.01 ; provided, however, that at all times prior to the date on which the Borrower
shall have delivered the quarterly financial statements for the fiscal quarter ending June 30, 2005
in accordance with Section 6.01, Wilder shall be deemed the only Material Unrestricted
Subsidiary.




     “Maturity Date” means: (a) June 24, 2010; or (b) such earlier date upon which the Aggregate
Commitments are terminated in accordance with the terms hereof.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding three calendar years, has made or been obligated to make
contributions.



     “Non-Guarantor Subsidiary” has the meaning set forth in Section 2.15.



     “Nonrenewal Notice Date” has the meaning set forth in Section 2.03(b)(iii).



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing Revolving
Loans made by such Lender, substantially in the form of Exhibit C.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest that accrues after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding.



     “Ordinary Course of Business” means, in respect of any transaction involving the
Borrower or any Subsidiary of the Borrower, (a) the ordinary course of such Person’s business,
substantially as conducted by any such Person prior to or as of the Closing Date, and undertaken
by such Person in good faith and not for purposes of evading any covenant or restriction in any
Loan Document, or (b) transactions outside the ordinary course of such Person’s then-existing
business, as long as the Borrower provides written notice to the Administrative Agent and the
Lenders prior to such Person undertaking such business, specifically referencing this definition,
provided that the Required Lenders shall not have delivered written objections to the
Administrative Agent within five (5) Business Days after their receipt of such written notice.



     “Organization Documents” means: (a) with respect to any corporation, such Person’s
certificate or articles of incorporation and its bylaws; (b) with respect to any limited liability
company, such Person’s articles of formation and operating agreement; and (c) with respect to any
partnership, Joint Venture, trust or other form of business entity, such Person’s applicable
agreement of formation and any agreement, instrument, filing or notice with respect thereto filed
in connection with its formation with the secretary of state or other department in the state of
its formation, in each case as amended from time to time.



18









 





     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means: (a) with respect to Revolving Loans, and Swing Line Loans
on any date, the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Loans, and Swing Line Loans, as the case may
be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on
such date and any other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars,
the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules on interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered for such day by a branch or
Affiliate of Bank of America in the applicable offshore interbank market for such currency to
major banks in such interbank market.



     “Participant” has the meaning set forth in Section 10.07(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.



     “Performance Letter of Credit” means any Letter of Credit that is a “performance
standby letter of credit” as set forth in applicable Laws promulgated from time to time by the
FRB.



     “Person” means any natural person, corporation, limited liability company, trust, Joint
Venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.




19









 





     “Pricing Level Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the Subject
Period ending on such date.



     “Pro Rata Share” means with respect to any Lender at any time, the percentage (carried out to
the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at
such time. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the
Aggregate Commitments have expired, then the Pro Rata Share of each Lender shall be determined
based on the Pro Rata Share of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Pro Rata Share of each Lender is set forth opposite the name
of such Lender on Schedule 2.01. in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, or as notified by the Administrative Agent pursuant to Section
2.14. as applicable.



     “Project Debt” means, in respect of any GLC Venture (the “obligor”), any Indebtedness of such
obligor incurred in the Ordinary Course of Business of such obligor and of the Borrower and its
Restricted Subsidiaries, secured by a Lien on assets of such obligor, but as to which there is no
general recourse to such obligor or to the Borrower or any of the Borrower’s Restricted
Subsidiaries, other than against such obligor for breach of customary representations and
warranties.



     “Project Debt Entity” means at any time, any GLC Venture obligated in respect of
Project Debt at such time.



     “Register” has the meaning set forth in Section 10.07(c).




     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor environment, including the
movement of Hazardous Materials through ambient air, soil, surface water, ground water, wetlands,
land or subsurface strata.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Loans, a Revolving Loan Notice, and (b) with respect to L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



20









 





     “Required Lenders” means, as of any date of determination, Lenders whose Voting
Percentages aggregate more than 50%.



     “Responsible Officer” means the president, chief operating officer, chief executive
officer, chief financial officer, treasurer or controller of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock of the Borrower or any Subsidiary,
or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or of any option, warrant or other right to acquire any such
capital stock.



     “Restricted Subsidiaries” means, at any time, all Subsidiaries of the Borrower, other
than Unrestricted Subsidiaries at such time.



     “Revaluation Date” means with respect to any Letter of Credit, each of the following:
(i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each
date of an amendment of any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in an Alternative Currency, , (iv) in the case of
any Existing Letters of Credit denominated in an Alternative Currency, the Closing Date, and (v)
such additional dates as the Administrative Agent or the L/C Issuer shall determine or the
Required Lenders shall require.



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.



     “Revolving Loan” has the meaning specified in Section 2.01.




     “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving Loans from one Type to the other, or (c) a continuation of Revolving Loans as the
same Type, pursuant to Section 2.02(a), which, if in writing, shall be substantially in
the form of Exhibit A.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the Securities and Exchange Commission or any successor or similar Governmental
Authority.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934,
Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting




21









 








Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.




     “Senior Note Documents” means any and all note purchase agreements, notes and other
documents evidencing or relating to any outstanding Indebtedness from time to time of the Borrower
evidenced by senior notes.



     “Senior Note Guarantor” means, at any time, any Subsidiary that is at such time a
guarantor of Indebtedness of the Borrower pursuant to any Senior Note Documents.



     “Solvent” means, as to any Person at any time, that: (a) the fair value of the property of
such Person is greater than the amount of such Person’s liabilities (including disputed, contingent
and unliquidated liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes of the California
Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the property of such Person
is not less than the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured; (c) such Person is able to realize upon its property
and pay its debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay
as such debts and liabilities mature; and (e) such Person is not engaged in business or a
transaction for which such Person’s property would constitute unreasonably small capital.



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and
Development at such time located in North America or Europe.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C
Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot
rate for the purchase by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 9:00 a.m. on the date two Business Days prior to
the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial
institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for any such currency;
and provided further that the L/C Issuer may use such spot rate quoted on the date as of
which the foreign exchange computation is made in the case of any Letter of Credit denominated in
an Alternative Currency.



     “Subject Period” means, as of any date of determination, the four consecutive fiscal quarter
period ending on such date.



     “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




22









 








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 Borrower.




     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for
any date prior to the date referenced in clause (a) the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include
any Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line Lender
pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).




     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $15,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



23









 





     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such
other payment system (if any) determined by the Administrative Agent to be a suitable replacement)
is open for the settlement of payments in Euro.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate
Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.



     “Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).




     “Unrestricted Subsidiaries” means, at any time, Wilder and each of its Subsidiaries,
provided that at all times prior to such time (a) the consolidated revenue of Wilder and
its Subsidiaries does not exceed 15% of the consolidated total revenue of the Borrower and its
Subsidiaries, and (b) the consolidated total assets of Wilder and its Subsidiaries do not exceed
15% of the consolidated total assets of the Borrower and its Subsidiaries, in each case (a) and
(b), determined in accordance with GAAP, and as reflected in the most recent annual or quarterly
(as applicable) financial statements of the Borrower required to be delivered pursuant to
Section 6.01, and further provided that Wilder at no time at or prior to such time
is or has been, directly or indirectly, a wholly-owned Subsidiary of the Borrower.



     “United States” and “U.S.” mean the United States of America.



     “Voting Percentage” means, as to any Lender, (a) at any time when the Aggregate
Commitments are in effect, such Lender’s Pro Rata Share and (b) at any time after the termination
of the Aggregate Commitments, the percentage (carried out to the ninth decimal place) which (i)
the sum of (A) the Outstanding Amount of such Lender’s Revolving Loans, plus (B) such
Lender’s Pro Rata Share of the Outstanding Amount of L/C Obligations, plus (C) such
Lender’s Pro Rata Share of the Outstanding Amount of Swing Line Loans, then comprises of (ii) the
Outstanding Amount of all Loans and L/C Obligations; provided that, if any Lender has
failed to fund any portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder, such Lender’s Voting Percentage shall be
deemed to be zero, and the respective Pro Rata Shares and Voting Percentages of the other Lenders
shall be recomputed for purposes of this definition and the definition of “Required




24









 










Lenders” without regard to such Lender’s Commitment or the outstanding amount of its Revolving
Loans, and L/C Advances and funded participations in Swing Line Loans, as the case may be.




     “Wilder” means Wilder Construction Co., a Washington corporation, and any successor thereto.



     1.02
Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a)  The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.




     (b)  (i) The words “herein” and “hereunder” and words of similar import when
used in any Loan Document shall refer to such Loan Document as a whole and not to any
particular provision thereof.





     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



     (c) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including:” the words “to” and “until” each mean “to but
excluding;” and the word “through” means “to and including.”



     (d) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.



     (e) Unless otherwise expressly provided herein: (i) references to agreements
(including this Agreement) and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent such amendments
and other modifications are not prohibited by the terms of any Loan Document; and (ii)
references to any statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.



     1.03
Accounting Terms.



     (a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data required to be submitted pursuant to this Agreement shall
be prepared in conformity with, GAAP applied on a consistent basis, as in




25









 








effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.




     (b) If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).



     1.05 References to Agreements and Laws. Unless otherwise expressly provided
herein, (a) references to agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited by any Loan
Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



     1.06 Change of Currency. (a) Each obligation of the Borrower to make a payment
denominated in the national currency unit of any member state of the European Union that
adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro
at
the time of such adoption (in accordance with the EMU Legislation). If, in relation to the
currency of any such member state, the basis of accrual of interest expressed in this
Agreement
in respect of that currency shall be inconsistent with any convention or practice in the
London
interbank market for the basis of accrual of interest in respect of the Euro, such expressed
basis
shall be replaced by such convention or practice with effect from the date on which such
member
state adopts the Euro as its lawful currency; provided that if any Revolving Borrowing
in the
currency of such member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Revolving Borrowing, at the end of the then current
Interest Period.



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to
reflect the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



26









 





     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to
reflect a change in currency of any other country and any relevant market conventions or practices
relating to the change in currency.



     1.07 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Pacific time (daylight or standard, as applicable).




     1.08 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount
of
such Letter of Credit in effect at such time; provided, however, that with respect to any
Letter of
Credit that, by its terms or the terms of any Issuer Document related thereto, provides for
one or
more automatic increases in the stated amount thereof, the amount of such Letter of Credit
shall
be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated amount is in
effect
at such time.



     1.09 Exchange Rates; Currency Equivalents. (a) The Administrative Agent or the
L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be
used
for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for purposes of
financial
statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency (other than
Dollars)
for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by
the Administrative Agent or the L/C Issuer, as applicable.



     (b) Wherever in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be
the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of
such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the L/C
Issuer, as the case may be.



     1.10 Additional Alternative Currencies. (a) The Borrower may from time to time
request that Eurodollar Rate Loans be made and/or Letters of Credit be issued in a currency
other
than those specifically listed in the definition of “Alternative Currency;” provided
that such
requested currency is a lawful currency (other than Dollars) that is readily available and
freely
transferable and convertible into Dollars. In the case of any such request with respect to
the
making of Eurodollar Rate Loans, such request shall be subject to the approval of the
Administrative Agent and the Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the approval of the
Administrative
Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 8:00 a.m., 20
Business Days prior to the date of the desired Credit Extension (or such other time or




27









 










date as may be agreed by the Administrative Agent and, in the case of any such request pertaining
to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such
request pertaining to Eurodollar Rate Loans, the Administrative Agent shall promptly notify each
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any
such request pertaining to Eurodollar Rate Loans) or the L/C Issuer (in the case of a request
pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 8:00 a.m.,
ten Business Days after receipt of such request whether it consents, in its sole discretion, to the
making of Eurodollar Rate Loans or the issuance of Letters of Credit, as the case may be, in such
requested currency.




     Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurodollar Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders consent to making Eurodollar Rate Loans in such requested currency, the Administrative
Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to
be an Alternative Currency hereunder for purposes of any Revolving Borrowings of Eurodollar Rate
Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such
currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this
Section 1.10, the
Administrative Agent shall promptly so notify the Borrower. Any specified currency of an Existing
Letter of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed
in the definition of “Alternative Currency” shall be deemed an Alternative Currency with respect
to such Existing Letter of Credit only.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower from time
to time on any Business Day during the period from the Closing Date to the Maturity Date in an
aggregate amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided that, after giving effect to any Revolving Borrowing, (i) the
aggregate
Outstanding Amount of all Loans and L/C Obligations shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender
plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such
Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section 2.01,
prepay
under Section 2.05, and reborrow under this Section 2.01. Revolving Loans may
be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein. Revolving Loans may be made in
Dollars only.


     2.02
Borrowings, Conversions and
Continuations of Revolving Loans.


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     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to a different
Type and each continuation of Revolving Loans as the same Type shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 9:00 a.m. (i) three (3) Business Days
prior to the requested date of any Revolving Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on
the requested date of any Revolving Borrowing of Base Rate Loans. Each such telephonic notice must
be confirmed immediately by delivery to the Administrative Agent of a written Revolving Loan Notice
(which may be sent by facsimile), appropriately completed and signed by two (2) Responsible
Officers of the Borrower. Each Revolving Borrowing of Loans, each conversion of Loans from one Type
to another Type, and each continuation of Eurodollar Rate Loans shall be in a principal amount of
$3,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Revolving Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Revolving Borrowing,
a conversion of Revolving Loans from one Type to the other, or a continuation of Revolving Loans as
the same Type, (ii) the requested date of the Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Revolving Loans to be
borrowed, converted or continued, (iv) the Type of Revolving Loans to be borrowed or to which
existing Revolving Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Revolving Loan in a
Revolving Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Revolving Loans shall be made or continued as, or converted to,
Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last
day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If
the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in
any such Revolving Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.



     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of its Pro Rata Share of the applicable Revolving Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Revolving Borrowing, each Lender shall make the amount of
its Revolving Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 11:00 a.m. on the Business Day specified in the
applicable Revolving Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to the Borrower in
like funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to the Administrative Agent by
the Borrower; provided that, if, on the date of the Revolving Borrowing, there are Swing
Line Loans and/or L/C Borrowings outstanding, then the proceeds of such Borrowing shall be
applied, first, to the payment in full of any such L/C Borrowings, second, to the
payment in full of any such Swing Line Loans, and third, to the Borrower as provided
above.






29









 








     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of the Interest Period for such Eurodollar Rate Loan. During
the
existence of a Default or Event of Default, no Revolving Loans may be requested as, converted
to or continued as Eurodollar Rate Loans without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding Eurodollar Rate Loans be
converted immediately to Base Rate Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of
the interest rate applicable to any Eurodollar Rate Loan upon determination of such interest
rate.
The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in
the
absence of manifest error. The Administrative Agent shall notify the Borrower and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate promptly
following the public announcement of such change.



     (e) After giving effect to all Revolving Borrowings, all conversions of Revolving
Loans from one Type to the other, and all continuations of Revolving Loans as the same Type,
there shall not be more than ten Interest Periods in effect with respect to Revolving Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.03,(1) from time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the
Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the account of the
Borrower; provided that the L/C Issuer shall not be obligated to make any L/C
Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to
participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x)
the Outstanding Amount of all L/C Obligations and all Loans would exceed the Aggregate
Commitments, (y) the sum of the aggregate Outstanding Amount of the Revolving Loans of any
Lender plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all
Swing Line Loans would exceed such Lender’s Commitment, or (z) the Outstanding Amount of
the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired
or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed
to have been issued pursuant hereto and, from and after the Closing Date, shall be subject
to and governed by the terms and conditions hereof.




     (ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit
if:






30









 









     (A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from
issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of credit
generally
or such Letter of Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in effect on
the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost
or
expense which was not applicable on the Closing Date and which the L/C Issuer
in good faith deems material to it;




     (B) subject to clause (C) below and subject to Section 2.03(b)(iii),
the
expiry date of any Letter of Credit would occur more than one year after the
date
of issuance or last renewal, unless the Required Lenders have approved such
expiry date;




     (C) the expiry date of such requested Letter of Credit would occur after
the Letter of Credit Expiration Date, unless all the Lenders have approved such
expiry date;




     (D) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer or such Letter of Credit does not provide for
drafts;




     (E) the face amount of any Letter of Credit (other than an Existing
Letter of Credit) is less than $1,000,000;




     (F) such Letter of Credit is for the purpose of supporting the issuance
of any letter of credit issued by any other Person;




     (G) except as otherwise agreed by the Administrative Agent and the
L/C Issuer, such Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency;




     (H) the L/C Issuer does not as of the issuance date of such requested Letter
of Credit issue Letters of Credit in the requested currency;




     (I) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (J) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
L/C Issuer has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender.



      (iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if
(A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit




31









 









in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.



      (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal
Letters of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
two (2) Responsible Officers of the Borrower. Such L/C Application must be received by the
L/C Issuer and the Administrative Agent not later than 9:00 a.m. at least (i) two (2)
Business Days (or such later date and time as the L/C Issuer may agree in a particular
instance in its sole discretion) and (ii) four Business Days (or five Business Days in the
case of a Special Notice Currency) prior to the requested date of any Borrowing or
continuation of Eurodollar Rate Loans denominated in Alternative Currencies, prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B) the amount and
currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require.
In the case of a request for an amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A)
the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as
the L/C Issuer may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt
by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then, subject to the terms
and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the Borrower or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Pro Rata Share times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in it sole and absolute discretion, agree to issue a Letter of Credit that
has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided




32









 









that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such
renewal at least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the “Nonrenewal Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for
any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer to permit the renewal of
such Letter of Credit at any time to a date not later than the Letter of Credit Expiration
Date; provided that the L/C Issuer shall not permit any such renewal if (A) the L/C
Issuer would have no obligation at such time to issue such Letter of Credit in its renewed
form under the terms hereof, or (B) it has received notice (which shall be in writing,
including by facsimile) on or before the fifth Business Day immediately preceding the
Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 4.02 is
not then satisfied. Notwithstanding anything to the contrary contained herein, the L/C
Issuer shall have no obligation to permit the renewal of any Auto-Renewal Letter of Credit
at any time.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



      (c) Drawings
and Reimbursements; Funding of Participations.




     (i) Upon any drawing under any Letter of Credit, the L/C Issuer shall notify the
Borrower and the Administrative Agent thereof. In the case of a Letter of Credit
denominated in Dollars or a Letter of Credit denominated in an Alternative Currency, the
Borrower shall reimburse the L/C Issuer in Dollars. In the case of any such reimbursement
in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency,
the L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof. Not later than 9:00 a.m. on the date
of any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in the
Dollar Equivalent of the amount of such drawing. If the Borrower fails to so reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of
the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed Amount”), and such Lender’s Pro Rata Share
thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of
the Aggregate Commitments and the conditions set forth in Section 4.02 (other than
the delivery of a Revolving Loan





33









 









Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




     (ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for
the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office in an
amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 11:00 a.m. on
the Business Day specified in such notice by the Administrative Agent, whereupon, subject
to the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in
Dollars.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such event, each
Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter
of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or
(C) any other occurrence, event or condition, whether or not similar to any of the
foregoing. Any reimbursement pursuant to this Section 2.03 shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount
of any payment made by the L/C Issuer under any Letter of Credit, together with interest as
provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the




34









 









Administrative Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the Federal Funds Rate from time
to time in effect. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.



      (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), or any payment of interest thereon, the Administrative Agent
will distribute to such Lender its Pro Rata Share thereof in the same funds as those
received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.



      (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit, and to repay each L/C Borrowing and each
drawing under a Letter of Credit that is refinanced by a Borrowing of Revolving Loans, shall
be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of
this Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement,
or any other agreement or instrument relating thereto;




     (ii) the existence of any claim, counterclaim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee of such Letter
of Credit (or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the




35









 









transmission or otherwise of any document required in order to make a drawing under
such Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation
of a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency
markets generally; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



       The Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the
Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C
Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. No Agent-Related Person nor any
of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to
any Lender for (i) any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. No Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided that, notwithstanding
anything in such clauses to the contrary, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the




36









 








beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may
accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.




       (g) Cash Collateral. (i) Upon the request of the Administrative Agent, (A) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.




     (ii) In addition, if the Administrative Agent notifies the Borrower at any time that
the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of
Credit Sublimit then in effect, then, within two Business Days after receipt of such
notice, the Borrower shall Cash Collateralize the L/C Obligations in an amount equal to
the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of
Credit Sublimit.




     (iii) The Administrative Agent may, at any time and from time to time after the
initial deposit of Cash Collateral, request that additional Cash Collateral be provided in
order to protect against the results of exchange rate fluctuations.




     (iv) The Borrower shall further Cash Collateralize L/C Obligations in accordance with
Section 2.05(c).



       (h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C Issuer and
the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the “International Standby Practices 1998” published by
the Institute of International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to such Letter of Credit.



       (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, in Dollars, subject to
Section 2.08(b), (i) a Letter of Credit fee for each outstanding Performance Letter of
Credit equal to the Applicable Rate (for Performance Letters of Credit) multiplied by the
Dollar Equivalent of the daily maximum amount available to be drawn under each such Letter of
Credit, and (ii) a Letter of Credit fee for each Financial Letter of Credit equal to the
Applicable Rate (for Financial Letters of Credit) multiplied by the Dollar Equivalent of
the daily maximum amount available to be drawn under each such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.08. Such Letter of
Credit fees shall be computed on a quarterly basis in arrears. Such fee for each Letter of Credit
shall be due and payable on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, and on
the Letter of Credit Expiration




37









 








Date and thereafter on demand. If there is any change in the Applicable Rate (or in the
characterization of such Letter of Credit as a Performance Letter of Credit or Financial Letter of
Credit) during any quarter, the daily amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate (or applicable percentage thereof) separately for each period
during such quarter that such Applicable Rate (or characterization) was in effect. Notwithstanding
anything to the contrary contained herein, while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.




     (j) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit in the amounts and at the times specified in the Fee Letter. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.08. In
addition, the Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, the
customary issuance, presentation, amendment and other processing fees, and other standard costs
and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such
customary fees and charges are due and payable on demand and are nonrefundable.



     (k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall
control.



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance
of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and
that the Borrower’s business derives substantial benefits from the businesses of such
Subsidiaries.



     (m) Reporting of Letter of Credit Information. At any time that there is more than
one L/C Issuer, then on (i) the last Business Day of each calendar month, and (ii) each date that
an L/C Credit Extension occurs with respect to any Letter of Credit, each L/C Issuer (or, in the
case of part (ii), the applicable L/C Issuer) shall deliver to the Administrative Agent a report
in the form of Exhibit I hereto, appropriately completed with the information for every Letter of
Credit issued by the L/C Issuer that is outstanding hereunder.



     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan ”) to the
Borrower from time to time on any Business Day during the period from the Closing Date to the
Maturity Date in an aggregate amount not to exceed at any time outstanding the amount of the Swing
Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the
Lender’s Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment;
provided , however, that after giving effect to any Swing Line Loan, (i) the aggregate
Outstanding Amount shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the




38









 








Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Commitment, and provided , further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation
in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share
times the amount of such Swing Line Loan.




       (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 10:00 a.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $1,000,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by two (2) Responsible
Officers of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic
Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone
or
in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the request of any
Lender)
prior to 11:00 a.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the
applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms
and conditions
hereof, the Swing Line Lender will, not later than 12:00 noon on the borrowing date specified
in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower.



       (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Revolving Loan in an amount equal
to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Revolving
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Revolving Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender




39









 









shall make an amount equal to its Pro Rata Share of the amount specified in such Revolving
Loan Notice available to the Administrative Agent in Same Day Funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day
specified in such Revolving Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base Rate
Revolving Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Revolving Loans submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Lenders fund its risk participation
in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for
the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the
account of the Swing Line Lender any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, that each Lender’s
obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 4.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.



       (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing
Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s risk participation was funded) in the same funds as those
received by the Swing Line Lender.



40









 






     (ii) If any payment received by the Swing Line Lender in respect of principal
or interest on any Swing Line Loan is required to be returned by the Swing Line Lender
under any of the circumstances described in Section 10.06 (including pursuant to
any settlement entered into by the Swing Line Lender in its discretion), each Lender shall
pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



       (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Revolving Loan or risk participation pursuant to this Section 2.04
to
refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro
Rata Share shall be solely for the account of the Swing Line Lender.



       (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments
of principal and interest in respect of the Swing Line Loans directly to the Swing Line
Lender.



       2.05 Prepayments.



       (a) The Borrower may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Revolving Loans in whole or in part without premium or
penalty;
provided that (i) such notice must be received by the Administrative Agent not later
than 9:00
a.m., (A) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans,
and
(B) on the date of prepayment of Base Rate Revolving Loans; and (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Revolving Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of such Lender’s Pro Rata
Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and payable on
the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by

all accrued interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders in
accordance with
their respective Pro Rata Shares.



       (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in
whole or in part without premium or penalty; provided that (i) such notice must be
received by
the Swing Line Lender and the Administrative Agent not later than 10:00 a.m., on the date of
the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment. If such notice is
given
by the Borrower, the Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.



41









 





     (c) If the Administrative Agent notifies the Borrower at any time that the total
Outstanding Amount at such time exceeds the Aggregate Commitments then in effect, then, within two
Business Days after receipt of such notice, the Borrower shall prepay Loans and/or the Borrower
shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such
Outstanding Amount as of such date of payment to an amount not to exceed the difference of 100% of
the Aggregate Commitments then in effect less $250,000; provided , however, that subject to
the provisions of Section 2.03(g)(ii), the Borrower shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the
Loans the total Outstanding Amount exceeds the Aggregate Commitments then in effect. The
Administrative Agent may, at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to protect against the
results of further exchange rate fluctuations.



     2.6
Reduction or Termination of Commitments. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or permanently reduce the
Aggregate Commitments to an amount not less than the then Outstanding Amount of all Loans
and L/C Obligations; provided that (i) any such notice shall be received by the
Administrative
Agent not later than 9:00 a.m., five (5) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or
any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or
reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after
giving effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or
the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall
be automatically reduced by the amount of such excess. The Administrative Agent shall
promptly notify the Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Aggregate Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Pro Rata Share. All fees accrued until the
effective
date of any termination of the Aggregate Commitments shall be paid on the effective date of
such termination.



     2.7
Repayment of Loans. (a) The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Revolving Loans outstanding on such date.



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     2.08
Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and
(ii) each Base Rate Revolving Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal




42









 








amount thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate.




     (b) While any Event of Default exists or after acceleration, the Borrower shall pay
interest on the principal amount of all outstanding Obligations at a fluctuating interest rate
per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Law.
Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be
due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.



     (d) For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee
rate hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer
days
than the actual number of days in the calendar year of calculation, such rate of interest or
fee rate
shall be expressed at a yearly rate by multiplying such rate of interest or fee rate by the
actual
number of days in the calendar year of calculation and dividing it by the number of days in
the
deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any
interest
calculation hereunder and (iii) the rates of interest stipulated herein are intended to be
nominal
rates and not effective rates or yields.



     2.09
Fees. In addition to certain fees described in subsections (i) and (j) of
Section 2.03:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a commitment fee equal to the
Applicable Rate multiplied by the actual daily amount by which the Aggregate
Commitments
exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding
Amount of L/C Obligations during each quarterly period (or portion thereof). The commitment
fee shall accrue at all times from the Closing Date until the Maturity Date and shall be due
and
payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date, and on the
Maturity Date. The commitment fee shall be calculated quarterly in arrears, and, if there is
any
change in the Applicable Rate during any quarter, the actual daily amount shall be computed
and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. The commitment fee shall accrue at all times, including at any
time during which one or more of the conditions in Article IV is not met.



     (b) Utilization Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a utilization fee equal to the
Applicable Rate multiplied by the actual daily aggregate Outstanding Amount of Loans
and L/C
Obligations on each day that such aggregate Outstanding Amount exceeds 50.00% of the
Aggregate Commitments. The utilization fee shall be due and payable quarterly in arrears on
the
last Business Day of each March, June, September and December, commencing with the first




43









 








such date to occur after the Closing Date, and on the Maturity Date. The utilization fee
shall be calculated quarterly in arrears. The utilization fee shall accrue at all times, including
at any time during which one or more of the conditions in Article IV is not met.




     (c) Arrangement and Agency Fees. The Borrower shall pay an arrangement fee to
the Arranger for the Arranger’s own account, and shall pay an agency fee to the Administrative
Agent for the Administrative Agent’s own account, in the amounts and at the times specified in
the Fee Letter. Such fees shall be fully earned when paid and shall be nonrefundable for any
reason whatsoever.



     (d) Lenders’ Upfront Fees. On the Closing Date, the Borrower shall pay to the
Administrative Agent, for the account of the Lenders in accordance with their respective Pro
Rata Shares, an upfront fee in an amount set forth in the Fee Letter. Such upfront fees are
for the
credit facilities committed by the Lenders under this Agreement and are fully earned on the
date
paid. The upfront fee paid to each Lender is solely for its own account and is nonrefundable
for
any reason whatsoever.



     2.10
Computation of Interest and Fees. Interest on Base Rate Loans shall be
calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual
number of
days elapsed. Computation of all other types of interest and all fees shall be calculated on
the
basis of a year of 360 days and the actual number of days elapsed, which results in a higher
yield
to the payee thereof than a method based on a year of 365 or 366 days. Interest shall accrue
on
each Loan for the day on which the Loan is made and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan (or any such portion) is paid; provided that
any Loan that
is repaid on the same day on which it is made shall bear interest for one day.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each
Lender shall be conclusive (absent manifest error) of the amount of the Credit Extensions made
by the Lenders to the Borrower and all interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Loans or the L/C Obligations.
In the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and
records of such Lender shall control. Upon the request of any Lender made through the
Administrative Agent, such Lender’s Loans may be evidenced by a Note, as applicable, in
addition to such accounts or records. Each Lender may attach schedules to its Note(s) and
endorse thereon the date, Type (if applicable), amount and maturity of the applicable Loans
and
payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of
Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained




44









 








by the Administrative Agent and the accounts and records of any Lender in respect of such
matters, the accounts and records of the Administrative Agent shall control.




     2.12
Payments Generally.



     (a) All payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not later than
11:00
a.m. on the date specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in
like
funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent after 11:00 a.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.



     (b) Subject to the definition of “Interest Period ” contained in Section 1.01. if any
payment to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



     (c) Unless the Borrower or any Lender has notified the Administrative Agent prior to
the date any payment is required to be made by it to the Administrative Agent hereunder, that
the
Borrower or such Lender, as the case may be, will not make such payment, the Administrative
Agent may assume that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that such payment
was
not in fact made to the Administrative Agent in immediately available funds, then:




     (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds, at the Federal Funds Rate from time to time in
effect; and




     (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period ”) at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Revolving Loan
included in the applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such




45









 









amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights, which the Administrative
Agent or the Borrower may have against any Lender as a result of any default by such Lender
hereunder.



     A notice of the Administrative Agent to any Lender with respect to any amount owing under
this subsection (d) shall be conclusive, absent manifest error.



     (d) If any Lender makes available to the Administrative Agent funds for any Loan to
be made by such Lender as provided in the foregoing provisions of this Article II, and
the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such funds (in like
funds
as received from such Lender) to such Lender, without interest.



     (e) The obligations of the Lenders hereunder to make Revolving Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make payments pursuant to
Section 10.04(b) are several and not joint. The failure of any Lender to make any
Revolving
Loan, to fund any such participation or to make any payment under
Section 10.04(b) on
any date
required hereunder shall not relieve any other Lender of its corresponding obligation to do so
on
such date, and no Lender shall be responsible for the failure of any other Lender to so make
its
Revolving Loan, to purchase its participation or to make its payment under Section
10.04(b).



     (f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any
Loan in any particular place or manner or to constitute a representation by any Lender that it
has
obtained or will obtain the funds for any Loan in any particular place or manner.



     2.13
Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in
Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such
fact, and (b) purchase from the other Lenders such participation in the Loans made by them and/or
such subparticipations in the participations in L/C Obligations held by them, as the case may be,
as shall be necessary to cause such purchasing Lender to share the excess payment in respect of
such Loans or such participations, as the case may be, pro rata with each of them; provided that
if all or any portion of such excess payment is thereafter recovered from the purchasing Lender,
such purchase shall to that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount equal to such paying
Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s
required repayment to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 10.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the




46









 








amount of such participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this Section shall from and after such purchase
have the right to give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations purchased.




     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default and there have
been no
previous Commitment reductions pursuant to Section 2.06, upon notice to the
Administrative
Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request
an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding
$50,000,000; provided that any such request for an increase shall be in a minimum
amount of
$10,000,000 and increments of $5,000,000 in excess thereof. At the time of sending such
notice,
the Borrower (in consultation with the Administrative Agent) shall specify the time period
within
which each Lender is requested to respond (which shall in no event be less than ten Business
Days nor more than thirty Business Days from the date of delivery of such notice to the
Lenders).



     (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so,
whether
by an amount equal to, greater than, or less than its Pro Rata Share of such requested
increase.
Any Lender not responding within such time period shall be deemed to have declined to increase
its Commitment.



     (c) Notification by Administrative Agent: Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase and subject to the approval of
the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement substantially in the form attached hereto as
Exhibit H.



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date ”) and the final allocation of such increase.
The
Administrative Agent shall promptly notify the Borrower and the Lenders of the final
allocation
of such increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase, and (ii) in the case of the
Borrower,
certifying that, before and after giving effect to such increase, (A) the representations and



47









 





warranties contained in Article V and the other Loan Documents are true and correct
on and as of the Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Section 2.14, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 , and (B) no Default exists. The Borrower shall prepay any Revolving Loans outstanding
on the Increase Effective Date (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Revolving Loans ratable with any revised
Pro Rata Shares arising from any nonratable increase in the Commitments under this Section.




     (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.



     2.15
Guaranty of Obligations. The Obligations shall be jointly and severally guaranteed by
the Guarantors pursuant to one or more Guaranties. Promptly after the date on which any Person
becomes a Material Subsidiary of the Borrower or becomes a Senior Note Guarantor, and, in any
event, within ten (10) Business Days following such date, the Borrower will cause such Person to
execute and deliver to the Administrative Agent, on behalf of the Lenders, a Guaranty. In
addition, promptly after any date on which the total revenues or total assets of all Restricted
Subsidiaries that are at such time not Guarantors (each, a “Non-Guarantor Subsidiary ”)
together exceed 20% of the consolidated total revenues or consolidated total assets, respectively,
of the Consolidated Restricted Group, based upon the financial statements most recently delivered
by the Borrower to the Administrative Agent pursuant to Section 6.01 (a), and in any
event, within ten (10) Business Days following receipt by the Borrower from the Administrative
Agent of a request therefor, the Borrower will cause one or more Non-Guarantor Subsidiaries to
execute and deliver to the Administrative Agent, on behalf of the Lenders, a Guaranty, so that,
after delivery of such Guaranty, the total revenues and total assets of all remaining
Non-Guarantor Subsidiaries (other than the Unrestricted Subsidiaries) together are less than 20%
of the total revenues and total assets, respectively, of the Consolidated Restricted Group. In all
of the foregoing instances, the Borrower shall deliver or cause to be delivered such other
agreements, documents, instruments and other information and items as are reasonably requested by
the Administrative Agent, at the request of any Lender, in connection with the foregoing,
including resolutions, incumbency and officers’ certificates and opinions of counsel. Without
limiting the foregoing, the Borrower shall determine, promptly after the date on which the
quarterly financial statements for the fiscal quarter ending on June 30, 2005 shall have been
delivered in accordance with Section 6.01, (i) whether there exists or shall have arisen
any Material Subsidiary other than the entities specified on
Schedule l.0l (g), and shall
cause each such Material Subsidiary to execute and deliver to the Administrative Agent, on behalf
of the Lenders, a Guaranty, together with other agreements, documents or instruments referenced
above and (ii) whether the total revenues and total assets of all Restricted Subsidiaries that are
at such time Guarantors together comprise at least 80% of the consolidated total revenues or
consolidated total assets, respectively, of the Consolidated Restricted Group.






48









 








ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01
Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable law to deduct any
Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.



     (c) Indemnification by the Borrower. The Borrower shall indemnify
the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor,
for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by
the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not
such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered
to
the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by
the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.



     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent.



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is
resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to
payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably
requested
by the Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by
the




49









 








Borrower or the Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.




     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption
from or a reduction in United States Federal withholding tax duly completed together with
such supplementary documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date,
and in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in such other jurisdiction. Each Lender shall
promptly (i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any such jurisdiction that the Borrower make any deduction or withholding
for taxes from amounts payable to such Lender.




50









 








Additionally, the Borrower shall promptly deliver to the Administrative Agent or any Lender, as the
Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such documents and forms required by any relevant taxing
authorities under the Laws of any jurisdiction, duly executed and completed by the Borrower, as are
required to be furnished by such Lender or the Administrative Agent under such Laws in connection
with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.




     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal
to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event
the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



     3.02
Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the Eurodollar Rate, or
any Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans in
the affected currency or currencies or, in the case of Eurodollar Rate Loans in Dollars, to
convert Base Rate Revolving Loans to Eurodollar Rate Loans, shall be suspended until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from
such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert all such Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.






51









 








     3.03
Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) deposits (whether in Dollars or an Alternative Currency) are not
being offered to banks in the applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable
means do not exist for determining the Eurodollar Base Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan (whether denominated in Dollars or an
Alternative Currency), or (c) the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such
Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify
the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans in the affected currency or currencies shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans in the affected currency or currencies
or,
failing that, will be deemed to have converted such request into a request for a Revolving
Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Cost and Reduced Return; Capital Adequacy.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any Lender (except (A) any reserve
requirement reflected in the Eurodollar Rate and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank reflected in the
Mandatory Cost, other than as set forth below) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer);




     (iii) the Mandatory Cost, as calculated hereunder, does not represent the cost to any
Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or
maintaining Eurodollar Rate Loans; or




     (iv) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan),





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or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or
the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of
such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case
may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the
case may be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any
Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or
such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has
or
would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s
capital
or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to
a level
below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company could have achieved but for such Change in Law (taking into consideration such
Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the Borrower will
pay
to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as
will
compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company
for any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or
its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not constitute
a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided that
the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered
more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be,
notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the
Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, as
long as such Lender shall be required to comply with any reserve ratio requirement or
analogous
requirement of any central banking or financial regulatory authority imposed in respect of the
maintenance of the Commitments or the funding of the Eurodollar Rate Loans, such additional
costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest
five decimal places) equal to the actual costs allocated to such Commitment or Loan by such




53









 








Lender (as determined by such Lender in good faith, which determination shall be conclusive, which
shall be due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional costs from such Lender. If a Lender fails to give notice
10 days prior to the relevant Interest Payment Date, such additional costs shall be due and
payable 10 days from receipt of such notice.




     3.05 Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a
Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower;



     (c) any failure by the Borrower to make payment of any Loan or drawing under any
Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its
scheduled due date or any payment thereof in a different currency; or



     (d) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.14;



including any loss of anticipated profits, any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or from the performance
of any foreign exchange contract. The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.




For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the offshore interbank market for such currency for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.




     3.06 Matters Applicable to all Requests for Compensation.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or
if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use
reasonable efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts




54









 








payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in
each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.14.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions to Effectiveness and Initial Credit Extension. The effectiveness of
this Agreement and the obligation of each Lender to make its initial Credit Extension hereunder are
subject to satisfaction of the following conditions precedent:



     (a) Unless waived by all the Lenders (or by the Administrative Agent with respect to
immaterial matters or items specified in clause (iv) below with respect to which the Borrower has
given assurances satisfactory to the Administrative Agent that such items shall be delivered
promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the
case of the opinion of counsel, by such counsel), each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date acceptable to the
Administrative Agent) and each in form and substance satisfactory to the Administrative Agent, the
Lenders and their respective legal counsel:




     (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;




     (ii) if requested by a Lender, a Note executed by the Borrower in favor of such
Lender, such Note to be in an original face amount equal to such Lender’s Commitment;




     (iii) such certificates respecting resolutions or other actions, incumbency
certificates and/or other certificates (including specimen signatures) of Responsible
Officers of each Loan Party as the Administrative Agent or any Lender may require to
establish the identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party;




     (iv) such evidence as the Administrative Agent and/or any Lender may require to verify
that each Loan Party is duly organized or formed, validly existing, in good




55









 









standing and qualified to engage in business in each jurisdiction in which it is required
to be qualified to engage in business, including certified copies of each Loan Party’s
Organization Documents, certificates of good standing and qualification to engage in
business and tax clearance certificates; provided that, to the extent that any of
the tax clearance certificates required under this sub-paragraph (iv) have not been
received by the Borrower prior to the Closing Date, the Borrower shall only be required to
deliver such tax clearance certificates in accordance with Section 6.14;




     (v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied,
and (B) that there has been no event or circumstance since the date of the Audited
Financial Statements which has or could be reasonably expected to have a Material Adverse
Effect;




     (vi) an opinion of counsel to each Loan Party, addressing the matters set forth on
Exhibit G, in form and substance satisfactory to the Administrative Agent;




     (vii) evidence satisfactory to the Administrative Agent of the termination in
accordance with its terms of the commitments under the Existing Credit Agreement, and the
repayment of all outstanding amounts thereunder, together with interest fees and other
charges payable, provided that, upon execution of this Agreement, each Lender hereto that
is a party to the Existing Credit Agreement waives the notice provision for early
termination of the Existing Credit Agreement set forth in Section 2.06 thereunder;
and




     (viii) such other assurances, certificates, documents, consents, approvals, materials
or opinions as the Administrative Agent, the L/C Issuer or any Lender reasonably may
require.



     (b) Any fees required to be paid on or before the Closing Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all
reasonable Attorney Costs of the Administrative Agent to the extent invoiced prior to or on
the
Closing Date, plus such additional amounts of reasonable Attorney Costs as shall constitute
its
reasonable estimate of such Attorney Costs incurred or to be incurred by it through the
closing
proceedings, provided that such estimate shall not thereafter preclude a final
settling of accounts
between the Borrower and the Administrative Agent.



     Notwithstanding
anything to the contrary contained in this Section 4.01, neither this
Agreement nor any of the other Loan Documents shall become effective or be binding on any party
unless the preceding conditions have been satisfied (or waived, as appropriate), on or before 5:00
p.m., on June 24, 2005.



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



56









 





     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Revolving Loan Notice requesting only a conversion of Revolving
Loans to the other Type, or a continuation of Revolving Loan as the same Type) is subject to the
following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V, or
which are contained in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit Extension, except to
the
extent that such representations and warranties specifically refer to an earlier date, in
which case
they shall be true and correct as of such earlier date.



     (b) No Default or Event of Default shall exist or would result from such Credit
Extension.



     (c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a
Request for Credit Extension in accordance with the requirements hereof.



     (d) In the case of a Credit Extension to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which in the reasonable
opinion of the Administrative Agent or the L/C Issuer (in the case of any Letter of Credit to
be
denominated in an Alternative Currency) would make it impracticable for such Credit Extension
to be denominated in the relevant Alternative Currency.



     Each Request for Credit Extension (other than a Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type, or a continuation of Revolving Loans as the same
Type) submitted by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders
that:



     5.01 Existence, Qualification and Power; Compliance with Laws. The Borrower and each of its
Subsidiaries (a) is a corporation, partnership or limited liability company, duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on its business and to
execute, deliver, and perform its obligations under the Loan Documents to which it is a party, (c)
is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws, except in each case referred to
in subsection (c) or (d) of this Section, to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.





57









 








     5.02
Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly
authorized by all necessary corporate or other organizational action, and do not and will not
(a)
contravene the terms of any of such Person’s Organization Documents; (b) conflict with or
result
in any breach or contravention of, or the creation of any Lien under, any Contractual
Obligation
to which such Person is a party or any order, injunction, writ or decree of any Governmental

Authority to which such Person or its property is subject; or (c) violate any Law.



     5.03 Governmental Authorization. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by, or enforcement against,
any Loan Party of this Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is
party thereto. This Agreement constitutes, and each other Loan Document when so delivered
will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against
each
Loan Party that is party thereto in accordance with its terms, subject to applicable
bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting the rights of
creditors, and subject to equitable principles of general application.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted
therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as
of the
date thereof and their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or
contingent,
of the Borrower and its consolidated Subsidiaries as of the date thereof, including
liabilities for
taxes, material commitments and Indebtedness.



     (b) The unaudited consolidated financial statements of the Borrower and its
Subsidiaries, dated March 31, 2005, contained in the related quarterly report on Form 10-Q
filed
with the SEC (i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and subject to ordinary,
good faith year end audit adjustments; (ii) fairly present the financial condition of the
Borrower
and its Subsidiaries as of the date thereof and their results of operations for the period
covered
thereby; and (iii) show all material indebtedness and other liabilities, direct or contingent,
of the
Borrower and its consolidated Subsidiaries as of the date thereof, including liabilities for
taxes,
material commitments and Indebtedness.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.



58









 






     (d) As of the Closing Date, there exists no Project Debt, other than as specifically
identified on Schedule 5.05(d).



     5.06
Litigation. Except as specifically disclosed on Schedule 5.06, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower
after
due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration
or
before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or pertain to this
Agreement
or any other Loan Document, or any of the transactions contemplated hereby, or (b) if
determined adversely, could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. Neither the Borrower nor any Subsidiary is in default under or with
respect to (a) any Senior Note Documents or (b) any Contractual Obligation that could be
reasonably expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.



     50.8 Ownership of Property; Liens. Each of the Borrower and its Subsidiaries has
good record and marketable title in fee simple to, or valid leasehold interests in, all real
property
necessary or used in the ordinary conduct of its business, except for such defects in title as
could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
As of the Effective Date, the property of the Borrower and its Subsidiaries is not subject to
any
Lien, other than Liens permitted by Section 7.01 .



     5.09 Environmental Compliance.



     (a) The on-going operations of the Borrower and each of its Subsidiaries, after the
Closing Date, comply in all respects with all Environmental Laws, except such non-compliance
that would not result in liability in excess of $5,000,000 in the aggregate.



     (b) Except as specifically identified on Schedule 5.09, and except to the extent that
noncompliance would not result in liability in excess of $1,000,000 in the aggregate, the
Borrower and each of its Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any Environmental Law (“Environmental Permits ”) necessary for
their respective operations, and all such Environmental Permits are in good standing, and the
Borrower and each of its Subsidiaries are in compliance with all terms and conditions of such
Environmental Permits.



     (c) Except
as specifically identified on Schedule 5.09, none of the Borrower or any of
its Subsidiaries or any of their present property or operations is subject to any outstanding
written order from or agreement with any Governmental Authority or other Person, nor is
subject
to any judicial or docketed administrative proceeding respecting any Environmental Law,
Environmental Claim or Hazardous Material.



     (d) There are no conditions or circumstances relating to any property of the Borrower
or its Subsidiaries, or arising from operations of the Borrower or its Subsidiaries conducted
prior
to the Closing Date that, together with all other such conditions and circumstances relating
to all
other properties and operations, may give rise to Environmental Claims with a potential
liability




59









 








as to the Borrower and its Subsidiaries together in excess of $25,000,000 in the aggregate.
Schedule 5.09 contains the Borrower’s good faith estimate of clean-up costs associated with
hydrocarbon contamination at the properties described therein. Notwithstanding the foregoing, (i)
neither the Borrower nor any of its Subsidiaries has any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental Laws or (y) that are leaking or
disposing of Hazardous Materials off-site, (ii) the Borrower and its Subsidiaries have notified all
of their employees of the existence, if any, of any health hazard arising from the conditions of
their employment and have met all notification requirements under all applicable Environmental
Laws, and (iii) no Hazardous Materials have been Released at, on or under any site, facility or
vessel now or previously owned, operated or leased by the Borrower or any of its Subsidiaries that
would have a Material Adverse Effect.




     (e) Except
as specifically identified on Schedule 5.09, the Borrower has no knowledge
of any oral or written notification of a Release of a Hazardous Material has been filed by or on
behalf of the Borrower or any of its Subsidiaries and no site, facility or vessel now or
previously owned, operated or leased by the Borrower or any of its Subsidiaries is listed or
proposed for listing on any federal or state list of sites requiring investigation or clean-up.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower
or
its Subsidiaries operate.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and
other
material taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against the Borrower
or any Subsidiary that would, if made, have a Material Adverse Effect.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify
under
Section 401 (a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto
and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the
loss of, such qualification. The Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a
funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been
made with respect to any Plan.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan
that could be reasonably be expected to have a Material Adverse Effect. There has been no



60









 





prohibited transaction or violation of the fiduciary responsibility rules with respect to any
Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.




     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries.



     (a) As of the Closing Date, the Borrower has no Subsidiaries other than those
specifically disclosed in Part (1) of Schedule 5.13(a), and those of whom the Borrower
has
notified the Administrative Agent in writing following the Closing Date pursuant to
Section 2.15
and has no equity investments in any other corporation or entity (including GLC Ventures and
Construction JV’s) other than those specifically disclosed in Part (2) of Schedule 5.13(a).



     (b) As of the Closing Date, there exist no Senior Note Guarantors, other than as listed
on Schedule 5.13(b).



     5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock (within the
meaning
of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock.



     (b) None of the Borrower, any Person controlling the Borrower, or any Subsidiary (i)
is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of
a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning
of the Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered
as an
“investment company” under the Investment Company Act of 1940, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code or any other federal or state statute
or
regulation limiting its ability to incur Indebtedness.



     5.15 Disclosure. The documents, certificates and written statements (including the
Loan Documents) furnished to the Administrative Agent and the Lenders by the Borrower or any
Subsidiary for use in connection with the transactions contemplated by this Agreement, taken
as
a whole, do not contain any untrue statement of a material fact or omit to state a material
fact
(known to the Borrower in the case of any document not furnished by it) necessary in order to
make the statements contained herein or therein not misleading (it being recognized by the
Administrative Agent and the Lenders that projections and forecasts provided to them by the
Borrower are not to be viewed as facts and that actual results during the period or periods





61









 








covered by any such projections and forecasts may differ from the projected or forecasted
results).




     5.16 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights ”)
that are reasonably necessary for the operation of their respective businesses, without
conflict
with the rights of any other Person. To the best knowledge of the Borrower, no slogan or other

advertising device, product, process, method, substance, part or other material employed or
contemplated to be employed by the Borrower or any Subsidiary infringes upon any rights held
by any other Person. Except as specifically disclosed in Schedule 5.16, no claim or
litigation
regarding any of the foregoing is pending or, to the best knowledge of the Borrower,
threatened,
and no patent, invention, device, application, principle or any statute, law, rule,
regulation,
standard or code is pending or, to the knowledge of the Borrower, proposed, which, in either
case, could reasonably be expected to have a Material Adverse Effect.



     5.17 Swap Contracts. The Borrower and its Subsidiaries have each voluntarily
entered into each Swap Contract to which it is a party based upon its own independent
assessment of its consolidated assets, liabilities and commitments in each case as an
appropriate
means of mitigating and managing risks associated with such matters.



     5.18 Labor Relations. There are no strikes, lockouts or other labor disputes against
the Borrower or any of its Subsidiaries, or, to the best of the Borrower’s knowledge,
threatened
against or affecting the Borrower or any of its Subsidiaries, and no significant unfair labor
practice complaint is pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them before any Governmental Authority,
which could reasonably be expected to result in a Material Adverse Effect.



     5.19 Use of Proceeds. The Borrower shall use the proceeds of the Credit Extensions
solely for working capital and other general corporate purposes of the Borrower and its
Restricted Subsidiaries not in contravention of any Loan Document or any Law.




     5.20 Solvency. The Borrower is and shall continue to be, and shall cause each of its
Subsidiaries to be, Solvent.



     5.21 Unrestricted Subsidiary Matters. Except as specifically identified in Schedule 5.21:



     (a) As of the Closing Date, none of the Borrower or any of its Restricted Subsidiaries
is party to any Contractual Obligation pursuant to which cash, deposit balances or investments
of
the Borrower or any of its Restricted Subsidiaries are pooled or otherwise commingled with
similar assets of any Unrestricted Subsidiary.



     (b) As of the Closing Date, there is no employee stock option plan or employee stock
purchase plan of the Borrower that extends to employees of any Unrestricted Subsidiary.




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     (c) As of the Closing Date, none of the Unrestricted Subsidiaries directly or
indirectly own capital stock in the Borrower or have any right to purchase, redeem or otherwise
acquire capital stock in the Borrower.



     5.22 Burdensome Agreements. Except as specifically identified in Schedule 5.22, as of
the Closing Date neither the Borrower nor any of its Restricted Subsidiaries is party or subject
to (i) any Contractual Obligation that limits the ability of any Restricted Subsidiary to make
Restricted Payments to the Borrower or to otherwise transfer property to the Borrower, (ii) any
employment contracts or other arrangements with officers, directors or employees having terms,
including salaries, benefits and other compensation, that are materially different from those
previously entered into by it in the Ordinary Course of Business, or (iii) any Contractual
Obligation that directly or indirectly prohibits the Borrower or any of its Restricted
Subsidiaries from granting any Lien on property or assets of such Persons.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall, and shall (except in the case of the covenants
set forth in Sections 6.01,
 6.02 and 6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year
of the Borrower: (i) (A) a consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of a Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Required Lenders
(the “Auditor”), which report
and opinion shall be prepared in accordance with GAAP and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any qualifications or exceptions
not reasonably acceptable to the Required Lenders or (B) an SEC Form 10-K for the Borrower
(excluding the exhibits thereto) relating to such fiscal year; (ii) the report(s) of management on
the Borrower’s internal control over financial reporting pursuant to Items 308(a) and 308(c) of
Regulation S-K promulgated under the Exchange Act, and the Auditor’s report assessing the
Borrower’s internal control over financial reporting as filed with the SEC on Form 10-K for the
Borrower (and prepared in accordance with Auditing Standard No. 2 of the Public Company Accounting
Oversight Board as may be amended from time to time); and (iii) provided Wilder is an Unrestricted
Subsidiary as of the end of such fiscal year, a consolidated balance sheet of Wilder as at the end
of such fiscal year, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall
be




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prepared in accordance with GAAP and shall not be subject to any qualifications or exceptions as to
the scope of the audit nor to any qualifications or exceptions not reasonably acceptable to the
Required Lenders; and




     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower: (i) (A) a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the Borrower as fairly presenting the financial condition,
results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes; or (B) an SEC Form
10-Q for the Borrower (excluding the exhibits thereto) relating to such fiscal quarter; and (ii)
provided Wilder is an Unrestricted Subsidiary as of the end of such fiscal quarter, a consolidated
balance sheet of Wilder as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter
and for the portion of Wilder’s fiscal year then ended, setting forth in each case in comparative
form the figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of Borrower as fairly presenting the financial condition, results of
operations and cash flows of Wilder on a consolidated basis in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes.



     6.02
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Section 6.01
(a) (unless included in the applicable SEC
Form 10-K), a certificate of its independent
certified public accountants certifying such financial statements;



     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower;



     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto; and



     (d) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary as the Administrative Agent, at the request of any
Lender, may from time to time request.



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     Reports required to be delivered pursuant to Section 6.01(a)(i) or (b)(i) or
Section 6.02(b) shall be deemed to have been delivered on the date on which the Borrower
posts such reports on the Borrower’s website on the Internet at the website address listed on
Schedule 10.02 or when such report is posted on the
SEC’s website at www.sec.gov;
 provided that (x) the Borrower shall deliver electronic copies via electronic mail or paper
copies of such reports to the Administrative Agent or any Lender who requests the Borrower to
deliver such paper copies until written request to cease delivering paper copies is given by the
Administrative Agent or such Lender, (y) the Borrower shall notify by electronic copies via
electronic mail or paper copies via facsimile the Administrative Agent and each Lender of the
posting of any such reports, and (z) in every instance, the Borrower shall provide paper copies of
the Compliance Certificates required by Section 6.02(b) to the Administrative Agent and
each of the Lenders. Except for such Compliance Certificates, the Administrative Agent shall not
have any obligation to request the delivery or to maintain copies of the reports referred to above
(and, in any event, the Administrative Agent shall not have any responsibility to monitor
compliance by the Borrower with any such request for delivery), and each Lender shall be solely
responsible for requesting delivery to it, or maintaining its copies, of such reports.



     BAS and/or Bank of America will make available Information and Projections (collectively, the
“Borrower Materials”) to the proposed syndicate of Lenders by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and none of the proposed Lenders
will be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities) (each, a “Public Lender”). No Borrower
materials are to be made available to Public Lenders, all Borrower Materials shall be treated as
private and may contain material non-public information with respect to the Borrower or its
securities for purposes of United States federal and state securities laws, and BAS and Bank of
America shall treat all Borrower Materials as being suitable only for posting on a portion of the
Platform not designated “Public Investor”.



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default or Event of Default;




     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;



     (c) of any litigation, investigation or proceeding affecting any Loan Party (i) in which the
amount of damages claimed and not fully covered by insurance equals or exceeds $7,500,000 (or its
equivalent in another currency or currencies), or in which injunctive relief or similar relief is
sought, which relief, if granted, could reasonably be expected to have a Material Adverse Effect or
(ii) within four days after reporting the same to the SEC if the Borrower is required to report the
same to such entity under applicable Law;





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     (d) of the occurrence of any ERISA Event;




     (e) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary;



     (f) of the Auditor’s determination (in connection with its preparation of its report as
delivered under Section 6.01(a)(ii)) or the Borrower’s determination of the occurrence or
existence of any Internal Control Event at any time;



     (g) within ten (10) Business Days after the date of such occurrence, (i) if any Subsidiary or
other Person shall become a Material Subsidiary of the Borrower, or (ii) if the total revenues or
total assets of all Non-Guarantor Subsidiaries shall at any time together exceed 20% of the total
revenues or total assets, as the case may be, of the Borrower and its Restricted Subsidiaries,
determined on a consolidated basis, or (iii) if any Unrestricted Subsidiary shall cease to be such
or any Person shall become an Unrestricted Subsidiary, or (iv) if any Subsidiary shall become a
Senior Note Guarantor; for purposes of this Section 6.03(g), the date of such an occurrence
or circumstance shall be the first to occur of either the closing of a transaction that triggers
such an occurrence or circumstance or the Borrower files or is required to file with the SEC a Form
8K, 10K or 10Q report or is required to deliver financial statements under Section 6.01
reflecting such an occurrence or circumstance;



     (h) if applicable, upon the request from time to time of the Administrative Agent, of the
Swap Termination Values, together with a description of the method by which such values were
determined, relating to any Swap Contracts then outstanding to which the Borrower or any of its
Subsidiaries is a party;



     (i) upon becoming aware thereof, of any labor controversy resulting in or threatening to
result in, any strike, work stoppage, boycott, shutdown or other labor disruption against or
involving the Borrower or any Subsidiary that would materially impact the operations of the
Borrower or any Subsidiary; and



     (j) upon, but in no event later than ten days after, becoming aware of (i) any and all
enforcement, cleanup, removal or other governmental or regulatory actions involving a potential
liability in excess of $15,000,000 in the aggregate instituted, completed or threatened against
the Borrower or any Subsidiary or any of their properties pursuant to any applicable Environmental
Laws, (ii) all other Environmental Claims involving the Borrower or a Subsidiary with a potential
liability in excess of $15,000,000 in the aggregate, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the property of the Borrower or any
Subsidiary that could reasonably be anticipated to cause such property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use of such property
under any Environmental Laws and involving a potential liability in excess of $15,000,000 in the
aggregate.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to therein and stating
what action the Borrower has taken and proposes to take with respect thereto. Each




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notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement or other Loan Document that have been breached.




     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable (a)
all tax liabilities, assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. Preserve, renew and maintain in full force and effect its
legal existence and good standing under the Laws of the jurisdiction of its organization; take all
reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except in a transaction permitted by Section
7.04 or 7.05; and preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
applicable to it or to its business or property, except in such instances in which (i) such
requirement of Law is being contested in good faith or a bona fide dispute exists with respect
thereto; or (ii) the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.



     6.09
Books and Records.




     (a) Maintain (i) proper financial records in conformity with GAAP and presented fairly in all
material respects, and (ii) properly, all other books and records, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the case may be; and



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     (b) maintain all books of record and accounts in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided that when an Event of Default exists the Administrative Agent or any Lender (or any of
their respective representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without advance notice.



     6.11 Compliance with ERISA. Do, and cause each of its ERISA Affiliates to do, each of the
following: (a) maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state law; (b) cause each Plan which is
qualified under Section 401 (a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code.



     6.12 Environmental Laws.



     (a) The Borrower shall, and shall cause each of its Subsidiaries to, conduct its operations
and keep and maintain its property in compliance in all material respects with all Environmental
Laws, except to the extent that the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.



     (b) Upon written request of the Administrative Agent or any Lender, the Borrower shall submit
and cause each of its Subsidiaries to submit, to the Administrative Agent and such Lender, at the
Borrower’s sole cost and expense and at reasonable intervals, a report providing an update of the
status of any environmental, health or safety compliance, hazard or liability issue identified in
any notice or report required pursuant to Section 6.03(i) and any other environmental,
health or safety compliance obligation, remedial obligation or liability, that could, individually
or in the aggregate, result in liability in excess of $10,000,000.



     6.13 Use of Proceeds. Use the proceeds of the Credit Extensions solely for working capital
and other general corporate purposes of the Borrower and its Restricted Subsidiaries not in
contravention of any Law or of any Loan Document.



     6.14 Tax Clearance Certificates. On or before the date that is 30 calendar days following
the Closing Date, the Borrower shall provide to the Administrative Agent all tax clearance
certificates not delivered to the Administrative Agent under Section 4.01(a)(iv) and
permitted by such section to be delivered under this
Section 6.14; provided that, if the
Borrower is unable to deliver any such certificate by virtue of a delay in the ability of any
applicable Governmental Authority to provide such certificate in the ordinary course (and not by
virtue of any Loan Party not being in tax good standing) and the Borrower has provided to the




68









 








Administrative Agent reasonable evidence of such inability, then the Borrower shall have such
additional time to deliver such certificate(s) as the Administrative Agent shall reasonably
determine.




     6.15 Internal Control Events. Upon notification from the Administrative Agent to the Borrower
that the Required Lenders require remediation of any Internal Control Event of which they have
received notice pursuant to Section 6.03(f) or as reported in any report delivered pursuant
to Section 6.01(a)(ii) and for which a disclosure pursuant to Item 308(c) of Regulation S-K
promulgated under the Exchange Act describing appropriate corrective action did not take place,
remediate or cause to be remediated such Internal Control Event, and to test and confirm such
remediation, not later than the end of the time period reasonably agreed by the Required Lenders
with the Borrower as necessary for such remediation (the
“Remediation Period”). It is understood
that the Remediation Period will require a sufficient period of time to permit testing required by
the relevant Securities Laws.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall not, nor shall it permit any Restricted Subsidiary (or, in the case of
Sections 7.08, 7.09, and 7.10, permit any Subsidiary) to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist, any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following.



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that the property covered thereby is not increased and any
renewal or extension of the obligations secured or benefited thereby is permitted by Section
7.03(b);



     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;



     (d) carriers’, landlords’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other
like Liens arising in the Ordinary Course of Business in respect of the Borrower and its Restricted
Subsidiaries, which are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;



     (e) pledges or deposits in the Ordinary Course of Business in connection with obligations of
the Borrower or its Restricted Subsidiaries arising under workers’ compensation, unemployment
insurance and other social security legislation, other than any Lien imposed by ERISA;





69









 








     (f) deposits to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case, incurred by the Borrower or its Restricted Subsidiaries
in the Ordinary Course of Business, provided that all such deposits in the aggregate could
not reasonably be expected to result in a Material Adverse Effect;



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



     (h) Liens securing or arising from judgments, decrees or attachments in respect of the
Borrower and its Restricted Subsidiaries, in circumstances not constituting an Event of Default
under Section 8.01(h);



     (i) Liens securing Indebtedness of the Borrower or its Restricted Subsidiaries permitted
under Section 7.03(d), provided that (i) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness; (ii) such Liens attach to the
subject property within 30 days after the acquisition thereof and (iii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of the property being
acquired on the date of acquisition; or Liens on assets of any Project Debt Entity securing
Indebtedness of such entity permitted under Section 7.03(i);



     (j) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods by the Borrower or its
Restricted Subsidiaries;



     (k) Liens securing reimbursement obligations of the Borrower or its Restricted Subsidiaries
with respect to commercial letters of credit obtained in the Ordinary Course of Business and not
prohibited hereby, provided that such Liens shall attach only to documents or other
property relating to such letters of credit and products and proceeds thereof;



     (l) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution, provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess of those set forth by regulations promulgated by the FRB, and
(ii) such deposit account is not intended by the Borrower or any Subsidiary to provide collateral
to the depository institution; and



     (m) Liens not otherwise permitted hereunder securing Indebtedness not in excess of
$15,000,000 at any time.



     7.02
Investments. Make any Investments, except:



     (a) Investments, other than those permitted by subsections (b) through (j), that are existing
on the date hereof and listed on Schedule 7.02(a);





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     (b) Investments held by the Borrower or any of its Restricted Subsidiaries (i) in the
form of cash and cash equivalents, and (ii) Investments permitted under the Borrower’s investment
policy attached hereto as Schedule 7.02(b), other than Investments of any type requiring
any special or further approval under such policy;



     (c) Investments consisting of extensions of credit by the Borrower to any of its wholly-owned
Restricted Subsidiaries, or by any of its wholly-owned Restricted Subsidiaries to the Borrower or
to another of its wholly-owned Restricted Subsidiaries;



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the Ordinary Course of
Business, and Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guaranty Obligations permitted by Section 7.03;



     (f) Investments
resulting by virtue of transactions otherwise permitted by Section 7.07;



     (g) Investments (including Construction JV Investments) by any Land Development
Company, or any Subsidiary thereof, in an aggregate amount not to exceed for all such Investments
and entities together at any time, $35,000,000;



     (h) Investments in the equity of any Restricted Subsidiary, or the capital stock, assets,
obligations or other securities of or interests in any other Person (other than an Unrestricted
Subsidiary); in an aggregate amount for all such Investments together not to exceed at any time
$150,000,000;



     (i) Construction JV Investments arising in the Ordinary Course of Business in an aggregate
amount for all such Investments together not to exceed at any time $100,000,000; and



     (j) Investments in Unrestricted Subsidiaries existing on the Closing Date and set forth on
Schedule 7.02(j), and additional equity Investments in Unrestricted Subsidiaries entered
into or incurred after the Closing Date not to exceed in the aggregate for all such additional
equity Investments the lesser of (i) $35,000,000 and (ii) the minimum amount required in order to
increase the Borrower’s share of total outstanding equity securities of Wilder from the level
existing on the Closing Date to 100%.



     7.03
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on the date
hereof and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions
thereof, provided that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized thereunder;





71









 








     (c) obligations (contingent or otherwise) of the Borrower or any Restricted
Subsidiary existing or arising under any Swap Contract entered into by such Person (or in respect
of any Guaranty Obligation of any such Person to the extent supporting obligations arising under
Swap Contracts to which the Borrower or any Restricted Subsidiary is party), provided that (i) such
Swap Contract obligations are (or were) entered into by such Person in the Ordinary Course of
Business for the purpose of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person and not for purposes of speculation or taking a “market
view;” and (ii) such Swap Contract does not contain any provision exonerating the non- defaulting
party from its obligation to make payments on outstanding transactions to the defaulting party;



     (d) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase
money Indebtedness for fixed or capital assets acquired by the Borrower or any Restricted
Subsidiary; provided that the aggregate principal amount of (i) all purchase money
Indebtedness for fixed or capital assets that may be incurred by the Borrower or any of its then-
existing Restricted Subsidiaries in any fiscal year of the Borrower shall not exceed $25,000,000;
(ii) all Indebtedness in respect of capital leases and Synthetic Lease Obligations to finance the
acquisition of fixed or capital assets incurred by the Borrower or any of its Restricted
Subsidiaries in any fiscal year of the Borrower shall not exceed $25,000,000; and (iii) all
Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
Indebtedness for fixed or capital assets of Persons immediately prior to such Persons becoming
Restricted Subsidiaries or being merged with or into (or otherwise becoming acquired by) the
Borrower or any of its Restricted Subsidiaries following the Closing Date shall not exceed an
amount equal to $50,000,000; provided that none of such Indebtedness was incurred in
anticipation of any such merger or acquisition;



     (e) Indebtedness arising as a consequence of Investments permitted pursuant to Section
7.02(c);



     (f) Indebtedness in respect of (i) letters of credit (other than Letters of Credit) issued
solely for the account and benefit of the Borrower or any Restricted Subsidiary in the Ordinary
Course of Business in an aggregate outstanding amount not to exceed at any time an amount equal to
$25,000,000; and (ii) the obligation of a subcontractor of the Borrower or its Restricted
Subsidiaries on a construction project, provided that the Borrower or such Subsidiary
determines in good faith that such financial arrangement best serves the Borrower’s or such
Subsidiary’s financial interests;



     (g) Indebtedness incurred in the Ordinary Course of Business in connection with (i) securing
the performance of bids, trade contracts (other than for borrowed money), and statutory
obligations, in each case, solely for the account and benefit of the Borrower, its Subsidiaries,
any GLC Venture or Construction JV, (ii) obligations on surety and appeal bonds solely for the
account and benefit of the Borrower, its Subsidiaries, any GLC Venture or Construction JV, (other
than in relation to borrowed money debt), and (iii) other obligations of a like nature incurred in
the Ordinary Course of Business solely for the account and benefit of the Borrower, its
Subsidiaries, any GLC Venture or Construction JV, (other than in relation to borrowed money




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debt), in each of the foregoing cases to the extent not otherwise prohibited by the terms
of any Loan Document;




     (h) Indebtedness (other than Guaranty Obligations as to which an Unrestricted Subsidiary is
the primary obligor and other than Indebtedness incurred for the benefit of an Unrestricted
Subsidiary), comprised solely of (i) the outstanding principal amount of obligations, whether
current or long-term, for borrowed money and all obligations evidenced by bonds (other than
performance, surety and appeal bonds), debentures, notes, loan agreements or other similar
instruments, (ii) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, or (iii) without duplication, Guaranty Obligations (other than Guaranty Obligations
as to which an Unrestricted Subsidiary is the primary obligor) with respect to Indebtedness of the
types specified in the immediately preceding clauses (i) and (ii), in an aggregate principal
amount outstanding not to exceed $100,000,000 at any time; provided that no such
Indebtedness shall be permitted under this clause (h) if such Indebtedness represents Indebtedness
of any co-joint venturer in any Joint Venture, to which the Borrower or any Subsidiary is a party,
that is assumed by the Borrower or any Subsidiary, if such Indebtedness was not originally
incurred by such co joint venturer in connection with (and relate solely to) the subject Joint
Venture; and



     (i) Project Debt.



     7.04
Fundamental Changes. Merge, consolidate with or into, or convey, transfer, lease or
otherwise Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person or enter into any Joint Venture, except that, so long as no Default or Event of Default
exists at the time or would occur as a result thereof:



     (a) any Restricted Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, (ii) any one or more Restricted
Subsidiaries, provided that, when any wholly-owned Subsidiary is merging with another
Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, or (iii) any
other Person (other than an Unrestricted Subsidiary), provided that the Restricted
Subsidiary shall be the continuing or surviving Person or immediately upon such merger,
consolidation or combination, the surviving Person shall be a wholly-owned Restricted Subsidiary of
the Borrower;



     (b) any Restricted Subsidiary may sell all or substantially all of its assets (upon voluntary
liquidation or otherwise), to the Borrower or to another Restricted Subsidiary; provided
that if the seller in such a transaction is a wholly-owned Subsidiary, then the purchaser must
either be the Borrower or a wholly-owned Subsidiary;



     (c) the Borrower may merge, consolidate or combine with another entity if the Borrower is the
corporation surviving the merger; and



     (d) the Borrower and its Restricted Subsidiaries may enter into any GLC Venture or
Construction JV in the Ordinary Course of Business, subject to compliance with all other terms and
provisions hereof.



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     7.05 Dispositions. Sell, lease or make any Disposition or enter into any
agreement to make any Disposition, except:



     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the Ordinary Course of Business to Persons;



     (b) Dispositions of inventory in the Ordinary Course of Business;



     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property for use in the
Ordinary Course of Business, (ii) the proceeds of such Disposition are reasonably promptly applied
to the purchase price of such replacement property for use in the Ordinary Course of Business or
(iii) the board of directors or senior management of the Borrower or such Subsidiary has determined
in good faith that the failure to replace such property will not be detrimental to the business of
the Borrower or such Subsidiary;



     (d) Dispositions of property by any Restricted Subsidiary to the Borrower or to a wholly-owned
Restricted Subsidiary of the Borrower;



     (e) Dispositions comprising transactions expressly permitted by Section 7.04(a)
through



     (f) non-exclusive licenses of IP Rights in the Ordinary Course of Business and substantially
consistent with past practice for terms not exceeding five years; and



     (g) other Dispositions to Persons other than an Unrestricted Subsidiary of property (other
than accounts and notes receivable) not described in subsections (a) through (f) of this
Section 7.05; provided (i) no Default or Event of Default exists at the time or would occur
as a result thereof, and (ii) the aggregate consideration from such Dispositions received by the
Borrower and its Restricted Subsidiaries, including aggregate cash received and the aggregate fair
market value of non-cash property received, shall not exceed 5% of the total assets of the Borrower
and its Restricted Subsidiaries (determined on a consolidated basis in accordance with GAAP) as of
the end of the Borrower’s most recently ended fiscal year;



provided that any Disposition pursuant to subsections (a) through (g) of this Section
7.05 shall be for fair market value.




     7.06 Lease Obligations. Create or suffer to exist any obligations for the payment of
rent for any property under lease or agreement to lease, except:



     (a) leases in existence on the date hereof and listed on Schedule 7.06, and any
renewal, extension or refinancing thereof;



     (b) operating leases (other than those constituting Synthetic Lease Obligations) entered into
or assumed by the Borrower or any Restricted Subsidiary after the date hereof in the Ordinary
Course of Business with or from Persons other than an Unrestricted Subsidiary;





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     (c) leases in connection with any sale-leaseback arrangement entered into with any
Person other than an Unrestricted Subsidiary and otherwise permitted hereby; and



     (d) capital leases and Synthetic Lease Obligations entered into with any Person other than an
Unrestricted Subsidiary and to the extent permitted by Section 7.03(d).



     7.07 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment
(including, but not limited to, dividends, redemptions and repurchases of common stock), or incur
any obligation (contingent or otherwise) to do so, except that:



     (a) each Subsidiary may make Restricted Payments to the Borrower and to wholly- owned
Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary,
to the Borrower and any Restricted Subsidiary and to each other owner (other than an Unrestricted
Subsidiary) of capital stock of such Subsidiary on a pro rata basis based on their relative
ownership interests);



     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock of such Person;



     (c) so long as no Default or Event of Default exists or would result by virtue thereof, the
Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock
or warrants or options to acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock;



     (d) so long as no Default or Event of Default exists or would result by virtue thereof, the
Borrower may purchase, redeem or otherwise acquire shares of common stock for cash in order to
contribute such shares to the Borrower’s employee stock ownership plan, provided the
aggregate amount paid by the Borrower in connection with such transactions does not exceed in any
fiscal year an amount equal to 15% of plan compensation (as such term is interpreted for purposes
of Section 401(a)(17) of the Code) paid by the Borrower in such fiscal year, and such shares are
promptly so contributed;



     (e) so long as no Default or Event of Default exists or would result by virtue thereof, the
Borrower may purchase, redeem or otherwise acquire, other than, directly or indirectly, from an
Unrestricted Subsidiary shares of its capital stock, or warrants, rights or options to acquire any
such shares for cash in an aggregate amount not to exceed $50,000,000 computed on a cumulative
basis during the term of this Agreement; and



     (f) so long as no Default or Event of Default exists or would result by virtue thereof, the
Borrower may declare and make dividend payments in cash.



     7.08 ERISA. At any time engage in a transaction which could be subject to Section 4069 or
4212(c) of ERISA, or permit any Plan to (a) engage in any non-exempt “prohibited transaction” (as
defined in Section 4975 of the Code); (b) fail to comply with ERISA or any other applicable Laws;
or (c) incur any material “accumulated funding deficiency” (as defined in Section 302 of ERISA),
which, with respect to each event listed above, could reasonably be expected to have a Material
Adverse Effect.




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     7.09 Change in Nature of Business or in Structure.



     (a) Engage in any material line of business substantially different from those lines of
business conducted by the Borrower and its Restricted Subsidiaries on the date hereof;



     (b) Except
as otherwise permitted under Section 7.04, make any change in the
Borrower’s capital structure (including in the terms of its outstanding capital stock) or amend its
certificate of incorporation or bylaws if, as a result, there would be a reasonable likelihood of
the occurrence of a Material Adverse Effect; or



     (c) Engage in any transaction not in the Ordinary Course of Business and pursuant to
arm’s-length negotiations with any Unrestricted Subsidiary.



     7.10 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Borrower, other than arm’s-length transactions with Affiliates that are otherwise permitted
hereunder.



     7.11 Burdensome Agreements.



     (a) Restricted Payment Prohibitions. Enter into, assume or suffer to exist any
Contractual Obligation that limits the ability of any Restricted Subsidiary to make Restricted
Payments to the Borrower or to otherwise transfer property to the Borrower;



     (b) Employment Contracts. Enter into, assume or suffer to exist any employment
contracts or other arrangements with officers, directors or employees having terms, including
salaries, benefits and other compensation, that differs in any material respect from those
previously entered into by it in the Ordinary Course of Business; or



     (c) Other Negative Pledges. Enter into, assume or otherwise become subject to any
Contractual Obligation that directly or indirectly prohibits the Borrower or any of its Restricted
Subsidiaries from granting any Lien on property or assets of such Persons, provided that
the Borrower and its Restricted Subsidiaries may enter into, assume or otherwise become subject to
any such Contractual Obligation solely to the extent (i) incurred pursuant to the acquisition by
such Persons of businesses, properties or assets of other Persons otherwise permitted hereunder if
such restrictions affect only such businesses, assets and property so acquired, and are not entered
into in contemplation of such acquisition, (ii) pursuant to a transaction creating Liens permitted
by Section 7.01(i), provided such restriction is limited to the assets or properties
subject to such Liens, or (iii) incurred pursuant to the issuance of senior notes otherwise
permitted hereunder pursuant to any note purchase agreement containing negative pledge provisions
not more restrictive than that certain Note Purchase Agreement dated as of May 1, 2001, by and
among the Borrower and the purchasers named therein in respect of $75,000,000 6.96% Senior Notes
due May 1, 2013.



     7.12 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin
stock (within the meaning of Regulation U of the FRB), to extend credit to others for the purpose
of purchasing or carrying margin stock or to refund indebtedness originally incurred for such




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purpose, or to acquire any security in any transaction that is subject to Section 13 or 14
of the Exchange Act, or (b) for the benefit of an Unrestricted Subsidiary.




     7.13 Financial Covenants.



     (a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth at any
time to be less than the sum of (a) an amount equal to 85% of the Consolidated Tangible Net Worth
as of date of the Audited Financial Statements plus (b) an amount equal to 50% of the
Consolidated Net Income earned in each fiscal quarter ending after the date of the Audited
Financial Statements (with no deduction for a net loss in any such fiscal quarter) plus (c)
an amount equal to 50% of the aggregate increases in Consolidated Stockholders’ Equity after such
date by reason of the issuance and sale of capital stock of the Borrower.



     (b) Interest Coverage Ratio. Permit the Interest Coverage Ratio, as of the last day of
any fiscal quarter of the Borrower, to be less than 4.00 to 1.00.



     (c) Leverage Ratio. Permit the Leverage Ratio as of the last day of any fiscal quarter
of the Borrower to be greater than 2.50 to 1.00.



     7.14 Unrestricted Subsidiary Matters. (a) Enter into, assume or otherwise become subject to
any Contractual Obligation pursuant to which cash, deposit balances or investments of the Borrower
or any of its Restricted Subsidiaries are pooled or otherwise commingled with similar assets of any
Unrestricted Subsidiary.



     (b) Permit any employee stock option plan or employee stock purchase plan of the Borrower to
extend to employees of any Unrestricted Subsidiary, other than on the same terms and conditions as
made available to employees of comparable position and seniority of the Borrower and Subsidiaries
other than Unrestricted Subsidiaries.



     (c) Permit any Unrestricted Subsidiary directly or indirectly to own capital stock in the
Borrower.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an “Event of
Default”:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three (3) Business Days after the same becomes due, any interest on any
Loan or on any L/C Obligation, any commitment, utilization or other fee due hereunder, or any other
amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.01, 6.02,
 6.03,  6.05,  6.10,  6.12,  6.13 or
6.14, or Article VII; or





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     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document
on its part to be performed or observed and such failure continues for 30 days; or



     (d) Representations and Warranties. Any representation or warranty made or deemed made
by the Borrower or any other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith proves to have been incorrect when made or deemed
made; or



     (e) Cross-Default. (i) The Borrower, any Material Subsidiary, any Material
Unrestricted Subsidiary, or any Guarantor (A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guaranty Obligation (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated credit arrangement)
of more than $10,000,000, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guaranty Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guaranty Obligation (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased or redeemed (automatically
or otherwise) prior to its stated maturity, or such Guaranty Obligation to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Material Subsidiary or any Guarantor is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower, any Material Subsidiary, any Material
Unrestricted Subsidiary or any Guarantor is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by such Person as a result thereof is greater than $10,000,000; or



     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any part of its
property is instituted without the consent of such Person and continues undismissed or unstayed for
60 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of its Subsidiaries
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or




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levied against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or




     (h) Judgments. There is entered against any Loan Party or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding $7,500,000 (to the
extent not covered by independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any non-monetary final judgment that has, or could reasonably be expected to
have, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by
any creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during
which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $5,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the $5,000,000; or



     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than the agreement of all the Lenders or satisfaction in
full of all the Obligations, ceases to be in full force and effect, or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any respect; or any Loan
Party denies that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or



     (k) Loss of Material Licenses, Permits or Intellectual Property. There occurs any of
the following events the result of which has, or could reasonably be expected to have, a Material
Adverse Effect: (i) any Governmental Authority revokes or fails to renew any license, permit or
franchise of the Borrower or any of its Subsidiaries, (ii) the Borrower or any of its Subsidiaries
for any reason loses any license, permit or franchise, or (iii) the Borrower or any of its
Subsidiaries suffers the imposition of any restraining order, escrow, suspension or impound of
funds in connection with any proceeding (judicial or administrative) with respect to any license,
permit or franchise; or



     (l) Change of Control. There occurs any Change of Control; or



     (m) Material Adverse Effect. There occurs any event or circumstance that has a
Material Adverse Effect.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;





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     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law;



provided that, upon the occurrence of any event specified in subsection (f) of Section
8.01, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make
L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically become due
and payable, the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, all payment obligations under the Guaranty of each Guarantor
shall automatically become due and payable, in each case without further act of the Administrative
Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under
Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer and amounts payable under
Article III), ratably among them in
proportion to the respective amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal
of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



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     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower or as otherwise required by Law.



Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative




81









 








Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or
applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in
Sections 10.01 and 8.02) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or




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through any one or more sub agents appointed by the Administrative Agent. The Administrative
Agent and any such sub agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any
such sub agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.




     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Sections 10.04 and 10.05 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.





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     9.07
Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners or Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j), 2.09
and 10.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of




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any Lender or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.




     9.10 Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Subsidiary Guarantor
from its obligations under the Subsidiary Guaranty if such Person ceases to be a Subsidiary as a
result of a transaction permitted hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Subsidiary Guarantor from its
obligations under the Guaranty pursuant to this Section 9.10.



ARTICLE X.

GENERAL PROVISIONS




     10.01
Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or consent
shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document, or change the manner of
computation of the Pricing Level Leverage Ratio that would result in a reduction of any interest
rate on any Loan without the written consent of each Lender directly affected thereby;
provided,  however, that only the consent of the Required Lenders shall be necessary to
amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest
or Letter of Credit Fees at the Default Rate;



     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Lender;



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     (g) change any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder without the written consent of each Lender; or



     (h) release any Guarantor from the Guaranty without the written consent of each Lender;



and, provided further, that (i) no amendment, waiver or consent shall, unless in writing
and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties
of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.



     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:



          (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and



          (ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e
mail and Internet or intranet websites) pursuant to procedures approved by the




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Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable,
has notified the Administrative Agent that it is incapable of receiving notices under such Article
by electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.




     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively,
the “Agent Parties”) have any liability to the Borrower, any Lender, the L/C Issuer or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower
Materials through the Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to the
Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).



     (d) Change
of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address,




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contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender.




     (e) Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Revolving Loan Notices and Swing Line Loan Notices) purportedly given by or
on behalf of the Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



     10.3 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative
Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     10.4 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out of
pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out of
pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all out of pocket
expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C
Issuer), in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such out of
pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans
or Letters of Credit.



     (b) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any




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such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of Section
2.12(e).




     (c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



     (d) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (e) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other
Obligations.



     10.05
Indemnification by the Borrower. Whether or not the transactions contemplated hereby
are consummated, the Borrower agrees to indemnify, save and hold harmless, each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the “Indenmitees”) from and against: (a) any and all
claims, demands, actions or causes of action that are asserted against any Indemnitee by any
Person (other than the Administrative Agent or any Lender) relating directly or indirectly to a
claim, demand, action or cause of action that such Person asserts or may assert against any Loan
Party, any Affiliate of any Loan Party or any of their respective officers or directors arising
out of or relating to the Loan Documents, any predecessor loan documents, any Commitment, the use
or contemplated use of the proceeds of any Credit Extension, or the relationship of any Loan
Party, the Administrative Agent and the Lenders under this Agreement or any other Loan Document,
(b) any and all claims, demands, actions or causes of action that may at any time (including at
any time following repayment of the Obligations and the resignation or removal of the
Administrative Agent or the replacement of any Lender) be asserted or imposed against any
Indemnitee arising out of or relating to the Loan Documents, any predecessor loan documents, any
Commitment, the use or contemplated use of the proceeds of any Credit Extension, or the
relationship of any Loan Party, the Administrative




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Agent and the Lenders under this Agreement or any other Loan Document; (c) any administrative or
investigative proceeding by any Governmental Authority arising out of or related to a claim,
demand, action or cause of action described in subsection (a) or (b) above; and (d) any and all
liabilities (including liabilities under indemnities), losses, costs or expenses (including
Attorney Costs) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the preparation of any
defense in connection with any foregoing claim, demand, action, cause of action or proceeding, in
all cases, whether or not arising out of the negligence of an Indemnitee, and whether or not an
Indemnitee is a party to such claim, demand, action, cause of action or proceeding (all the
foregoing, collectively, the “Indemnified Liabilities”); provided that no Indemnitee shall
be entitled to indemnification for any claim determined in a final, nonappealable judgment by a
court of competent jurisdiction to have been caused primarily by its own gross negligence or
willful misconduct or for any loss asserted against it by another Indemnitee. No Indemnitee shall
be liable for any damages arising from the use by others of any information or other materials
obtained through internet, IntraLinks or other similar information transmission systems in
connection with this Agreement. All amounts due under this Section 10.05 shall be paid
within ten Business Days after demand therefor. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of any Lender, the
termination of the Aggregate Commitments and the replacement, satisfaction or discharge of all the
Other Obligations.




     10.06
Payments Set Aside. To the extent that the Borrower makes a payment to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right
of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount
so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum equal to the Overnight Rate from
time to time in effect, in the applicable currency of such recovery or payment.




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     10.07
Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that




     (i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as
a single assignment for purposes of determining whether such minimum amount has been met;




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans;



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     (iii) any assignment of a Commitment must be approved by the Administrative Agent, the
L/C Issuer and the Swing Line Lender unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and




     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount, if any, required as set forth in Schedule 10.07, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, 10.04 and
10.05 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and the L/C Issuer at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or substantive change to the Loan Documents is pending, any Lender may
request and receive from the Administrative Agent a copy of the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such




92









 








Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement.




     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso
to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.13 as though
it were a Lender.



     (e) Limitation upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled
to the benefits of Section 3.01 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America or any other Lender that
is at such time an L/C Issuer assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America or such other L/C Issuer may, (i) upon 30




93









 








days’ notice to the Borrower and the Lenders, resign as an L/C Issuer and/or (ii) with respect to
Bank of America, upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the event of
any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint
from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder (subject to the limit
of three L/C Issuers set forth in the definition of such term);
provided, however, that no
failure by the Borrower to appoint any such successor shall affect the resignation of Bank of
America or such other L/C Issuer as L/C Issuer or, in the case of Bank of America, as Swing Line
Lender, as the case may be. If Bank of America or such other L/C Issuer resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the Lenders to make
Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing
Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession and issued by Bank of America or such other
retiring L/C Issuer, or make other arrangements satisfactory to Bank of America or such other
retiring L/C Issuer to effectively assume the obligations of Bank of America or such other retiring
L/C Issuer with respect to such Letters of Credit.




     10.08
Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (c)
to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.




94










 






     For
purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities Laws.



     10.09
Set-off. If an Event of Default shall have occurred and be continuing, each Lender,
the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan
Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Borrower or such Loan
Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C
Issuer different from the branch or office holding such deposit or obligated on such indebtedness.
The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



     10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law
(the “Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the interest contracted
for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in




95









 








equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.




     10.11 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     10.12 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension,
and shall continue in full force and effect as long as any Loan or any other Obligation hereunder
shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.



     10.13 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.14 Removal and Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if
any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by (which such consents shall not be unreasonably withheld),
Section 10.07), all
of its interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:





96









 








     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.07(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     10.15 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY 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 AGREEMENT OR ANY OTHER LOAN
DOCUMENT, 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 AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C
ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.





97









 








     (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY 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 AGREEMENT OR ANY OTHER LOAN DOCUMENT 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.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.16 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.17 Time of the Essence. Time is of the essence of the Loan Documents.



     10.18 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in
the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency
so purchased is less than the sum




98









 








originally due to the Administrative Agent from the Borrower in the Agreement Currency, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any
excess to the Borrower (or to any other Person who may be entitled thereto under applicable law).




     10.19
USA PATRIOT Act Notice. Each Lender that is subject to the Act (as



hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law on October 26, 2001)) (the
“Act”), it is required to obtain,
verify and record information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.



[The remainder of this page is intentionally left blank.]




99









 





     IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first written above.



	 	 	 	 	 	 	 
	 	 	GRANITE CONSTRUCTION INCORPORATED	 	 
	 	 	a Delaware corporation, as the Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William G. Dorey
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	William G. Dorey

Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William E. Barton
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	William E. Barton	 	 
	 

	 	 	 	Chief Financial Officer	 	 






Granite Construction Incorporated

Credit Agreement

Signature Pages




 









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA,
N.A., as
	 	 	Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Brenda H. Little
	 	 	 	 	 
	 

	 	Name:
	 	 	 	Brenda H. Little

	 

	 	Title:
	 	 	 	Assistant Vice President






Granite Construction Incorporated

Credit Agreement

Signature Pages




 









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA,
N.A., as a Lender and
	 	 	as L/C Issuer
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Robert W. Troutman
	 	 	 	 	 
	 

	 	Name:
	 	 	 	Robert W. Troutman
	 

	 	Title:
	 	 	 	Managing Director






Granite Construction Incorporated

Credit Agreement

Signature Pages




 









 





	 	 	 	 	 	 	 
	 	 	BNP PARIBAS
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Katherine Wolfe 

	 	 	 	 	 
	 

	 	 	 	Katherine Wolfe
	 

	 	 	 	Director
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Sandy Bertram 

	 	 	 	 	 
	 

	 	 	 	Sandy Bertram
	 

	 	 	 	Vice President






Granite Construction Incorporated

Credit Agreement

Signature Pages



 









 





	 	 	 	 	 
	 	 	HARRIS, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Joann L. Holman
	 

	 	 	 	 
	 

	 	Name:
	 	Joann L. Holman
	 

	 	Title:
	 	Director






Granite Construction Incorporated

Credit Agreement

Signature Pages




 









 








	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Matt Tanzi
	 

	 	 	 	 
	 

	 	Name:
	 	Matt Tanzi
	 

	 	Title:
	 	Vice President






Granite Construction Incorporated

Credit Agreement

Signature Pages




 









 








	 	 	 	 	 
	 	 	U. S. Bank, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ R. Michael Law
	 

	 	 	 	 
	 

	 	Name:
	 	R. Michael Law
	 

	 	Title:
	 	Senior Vice President






Granite Construction Incorporated

Credit Agreement

Signature Pages




 









 








	 	 	 	 	 
	 	 	COMERICA BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Elise M. Walker
	 

	 	 	 	 
	 

	 	Name:
	 	Elise M. Walker
	 

	 	Title:
	 	Vice President






Granite Construction Incorporated

Credit Agreement

Signature Pages




 










 






GRANITE CONSTRUCTION INCORPORATED

Schedule 1.01 (e)

EXISTING LETTERS OF CREDIT



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	L/C NO.	 	ORIGINAL ISSUE DATE	 	 	BENEFICIARY	 	EXPIRY DATE	 	 	Face amount as of 06/24/05	 
	1171
	 	6/29/1996	 	 	State of California	 	3/15/2006	 	 	$	220,000.00	 
	 
	 	 	 	 	 	Self Insurance Plans	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3071456
	 	11/3/2004	 	 	Valley Forge Insurance Co	 	10/1/2005	 	 	 	4,500,000.00	 
	 
	 	 	 	 	 	Silica-related public liab	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3014438
	 	12/17/1998	 	 	City of Patterson	 	2/4/2006	 	 	 	200,000.00	 
	 
	 	 	 	 	 	C&G work - warranty	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	$	4,920,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 






Sch. 1.01 (e)




 









 








GRANITE CONSTRUCTION INCORPORATED

Schedule 1.01 (g)

Guarantors



Granite Construction Company, a California corporation

Granite Land Company, a California corporation

Intermountain Slurry Seal, a Wyoming corporation

Pozzolan Products Company (dba Garco Testing), a Utah corporation

GILC, a California Limited Partnership

Granite Halmar Construction Company, Inc., a New York corporation



Sch. 1.01 (g)






 









 

\






Schedule 1.01(m)



MANDATORY COST FORMULAE




	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest
rate to compensate Lenders for the cost of compliance with:






	 	(a)	 	the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its
functions); or
	 
	 	(b)	 	the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as practicable thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
 Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum. The Administrative
Agent will, at the request of the Company or any Lender, deliver to the Company or such Lender
as the case may be, a statement setting forth the calculation of any Mandatory Cost.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by such Lender in its notice to the Administrative Agent as the
cost (expressed as a percentage of such Lender’s participation in all Loans made from such
Lending Office) of complying with the minimum reserve requirements of the European Central
Bank in respect of Loans made from that Lending Office.
	 
	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling:





	 	 	 	 	 
	 

	 	AB+C(B-D)+E x 0.01	 	 
	 

	 	100 - (A+C) 	 	per cent per annum






	 	(b)	 	in relation to any Loan in any currency other than Sterling:








	 	 	 	 	 
	 

	 	E x 0.01                    	 	 
	 

	 	300	 	per cent per annum






Sch.- l.0l(m)





 









 








Where:





	 	“A”	 	is the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as an interest
free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
	 
	 	“B”	 	 is the percentage rate of interest (excluding the Applicable Rate, the Mandatory Cost
and any interest charged on overdue amounts pursuant to the first
sentence of Section
2.08(b) and, in the case of interest (other than on overdue amounts) charged at the
Default Rate, without counting any increase in interest rate effected by the charging of
the Default Rate) payable for the relevant Interest Period of such Loan.
	 
	 	“C”	 	is the percentage (if any) of Eligible Liabilities which that Lender is required from
time to time to maintain as interest bearing Special Deposits with the Bank of England.
	 
	 	“D”	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	 	“E”	 	is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by the Administrative Agent as being the average of the
most recent rates of charge supplied by the Lenders to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given
to them from time to time under or pursuant to the Bank of England Act 1998 or (as may
be appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Regulations” means the FSA Supervision Manual or such other law or
regulation as may be in force from time to time in respect of the payment of fees for
the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Regulations under the
activity group A.I Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Regulations but taking into account any applicable
discount rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Regulations.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.





Sch.- l.0l(m)





 









 









	7.	 	If requested by the Administrative Agent or the Company, each Lender with a Lending
Office in the United Kingdom or a Participating Member State shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent
and the Company, the rate of charge payable by such Lender to the Financial Services
Authority pursuant to the Fees Regulations in respect of the relevant financial year of the
Financial Services Authority (calculated for this purpose by such Lender as being the
average of the Fee Tariffs applicable to such Lender for that financial year) and expressed
in pounds per £1,000,000 of the Tariff Base of such Lender.
	 
	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information in writing on or prior to the date on which it becomes
a Lender:






	 	(a)	 	its jurisdiction of incorporation and the jurisdiction of the Lending Office
out of which it is making available its participation in the relevant Loan; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require
for such purpose.





Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.





	9.	 	The percentages or rates of charge of each Lender for the purpose of A, C and E above shall
be determined by the Administrative Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies the
Administrative Agent to the contrary, each Lender’s obligations in relation to cash ratio
deposits, Special Deposits and the Fees Regulations are the same as those of a typical bank
from its jurisdiction of incorporation with a Lending Office in the same jurisdiction as such
Lender’s Lending Office.
	 
	10.	 	The Administrative Agent shall have no liability to any Person if such determination
results in an Additional Cost Rate which over- or under-compensates any Lender and shall
be entitled to assume that the information provided by any Lender pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects.
	 
	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender pursuant to paragraphs
3. 7 and 8 above.
	 
	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any





Sch.- l.0l(m)





 









 








requirements from time to time imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties hereto.




Sch.-l.0l(m)





 









 








Schedule 2.01




COMMITMENTS AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	 	Pro Rata Share	 
	Bank of America, N.A.
	 	$	32,500,000.00	 	 	 	21.666666667	%
	BNP Paribas
	 	 	25,000,000.00	 	 	 	16.666666667	%
	Harris N.A.
	 	 	25,000,000.00	 	 	 	16.666666667	%
	Union Bank of California, N.A.
	 	 	25,000,000.00	 	 	 	16.666666667	%
	US Bank, N.A.
	 	 	25,000,000.00	 	 	 	16.666666666	%
	Comerica Bank
	 	 	17.500.000.00	 	 	 	11.666666666	%
	 
	 	 	 	 	 	 
	Total
	 	$	150,000,000.00	 	 	 	100.000000000	%
	 
	 	 	 	 	 	 







Sch. 2.01









 









GRANITE CONSTRUCTION INCORPORATED

Schdule 5.05 (d)

PROJECT DEBT



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Entity's Name	 	Payee	 	Interest	 	Terms	 	Maturity	 	 	Balance as of	 
	 	 	 	 	Rate	 	 	 	 	 	 	04/30/05	 
	Presidio Vista l, Ltd
	 	Dell USA, L.P., a Texas limited pship	 	7.50%	 	Interest only, payable semi-annually, principal due at maturity	 	 	02/11/08	 	 	$	4,003.877	 
	Presidio Vista l, Ltd
	 	Guy Bob Buschman	 	7.50%	 	Interest only, payable semi-annually, principal due at maturity	 	 	03/17/08	 	 	 	2,336,530	 
	GEM1, LLC
	 	Washington Federal Savings	 	6.75%	 	Interest only, payable monthly, principal due at maturity	 	 	03/31/06	 	 	 	2,382,379	 
	GEM1, LLC
	 	Washington Federal Savings	 	6.75%	 	Interest only, payable monthly, principal due at maturity	 	 	10/15/06	 	 	 	3,407,338	 
	VAC, LLC
	 	Washington Mutual Bank, FA	 	4.44%	 	Monthly principal and interest	 	 	03/01/34	 	 	 	6,788,039	 
	Vista Crossroads I, Ltd
	 	Texas State Bank	 	6.75%	 	Interest only, payable monthly, principal due at maturity	 	 	10/01/07	 	 	 	3,500,000	 
	Subtotal, Consolidated Entities Project Debt	 	 	 	 	 	 	 	 	 	$	22,418.163	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Highpoint Oaks, Ltd.
	 	Coppermark Bank	 	6.75%	 	Interest only, payable monthly, principal due at maturity	 	 	09/30/06	 	 	$	4,126,064	 
	Phase 1 Regional Park Limited Pship
	 	City of Sacramento	 	6.15%	 	Semi-annual principal and interest	 	 	09/01/26	 	 	 	8,228,125	 
	Phase 1 Regional Park Limited Pship
	 	GE Capital Business Asset Fund	 	8.15%	 	30 year amortization, balloon 08/01/2010	 	 	08/01/10	 	 	 	18,264,349	 
	Phase 1 Regional Park Limited Pship
	 	Northwestern Mutual Life Insurance	 	7.25%	 	25 year amortization, balloon 03/01/2021	 	 	03/01/21	 	 	 	17,282.840	 
	Phase 1 Regional Park Limited Pship
	 	Sacramento City Employee Retirement	 	7.30%	 	25 year amortization, balloon 09/01/2008	 	 	09/01/08	 	 	 	10.793.182	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Subtotal, Nonconsolidated Limited Partnerships Project Debt	 	 	 	 	 	 	 	 	 	$	58,694,560	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total debt, GLC Investees
	 	 	 	 	 	 	 	 	 	 	 	$	81,112,723	 







Sch. 5.05(d)










 






GRANITE CONSTRUCTION INCORPORATED



Schedule 5.06



LITIGATION




USA ex rel Maxfield & Peterson v. Wasatch, Granite Construction Company, et al., 

Case No. 2:99CV-0040-PGC



Granite Construction Company, as a member of a joint venture, Wasatch Constructors, is among a
number of construction companies and the Utah Department of Transportation that were named in a
lawsuit filed in the United States District Court for the District of Utah. The plaintiffs are two
independent contractor truckers who filed the lawsuit on behalf of the United States under the
federal False Claims Act seeking to recover damages and civil penalties in excess of $46.4 million.




Among other things, the plaintiffs allege that certain defendants, who were subcontractors to
Wasatch, defrauded the Government by charging Wasatch for dirt and fill material they did not
provide and that Wasatch and UDOT knowingly paid for such excess material. The plaintiffs also
allege that Wasatch committed certain other acts including providing substandard workmanship and
materials; failure to comply with clean air and clean water standards and the filing of false
certifications regarding its entitlement to the payment of bonuses.




The original complaint was filed in January 1999 and the Third Amended Complaint was filed in
February 2003. On May 30, 2003, Wasatch Constructors and the coordinated defendants filed their
motion to dismiss the Third Amended Complaint. On December 23, 2003, the Court issued its order
granting Wasatch Constructors and the coordinated defendants’ motion to dismiss the Third Amended
Complaint but allowed the plaintiffs one last opportunity to amend their complaint. Plaintiffs’
Fourth Amended Complaint was filed on July 12, 2004. Granite believes that the allegations in the
lawsuit are without merit and intends to defend them vigorously.




Campos, et al. v. Abraxives, Granite Construction Company, et al., 

Case No. RG04161759



Granite Construction Company is one of approximately one hundred defendants named in six California
State Court lawsuits filed in 2004 where six plaintiffs have, by way of various causes of action,
including strict product and market share liability, alleged personal injuries caused by exposure
to silica products and related materials during plaintiffs’ use or association with sandblasting or
grinding concrete. The plaintiffs in each lawsuit have categorized the defendants as equipment
defendants, respirator defendants, premises defendants and sand defendants. Granite has been
identified as a sand defendant, meaning a party that manufactured, supplied or distributed
silica-containing products. Preliminary investigation reveals that Granite has not knowingly sold
or distributed abrasive silica sand for sandblasting.




Eldredge v. Las Vegas Valley Water District and Granite Construction Company, 

Case No. A419853



On June 23, 1998, Plaintiff sustained a personal injury while working in a trench clearing dirt
around a broken Water District water line. Plaintiff filed a worker compensation claim against
Granite at the time of the injury. On June 5, 2000, Plaintiff filed a complaint against the Water
District alleging negligence. Approximately, three years later Granite was included in the lawsuit.
The trial against only Granite began on May 23, 2005, and on May 27, 2005 the jury returned a
general verdict on two causes of action (assault and battery and intentional infliction of
emotional distress) in favor of Plaintiff and awarded damages against Granite in the amount of
$8,900,000. On June 3, 2005, Plaintiff filed a Motion for Monetary Sanctions in the sum of
$26,805,000. The motion alleges Granite attempted to hide, bribe, or intimidate witnesses. Granite
is preparing the necessary post-trial motions for the court’s reconsideration of the judgment and
amount of award and a response to the Motion for Monetary Sanctions. Granite intends to vigorously
appeal the general verdict judgment and oppose the post-trial motion for sanctions.




Sch. 5.06













 








Granite Construction Incorporated

Schedule 5.09

Environmental Matters




Granite Construction in the normal course of business utilizes petroleum (hydrocarbon) products
which may be considered hazardous materials when encountered at regulatory levels established by
the Federal EPA or the Regional State EPA. The utilization of these asphalt products, diesel, and
gasoline over the years of operations have the potential of creating exposure to environmental
clean up requirements. All underground tanks meet current requirements. There are no pending
governmental ordered clean up requirements. However, the following represents estimates based on
construction industry housekeeping practices as encountered during our normal course of business.
Except as indicated with an “ * ”, these costs do not represent actual identified
exposures.




	 	 	 	 	 	 	 
	Locations	 	Description	 	Amount	 
	 
	San Jose, CA
	 	Aboveground Tanks, Surface Spills	 	$	10,000	 
	Concord, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	35,000	 
	Pleasanton, CA
	 	AC Plant	 	 	10,000	 
	Watsonville, CA
	 	Aboveground Tanks, Surface Spills	 	 	35,000	 
	Salinas, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	10,000	 
	Felton, Ca
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	100,000	 
	Salinas, CA
	 	Former Underground Storage Tanks	 	 	200,000	 
	Bakersfield, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	250,000	 
	Littlerock, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Inyokern, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Arvin, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Coalinga, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	50,000	 
	Los Banos, CA
	 	AC Plant	 	 	10,000	 
	Lee Vining, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	15,000	 
	Bishop, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	15,000	 
	Ducor, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	15,000	 
	Tucson, AZ
	 	Aboveground Tanks, Surface Spills	 	 	10,000	 
	Huachuca City, AZ
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	15,000	 
	Marana, AZ
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	15,000	 
	Tucson, AZ
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Sparks, NV
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	100,000	 
	Carson City, NY
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	10,000	 
	Lockwood, NV
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	50,000	 
	West Haven, UT
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Salt City, UT
	 	Aboveground Tanks, Surface Spills, Former AC Plant	 	 	250,000	 
	Salt Lake City, UT
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	150,000	 
	Morgan County, UT
	 	Aboveground Tanks, Surface Spills	 	 	10,000	 
	Salt Lake City, UT
	 	Aboveground Tanks, Surface Spills	 	 	50,000	 
	Wasatch County, UT
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	10,000	 
	Sandy City, UT
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	100,000	 
	South Kearns, UT
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Ogden, UT
	 	Former AC Plant	 	 	400,000	 
	Salt Lake City, UT
	 	Former AC Plant	 	 	20,000	 
	North Ogden, UT
	 	Old fill material	 	 	250,000	 
	Sacramento, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	500,000	 
	Rio Linda, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	50,000	 
	Crescent City
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	1 ,000,000	 
	Ukiah, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	700,000	 
	Longvale, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	350,000	 
	Kelseyville, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	1,100,000	 
	Arcata, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	250,000	 
	City of Blue Lake, CA
	 	Aboveground Tanks, Surface Spills	 	 	40,000	 
	Santa Barbara, CA
	 	Aboveground Tanks, Surface Spills	 	 	25,000	 
	Buelton, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	50,000	 
	Indio, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	29 Palms, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	15,000	 
	El Centro, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	Tracy, CA
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	25,000	 
	French Camp, CA
	 	Aboveground Tanks, Surface Spills, AC Plant, Old Fill	 	 	500,000	 
	Lubbock, TX
	 	Aboveground Tanks, Surface Spills, AC Plant	 	 	100,000	 
	Lubbock, TX
	 	Aboveground Tanks, Surface Spills	 	 	75,000	 
	Lubbock, TX
	 	Surface Spills	 	 	50,000	 
	Tampa, FL
	 	Surface Spills	 	 	75,000	 
	Watsonville, CA
	 	Former Underground Storage Tanks	 	 	35,000	 
	Wappinger Falls, NY
	 	Aboveground Tanks, Surface Spills	 	 	100,000	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	 
	 	 	 	$	7,435,000	 
	 
	 	 	 	 	 





Sch. 5.09








 






Granite Construction Incorporated

Schedule 5.13(a) Part (1) and Part (2)

Subsidiaries and Other Equity Investments




As of 05/30/05




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Related Entity	 	GAAP
	 	 	Capital	 	 	 	 	 	 	 	 	 
	Name	 	Structure	 	Name	 	Ownership	 	 	Position	 	(1)
	 	 	 
	Granite Construction Incorporated (“GCI”)
	 	CCorp	 	 	 	 	 	 	 	 	 	C
	Intermountain Slurry Seal, Inc.
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	Pozzolan Products Company
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	Wilcott Corporation
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	GILC, Incorporated (“GILC”)
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	 
	 	 	 	GCCo	 	 	99.00	%	 	LP	 	 
	GILC, LP
	 	LP	 	GILC	 	 	1.00	%	 	GP	 	C
	Granite Construction International (“GCInt”)
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	Granite Road Builders Ltd
	 	LP	 	GCInt	 	 	100.00	%	 	investor	 	C
	Granite Construction Company (“GCCo”)
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	Wilder Construction Company (“Wilder”)
	 	CCorp	 	GCCo	 	 	75.00	%	 	investor	 	C
	Wilder Realty I, Inc.
	 	CCorp	 	Wilder	 	 	100.00	%	 	investor	 	C
	Wilder Washington, Inc.
	 	CCorp	 	Wilder	 	 	100.00	%	 	investor	 	C
	Axton Aggregate Partnership
	 	GP	 	Wilder	 	 	50.00	%	 	GP	 	E
	Axton Aggregate Company
	 	GP	 	Wilder	 	 	50.00	%	 	GP	 	E
	HLA / Wilder, a Joint Venture
	 	JV	 	Wilder	 	 	55.00	%	 	partner	 	E
	Largo Properties, LLC
	 	LLC	 	GCCo	 	 	33.30	%	 	member	 	E
	Riverside Motorsports Park, LLC
	 	LLC	 	GCCo	 	 	2.50	%	 	member	 	Cost
	Thermwest Development, LLC
	 	LLC	 	GCCo	 	 	9.8	%	 	member	 	E
	Brosamer/Granite, a Joint Venture
	 	JV	 	GCCo	 	 	30.27	%	 	managing	 	L
	California Corridor Constructors, a Joint Venture
	 	JV	 	GCCo	 	 	30.00	%	 	partner	 	E
	Granite Construction Company and J.D. Abrams, LP
	 	JV	 	GCCo	 	 	62.00	%	 	sponsor	 	C
	Granite2/Sundt, a Joint Venture
	 	JV	 	GCCo	 	 	65.00	%	 	sponsor	 	E
	Granite-Frontier Kemper, a Joint Venture
	 	JV	 	GCCo	 	 	82.00	%	 	sponsor	 	L
	Granite-McCrossan
	 	JV	 	GCCo	 	 	60.00	%	 	managing	 	E
	Granite-Myers, a Joint Venture
	 	JV	 	GCCo	 	 	41.20	%	 	managing	 	L
	Granite/Myers, a Joint Venture
	 	JV	 	GCCo	 	 	54.10	%	 	managing	 	L
	Granite-Myers-Rados, a Joint Venture
	 	JV	 	GCCo	 	 	55.00	%	 	sponsor	 	E
	Granite/PCL, a Joint Venture
	 	JV	 	GCCo	 	 	64.70	%	 	sponsor	 	L
	Granite/Q&D, a Joint Venture
	 	JV	 	GCCo	 	 	71 .8	%	 	managing	 	L
	Granite/Rizzani de Eccher, a Joint Venture
	 	JV	 	GCCo	 	 	60.00	%	 	sponsor	 	C
	Granite/Sundt, a Joint Venture
	 	JV	 	GCCo	 	 	55.00	%	 	sponsor	 	E
	Hill Country Constructors
	 	JV	 	GCCo	 	 	70.00	%	 	sponsor	 	E
	K-G Leasing, a Joint Venture
	 	JV	 	GCCo	 	 	30.00	%	 	partner	 	E
	K-G-W Leasing, a Joint Venture
	 	JV	 	GCCo	 	 	23.00	%	 	partner	 	E
	Kiewit/Granite, a Joint Venture
	 	JV	 	GCCo	 	 	25.00	%	 	partner	 	E
	Las Vegas Monorail Team, a Joint Venture
	 	JV	 	GCCo	 	 	44.80	%	 	managing	 	L
	Largo Constructors (LGS), a Joint Venture
	 	JV	 	GCCo	 	 	30.00	%	 	partner	 	E
	Market Street Constructors
	 	JV	 	GCCo	 	 	69.00	%	 	sponsor	 	C
	Minnesota Transit Constructors, a Joint Venture
	 	JV	 	GCCo	 	 	56.50	%	 	sponsor	 	C
	Sierra Blanca Constructors, a Joint Venture
	 	JV	 	GCCo	 	 	52.00	%	 	sponsor	 	C
	TGM Constructors
	 	JV	 	GCCo	 	 	25.00	%	 	partner	 	E
	Tri-County Rail Constructors, a Joint Venture
	 	JV	 	GCCo	 	 	30.00	%	 	partner	 	E
	Virginia Approach Constructors
	 	JV	 	GCCo	 	 	79.00	%	 	managing	 	C
	Wasatch Constructors, a Joint Venture
	 	JV	 	GCCo	 	 	23.00	%	 	partner	 	E
	Washington/Granite, a Joint Venture
	 	JV	 	GCCo	 	 	40.00	%	 	partner	 	E
	Western Summit-TIC-Granite, a Joint Venture
	 	JV	 	GCCo	 	 	15.00	%	 	partner	 	E
	WSCI /TIC/Granite, a Joint Venture
	 	JV	 	GCCo	 	 	15.00	%	 	partner	 	E
	Yonkers Contracting Company, Inc. / Granite
	 	 	 	 	 	 	 	 	 	 	 	 
	Construction Company, a Joint Venture
	 	JV	 	GCCo	 	 	40.00	%	 	partner	 	E






Sch 5.13 (a)




Page 1 of 2




 









 

\






Granite Construction Incorporated

Schedule 5.13(a) Part (1) and Part (2)

Subsidiaries and Other Equity Investments




As of 05/30/05




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Related Entity	 	GAAP
	 	 	Capital	 	 	 	 	 	 	 	 	 
	Name	 	Structure	 	Name	 	Ownership	 	 	Position	 	(1)
	 	 	 
	Granite Halmar Construction Company, Inc. (“GHCCo”)
	 	C Corp	 	GCI	 	 	100.00	%	 	investor	 	C
	Granite
Halmar - Fujitec America, a Joint Venture
	 	JV	 	GHCCo	 	 	45.00	%	 	managing	 	L
	Halmar/Egis, a Joint Venture
	 	JV	 	GHCCo	 	 	100.00	%	 	partner	 	C
	Halmar/Schiavone, a Joint Venture
	 	JV	 	GHCCo	 	 	100.00	%	 	partner	 	C
	Granite Halmar/Schiavone, a Joint Venture
	 	JV	 	GHCCo	 	 	60.00	%	 	partner	 	C
	GH/JMA, a Joint Venture
	 	JV	 	GHCCo	 	 	51.00	%	 	partner	 	C
	Schiavone-Granite Halmar, a Joint Venture
	 	JV	 	GHCCo	 	 	40.00	%	 	partner	 	E
	Granite Land Company (“GLC”)
	 	C Corp	 	GCI	 	 	100.00	%	 	investor	 	C
	GLC Fort Worth, LLC (“GLCFW, LLC”)
	 	LLC	 	GLC	 	 	100.00	%	 	GP	 	C
	 
	 	 	 	GLC	 	 	89.00	%	 	LP	 	 
	Presidio Vista I, LTD
	 	LP	 	GLCFW, LLC	 	 	1.00	%	 	GP	 	C
	Main Street Ventures, LLC (“MSV”)
	 	LLC	 	GLC	 	 	90.00	%	 	managing	 	C
	Main Street Ventures Project I, LLC
	 	LLC	 	MSV	 	 	100.00	%	 	managing	 	C
	Granite-Mandalay Bay Finance, LLC
	 	LLC	 	GLC	 	 	70.00	%	 	member	 	E
	Granite-Mandalay, LLC (“GM, LLC “)
	 	LLC	 	GLC	 	 	90.00	%	 	member	 	E
	Oly-Granite General Partnership
	 	LP	 	GM, LLC	 	 	10.00	%	 	LP	 	E
	Oly-Mandalay Bay General Partnership
	 	LP	 	GM, LLC	 	 	10.00	%	 	LP	 	E
	Regional Park Limited Partnership
	 	LP	 	GLC	 	 	25.00	%	 	LP	 	E
	Williamson Ranch Plaza, LP
	 	LP	 	GLC	 	 	25.00	%	 	LP	 	E
	Granite Grado Ventures, LLC (“GGV”)
	 	LLC	 	GLC	 	 	90.00	%	 	managing	 	C
	Granite Grado Ventures Project I, LLC
	 	LLC	 	GGV, LLC	 	 	100.00	%	 	managing	 	C
	Granite Grado Ventures Project II, LLC
	 	LLC	 	GGV, LLC	 	 	100.00	%	 	managing	 	C
	GLC/EPC McCormack Woods, LLC (“McCW, LLC”)
	 	LLC	 	GLC	 	 	99.90	%	 	managing	 	C
	GEM1,LLC
	 	LLC	 	McCW, LLC	 	 	70.00	%	 	LP	 	C
	VAC, LLC
	 	LLC	 	GLC	 	 	90.00	%	 	managing	 	C
	GLC/Duc La Quinta LLC
	 	LLC	 	GLC	 	 	90.00	%	 	managing	 	C
	GLC Vista Crossroads, LLC (“Vista LLC”)
	 	LLC	 	GLC	 	 	100.00	%	 	managing	 	C
	 
	 	 	 	GLC	 	 	89.00	%	 	LP	 	 
	Vista Crossroads I, Ltd.
	 	LP	 	Vista LLC	 	 	1.00	%	 	GP	 	C
	Highpoint Oaks, LLC
	 	LLC	 	GLC	 	 	66.27	%	 	LP	 	C
	GLC/LP Shasta View, LLC
	 	LLC	 	GLC	 	 	99.00	%	 	managing	 	C
	Granite SR 91 Corporation (“GSR91”)
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	 
	 	 	 	GCI	 	 	99.00	%	 	LP	 	 
	Granite SR 91 , LP (“SR91 , LP”)
	 	LP	 	GSR91	 	 	1.00	%	 	GP	 	C
	California Private Transportation Company, LP
	 	LP	 	SR91, LP	 	 	22.22	%	 	LP	 	E
	GTC, Inc. (“GTC”)
	 	CCorp	 	GCI	 	 	100.00	%	 	investor	 	C
	 
	 	 	 	GCI	 	 	99.00	%	 	LP	 	 
	GTC II, LP (“GTC, LP”)
	 	LP	 	GTC	 	 	1.00	%	 	GP	 	C
	 
	 	 	 	GCI	 	 	69.88	%	 	LP	 	 
	WR II Associates, LTD
	 	LP	 	GTC, LP	 	 	1.00	%	 	GP	 	E
	Paramount-Nevada Asphalt Company, LLC
	 	LLC	 	GCI	 	 	50.00	%	 	member	 	E
	TIC Holdings, Inc
	 	CCorp	 	GCI	 	 	10.00	%	 	investor	 	Cost








 




	(1)	 	C = Consolidated
	 
	 	 	E = Equity Method
	 
	 	 	L = Line Item





Sch 5.13 (a)




Page 2 of 2












 








GRANITE CONSTRUCTION INCORPORATED

Schedule 5.13 (b)

SENIOR NOTE GUARANTORS




Granite Construction Company, a California corporation

Granite Land Company, a California corporation

Intermountain Slurry Seal, a Wyoming corporation

Pozzolan Products Company (dba Garco Testing), a Utah corporation

GILC, a California Limited Partnership

Granite Halmar Construction Company, Inc., a New York corporation



Sch. 5.13 (b)













 








GRANITE CONSTRUCTION INCORPORATED

Schedule 5.16

INTELLECTUAL PROPERTY LITIGATION/CLAIMS MATTERS




Fieldturf International v.
Granite Construction Company.

Case No. C 04-02952 BZ



In July 2004, a Complaint for alleged patent infringement (412 patent) of synthetic turf product
was filed by Fieldturf International against Granite Construction Company. Fieldturf seeks a
preliminary and permanent injunction. Fieldturf alleges the artificial turf product Granite
installed on the William S. Hart project in Santa Clarita, California, violates Fieldturf’s patent.
Granite tendered the defense of this lawsuit to its subcontractor and supplier of this turf,
Sportexe Sportexe accepted the tender and has retained outside counsel to defend Granite. The case
is currently pending.




Sch. 5.16












 








GRANITE CONSTRUCTION INCORPORATED

Schedule 5.21

UNRESTRICTED SUBSIDIARY MATTERS




NONE




Sch. 5.21




 









 








GRANITE CONSTRUCTION INCORPORATED

Schedule 5.22

BURDENSOME AGREEMENTS




NONE




Sch. 5.22




 









 








GRANITE CONSTRUCTION INCORPORATED

Schedule 7.01

EXISTING LIENS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Balance as of	 
	Debtor	 	Lien Holder	 	Property	 	Maturity	 	 	05/31/05	 
	Granite Construction Company
	 	Benna Investments	 	Glendale NV property	 	 	12/01/07	 	 	$	607,563	 
	Granite Construction Company
	 	Anderson/Watson	 	Williard UT (Wells Pit) property	 	 	12/22/19	 	 	 	287,171	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	894,734	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Balance as of	 
	 	 	 	 	 	 	 	 	 	 	04/30/05	 
	Presidio Vista I, Ltd
	 	Dell USA, L.P., a Texas limited partnership	 	Project Debt - Presidio Vista	 	 	02/11/08	 	 	 	4,003,877	 
	Presidio Vista I, Ltd
	 	Guy Bob Buschman	 	Project Debt - Presidio Vista	 	 	03/17/08	 	 	 	2,336,530	 
	GEM1, LLC
	 	Washington Federal Savings	 	Project Debt - McCormick Woods	 	 	03/31/06	 	 	 	2,382,379	 
	GEM1, LLC
	 	Washington Federal Savings	 	Project Debt - McCormick Woods	 	 	10/15/06	 	 	 	3,407,338	 
	VAC, LLC
	 	Washington Mutual Bank, FA	 	Project Debt - Village at Carmichael	 	 	03/01/34	 	 	 	6,788,039	 
	Vista Crossroads I, Ltd
	 	Texas State Bank	 	Project Debt - Vista Crossroads	 	 	10/01/07	 	 	 	3,500,000	 
	Highpoint Oaks, Ltd.
	 	Coppermark Bank	 	Project Debt - Highpoint Oaks	 	 	09/30/06	 	 	 	4,126,064	 
	Phase 1 Regional Park Limited Pship
	 	City of Sacramento	 	Project Debt - Granite Regional Park	 	 	09/01/26	 	 	 	8,228,125	 
	Phase 1 Regional Park Limited Pship
	 	GE Capital Business Asset Fund	 	Project Debt - Granite Regional Park	 	 	08/01/10	 	 	 	18,264,349	 
	Phase 1 Regional Park Limited Pship
	 	Northwestern Mutual Life Insurance	 	Project Debt - Granite Regional Park	 	 	03/01/21	 	 	 	17,282,840	 
	Phase 1 Regional Park Limited Pship
	 	Sacramento City Employee Retirement Systems	 	Project Debt - Granite Regional Park	 	 	09/01/08	 	 	 	10,793,182	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	81,112,723	 






Sch. 7.01






 









 








GRANITE CONSTRUCTION INCORPORATED

Schedule 7.02 (a)

EXISTING INVESTMENTS




	 	 	 	 	 	 	 
	 	 	 	 	Balance as of	 
	Company	 	Description	 	04/30/05	 
	Paramount-Nevada Asphalt
	 	LLP	 	$	1,845,196	 
	Wilder Construction Company
	 	Minority Interest	 	 	0	 
	TIC Holdings, Inc.
	 	Minority Interest	 	 	4,177,005	 
	Waters Ridge II, LTD
	 	LP	 	 	381,637	 
	Williamson Ranch Plaza
	 	LP	 	 	0	 
	Granite Mandalay Bay
	 	LLC	 	 	5,565	 
	Granite Mandalay Finance
	 	LLC	 	 	0	 
	Granite Regional Park
	 	LP	 	 	0	 
	Highpoint Oaks
	 	LP	 	 	2,157,925	 
	CPTC L.P./SR91 L.P.
	 	LP	 	 	0	 
	Largo Properties
	 	LLC	 	 	1,726,539	 
	Thermwest Development
	 	LLC	 	 	522,039	 
	Schiavone/Granite Halmar (Times Square)
	 	Joint Venture	 	 	3,037,665	 
	Granite/Groves
	 	Joint Venture	 	 	0	 
	Kiewit/Granite (TCA)
	 	Joint Venture	 	 	0	 
	Kiewit/Granite (KG Leasing)
	 	Joint Venture	 	 	0	 
	Kiewit/Granite (E. Dam)
	 	Joint Venture	 	 	1,956	 
	Kiewit/Granite (Wasatch)
	 	Joint Venture	 	 	578,655	 
	Kiewit/Granite (KGW Leasing)
	 	Joint Venture	 	 	795,645	 
	Yonkers/Granite (Atlantic City)
	 	Joint Venture	 	 	27,245	 
	Granite/Myers (US-101 Bailey Road)
	 	Joint Venture	 	 	20,660	 
	Western Summit/TIC/Granite
	 	Joint Venture	 	 	0	 
	Granite/Kiewit (Tongue River)
	 	Joint Venture	 	 	0	 
	Granite/Sundt (1-17)
	 	Joint Venture	 	 	0	 
	Washington Granite
	 	Joint Venture	 	 	77,764	 
	Sampson/Granite (Cabrillo College)
	 	Joint Venture	 	 	0	 
	Minnesta Transit Constructors (Light Rail)
	 	Joint Venture	 	 	0	 
	River Mountain Constructors
	 	Joint Venture	 	 	0	 
	Granite2/Sundt (Supersition Hwy)
	 	Joint Venture	 	 	2,362,570	 
	Largo Constructors (LGS) (Largo Station)
	 	Joint Venture	 	 	49,617	 
	TGM Constructors (McAlpine Lock)
	 	Joint Venture	 	 	6,183,054	 
	South Corridor Constructors
	 	Joint Venture	 	 	30,000	 
	Tri-County Rail Constructors
	 	Joint Venture	 	 	6,219,865	 
	Las Vegas Monorail (Light Rail)
	 	Joint Venture	 	 	0	 
	 
	 	 	 	$	30,200,602	 






Sch. 7.02 (a)




 









 








GRANITE CONSTRUCTION INCORPORATED

Schedule 7.02 (b)

INVESTMENT POLICY GUIDELINES

For Working Capital Portfolio

Effective: January 1, 2005




Purpose




Within the spectrum of activities of this Corporation, it is necessary to provide a framework for
the regular and continuous management of its investment funds. Short term and intermediate term
investments provide earnings on excess cash while maintaining liquidity and working funds for the
present and future operations.




Investment Objectives




In order to provide control of all investments and cash, the Corporation has established the
following objectives regarding its investment policy:





	s	 	Safety – the primary objective of the investment activities of the Corporation is protection
of capital. Each investment transaction shall seek to first ensure that capital losses are
avoided, whether they are from securities defaults or erosion of market value.
	 
	s	 	Liquidity – the investment portfolio must be structured in a manner that will provide
sufficient liquidity to pay the obligations of the Corporation. Any excess cash above
the aforementioned requirements may be invested in instruments with longer maturity.
	 
	s	 	Diversification – the investment activity must ensure diversification of investments that
minimizes risk exposure to any one security and/or issuer.
	 
	s	 	Investment Return – the Corporation seeks to maximize the return on all investments within
the constraints of safety and liquidity.





Duration




The duration of the portfolio including escrows and deposits shall be consistent with the cash
needs as determined by the cash forecast. Cash investments are restricted to the average maturity
of one (1) year from date of settlement. Any investments with longer maturity than one year must
be invested in instruments issued by, guaranteed by, or insured by the U.S. Government or any of
its agencies. The average portfolio duration of escrows and deposit agreements shall not exceed
five (5) years.




Short-term investments shall be defined as instruments maturing in ninety-one (91) days or more.




Marketability




Holdings should be of sufficient size and held in issues, which are traded actively (except time
deposits, loan participation, and master notes) to facilitate transactions at minimum cost and
accurate market valuations.




Trading




	 	 	 
	The following individuals are authorized traders:
	 

	 	Roxane C. Allbritton, Vice President & Treasurer
	 

	 	Jigisha Desai, Assistant Treasurer
	 

	 	 Mary McCann-Jenni, Vice President & Controller 
	 

	 	Rebecca (Becky) M. Rinaldi, Treasury Manager






Page 1 of 4



 









 





Any individual transaction conforming to the policy set forth herein or, any transaction of an
Investment Manager not conforming to the respective Investment Manager’s policy shall be approved
by one of the following officers or, any transaction not conforming to the policy set forth herein
must be approved by any two of the following officers:




	 	 	 	 	 
	W. G. Dorey

	 	W. E. Barton
	 	M. F. Donnino
	M. E. Boitano

	 	J. H. Roberts	 	 






Dealers and Banks for Trading




The following institutions are authorized dealers:



BA Securities

Lehman Brothers

Merrill Lynch

Salomon Smith Barney (Citigroup)



All purchased investments will be delivered to Bank of New York for safekeeping and paid for upon
receipt.




Safekeeping




The banks designated as safekeeping depositories in order of choice are:



Bank of New York (BNY Western Trust Company)



Each financial institution must provide timely confirmation/safekeeping receipts on all investment
transactions and provide monthly transaction reports.




Escrow




Escrows in lieu of retention are allowed at the following:



Comerica Bank*

Fleet National Bank*

Nevada Highway Fund (State of Nevada Treasury)*

Union Bank of California

US Trust of California

Wachovia Securities*


* Required by Owner



The types of investments will be guided by the terms of the escrow, but in all cases the
investment will be governed by the investment policy. Banks not listed, but required by escrow
agreement, will also be acceptable.




Reporting





	s	 	Daily – An investment transaction sheet, sequentially numbered will be processed for
approval by an authorized officer.
	 
	s	 	Weekly and Monthly – A portfolio will be provided to the President, Chief Operating Officer,
Chief Financial Officer and all traders.
	 
	s	 	Monthly – The fixed income portfolio will be monitored against the performance of Donahue
7-day money market fund compound yield.
	 
	s	 	For FASB 115 purposes, the Corporation classifies all fixed income investments as “Held-to-
Maturity.”





Page 2 of 4



 









 







GRANITE CONSTRUCTION INCORPORATED

INVESTMENT POLICY GUIDELINES

For Working Capital January 1, 2005




	 	 	 	 	 	 	 	 	 
	 	 	 	 	|
-
- - - - At
the time of purchase - - - - - |
	 	 	 	 	Concentration	 	 
	 	 	 	 	by	 	Concentration by
	Eligible Investments	 	Minimum Credit Quality	 	Issuer	 	Portfolio
	 
	Obligations issued by U.S. Government limited
to:

	 	N/A
	 	No Maximum
	 	No Maximum

	U.S. Treasury Bills/Bonds/Notes
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Obligations of agencies of the U.S. Government
limited to:

	 	N/A
	 	$5,000,000 or 10% of total portfolio (whichever is greater)
	 	 	40	%
	Federal Farm Credit Bank
	 	 	 	 	 	 	 	 
	Federal Home Loan Bank
	 	 	 	 	 	 	 	 
	Federal Home Loan Mortgage Corp.
	 	 	 	 	 	 	 	 
	Federal National Mortgage Association
	 	 	 	 	 	 	 	 
	Student Loan Marketing Association
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Obligations
collateralized by U.S. Government securities limited to:

Repurchase Agreements
Reverse Repurchase Agreements

	 	Fully collateralized by U.S. Gov’t
and Agency securities included in
these guidelines.
Collateral value plus accrued interest must exceed
and be maintained at level
exceeding value of agreement.
	 	$5,000,000 or 10% of total portfolio (whichever is greater)
	 	 	25	%
	 
	 	 	 	 	 	 	 	 
	Obligations
issued by U.S. owned domestic commercial banks limited
to:
Banker’s Acceptance

Certificate of Deposit

	 	Limited to Top 25 U.S. Banks by
deposit and assets.
Short-Term rating of A-1/P-1, or Long-Term
rating of AAA/NR or AA/Aa (at the
time of purchase)
	 	$5,000,000 or 10% of total portfolio (whichever is greater)
	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	Obligations issued by U.S. bank subsidiaries of
Non U.S. Bank limited to:

Yankee Banker’s Acceptance

Yankee Certificates of Deposit

(all securities U.S. dollar denominated)

	 	Limited to Top 25 World Banks by deposit and
assets.
 Short-Term rating of
A-1/P-1, or Long-Term rating of
AAA/NR or AA/Aa (at the time of
purchase)
	 	$5,000,000 or 10% of total portfolio (whichever is greater)
	 	 	40	%
	 
	 	 	 	 	 	 	 	 
	Obligations
of major U.S. corporations, banks and U.S. holding companies limited
to:

Commercial Paper

	 	Any TWO of three rating services: A-1/P-1/F-1 S&P,
Moody’s, Fitch (at the time of
purchase)
	 	$5,000,000 or 10% of total portfolio (whichever is greater)
	 	 	75	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Any split-rated of three rating
services: A1/P2, A2/P1 S&P,
Moody’s, Fitch (at the time of
purchase) Must be publicly traded
Corporation Must have at least
$20B in Market Capitalization (at
the time of purchase)
	 	$5,000,000 or 10% of Commercial Paper portfolio (whichever is greater)
	 	30% of Overall
Commercial
 Paper portfolio
or 22.5% of
 Total Portfolio

	 
	 	 	 	 	 	 	 	 
	 

	 	Any TWO of three rating services:
A-2/P-2/F-2 S&P, Moody’s, Fitch
Must be publicly traded Corporatio
Must have at least $20B in Market
Capitalization

(at the time of purchase)
	 	$5,000,000 or 10% of Commercial Paper portfolio (whichever is greater)
	 	20% of Overall
Commercial
 Paper portfolio
or 15% of
 Total Portfolio







Page 3 of 4




 









 





GRANITE CONSTRUCTION INCORPORATED

INVESTMENT POLICY GUIDELINES

For Working Capital Portfolio

Effective: January 1, 2005




	 	 	 	 	 	 	 	 	 
	 	 	 	 	|
-
- - - - At
the time of purchase - - - - - |
	 	 	 	 	Concentration	 	 
	 	 	 	 	by	 	Concentration by
	Eligible Investments	 	Minimum Credit Quality	 	Issuer	 	Portfolio
	 
	Loan Participation

Master Notes

	 	Same as commercial paper credit

quality requirements
	 	$5,000,000 or
10% of total
portfolio
(whichever is
greater)
	 	 	25	%
	 
	 	 	 	 	 	 	 	 
	Money Market Funds

	 	Any TWO of three rating
services: AAAm/Aaa/AAA
 S&P,  Moody’s,
Fitch (at the time of purchase)
	 	$5,000,000 or 10% of total
portfolio (whichever is
greater)
	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	Taxable & Tax-exempt investments limited
to:

Auction Rate Preferred Bonds

Auction Rate Certificates

	 	S&P: A-1, AA or better, Sp-1
AND Moody’s: P-1, Aa or better,
VMIG-1
	 	$5,000,000 or 10% of total
portfolio
(whichever is
greater)
	 	 	25	%
	Municipal Notes
	 	 	 	 	 	 	 	 
	Municipal Bonds
	 	 	 	 	 	 	 	 
	Money Market Funds
	 	 	 	 	 	 	 	 






Page 4 of 4





 










 






GRANITE CONSTRUCTION INCORPORATED

Schedule 7.02 (b)

INVESTMENT POLICY GUIDELINES

For High-Yield Portfolio

Effective: February 1, 2004




Statement of Purpose




Cash is the major source of working capital for the present and future operations of Granite.
Managing the cash to ensure the liquidity necessary to meet Granite’s business needs is of
paramount importance. Any cash balances above those necessary for day-to-day working capital
requirements are available for longer-term investments. These investments can be held for a longer
interval to enhance the portfolio yield, and add diversification, without loosing sight of capital
preservation within this policy’s guidelines.




Investment Objectives




The investment objective of this portfolio is to seek consistency of investment return with
emphasis on capital appreciation and secondarily capital preservation with a goal of either
equaling or exceeding the Composite Policy Index. The Composite Policy Index is defined, as an
Index comprised of several indices corresponding to the various mutual funds being used in this
portfolio as per the asset allocation study. Therefore, the investment objectives are:





	 	q	 	Investment Return: Optimize the investment returns within the constraints of this policy.
	 
	 	q	 	Safety: Emphasize preservation of capital assets over
economic business cycles.
	 
	 	q	 	Diversification:






	 	§	 	Provide investments in mutual fund companies that have sufficient number of
funds with different investment characteristics.
	 
	 	§	 	Select funds from mutual fund companies that provide a balanced investment
approach that can be diversified among the major assets classes and will provide
sufficiently varied risk/return characteristics (see Exhibit A).





Performance Measurement Guidelines




Normally, investment performance should be judged over a complete economic cycle (typically
3 to 5 years). Since short-term results are not usually meaningful, true investment success will be

looked at as a long-term proposition. To accomplish this, the performance measurement guidelines
are:





	 	q	 	To manage the concentration in any one class of mutual funds, the portfolio will
be invested based on an asset allocation study prepared by an outside investment advisory
firm and managed accordingly. Periodically, the Composite Policy Index will be modified to
coincide to the most recent asset allocation study.
	 
	 	q	 	To invest in funds that will have ratings from Morningstar of 3, 4, or 5 and will be comparable in performance to the respective indices, e.g. growth fund index, growth and
income index, etc. (see Exhibit B)
	 
	 	q	 	To determine if the investment guidelines are being followed, a review of fund
performance will be prepared each quarter by an outside investment advisory firm. The
review will take into consideration overall economic conditions as well as the risk and
return objectives of these guidelines.





Page 1 of 5




 









 





Marketability




Investments should be of sufficient size and be held in issues, which are traded actively to
facilitate transactions at minimum cost and accurate market valuations.




Trading




The following individuals are authorized traders:



Roxane C. Allbritton, Vice President/Treasurer

Jigisha Desai, Director of Corporate Treasury

Mary McCann-Jenni, Controller

Rebecca (Becky) M. Rinaldi, Treasury Manager



Any individual transaction conforming to the policy set forth herein shall be approved by one of
the following officers or, any transaction not conforming to the policy set forth herein must be
approved by any two of the following officers:




	 	 	 	 	 
	W. G. Dorey

	 	W. E. Barton
	 	M. F. Donnino
	M. E. Boitano

	 	J. H. Roberts	 	 






Mutual Funds




The following mutual funds are authorized:



Franklin Small Cap Fund

Loomis Sayles

Pimco Bond Fund

Putnam Mutual Funds

Lord Abbett Mid Cap Value Fund

Fremont U.S. Micro-Cap Fund (closed to new investors)



All purchased investments will be delivered to the custodian bank for safekeeping and paid for upon
receipt.




Safekeeping




The institutions designated as a safekeeping depository are:



Fleet Bank

Merrill Lynch



The custodian bank must provide timely confirmation/safekeeping receipts on all investment
transactions and provide monthly transaction reports.




Reporting





	 	§	 	Daily — Upon a settlement of trade, an investment transaction sheet,
sequentially numbered will be processed for approval by an authorized officer.
	 
	 	§	 	Monthly and quarterly — Financial reporting requirements for GAAP.
	 
	 	§	 	Monthly — The mutual fund portfolio will be evaluated based on a unit-based
performance analysis and will be distributed to the President, Chief Operating Officer,
Chief Financial Officer and all traders.





Page 2 of 5




 









 









	§	 	Quarterly- A risk-adjusted performance analysis and a composite policy index analysis of funds will
be prepared by an outside advisory firm.
	 
	§	 	Quarterly — An asset allocation status, indicating out of balance funds rebalancing (if any) that
is required.
	 
	§	 	An outside firm will do an asset allocation study every three (3) years.
	 
	§	 	For FASB 115 purposed, the Corporation classifies mutual fund investments as “Available-for-Sale
Securities.”





Page 3 of 5





 









 








GRANITE CONSTRUCTION

HIGH YIELD PORTFOLIO

INVESTMENT OBJECTIVES

EXHIBIT A




In order to comply with the investment objectives of the Granite Construction High
Yield Investment Guidelines, the following investment funds shall be available for
investments:




Putnam International Growth Fund

(As of 10/22/03: Morningstar rating of 4 stars)




The Fund invests in established and emerging markets in more than 25 countries in order to
maximize the value of its investments over time. The Fund invests in stocks of both large and small
foreign companies that offer above-average growth potential at exceptionally attractive prices.




Putnam Vista Fund

(As of 10/22/03: Morningstar rating of 3 stars)




The Fund invests mainly in well-researched growth stocks of medium-sized companies. The
Fund’s investment strategy is focused on mid-capitalization growth stocks, issued by medium-sized
companies that do not carry as much risk as small-company stocks but are not usually as thoroughly
researched as large-company stocks. Because of this, there is a greater opportunity for Putnam’s
research to play a significant role in realizing a stock’s potential.




Putnam Voyager Fund

(As of 10/22/03: Morningstar rating of 3 stars)




The Fund invests mainly in common stocks of U.S. companies, with a focus on growth stocks.
Growth stocks are issued by companies that the Fund manager believes are fast-growing and whose
earnings are likely to increase over time. Growth in earnings may lead to an increase in the price
of the stock. The Fund invests mainly in mid-sized and large companies, although it can invest in
companies of any size.




Putnam Investors A Fund

(As of 10/22/03: Morningstar rating of 2 stars)




The Fund seeks long-term growth by investing mainly in common stocks of larger,
well-established companies. By selecting stocks from a range of industries, the Fund’s managers
seek to balance potential risk and reward by providing a significant level of diversification.




Franklin Balance Sheet Investment Fund

(As of 10/22/03: Morningstar rating of 5 stars)




The Fund seeks high total return, of which capital appreciation and income are components.
Under normal market conditions, the Fund invests most of its assets in equity securities of
companies the Fund’s manager believes are undervalued at the time of purchase but that have the
potential for significant capital appreciation. Common stocks and preferred stocks are examples of
equity securities.




Page 4 of 5




 









 





The Putnam Fund of Growth and Income 

(As of 10/22/03: Morningstar rating of 2 stars)




The Fund invests mainly in common stocks of U.S. companies, with a focus on value stocks that
offer the potential for capital growth, current income, or both. Value stocks are those that the
Fund’s manager believes are currently undervalued by the market. The Fund looks for companies
undergoing positive change. If it is correct and other investors recognize the value of the
company, the price of the stock may rise. The Fund invests mainly in large companies.




Loomis Sayles Bond Fund

(As of 10/22/03: Morningstar rating of 5 stars)




The Fund seeks high total investment return through a combination of current income and
capital appreciation. The Fund normally invests at least 65% of assets in investment-grade debt
securities and convertibles. It may invest the balance of assets in securities rated below BBB. The
Fund may invest up to 20% of assets in preferred stocks. It may invest without limit in Canadian
issues, and may invest up to 20% of assets in securities issued in other foreign countries.




PIMCO Total Return Bond Fund 

(As of 10/22/03: Morningstar rating of 3 stars)




The Fund seeks total return consistent with preservation of capital. The Fund invests at least
65% of assets in debt securities, including U.S. government securities, corporate bonds, and
mortgage-related securities. It may invest up to 20% of assets in securities denominated in foreign
currencies. The portfolio duration generally ranges from three to six years.




Lord Abbett Mid-Cap Value Fund

(As of 10/22/03: Morningstar rating of 4 stars)




The Fund seeks capital appreciation by investing in the stocks of mid-sized companies that are
believed to be undervalued in the marketplace. To pursue this goal, the Fund normally invests at
least 80% of its net assets, plus the amount of any borrowings for investment purposes, in equity
securities of mid-sized companies, those with market capitalization of roughly $500 million to $10
billion, at the time of purchase. This market capitalization range may vary in response to changes
in the markets. The Fund will provide shareholders with at least 60 days notice of any change in
this policy. Equity securities in which the Fund may invest include common stocks, convertible
bonds, convertible preferred stocks, depository receipts and warrants.




Fremont U.S. Micro-Cap Fund (closed to new investors)

(As of 10/22/03: Morningstar rating of 4 stars)




The Fund seeks long-term capital appreciation through investing in the nation’s smallest and
fastest-growing publicly traded companies. The U.S. micro-cap stock market is home to
entrepreneurially managed companies with exceptional growth prospects.
With minimal Wall Streetl
coverage and low institutional ownership, micro-cap stocks represent the least efficient sector of
the market. Research-driven investors can uncover some terrific growth companies trading at very
reasonable valuations.




Page 5 of 5





 









 








GRANITE CONSTRUCTION INCORPORATED

Schedule 7.02 (j)

WILDER INVESTMENTS




	 	 	 	 	 	 	 	 	 
	 	 		 	 	 	 
	Date	 	Number of Shares	 	 	Amount Paid	 
	03/31/00
	 	 	1,333,929	 	 	$	13,156,637	 
	09/30/00
	 	 	15,817	 	 	 	166,553	 
	12/31/00
	 	 	150,000	 	 	 	1,518,000	 
	03/31/01
	 	 	450,000	 	 	 	4,554,000	 
	04/30/02
	 	 	698,483	 	 	 	7,948,737	 
	04/30/04
	 	 	643,348	 	 	 	9,219,177	 
	 
	 	 	3,291,577	 	 	$	36,563,104	 






Sch. 7.02 (j)




 









 








GRANITE CONSTRUCTION INCORPORATED

Schdule 7.03

EXISTING INDEBTEDNESS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Interest	 	 	 	 	Balance as of
	Borrower	 	Lender’s Name	 	 	Description	 	Rate	 	Maturity	 	 	05/31/05
	Granite Construction Company
	 	Anderson Watson	 	Real Estate property - Wells Pit	 	4.50%	 	12/22/19	 	 	$	287,171
	Granite Construction Company
	 	Benna Investments	 	Real Estate property	 	6.50%	 	12/01/07	 	 	 	607,563
	Granite Construction Company
	 	Rosemary’s Mountain	 	Aggregate property	 	8.82%	 	12/01/12	 	 	 	1,100,000
	Granite Construction Incorporated
	 	Private Placement Due 03/15/10	 	Refinance debt & general corporate purposes	 	6.54%	 	03/15/10	 	 	 	33,333,336
	Granite Construction Incorporated
	 	Private Placement Due 05/01/13	 	Refinance debt & general corporate purposes	 	6.96%	 	05/01/13	 	 	 	66,666,667
	Granite Construction incorporated
	 	BNP Paribas	 	$30MM notional amount floating interest rate swap agreement	 	6 Mth
 LIBOR +
386.75 bps	 	09/15/05	 	 	 	194,803
	Granite Construction Incorporated
	 	BNP Paribas	 	$20MM notional amount floating interest rate swap agreement	 	6 Mth 

LIBOR +
418.00 bps	 	11/01/05	 	 	 	117,215
	 
	 	 	 	 	 	 	 	 	 	 	 	 	$	102,306,755






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Balance as of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	04/30/05
	Presidio Vista I, Ltd
	 	Dell USA, L.P., a Texas limited partnership	 	
Project Debt - Presidio Vista	 	 	7.50	%	 	 	02/11/08	 	 	$	4,003,877
	Presidio Vista I, Ltd
	 	Guy Bob Buschman	 	Project Debt - Presidio Vista	 	 	7.50	%	 	 	03/17/08	 	 	 	2,336,530
	GEM1, LLC
	 	Washington Federal Savings	 	Project Debt - McCormick Woods	 	 	6.75	%	 	 	03/31/06	 	 	 	2,382,379
	GEM1, LLC
	 	Washington Federal Savings	 	Project Debt - McCormick Woods	 	 	6.75	%	 	 	10/15/06	 	 	 	3,407,338
	VAC, LLC
	 	Washington Mutual Bank, FA	 	Project Debt - Village at Carmichael	 	 	4.44	%	 	 	03/01/34	 	 	 	6,788,039
	Vista Crossroads I, Ltd
	 	Texas State Bank	 	Project Debt - Vista Crossroads	 	 	6.75	%	 	 	10/01/07	 	 	 	3,500,000
	Highpoint Oaks, Ltd.
	 	Coppermark Bank	 	Project Debt - Highpoint Oaks	 	 	6.75	%	 	 	09/30/06	 	 	 	4,126,064
	
Phase 1 Regional Park Limited Pship
	 	City of Sacramento	 	Project Debt - Granite Regional Park	 	 	6.15	%	 	 	09/01/26	 	 	 	8,228,125
	Phase 1 Regional Park Limited Pship
	 	GE Capital Business Asset Fund	 	Project Debt - Granite Regional Park	 	 	8.15	%	 	 	08/01/10	 	 	 	18,264,349
	Phase 1 Regional Park Limited Pship
	 	Northwestern Mutual Life Insurance	 	Project Debt - Granite Regional Park	 	 	7.25	%	 	 	03/01/21	 	 	 	17,282,840
	Phase 1 Regional Park Limited Pship
	 	Sacramento City Employee Retirement Systems	 	Project Debt - Granite Regional Park	 	 	7.30	%	 	 	09/01/08	 	 	 	10,793,182
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	81,112,723






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	As of 04/30/05
	Principal	 	Insurer	 	 	Description	 	 	Penal Sum	 	 	Maturity	 	 	Cost to Complete
	Granite Construction Company, Granite Halmar Construction Company, Inc., 
	 	Federal
Insurance Company. St. Paul Travelers
	 	Payment and Performance Bonds on various construction projects	 	 	6,100,641,240	 	 	varies	 	 	1,846,161,317
	Intermountain Slurry Seal, Inc., and Pozzolan Products Company
	 	 	 	 	 	Miscellaneous
Bonds in support of permitting, licensing, and reclamation	 	 	40,154,534	 	 	varies	 	 	40,154,534
	 
	 	 	 	 	 	 	 	 	 	$	6,140,795,774	 	 	 	 	 	 	$	1,886,315,851






Sch. 7.03





 









 








Granite Construction Incorporated

Schedule 7.06

EXISTING LEASES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Annual	 	 
	Lessor	 	Description	 	 	 	Maturity	 	 	 	Payments	 	 
	 	 	 	 	 	 	 	 
	Granite Construction Company as a lessee
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Hansen & Sinnot Estate
	 	Quarry Property	 	 	 	07/31/14	 	 	 	 	19,500	 	 
	Haber/Kester
Property
	 	Quarry Property	 	 	 	07/31/14	 	 	 	 	19,500	 	 
	Castro Valley Properties, Inc.
	 	Quarry Property	 	 	 	12/31/20	 	 	 	 	350,000	 	 
	Julia C. Matthews
	 	Quarry Property	 	 	 	12/31/09	 	 	 	 	26,400	 	 
	Topo Ranch (Singleton Group)
	 	Quarry Property	 	 	 	06/30/07	 	 	 	 	22,500	 	 
	Lonestar California, Inc.
	 	Hot Plant	 	 	 	04/09/08	 	 	 	 	200,000	 	 
	City of Willits
	 	Quarry Property	 	 	 	11/25/08	 	 	 	 	100,005	 	 
	Rowland
	 	Quarry Property	 	 	 	06/30/09	 	 	 	 	50,000	 	 
	Donald and Carol Graham
	 	Hot Plant	 	 	 	12/31/09	 	 	 	 	96,000	 	 
	The Pacific Lumber Company
	 	Material Sales Agreement	 	 	 	04/30/12	 	 	 	 	24,000	 	 
	Rossi Materials
	 	Quarry Property	 	 	 	01/31/05	 	 	 	 	2,100	 	 
	R. Vogt & A. Koustas
	 	Rental Office	 	 	 	02/14/07	 	 	 	 	53,469	 	 
	Tsakopoulos Family Trust
	 	Quarry Property	 	 	 	03/06/53	 	 	 	 	12,500	 	 
	Marvin L. Oats Trust
	 	Rental Office	 	 	 	11/01/07	 	 	 	 	198,132	 	 
	AT Realty
	 	Rental Office	 	 	 	05/31/06	 	 	 	 	88,800	 	 
	Morelli Realty LLC
	 	Rental Office	 	 	 	01/31/06	 	 	 	 	42,900	 	 
	Anne V. Crawford Hall
	 	Quarry Property	 	 	 	12/31/14	 	 	 	 	100,000	 	 
	Barker, Raymond, Carol, & Raymond Jr.
	 	Rental Office	 	 	 	06/30/06	 	 	 	 	48,000	 	 
	Little Rock Sand and Gravel
	 	Pit	 	 	 	04/30/11	 	 	 	 	200,928	 	 
	Standard Hill Mining Co.
	 	Quarry Property	 	 	 	02/29/08	 	 	 	 	22,126	 	 
	Famoso Cattle Company
	 	Quarry Property	 	 	 	12/31/08	 	 	 	 	25,000	 	 
	Tejon Ranch Co.
	 	Pit	 	 	 	10/31/09	 	 	 	 	60,000	 	 
	M. Prickett & P Dixon, individuals
	 	Rental Office	 	 	 	07/31/20	 	 	 	 	36,000	 	 
	L. R. Peterson and E. W. McGah
	 	Hot Plant	 	 	 	01/02/16	 	 	 	 	80,000	 	 
	W. P. R. R. Co.
	 	Pit	 	 	 	06/01/07	 	 	 	 	3,750	 	 
	Richard Rose
	 	Pit	 	 	 	12/26/06	 	 	 	 	3,000	 	 
	Joseph, Russell, & David Rose
	 	Pit	 	 	 	12/26/06	 	 	 	 	3,000	 	 
	Jackling Aggregates Limited
	 	Pit	 	 	 	12/31/05	 	 	 	 	72,000	 	 
	Chemical Lime Co. of Arizona
	 	Material Sales Agreement	 	 	 	10/31/07	 	 	 	 	800,000	 	 
	RMC Pacific Materials Inc.
	 	Plant Lease	 	 	 	10/31/06	 	 	 	 	125,000	 	 
	RMC Pacific Materials Inc.
	 	Plant Lease	 	 	 	09/04/06	 	 	 	 	600,000	 	 
	Ricardo Jimenez, Jr.
	 	Pit	 	 	 	06/30/46	 	 	 	 	12,000	 	 
	Recupido, Fredrick R.
	 	Rental Office	 	 	 	12/27/06	 	 	 	 	20,000	 	 
	Gibbons Realty Co.
	 	Pit	 	 	 	05/07/05	 	 	 	 	11,274	 	 
	Walker Development
	 	Pit	 	 	 	12/31/09	 	 	 	 	75,000	 	 
	Rae Baker Trust
	 	Pit	 	 	 	12/31/06	 	 	 	 	2,000	 	 
	Heber Bank Block, LLC
	 	Quarry Property	 	 	 	05/31/06	 	 	 	 	2,738	 	 
	Bingelli Rock Products Inc, et al
	 	AC Plant	 	 	 	10/31/11	 	 	 	 	10,000	 	 
	FCC Equipment Financing, Inc.
	 	Construction Equipment	 	 	 	08/31/05	 	 	 	 	42.560	 	 
	FCC Equipment Financing, Inc.
	 	Construction Equipment	 	 	 	09/30/05	 	 	 	 	29,790	 	 
	Granite Land Company as a lessee
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	The Realty Assoc. Fund V, LP
	 	Rental Office	 	 	 	02/28/07	 	 	 	 	174,431	 	 
	Intermountain Slurry Seal as a lessee
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bennafit Investment, LLC
	 	Plant Lease	 	 	 	04/14/07	 	 	 	 	52,080	 	 
	Muller, Raymond J. and Franchon L.
	 	Quarry Property	 	 	 	03/07/16	 	 	 	 	24,000	 	 
	Roberta Johnson
	 	Quarry Property	 	 	 	04/15/08	 	 	 	 	10,000	 	 
	Mons Montis Land Co.
	 	Quarry Property	 	 	 	11/23/09	 	 	 	 	40,000	 	 
	City of Los Angeles
	 	Quarry Property	 	 	 	03/31/05	 	 	 	 	669	 	 
	City of Los Angeles
	 	Quarry Property	 	 	 	06/30/05	 	 	 	 	300	 	 
	Pozzolan Products Company as a lessee
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Granite Construction Co.
	 	Rental Office	 	 	 	05/31/05	 	 	 	 	14,040	 	 
	Granite Halmar Construction Company, Inc. as a lessee
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Moroz Surf Holding
	 	Rental Office	 	 	 	03/31/05	 	 	 	 	18,249	 	 
	Morelli Realty LLC
	 	Rental Office	 	 	 	01/31/06	 	 	 	 	43,764	 	 
	NY/NJ Port Authority
	 	Rental Office	 	 	 	12/31/06	 	 	 	 	80,000	 	 
	AT Realty Co.
	 	Rental Office	 	 	 	05/31/06	 	 	 	 	72,000	 	 
	NRP LLC, 1
	 	Rental Office	 	 	 	04/30/07	 	 	 	 	66,300	 	 
	JR Building Assoc.
	 	Rental Office	 	 	 	01/31/07	 	 	 	 	36.990	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	$	4,322,795	 	 






Sch 7.06





 









 








Schedule 10.02




Eurodollar and Domestic Lending Offices;

Addresses for Notices




BORROWER:




Granite Construction Incorporated




Granite Construction Incorporated

P. 0. Box 50085

Watsonville, CA 95077



	 	 	 
	Attention:

	 	William Barton, Vice President/Chief Financial Officer
	Telephone:

	 	(831) 761-4704
	Facsimile

	 	(831) 722-9657
	Email:

	 	bbarton@gcinc.com
	Web site:

	 	http://www.graniteconstruction.com






with a copy to:




Granite Construction Incorporated

585 West Beach Street

Watsonville, CA 95076



	 	 	 
	Attention:

	 	Roxane Allbritton, Treasurer
	Telephone:

	 	(831) 761-4772
	Facsimile

	 	(831) 728-1701
	Email:

	 	rallbritton@gcinc.com






Sch. 10.02














 








ADMINISTRATIVE AGENT:




(for lending and administrative notices (including payments and Requests for Credit
Extensions)):




Bank of America, N.A.

Mail Code: CA4-702-02-25

2001 Clayton Road, Building B

Concord, CA 94520



	 	 	 	 	 
	Attention:

	 	Sally Escosa

	Telephone:

	 	(925) 675-8421	 
	Facsimile:

	 	(925) 969-2637	 
	Email:

	 	rosalia.m.escosa@bankofamerica.com

	Account No.:

	 	3750836479	 
	Ref:

	 	Granite Construction

	ABA#

	 	111000012	 






(for all purposes other than lending and administrative notices):




Bank of America, N.A.

Mail Code: WA1-501-37-20

800 5th Avenue, Floor 37

Seattle, WA 98104



	 	 	 
	Attention:

	 	Brenda H. Little, Assistant Vice President
	Telephone:

	 	(206) 358-0048
	Facsimile:

	 	(206) 358-0971
	Email:

	 	brenda.h.little@bankofamerica.com






L/C ISSUER:




Bank of America, N.A.

Trade Operations — Los Angeles #226521

333 S. Beaudry Avenue, 19th Floor

Mail Code: CA9-703-19-23

Los Angeles, CA 90017-1466



	 	 	 
	Attention:

	 	Tai Anh Lu
	Telephone:

	 	(213) 345-0145
	Facsimile:

	 	(213) 345-6684
	Email:

	 	tai_anh.lu@bankofamerica.com







Sch. 10.02









 








BANK OF AMERICA, N.A., as a Lender

333 S. Hope Street

Mail Code: CA9-193-24-05

Los Angeles, CA 90071



	 	 	 
	Attention::

Telephone:

Facsimile:

Email:

	 	Robert Troutman

(213) 621-8765

(213) 621-8793

bob.troutman @ bankofamerica.com











Sch. 10.02









 








BNP PARIBAS




Credit Contact:




BNP Paribas

One Front Street, 23rd Floor

San Francisco, CA 94111



	 	 	 
	Attention:

	 	Jamie Dillon (primary contact)
	 

	 	Managing Director
	 

	 	Mary-Ann Wong (secondary contact)
	Telephone:

	 	(415) 772-1300 (general)
	 

	 	(415) 772-1366/1355 (direct)
	Facsimile:

	 	(415) 291-0563
	Email:

	 	jamie.dillon@americas.bnpparibas.com
	 

	 	mary-ann.wong@americas.bnpparibas.com






Operations Contact:




BNP Paribas

919 3rd Avenue

New York, NY 10022



			
	Attention:

	 	John Smith
	Telephone:

	 	(212) 471-6626
	Facsimile:

	 	(212) 841-2682
	Email:

	 	john.smith@americas.bnpparibas.com






Wire Transfer Instructions:




The Federal Reserve Bank of New York

BNP Paribas New York

ABA #026007689 (CHIPS: 768)

For Account of: BNP Paribas San Francisco

                           BNPAUS6S


FFC: LOAN SERVICING

Account #521 315 434 01

Reference: Granite Construction

Attention: San Francisco Loan Operations








Sch. 10.02









 








     HARRIS N.A.



Credit Contact:




Harris N.A.

111 West Monroe Street, 10th Floor

Chicago, IL 60603



			
	Attention:

	 	Isabella Battista
	 

	 	Relationship Manager
	Telephone:

	 	(312) 293-8358
	Facsimile:

	 	(312) 765-8105






Operations Contact:




Harris N.A.

111 West Monroe Street, 17th Floor

Chicago, IL 60603



			
	Attention:

	 	Elaine Scott
	 

	 	Loan Specialist
	Telephone:

	 	(312) 461-5112
	Facsimile:

	 	(312) 293-5884






Wire Transfer Instructions:




Harris N.A.

Chicago, IL

ABA #071000288

Account #109-535-5

Reference: Granite Construction

Attention: Loan Accounting



Sch. 10.02














 








UNION BANK OF CALIFORNIA, N.A.




Credit Contact:




Union Bank of California, N.A.

99 Almaden Boulevard

Suite 200

San Jose, CA 95113



			
	Attention:

	 	Matt J. Tanzi
	 

	 	Vice President
	Telephone:

	 	(408) 279-7773
	Facsimile:

	 	(408) 280-7163
	Email:

	 	matteo.tanzi@uboc.com






Operations Contact:




Union Bank of California, N.A.

601 Potrero Grande Drive

Monterey Park, CA 91754



			
	Attention:

	 	Maria L. Suncin
	 

	 	Loan Opeation T.L.
	Telephone:

	 	(323) 720-2870
	Facsimile:

	 	(323) 724-6198
	Email:

	 	maria.suncin@uboc.com






Wire Transfer Instructions:




Union Bank of California, N.A.

Monterey Park, CA

ABA #122000496

Account#77070196431

Account Name: Wire Transfer Clearing

Attention: Commercial Loan Operations

Reference: Granite Construction



Sch. 10.02







 









 








U.S. BANK N.A.




Credit Contact:

U.S. Bank N.A.

1331 N. California Boulevard

Suite 350

Walnut Creek, CA 94596



	 	 	 
	Attention:

	 	R. Michael Law
	 

	 	Senior Vice President
	Telephone:

	 	(925) 942-9412
	Facsimile:

	 	(925) 945-6919
	Email:

	 	michael.law@usbank.com






Operations Contact: 




U.S. Bank N.A.

555 S.W. Oak Street, PL7

Portland, OR 97204




	 	 	 
	Attention:	 	Tony Wong
	Telephone:	 	(503) 275-3252
	Facsimile:	 	(503) 275-8181





Wire Transfer Instructions:




U.S. Bank N.A.

ABA #123000220

Account No.: 00340012160600

Reference: Granite Construction

Attention: Commercial Wires in Process




Sch. 10.02



 


 









 








COMERICA BANK




Credit Contact:




Comerica Bank

611 Anton Boulevard

Suite 400

Costa Mesa, CA 92626




	 	 	 
	Attention:

	 	 Elise M. Walker
	 

	 	Vice President
	Telephone:

	 	 (714) 433-3226
	Facsimile:

	 	 (714) 433-3236
	Email:

	 	emwalker@comerica.com






Operations Contact:




Comerica Bank

611 Anton Boulevrad

Suite 400

Costa Mesa, CA 92626




	 	 	 
	Attention:

	 	Regina C. McGuire
	 

	 	Corporate Relationship Administrator
	Telephone:

	 	(714) 433-3227
	Facsimile:

	 	(714) 433-3236
	Email:

	 	rcmcguire@comerica.com






Wire Transfer Instructions:




Comerica Bank

ABA #072000096

Account #21585-90010

Benefit: Commercial Loan Servicing

Reference: Granite Construction




Sch. 10.02





 









 








Schedule 10.07




PROCESSING AND RECORDATION FEES




The Administrative Agent will charge a processing and recordation fee (an “Assignment Fee”) in the
amount of $2,500 for each assignment; provided, however, that in the event of two or more
concurrent assignments to members of the same Assignee Group (which may be effected by a
suballocation of an assigned amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be $2,500 plus the amount set
forth below:




	 	 	 	 	 	 	 	 
	 	 	 	 	 	 
	 	Transaction	 	 	Assignment Fee	 	 
	 	First four concurrent assignments or
suballocations to members of an Assignee Group
(or from members of an Assignee Group, as
applicable)
	 	 	 	-0-	 	 
	 	 	 	 	 	 
	 	Each additional concurrent assignment or
suballocation to a member of such Assignee
Group (or from a member of such Assignee Group,
as applicable)
	 	 	$	500	 	 
	 	 	 	 	 	 





Sch. 10.07





 









 








EXHIBIT A




FORM OF LOAN NOTICE




Date:                                          ,                     




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 24, 2005 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Granite
Construction Incorporated, a Delaware corporation (the “Borrower”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.




The Borrower hereby requests (select one):




o A Borrowing of Revolving Loans                                o A conversion or continuation of Loans




1. On
                                         (a Business Day).




2. In the
amount of                                         .




3. Comprised
of
                                        .

                           [Type of Loan requested]




4. In the
following currency:                                         




5. For
Eurodollar Rate Loans: with an Interest Period of                      months.



     The Revolving Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.


	 	 	 	 	 
	 	GRANITE CONSTRUCTION INCORPORATED

 	 
	 	By:  	 	 
	 	Name: 	  	 
	 	Title: 	  	 
	 




A-l





 









 








EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date:                                         ,                     




	 	 	 
	To:

	 	Bank of America, N.A., as Swing Line Lender 
	 

	 	Bank of America, N.A., as Administrative Agent






Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 24, 2005 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Granite
Construction Incorporated, a Delaware corporation (the “Borrower”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The undersigned hereby requests a Swing Line Loan:



     1. On
                                        
(a Business Day).



     2. In the amount of $                                          .



     The Swing Line Borrowing requested herein complies with the requirements of the provisos
to the first sentence of Section 2.04(a) of the Agreement.


	 	 	 	 	 
	 	GRANITE CONSTRUCTION INCORPORATED

 	 
	 	By:  	 	 
	 	Name: 	  	 
	 	Title: 	  	 	 
	 




B-l





 









 








EXHIBIT C




FORM OF NOTE




                                        ,                     





     FOR
VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                                          or
registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as
hereinafter defined), the principal amount of each Loan from time to time made by the Lender
to the Borrower under that certain Credit Agreement, dated as of June 24, 2005 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among the
Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in the currency in which such Revolving Loan was
denominated and in Same Day Funds at the Administrative Agent’s Office for such currency. If any
amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Note and endorse thereon the date, amount, currency and maturity of
its Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.



C-l




 









 





     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA.


	 	 	 	 	 
	 	GRANITE CONSTRUCTION INCORPORATED

 	 
	 	By:  	 	 
	 	Name: 	  	 	 
	 	Title: 	  	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	Name: 	   	 	 
	 	Title: 	   	 	 
	 




C-2





 









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                                         , 200_





     The undersigned refers to that certain Credit Agreement, dated as of June 24, 2005 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Credit Agreement”), among Granite Construction Incorporated, a Delaware corporation (the
“Borrower”), the financial institutions from time to time party thereto (collectively, the
“Lenders”) and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender
(the “Administrative Agent”). Unless otherwise defined herein, each capitalized term used herein
has the meaning assigned thereto in the Credit Agreement.



     The undersigned Responsible Officer of the Borrower hereby certifies as of the date
hereof that s/he holds the office of                                          with the Borrower, that, as such, s/he is
authorized to execute and deliver this Certificate to the Administrative Agent on behalf of the
Borrower and its Subsidiaries, and that:




     1.   o
Attached hereto or posted on the Borrower’s website or posted on the
website of the Securities and Exchange Commission at www.sec.gov is:




     o a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of the fiscal year ended [                                         , 200_] (the “Subject Fiscal Year”), and the related
consolidated statements of income or operations, shareholders’ equity and cash flows
for the Subject Fiscal Year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders, which
report and opinion have been prepared in accordance with GAAP and are not subject to
any qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions that are not reasonably acceptable to the Required
Lenders; or




     o an SEC Form 10-K for the Borrower (excluding the exhibits thereto) relating to the
fiscal year ended [                                         , 200_]; or




     o a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of the fiscal quarter ended [                                         , 200_] (the “Subject Fiscal Quarter”), and the
related consolidated statements of income or operations, shareholders’ equity and
cash flows for the Subject Fiscal Quarter and for the portion of the Borrower’s
fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to



D-l





 









 








normal year-end audit adjustments and the absence of footnotes; or




     o an SEC Form 10-Q for the Borrower (excluding the exhibits thereto) relating to the
fiscal quarter ended
[         , 200_].



     2.   o Attached hereto is:




     o a consolidating balance sheet of all Unrestricted Subsidiaries as at the end of
such fiscal year, and the related consolidating statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail,
audited and accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with GAAP and shall not be subject
to any qualifications or exceptions as to the scope of the audit nor to any qualifications
or exceptions not reasonably acceptable to the Required Lenders; or




     o a consolidating balance sheet of all Unrestricted Subsidiaries as at the end of
such fiscal quarter, and the related consolidating statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and certified
by a Responsible Officer of the Borrower as fairly presenting the financial condition,
results of operations and cash flows of such Subsidiaries on a consolidating basis in
accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.



     3. The financial statements referred to in Paragraph 1 fairly present, in all material
respects, the consolidated financial position and the results of operations of the Borrower and its
Subsidiaries.



     4. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and the
other Loan Documents and has made, or has caused to be made under my supervision, a detailed review
of the transactions and conditions (financial or otherwise) of the Borrower and its Subsidiaries
during the accounting period covered by the attached financial statements.



     5. To the best of the undersigned’s knowledge, the Borrower and each of its Subsidiaries have,
during such period, observed, performed and/or satisfied and/or have caused to be observed,
performed and/or satisfied all of their respective covenants and other agreements contained in the
Loan Documents to which they are a party, and have satisfied every condition in the Loan Documents
to which they are a party to be observed, performed and/or satisfied by them, and the undersigned
has no knowledge of any condition, event or occurrence, which constitutes a Default or Event of
Default, except as set forth below:



D-2




 









 





     [Describe below (or in a separate attachment to this Certificate) the exceptions, if any,
to paragraph 4 above by listing, in detail and with reference to specific sections of the Credit
Agreement, the nature of the condition, event or occurrence, the period during which it has existed
and the actions that the Borrower has taken, is taking or proposes to take with respect to such
condition, event or occurrence.]



     6. The financial covenant and other compliance analyses and information set
forth on Schedule 1 attached hereto are true, complete and accurate on and as of the date
of this Certificate.



     The foregoing certifications, together with the computations set forth in Schedule 1
hereto, are made and delivered, and the financial statements referenced above are made or
posted, as applicable, this                      day of                                         , 200                    , pursuant to the provisions of the Credit
Agreement.


	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	Title: 	 	 
	 	 	of Granite Construction Incorporated 	 
	 




D-3





 









 






Schedule 1




to Compliance Certificate





	1.	 	Investments — Investments (including Construction JV Investments) by any Land
Development Company, or any Subsidiary thereof. Section 7.02(g)






	 	A.	 	The aggregate amount of Investments (including Construction JV
Investments) by any Land Development Company, or any Subsidiary thereof: $                                         






Requirement: The amount in A may not exceed $35,000,000.




	2.	 	Investments — Other Investments. Section 7.02(h)






	 	A.	 	The aggregate amount of Investments not otherwise permitted pursuant
to subsections (a) through (g) of Section 7.02 in the equity of any
Restricted Subsidiary or the capital stock, assets, obligations or other
securities of or interests in any other Person (other than an Unrestricted
Subsidiary): $                                        






Requirement: The amount in A may not exceed $100,000,000.




	3.	 	Indebtedness — Other Indebtedness. Section 7.03(h)






	 	A.	 	Indebtedness of the Borrower and its Subsidiaries, comprised solely of (i) the
outstanding principal amount of obligations, whether current or long-term, for
borrowed money and all obligations evidenced by bonds (other than performance,
surety and appeal bonds), debentures, notes, loan agreements or other similar
instruments, (ii) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, or (iii) without duplication, Guaranty Obligations
(other than Guaranty Obligations as to which an Unrestricted Subsidiary is the
primary obligor) with respect to Indebtedness of the types specified in the
immediately preceding clauses (i) and (ii); provided that none of the foregoing
includes Indebtedness of any co joint venturer in any Joint Venture to which the
Borrower or any Subsidiary is a party that has been assumed by the Borrower or
any Subsidiary if such Indebtedness was not originally incurred by such co joint
venturer in connection with (and relates solely to) the subject Joint Venture:
$                                        
	 
	 	B.	 	All Guaranty Obligations as to which an Unrestricted Subsidiary is the primary
Obligor and Indebtedness incurred for the benefit of an Unrestricted Subsidiary:
$                                        
	 
	 	C.	 	A minus B: $                                         






Requirement: The amount in C may not exceed $100,000,000.







D-4









 









	4.	 	Dispositions of Assets. Section 7.05(g)






	 	A.	 	The aggregate consideration from Dispositions received by the Borrower and
its Subsidiaries pursuant to Section 7.05(g), including aggregate cash received and
the aggregate fair market value of non-cash property received, during the current
fiscal year: 

$                                         
	 
	 	B.	 	The aggregate consideration from Dispositions received by any Unrestricted
Subsidiaries, including aggregate cash received and the aggregate fair market
value of non-cash property received, during the current fiscal year:
$                                        
	 
	 	C.	 	A minus B: $                                         
	 
	 	D.	 	The amount equal to 5% of the total assets of the Borrower (determined
on a consolidated basis in accordance with GAAP) as of the end of the Borrower’s
most recently ended fiscal year: $                                        






Requirement: The amount in C may not exceed the amount in D.




	5.	 	Minimum Consolidated Tangible Net Worth. Section 7.13(a)






	 	A.	 	Consolidated Tangible Net Worth (A(i) minus (A)(ii)): $                                         






	 	(i)	 	Consolidated Stockholders’ Equity for Consolidated
Restricted Group (A(i)(A) minus A(i)(B) below): 

$                                        






	 	(A)	 	Stockholders’ equity for the Borrower and
its consolidated Subsidiaries (determined in accordance with
GAAP):


$                                         
	 
	 	(B)	 	Stockholders’ equity for the Unrestricted
Subsidiaries (determined in accordance with GAAP): $                                         






	 	(ii)	 	Intangible Assets of the Consolidated Restricted Group
(determined on a consolidated basis in accordance with GAAP) (A(ii)(A)
minus A(ii)(B)):






	 	(A)	 	Intangible Assets of the Borrower and its
consolidated Subsidiaries (determined on a consolidated basis in accordance with GAAP):
$                                         
	 
	 	(B)	 	Intangible Assets of the Unrestricted
Subsidiaries (determined on a consolidated basis in accordance with
GAAP): 

$                                         






	 	B.	 	Consolidated Net Income (B(i) minus B(ii))









D-5









 









	 	(i)	 	Net income, on a consolidated basis, of the Borrower and
its consolidated Subsidiaries from continuing operations, excluding extraordinary items
and excluding gains and losses from Dispositions earned in each fiscal
quarter ending after the date of the Audited Financial Statements (not
including net income in respect of or attributable to any Project Debt
Entity): 

$                                         
	 
	 	(ii)	 	Net income, on a consolidated basis, of the Unrestricted
Subsidiaries from continuing operations, excluding extraordinary items and excluding gains
and losses from Dispositions earned in each fiscal quarter ending after the
date of the Audited Financial Statements (not including net income in
respect of or attributable to any Project Debt Entity): $                                         






	 	C.	 	Calculation of Minimum Consolidated Tangible
Net Worth
	 
	 	 	 	(C(i) + C(ii) + C(iii) below): $                                         






	 	(i)	 	85% of the Consolidated Tangible Net Worth as of the
date of the Audited Financial Statements: $                                         






plus




	 	(ii)	 	50% of Consolidated Net Income (line B above): $                                         






plus




	 	(iii)	 	50% of the aggregate increases in Consolidated
Stockholders’ Equity for the Consolidated Restricted Group (line A(i) above)
after the date of the Audited Financial Statements by reason of the issuance
and sale of the capital stock of the Borrower: $






Requirement: The amount in A may not be less than the amount in C.




	6.	 	Minimum Interest Coverage Ratio. Section 7.13(b)






	 	A.	 	Consolidated EBITDA for Consolidated Restricted Group (A(i) minus
A(ii)): $                                         






	 	(i)	 	Consolidated EBITDA for the Borrower and its
consolidated Subsidiaries (A(i)(A) plus A(i)(B) plus
A(i)(C) plus A(i)(D):

 $                                         
	 
	 	(A)	 	Net income, on a consolidated basis, of Borrower and its
consolidated Subsidiaries (excluding any Project Debt Entity) from continuing
operations, excluding extraordinary items and excluding gains and losses
from Dispositions for such Subject Period: 

$                                         










D-6









 












	 	(B)	 	Consolidated Interest Expense for such Subject Period to the
extent deducted in calculating Consolidated Net Income:

$                                         
	 
	 	(C)	 	Consolidated Cash Taxes for such Subject Period the extent
deducted in calculating Consolidated Net Income:

$                                         
	 
	 	(D)	 	Depreciation and amortization expense for such Subject
Period to the extent deducted in calculating Consolidated Net Income:

$                                         






	 	(ii)	 	Consolidated EBITDA for the Unrestricted Subsidiaries (A(ii)(A)
plus A(ii)(B) plus A(ii)(C) plus A(ii)(D): $






	 	(A)	 	Net income, on a consolidated basis, of the Unrestricted
Subsidiaries (excluding any Project Debt Entity) from continuing operations, excluding
extraordinary items and excluding gains and losses from Dispositions for
such Subject Period: 
$                                         
	 
	 	(B)	 	Consolidated Interest Expense for such Subject Period to
the extent deducted in calculating Consolidated Net Income:

$                                         
	 
	 	(C)	 	Consolidated Cash Taxes for such Subject Period the extent
deducted in calculating Consolidated Net Income:

$                                         
	 
	 	(D)	 	Depreciation and amortization expense for such Subject
Period to the extent deducted in calculating Consolidated Net Income:


$                                         






	 	B.	 	Consolidated Interest Expense for the Consolidated Restricted
Group (B(i) minus B(ii)): $                                         






	 	(i)	 	Consolidated Interest Expense for the Borrower
and its consolidated Subsidiaries (B(i)(A) plus B(i)(B)): 

$                                    






	 	(A)	 	All interest, premium payments, fees,
charges and related expenses of the Borrower and its consolidated Subsidiaries in connection
with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case
to the extent treated as interest in accordance with GAAP
(excluding such amounts in respect of Project Debt): $                                         









D-7









 









	 	(B)	 	The portion of rent expense of the Borrower and its
consolidated
Subsidiaries with respect to such Subject Period under capital
leases that is treated as interest in accordance with GAAP and the
portion of Synthetic Lease Obligations payable by the Borrower
and its consolidated Subsidiaries with respect to such Subject
Period that would be treated as interest in accordance with GAAP
if such lease were treated as a capital lease under GAAP
(excluding such amounts in respect of Project Debt): $                                         






	 	(ii)	 	Consolidated Interest Expense for the Unrestricted
Subsidiaries (B(ii)(A) plus B(ii)(B)): $                                         






	 	(A)	 	All interest, premium payments, fees, charges
and related expenses of the Unrestricted Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the
deferred purchase price of assets, in each case to the extent
treated as interest in accordance with GAAP (excluding such amounts in
respect of Project Debt): 
$                                         
	 
	 	(B)	 	The portion of rent expense of the Unrestricted
Subsidiaries with respect to such period under capital leases that is treated as
interest in accordance with GAAP and the portion of Synthetic Lease
Obligations payable by the Borrower and its consolidated
Subsidiaries with respect to such Subject Period that would be
treated as interest in accordance with GAAP if such lease were
treated as a capital lease under GAAP (excluding such amounts in
respect of Project Debt):






	 	C.	 	Ratio of A to B:            to 1.00






	     Requirement:	 	The ratio in I (i.e., the ratio of A to B) may not be less than
4.00 to 1.00 as of the last day of any fiscal quarter of the Borrower.






	7.	 	Leverage Ratio. Section 7.13(c)






	 	A.	 	Consolidated Funded Indebtedness for the Consolidated Restricted Group
(A(i) minus, A(ii)): $                                         






	 	(i)	 	Consolidated Funded Indebtedness for the Borrower and its
consolidated Subsidiaries (A(i)(A) plus A(i)(B)): 
$                                         






	 	(A)	 	On a consolidated basis, the outstanding
principal amount of all obligations, whether current or long-term, for
borrowed money (including Obligations under the Credit Agreement) and
all obligations evidenced by bonds, debentures, notes, loan




D-8









 






	 	 	 	agreements or other similar instruments of Borrower and
its consolidated Subsidiaries (not including Project Debt): 
$                                         
	 
	 	(B)	 	Attributable Indebtedness in respect of
capital leases and Synthetic Lease Obligations of Borrower and its consolidated Subsidiaries
(not including Project Debt): $                                         






	 	(ii)	 	Consolidated Funded Indebtedness for the
Unrestricted Subsidiaries (A(ii)(A) plus A(ii)(B) plus A(ii)(C)): 
$                                         






	 	(A)	 	On a consolidated basis, the outstanding
principal amount of all obligations, whether current or long-term, for borrowed money
(including Obligations under the Credit Agreement) and all
obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments of the Unrestricted
Subsidiaries (not including Project Debt):

 $                                         
	 
	 	(B)	 	Attributable Indebtedness in respect of capital
leases and Synthetic Lease Obligations of the Unrestricted Subsidiaries (not including
Project Debt): $                                         
	 
	 	(C)	 	Without duplication, all Guaranty
Obligations with respect to Indebtedness of the types specified in subsections (A) and (B)
above:






	 	B.	 	(i) Consolidated Funded Indebtedness for the Consolidated Restricted Group
(line A above): $                                         






       Plus




	 	(ii)	 	Consolidated Tangible Net Worth for the Consolidated
Restricted Group: Total: $                                         






	 	C.	 	Ratio of A to B:                                         to 1.00





     Requirement: The ratio in C (i.e., the ratio of A to B) may not exceed 2.50 to 1.00 as
of the last day of any fiscal quarter of the Borrower.





D-9









 








EXHIBIT E




FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement identified below (the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, the Letters of Credit and
the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by the Assignor.




	1.	 	Assignor:                                                             
	 
	2.	 	Assignee:                                                             
[and is an Affiliate/Approved Fund of [identify Lender]]
	 
	3.	 	Borrower: Granite Construction Incorporated
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of June 24, 2005, among Granite
Construction Incorporated, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender








E-1









 








     6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	Facility	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Assigned of	 	 	CUSIP	 
	Assigned	 	for all Lenders	 	 	Assigned	 	 	Commitment/Loans  	 	Number	 
	 
	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





[7- Trade Date:                                         ]




Effective Date:                                        , 20_ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 	 	 
	 	 	ASSIGNOR	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 
	 	 
	 

	 	 	 	Title:	 	 






[Consented to and] Accepted:




BANK OF AMERICA, N.A., as
   Administrative
Agent



By:                                                            

     Title:



[Consented to:]




GRANITE CONSTRUCTION INCORPORATED




By:                                                            

     Title:





E-2









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i)
any statements, warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under
any Loan Document.




          1.2.
Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee
under the Credit Agreement (subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section
6.01 thereof, as applicable, and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Lender, and (v) if
it is a Foreign Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of principal,







E-3









 








interest, fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued from and after the
Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by,
and construed in accordance with, the law of the State of California.







E-4









 








EXHIBIT F




FORM OF GUARANTY




     THIS
GUARANTY AGREEMENT (this “Guaranty Agreement”), dated as of June 24, 2005, is made
by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL BECOME A PARTY HERETO BE EXECUTION OF A
GUARANTY JOINDER AGREEMENT (each a “Guarantor” and collectively the “Guarantors”) to BANK OF
AMERICA, N.A., a national banking association organized and existing under the laws of the United
States, as administrative agent (in such capacity, the “Administrative Agent”) for each of the
lenders (the “Lenders” now or hereafter party to the Credit Agreement defined below (collectively
with the Administrative Agent, and certain other Persons parties to Related Credit Arrangements as
more particularly described in Section 19 hereof, the “Secured Parties”). All capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.



W I T N E S S E T H :




     WHEREAS, the Secured Parties have agreed to provide to Granite Construction Incorporated (the
“Borrower”) a revolving credit facility with a letter of credit and swing line sublimit pursuant
to the terms of that certain Credit Agreement dated as of June 24, 2005, among the Borrower, the
Administrative Agent and the Lenders (as from time to time amended, revised, modified,
supplemented or amended and restated, the “Credit Agreement”); and



     WHEREAS, each Guarantor is, directly or indirectly, a Material Subsidiary of the Borrower and
will materially benefit from the Loans made and to be made, and the Letters of Credit issued and
to be issued, under the Credit Agreement; and



     WHEREAS, each Guarantor is required to enter into this Guaranty Agreement pursuant to the
terms of the Credit Agreement; and



     WHEREAS, a material part of the consideration given in connection with and as an inducement
to the execution and delivery of the Credit Agreement by the Secured Parties was the obligation of
the Borrower to cause each Material Subsidiary that is not an Unrestricted Subsidiary to be a
Guarantor and to enter into this Guaranty Agreement, and the Secured Parties are unwilling to
extend and maintain the credit facilities provided under the Loan Documents unless the Guarantors
enter into this Guaranty Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto agree as follows:



     1. Guaranty. Each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Administrative Agent for the benefit of
the Secured Parties the payment and performance in full of the Guaranteed Liabilities (as defined
below). For all purposes of this Guaranty Agreement, “Guaranteed Liabilities” means: (a)
the






F-1









 








Borrower’s prompt payment in full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the Credit Agreement, the Notes, and all
other Loan Documents heretofore, now or at any time or times hereafter owing, arising, due or
payable from the Borrower to any one or more of the Secured Parties, including principal, interest,
premiums and fees (including, but not limited to, loan fees and Attorney Costs); (b) the Borrower’s
prompt, full and faithful performance, observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or discharged by the Borrower under
the Credit Agreement, the Notes and all other Loan Documents; and (c) subject to Section
19, the prompt payment in full by each Loan Party, when due or declared due and at all such
times, of obligations and liabilities now or hereafter arising under Related Credit Arrangements
(as defined below). The Guarantors’ obligations to the Secured Parties under this Guaranty
Agreement are hereinafter collectively referred to as the “Guarantors’ Obligations” and,
with respect to each Guarantor individually, the “Guarantor’s Obligations”. Notwithstanding
the foregoing, the liability of each Guarantor individually with respect to its Guarantor’s
Obligations shall be limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance under Section 548 of the United States
Bankruptcy Code or any comparable provisions of any applicable state law.




     Each Guarantor agrees that it is jointly and severally, directly and primarily liable
(subject to the limitation in the immediately preceding sentence) for the Guaranteed Liabilities.



     For purposes of this Guaranty Agreement: (i) “Related Swap Contracts”  means all Swap
Contracts which are entered into or maintained by any Loan Party with a Lender or Affiliate of a
Lender in connection with Indebtedness of the Borrower and which are not prohibited by the express
terms of the Loan Documents; (ii) “Related Treasury Management Arrangements” means all
arrangements for the delivery of treasury management services to or for the benefit of any Loan
Party which are entered into or maintained with a Lender or Affiliate of a Lender and which are
not prohibited by the express terms of the Loan Documents; and (iii) “Related Credit
Arrangements”  means, collectively, Related Swap Contracts and Related Treasury Management
Arrangements.



     2. Payment. If the Borrower shall default in payment or performance of any of
the Guaranteed Liabilities, whether principal, interest, premium, fee (including, but not
limited to, loan fees and Attorney Costs), or otherwise, when and as the same shall become due, and
after expiration of any applicable grace period, whether according to the terms of the Credit
Agreement, by acceleration, or otherwise, or upon the occurrence and during the continuance of
any Event of Default under the Credit Agreement, then any or all of the Guarantors will, upon
demand thereof by the Administrative Agent, fully pay to the Administrative Agent, for the
benefit of the Secured Parties, subject to any restriction on each Guarantor’s Obligations set
forth in Section 1 hereof, an amount equal to all the Guaranteed Liabilities then due and
owing.



     3. Absolute
Rights and Obligations. This is a guaranty of payment and not of
collection. The Guarantors’ Obligations under this Guaranty Agreement shall be joint and
several, absolute and unconditional irrespective of, and each Guarantor hereby expressly
waives, to the extent permitted by law, any defense to its obligations under this Guaranty Agreement
to which it is a party by reason of:






F-2









 









     (a) any lack of legality, validity or enforceability of the Credit Agreement, of
any of the Notes, of any other Loan Document, or of any other agreement or instrument
creating, providing security for, or otherwise relating to any of the Guarantors’
Obligations, any of the Guaranteed Liabilities, or any other guaranty of any of the
Guaranteed Liabilities (the Loan Documents and all such other agreements and
instruments being collectively referred to as the “Related
Agreements”);




     (b) any action taken under any of the Related Agreements, any exercise of any
right or power therein conferred, any failure or omission to enforce any right conferred
thereby, or any waiver of any covenant or condition therein provided;




     (c) any acceleration of the maturity of any of the Guaranteed Liabilities, of
the Guarantor’s Obligations of any other Guarantor, or of any other obligations or
liabilities of any Person under any of the Related Agreements;




     (d) any release, exchange, non-perfection, lapse in perfection, disposal,
deterioration in value, or impairment of any security for any of the Guaranteed
Liabilities, for any of the Guarantor’s Obligations of any Guarantor, or for any other
obligations or liabilities of any Person under any of the Related Agreements;




     (e) any dissolution of the Borrower or any Guarantor or any other party to a
Related Agreement, or the combination or consolidation of the Borrower or any
Guarantor or any other party to a Related Agreement into or with another entity or any
transfer or disposition of any assets of the Borrower or any Guarantor or any other party
to a Related Agreement;




     (f) any extension (including without limitation extensions of time for
payment), renewal, amendment, restructuring or restatement of, any acceptance of late or
partial payments under, or any change in the amount of any borrowings or any credit
facilities available under, the Credit Agreement, any of the Notes or any other Loan
Document or any other Related Agreement, in whole or in part;




     (g) the existence, addition, modification, termination, reduction or impairment
of value, or release of any other guaranty (or security therefor) of the Guaranteed
Liabilities (including without limitation the Guarantor’s Obligations of any other
Guarantor and obligations arising under any other Guaranty now or hereafter in effect);




     (h) any waiver of, forbearance or indulgence under, or other consent to any change in or
departure from any term or provision contained in the Credit Agreement, any other Loan Document or
any other Related Agreement, including without limitation any term pertaining to the payment or
performance of any of the Guaranteed Liabilities, any of the Guarantor’s Obligations of any other
Guarantor, or any of the obligations or liabilities of any party to any other Related Agreement;





F-3









 









     (i) any rights it has to require the Secured Parties (or any of them) to marshal,
foreclose upon, sell, or otherwise realize upon or collect or apply any particular part of
any other assets securing any of the Guaranteed Liabilities (including any rights arising
by virtue of Sections 2899 and 3433 of the California Civil Code);




     (j) any and all benefits or defenses, if any, arising directly or indirectly under
any one or more of Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838,
2839, 2845, 2848, 2849, and 2850 of the California Civil Code, Sections 580a, 580b, 580c,
580d, and 726 of the California Code of Civil Procedure, and Sections 3116, 3118, 3119,
3419, 3605, 9504, 9505, and 9507 of the California Uniform Commercial Code; and




     (k) any other circumstance whatsoever (with or without notice to or knowledge of any
Guarantor) which may or might in any manner or to any extent vary the risks of such
Guarantor, or might otherwise constitute a legal or equitable defense available to, or
discharge of, a surety or a guarantor, including without limitation (i) any right to
require or claim that resort be had to the Borrower or any other Loan Party or to any
collateral in respect of the Guaranteed Liabilities or Guarantors’ Obligations and (ii) the
operation of Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or
any similar law of the State of California or any other jurisdiction.



It is the express purpose and intent of the parties hereto that this Guaranty Agreement and the
Guarantors’ Obligations hereunder and under each Guaranty Joinder Agreement shall be absolute and
unconditional under any and all circumstances and shall not be discharged except by payment as
herein provided.




     4. Currency and Funds of Payment. All Guarantors’ Obligations will be paid in
lawful currency of the United States of America and in immediately available funds, regardless
of any law, regulation or decree now or hereafter in effect that might in any manner affect
the Guaranteed Liabilities, or the rights of any Secured Party with respect thereto as against the
Borrower, or cause or permit to be invoked any alteration in the time, amount or manner of
payment by the Borrower of any or all of the Guaranteed Liabilities.



     5. Events of Default. Without limiting the provisions of Section 2 hereof,
in the event that there shall occur and be continuing an Event of Default, then notwithstanding any
collateral or other security or credit support for the Guaranteed Liabilities, at the
Administrative Agent’s election and without notice thereof or demand therefor, the Guarantors’ Obligations
shall immediately be and become due and payable.



     6. Subordination. Until this Guaranty Agreement is terminated in accordance with
Section 22 hereof, each Guarantor hereby unconditionally subordinates all present and
future debts, liabilities or obligations now or hereafter owing to such Guarantor (i) of the
Borrower, to the payment in full of the Guaranteed Liabilities, (ii) of every other Guarantor (an
“obligated guarantor”), to the payment in full of the Guarantors’ Obligations of such obligated
guarantor, and (iii) of each other Person now or hereafter constituting a Loan Party, to the payment in
full of the obligations of such Loan Party owing to any Secured Party and arising under the Loan
Documents or the Related Credit Arrangements. All amounts due under such subordinated




F-4









 








debts, liabilities, or obligations shall, upon the occurrence and during the continuance of an
Event of Default, be collected and, upon request by the Administrative Agent, paid over forthwith
to the Administrative Agent for the benefit of the Secured Parties on account of the Guaranteed
Liabilities, the Guarantors’ Obligations, or such other obligations, as applicable, and, after such
request and pending such payment, shall be held by such Guarantor as agent and bailee of the
Secured Parties separate and apart from all other funds, property and accounts of such Guarantor.




     7. Suits. Each Guarantor from time to time shall pay to the Administrative Agent
for the benefit of the Secured Parties, on demand, at the Administrative Agent’s place of
business set forth in the Credit Agreement or such other address as the Administrative Agent
shall give notice of to such Guarantor, the Guarantors’ Obligations as they become or are
declared due, and in the event such payment is not made forthwith, the Administrative Agent
may proceed to suit against any one or more or all of the Guarantors. At the Administrative
Agent’s election, one or more and successive or concurrent suits may be brought hereon by the
Administrative Agent against any one or more or all of the Guarantors, whether or not suit has
been commenced against the Borrower, any other Guarantor, or any other Person and whether or
not the Secured Parties have taken or failed to take any other action to collect all or any
portion of the Guaranteed Liabilities or have taken or failed to take any actions against any
collateral securing payment or performance of all or any portion of the Guaranteed Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3 hereof.



     8. Set-Off and Waiver. Each Guarantor waives any right to assert against any
Secured Party as a defense, counterclaim, set-off, recoupment or cross claim in respect of its
Guarantor’s Obligations, any defense (legal or equitable) or other claim which such Guarantor
may now or at any time hereafter have against the Borrower or any or all of the Secured
Parties without waiving any additional defenses, set-offs, counterclaims or other claims otherwise
available to such Guarantor. For the purposes of this
Section 8, all remittances and
property shall be deemed to be in the possession of a Secured Party as soon as the same may be put in
transit to it by mail or carrier or by other bailee.



     9. Waiver of Notice; Subrogation.




     (a) Each Guarantor hereby waives to the extent permitted by law notice of the
following events or occurrences: (i) acceptance of this Guaranty Agreement; (ii) the
Lenders’ heretofore, now or from time to time hereafter making Loans and issuing Letters of
Credit and otherwise loaning monies or giving or extending credit to or for the benefit of
the Borrower or any other Loan Party, or otherwise entering into arrangements with any Loan
Party giving rise to Guaranteed Liabilities, whether pursuant to the Credit Agreement or
the Notes or any other Loan Document or Related Agreement or any amendments, modifications,
or supplements thereto, or replacements or extensions thereof; (iii) presentment, demand,
default, non-payment, partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof. Each Guarantor agrees that each Secured
Party may heretofore, now or at any time hereafter do any or all of the foregoing in such
manner, upon such terms and at such times as each Secured Party, in its sole and absolute
discretion, deems advisable, without in any way or






F-5









 









respect impairing, affecting, reducing or releasing such Guarantor from its Guarantor’s
Obligations, and each Guarantor hereby consents to each and all of the foregoing events or
occurrences.




     (b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of its Guarantor’s Obligations under this Guaranty Agreement may be
enforced by the Administrative Agent on behalf of the Secured Parties upon demand by
the Administrative Agent to such Guarantor without the Administrative Agent being
required, such Guarantor expressly waiving to the extent permitted by law any right it
may have to require the Administrative Agent, to (i) prosecute collection or seek to
enforce or resort to any remedies against the Borrower or any other Guarantor or any
other guarantor of the Guaranteed Liabilities, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances granted to the
Administrative Agent or any Lender or other party to a Related Agreement by the
Borrower, any other Guarantor or any other Person on account of the Guaranteed
Liabilities or any guaranty thereof, including in either case any defense based upon an
election of remedies by any Secured Party under the provisions of Sections 580a, 580b,
580d, and 726 of the California Code of Civil Procedure or any similar law of the State of
California or any other jurisdiction. In making this waiver, each Guarantor specifically
acknowledges that it understands and is aware that, under Sections 580b and 580d of the
California Code of Civil Procedure, if the Secured Parties (or any of them) conducted a
nonjudicial foreclosure sale of real property collateral: (i) such Secured Party(ies) would
lose the right to pursue the Borrower for any deficiency that might remain following such
sale; (ii) if such Guarantor were to pay such deficiency following such sale, it would be
precluded from pursuing the Borrower for reimbursement; and (iii) as a result, such
Secured Party(ies) would be prevented from pursuing such Guarantor for such deficiency
following such sale. IT IS FURTHER EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT
DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE
ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED
BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST DATE
ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE
CREDIT AGREEMENT.




     (c) Each Guarantor further agrees with respect to this Guaranty Agreement
that it shall have no right of subrogation, reimbursement, contribution or indemnity, nor
any right of recourse to security for the Guaranteed Liabilities unless and until 93 days
immediately following the Facility Termination Date (as defined below) shall have
elapsed without the filing or commencement, by or against any Loan Party, of any state
or federal action, suit, petition or proceeding seeking any reorganization, liquidation or
other relief or arrangement in respect of creditors of, or the appointment of a receiver,
liquidator, trustee or conservator in respect to, such Loan Party or its assets. This waiver
is expressly intended to prevent the existence of any claim in respect to such subrogation,
reimbursement, contribution or indemnity by any Guarantor against the estate of any
other Loan Party within the meaning of Section 101 of the Bankruptcy Code, in the event
of a subsequent case involving any other Loan Party. If an amount shall be paid to any




F-6









 









Guarantor on account of such rights at any time prior to termination of this Guaranty
Agreement in accordance with the provisions of Section 22 hereof, such amount shall
be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the
Administrative Agent, for the benefit of the Secured Parties, to be credited and applied
upon the Guarantors’ Obligations, whether matured or unmatured, in accordance with the terms
of the Credit Agreement or otherwise as the Secured Parties may elect. The agreements in
this subsection shall survive repayment of all of the Guarantors’ Obligations, the
termination or expiration of this Guaranty Agreement in any manner, including but not
limited to termination in accordance with Section 22 hereof, and occurrence of the
Facility Termination Date. For purposes of this Guaranty Agreement, “Facility
Termination Date” means the date as of which all of the following shall have occurred:
(a) the Borrower shall have permanently terminated the credit facilities under the Loan
Documents by final payment in full of all Outstanding Amounts, together with all accrued and
unpaid interest and fees thereon, other than (i) the undrawn portion of Letters of Credit
and (ii) all letter of credit fees relating thereto 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) all Commitments shall have
terminated or expired; (c) the obligations and liabilities of the Borrower and each other
Loan Party under all Related Credit Arrangements shall have been fully, finally and
irrevocably paid and satisfied in full and the Related Credit Arrangements shall have
expired or been terminated, or other arrangements satisfactory to the counterparties shall
have been made with respect thereto; and (d) the Borrower and each other Loan Party shall
have fully, finally and irrevocably paid and satisfied in full all of their respective
obligations and liabilities arising under the Loan Documents, including with respect to the
Borrower and the Obligations (except for future obligations consisting of continuing
indemnities and other contingent Obligations of the Borrower or any Loan Party that may be
owing to any Agent-Related Person or any Lender pursuant to the Loan Documents and expressly
survive termination of the Credit Agreement or any other Loan Document).



     10. Effectiveness;
Enforceability. This Guaranty Agreement shall be effective as of
the date first above written and shall continue in full force and effect until termination in
accordance with Section 22 hereof. Any claim or claims that the Secured Parties may
at any time hereafter have against a Guarantor under this Guaranty Agreement may be asserted by the
Administrative Agent on behalf of the Secured Parties by written notice directed to such
Guarantor in accordance with Section 24 hereof.



     11. Representations
and Warranties. Each Guarantor warrants and represents to
the Administrative Agent, for the benefit of the Secured Parties, that it is duly authorized
to execute and deliver this Guaranty Agreement (or the Guaranty Joinder Agreement to which it is
a party, as applicable), and to perform its obligations under this Guaranty Agreement, that
this Guaranty Agreement (or the Guaranty Joinder Agreement to which it is a party, as applicable)
has been duly executed and delivered on behalf of such Guarantor by its duly authorized




F-7









 








representatives; that this Guaranty Agreement (and any Guaranty Joinder Agreement to which such
Guarantor is a party) is legal, valid, binding and enforceable against such Guarantor in accordance
with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles; and that such Guarantor’s execution, delivery and performance of this
Guaranty Agreement (and any Guaranty Joinder Agreement to which such Guarantor is a party) do not
violate or constitute a breach of any of its Organizational Documents, any agreement or instrument
to which such Guarantor is a party, or any law, order, regulation, decree or award of any
governmental authority or arbitral body to which it or its properties or operations is subject.




     12. Expenses. Each Guarantor agrees to be jointly and severally liable for the
payment of all reasonable fees and expenses, including Attorney Costs, incurred by any Secured
Party in connection with the enforcement of this Guaranty Agreement, whether or not suit be
brought.



     13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement shall
continue to be effective or be reinstated, as the case may be, at any time payment received by
any Secured Party in respect of any Guaranteed Liabilities is rescinded or must be restored for
any reason, or is repaid by any Secured Party in whole or in part in good faith settlement of any
pending or threatened avoidance claim.



     14. Attorney-in-Fact. To the extent permitted by law, each Guarantor hereby
appoints the Administrative Agent, for the benefit of the Secured Parties, as such Guarantor’s
attorney-in-fact for the purposes of carrying out the provisions of this Guaranty 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 coupled with an
interest and is irrevocable; 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.



     15. Reliance. Each Guarantor represents and warrants to the Administrative Agent,
for the benefit of the Secured Parties, that: (a) such Guarantor has adequate means to obtain
on a continuing basis (i) from the Borrower, information concerning the Loan Parties and the Loan
Parties’ financial condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement and any
Guaranty Joinder Agreement (“Other Information”), and has full and complete access to the
Loan Parties’ books and records and to such Other Information; (b) such Guarantor is not
relying on any Secured Party or its or their employees, directors, agents or other representatives or
Affiliates, to provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other Loan Documents
and Related Agreements as it has requested, is executing this Guaranty Agreement (or the
Guaranty Joinder Agreement to which it is a party, as applicable) freely and deliberately, and
understands the obligations and financial risk undertaken by providing this Guaranty Agreement
(and any Guaranty Joinder Agreement); (d) such Guarantor has relied solely on the Guarantor’s
own independent investigation, appraisal and analysis of the Borrower, the Borrower’s
financial




F-8









 








condition and affairs, the “Other Information”, and such other matters as it deems material in
deciding to provide this Guaranty Agreement (and any Guaranty Joinder Agreement) and is fully aware
of the same; and (e) such Guarantor has not depended or relied on any Secured Party or its or their
employees, directors, agents or other representatives or Affiliates, for any information whatsoever
concerning the Borrower or the Borrower’s financial condition and affairs or any other matters
material to such Guarantor’s decision to provide this Guaranty Agreement (and any Guaranty Joinder
Agreement), or for any counseling, guidance, or special consideration or any promise therefor with
respect to such decision. Each Guarantor agrees that no Secured Party has any duty or
responsibility whatsoever, now or in the future, to provide to such Guarantor any information
concerning the Borrower or the Borrower’s financial condition and affairs, or any Other
Information, other than as expressly provided herein, and that, if such Guarantor receives any such
information from any Secured Party or its or their employees, directors, agents or other
representatives or Affiliates, such Guarantor will independently verify the information and will
not rely on any Secured Party or its or their employees, directors, agents or other representatives
or Affiliates, with respect to such information.




     16. Rules of Interpretation. The rules of interpretation contained in Sections
1.02 and 1.10 of the Credit Agreement shall be applicable to this Guaranty Agreement and
each Guaranty Joinder Agreement and are hereby incorporated by reference. All representations and
warranties contained herein shall survive the delivery of documents and any extension of
credit referred to herein or guaranteed hereby.



     17. Entire Agreement. This Guaranty Agreement and each Guaranty 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, understandings,
inducements, commitments or conditions, express or implied, oral or written, except as herein contained.
The express terms hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof. Except as provided in
Section 22,
neither this Guaranty Agreement nor any Guaranty 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.



     18. Binding Agreement; Assignment. This Guaranty Agreement, each Guaranty
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 thereto, and to their respective
heirs, legal representatives, successors and assigns; provided,
however, that no Guarantor shall be
permitted to assign any of its rights, powers, duties or obligations under this Guaranty Agreement, any
Guaranty Joinder Agreement or any other interest herein or therein without the prior written
consent of the Administrative Agent. Without limiting the generality of the foregoing
sentence of this Section 18, 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 the benefits in respect thereof granted to such Lender herein
or otherwise, subject however, to the provisions of the Credit Agreement, including Article
IX





F-9









 








thereof (concerning the Administrative Agent) and Section 10.07 thereof concerning
assignments and participations. All references herein to the Administrative Agent shall include any
successor thereof.




     19. Related Credit Arrangements. All obligations of any Loan Party under Related
Credit Arrangements to which any Lender or its Affiliates are a party shall be deemed to be
Guaranteed Liabilities in accordance with Section 1, and each Lender or Affiliate of a
Lender party to any such Related Credit Arrangement shall be deemed to be a Secured Party hereunder
with respect to such Guaranteed Liabilities; provided,
however, that such obligations
shall cease to be Guaranteed Liabilities at such time, prior to the Facility Termination Date, as such
Person (or Affiliate of such Person) shall cease to be a “Lender” under the Credit Agreement.



     No Person who obtains the benefit of this Guaranty Agreement by virtue of the provisions of
this Section and the definition of “Secured Parties” and “Guaranteed Liabilities” shall have,
prior to the Facility Termination Date, any right to notice of any action or to consent to, direct
or object to any action hereunder or under any other Loan Document or otherwise in respect of the
Guarantors’ Obligations (including the release or modification of any Guarantors’ Obligations or
security therefor) other than in its capacity as a Lender and only to the extent expressly
provided in the Loan Documents. Each Secured Party not a party to the Credit Agreement who obtains
the benefit of this Guaranty Agreement by virtue of the provisions of this Section and the
definition of “Secured Parties” and “Guaranteed Liabilities” 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 Agent-Related Person shall be entitled to all the rights, benefits
and immunities conferred under Article IX of the Credit Agreement.



     20. Severability. The provisions of this Guaranty 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 Guaranty Agreement shall be construed as if such invalid
or unenforceable provision had never been contained herein.



     21. Counterparts. This Guaranty 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 Guaranty Agreement to produce or account for
more than one such counterpart executed by the Guarantor against whom enforcement is sought.
Without limiting the foregoing provisions of this
Section 21, the provisions of
Section 10.11 of the Credit Agreement shall be applicable to this Guaranty Agreement.



     22. Termination. Subject to reinstatement pursuant to Section 13 hereof,
this Guaranty Agreement and each Guaranty Joinder Agreement, and all of the Guarantors’
Obligations hereunder (excluding those Guarantors’ obligations relating to
Guaranteed Liabilities that expressly survive such termination) shall terminate on the Facility
Termination Date.






F-10









 








     23. Remedies Cumulative; Late Payments. All remedies hereunder are cumulative
and are not exclusive of any other rights and remedies of the Administrative Agent or any
other Secured Party provided by law or under the Credit Agreement, the other Loan Documents or
other applicable agreements or instruments. The making of the Loans and other credit
extensions pursuant to the Credit Agreement and other Related Agreements shall be conclusively
presumed to have been made or extended, respectively, in reliance upon each Guarantor’s
guaranty of the Guaranteed Liabilities pursuant to the terms hereof. Any amounts not paid when
due under this Guaranty Agreement shall bear interest at the Default Rate.



     24. Notices. Any notice required or permitted hereunder or under any Guaranty
Joinder Agreement shall be given, (a) with respect to each Guarantor, at the address of the
Borrower indicated in Schedule 10.02 of the Credit Agreement and (b) with respect to
the Administrative Agent or any other Secured Party, 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.



     25. Joinder. Each Person who shall at any time execute and deliver to the
Administrative Agent a Guaranty Joinder Agreement substantially in the form attached as
Exhibit A hereto shall thereupon irrevocably, absolutely and unconditionally become a party
hereto and obligated hereunder as a Guarantor, and all references herein and in the other Loan
Documents to the Guarantors or to the parties to this Guaranty Agreement shall be deemed to
include such Person as a Guarantor hereunder.



     26. Revocation. Each Guarantor absolutely, unconditionally, knowingly, and
expressly waives any right to revoke such Guarantor’s guaranty obligation hereunder as to
future Guaranteed Liabilities and, in light thereof, all protection afforded such Guarantor under
Section 2815 of the California Civil Code. Each Guarantor fully realizes and understands that, upon
execution of this Agreement, such Guarantor will not have any right to revoke this Agreement
as to any future indebtedness and, thus, may have no control over such Guarantor’s ultimate
responsibility for the amount and nature of the Guaranteed Liabilities.



     27. Governing
Law; Venue; Waiver of Jury Trial. The provisions of Section 10.15 and 10.16(d) of the Credit Agreement are hereby incorporated by
reference as if fully set forth herein; provided, that in such sections, as incorporated herein, references to
the Credit Agreement shall be deemed to be references to the Guaranty Agreement.



[Signature page follows.]





F-11










 







     IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Guaranty
Agreement as of the day and year first written above.



	 	 	 	 	 	 	 
	 	 	 	GUARANTORS:
	 
	 	 	 	 	 	 
	 	 	 	 	GRANITE CONSTRUCTION
COMPANY, a

California corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	GRANITE LAND COMPANY, a California corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	INTERMOUNTAIN SLURRY
SEAL, INC., a

Wyoming corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	POZZOLAN PRODUCTS COMPANY (P.P.C.),

a Utah corporation
	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





F-12









 






	 	 	 	 	 	 	 
	 	 	 	 	GILC, LP, a California limited partnership
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	,
	 

	 	 	 	 	 	its general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	GRANITE HALMAR CONSTRUCTION

COMPANY, INC., a New York corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





F-13









 






	 	 	 	 	 	 	 
	 	 	 	 	ADMINISTRATIVE AGENT:
	 
	 	 	 	 	 	 
	 	 	 	 	BANK OF AMERICA, N.A., as Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





F-14









 






EXHIBIT A




Form of Guaranty Joinder Agreement




GUARANTY JOINDER AGREEMENT




     THIS
GUARANTY JOINDER AGREEMENT (the “Guaranty Joinder
Agreement”), dated as of
                                        ,
20         is made by                                                             , a
                                        
(the “Joining Guarantor”), delivered to BANK OF AMERICA, N.A., in its
capacity as Administrative Agent (the “Administrative Agent”) under that certain Credit Agreement
(as amended, revised, modified, supplemented or amended and restated from time to time, the
“Credit Agreement”), dated as of June [24], 2005, by and among Granite Construction Incorporated
(the “Borrower”), the Lenders party thereto and the Administrative Agent. All capitalized terms
not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.



     WHEREAS, the Joining Guarantor is a Subsidiary and required by the terms of the Credit
Agreement to become a “Guarantor” under the Credit Agreement and be joined as a party to the
Guaranty; and



     WHEREAS, the Joining Guarantor will materially benefit directly and indirectly from the
credit facilities made available and to be made available to the Borrower by the Lenders under the
Credit Agreement; and



     NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the Administrative Agent,
for the benefit of the Secured Parties (as defined in the Guaranty and including any Lender or
Affiliate of any Lender party to any Related Credit Arrangement):



     1. Joinder. The Joining Guarantor hereby irrevocably, absolutely
and unconditionally becomes a party to the Guaranty as a Guarantor and bound by all the terms,
conditions, obligations, liabilities and undertakings of each Guarantor or to which each
Guarantor is subject thereunder, including without limitation the joint and several, unconditional,
absolute, continuing and irrevocable guarantee to the Administrative Agent for the benefit of the
Secured Parties of the payment and performance in full of the Guaranteed Liabilities (as defined in
the Guaranty) whether now existing or hereafter arising, all with the same force and effect as if
the Joining Guarantor were a signatory to the Guaranty.



     2. Affirmations. The Joining Guarantor hereby acknowledges and reaffirms 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 Guarantor
contained in the Guaranty.



     3. Severability. The provisions of this Guaranty 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



F-15









 





enforceability of any other provision hereof, but this Guaranty Joinder Agreement shall be
construed as if such invalid or unenforceable provision had never been contained herein.




     4. Counterparts. This Guaranty 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 Guaranty Joinder Agreement to produce or account for more
than one such counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 10.11 of the Credit
Agreement shall be applicable to this Guaranty Joinder Agreement.



     5. Delivery. Joining Guarantor hereby irrevocably waives notice of acceptance of
this Guaranty Joinder Agreement and acknowledges that the Guaranteed Liabilities are and shall be
deemed to be incurred, and credit extensions under the Loan Documents and the Related Credit
Arrangements made and maintained, in reliance on this Guaranty Joinder Agreement and the
Guarantor’s joinder as a party to the Guaranty as herein provided.



     6. Governing
Law; Venue; Waiver of Jury Trial. The provisions of
Section 27 of the
Guaranty are hereby incorporated by reference as if fully set forth herein.



[Signature page follows.]





F-16









 








     IN WITNESS WHEREOF, the Joining Guarantor has duly executed and delivered this
Guaranty Joinder Agreement as of the day and year first written above.



	 	 	 	 	 	 	 
	 	 	JOINING GUARANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





F-17









 






EXHIBIT G




OPINION MATTERS




See attached.







G-1









 













June 24, 2005




Bank of America, N.A.,

       as Administrative Agent and the Lenders,

       as defined below

Mail Code: CA5-705-12-14

555 California Street, 12th Floor

San Francisco, CA 94104



Ladies and Gentlemen:




     I have acted as counsel for Granite Construction Incorporated, a Delaware corporation
(“Borrower”), in connection with (a) that certain Credit Agreement dated as of June 24, 2005
(the “Credit Agreement”), by and among Borrower, the several financial institutions from time
to time parties to the Credit Agreement (the “Lenders”) and Bank of America, N.A., as
administrative agent for the Lenders (the “Administrative Agent”) and as the L/C
Issuer; and (b) each of the Notes (as defined in the Credit Agreement) dated as of June 24,
2005 by the Borrower in favor of the Lenders set forth in Schedule 2.01 to the Credit
Agreement. I have also represented each of Granite Construction Company, a California
corporation (“GCC”), Granite Halmar Construction Company, Inc., a New York corporation
(“GHC”), Granite Land Company, a California corporation (“GLC”), GILC, L.P., a California
limited partnership (“GILC”), Intermountain Slurry Seal, Inc., a Wyoming corporation
(“Intermountain”), Pozzolan Products Company (P.P.C.), a Utah corporation (“Pozzolan” and
together with GCC, GHC, GLC, GILC and Intermountain, each a “Guarantor” and collectively, the
“Guarantors”), each of which is a direct or indirect wholly-owned subsidiary of Borrower, in
connection with the Guaranty given by each of the Guarantors in favor of the Administrative
Agent for the benefit of Lenders guaranteeing the obligations of Borrower under the Credit
Agreement (each a “Guaranty,” and collectively, the “Guaranties”). I am rendering this opinion
pursuant to subsection 4.01(a)(vi) of the Credit Agreement. Except as otherwise defined
herein, capitalized terms used but not defined herein shall have the meanings given to them in
the Credit Agreement.



     As used herein, the term “Loan Documents” shall mean the Credit Agreement, the
Notes and the Guaranties.



     I am admitted to practice law only in the State of California, and I express no opinion
concerning any law other than the laws of the State of California, the Delaware General
Corporation Law, the laws of the United States of America, and, to the extent necessary to
render my opinion in paragraphs l(c), l(e), l(f), the second sentence of paragraph 3 and
paragraphs



	 	 	 
	 

	 	Box 50085
	 

	 	Watsonville, CA 95077-5085
	 

	 	Phone 831/724-1011
	 

	 	FAX 831/722-9657






 









 






Bank of America, N.A.,

as Administrative Agent and the Lenders

June 24, 2005

Page 2



5(d), 6 and 8, the New York Business Corporation Law, the Utah Revised Business Corporation Act and
the Wyoming Business Corporation Act. In so far as the opinions contained herein purport to relate
to the Delaware General Corporation Law, the New York Business Corporation Law, the Utah Revised
Business Corporation Act and the Wyoming Business Corporation Act (collectively, the “laws”), I
have relied on such laws as reported in standard compilations.




     In rendering this opinion, I have assumed the genuineness and authenticity of all signatures
(other than that of Borrower and each Guarantor) on original documents; the authenticity of all
documents submitted to me as originals; the conformity of originals to all documents submitted to
me as copies; the accuracy, completeness and authenticity of certificates of public officials; the
due authorization, execution and delivery of all documents (except the due authorization, execution
and delivery by Borrower of the Credit Agreement and each of the Notes and by each Guarantor of the
Guaranty to which such Guarantor is a party) where authorization, execution and delivery are
prerequisites to the effectiveness of such documents; the power and authority of the Lenders to
enter into and perform their obligations under the Loan Documents; that the Lenders are duly
qualified in the State of California to do business of the type contemplated by the Loan Documents;
that each of the Lenders qualifies for the exemption from the otherwise applicable interest rate
limitations of California law for loans or forbearances by, as the case may be: (i) national banks
provided by Article XV, Section 1 of the California Constitution; or (ii) certain “foreign (other
nation) banks” provided by California Financial Code Section 1716; or (iii) state banks provided by
Article XV, Section 1 of the California Constitution; that all loans under the Credit Agreement
will be made by the Lenders for their own accounts or for the account of another person or entity
that qualifies for an exemption from the interest rate limitations of California law, and there is
no present agreement or plan, express or implied, on the part of the Lenders to sell participations
or any other interest in the loans to be made under the Credit Agreement to any person or entity
other than a person or entity that also qualifies for an exemption from the interest rate
limitations of California law; and with respect to matters of fact (as distinguished from matters
of law), I also have relied upon and assumed that the representations of the Borrower and each
Subsidiary and the other parties set forth in the Loan Documents and any other certificates,
instruments or agreements executed in connection therewith or delivered to me are true, correct,
complete and not misleading, although to my knowledge the representations of the Borrower and each
Subsidiary set forth in the Loan Documents and any such other certificates, instruments and
agreements are true, correct, complete and not misleading. I have also assumed that all individuals
executing and delivering documents on behalf of the Lenders and Administrative Agent had the legal
capacity to so execute and deliver and that the Loan Documents are obligations binding upon Lenders
and Administrative Agent.



 









 





Bank of America, N.A.,

as Administrative Agent and the Lenders

June 24, 2005

Page 3



     With respect to my opinions in paragraph 4(c) and 5(c) below, I have relied upon copies,
supplied to me by the Borrower or a Guarantor, of each undertaking, contract, indenture, mortgage,
deed of trust or other instrument, document or agreement, (i) of the Borrower solely as listed on
the Index to Form 10K Exhibits to the Borrower’s Annual Report on Form 10K for the fiscal year
ending December 31, 2004 and (ii) of the Borrower or any Guarantor solely as listed on
Schedule A hereto. Other than as set forth on Schedule A, as of May 31, 2005, the Borrower
and each of the Guarantors are not party to or bound by any other agreement in excess of
$30,000,000.00.



     In
rendering my opinion in paragraph 6, I have relied solely on a certificate of good
standing from each of the Secretary of State’s office of each of the states listed below the
Borrower’s and each Guarantor’s name on
Exhibit 1.



     Where I render an opinion “to the best of my knowledge” or concerning an item “known to me” or
my opinion otherwise refers to my “knowledge,” it is intended to indicate that during the course of
my representation of Borrower and the Guarantors, no information that would give me current actual
knowledge of the inaccuracy of such statement has come to my attention in rendering legal services
to Borrower or the Guarantors, having made diligent inquiries of those employees of Borrower or
Guarantors whom I reasonably believe would have actual knowledge of the matters discussed, or the
knowledge I would have had of such fact, circumstance, event or other matter if I had made such
diligent inquiries of such employees.



     On the basis of the foregoing, in reliance thereon, and with the foregoing qualifications, I
am of the opinion that:



     1. (a) Borrower is a corporation, duly incorporated and validly existing under the
laws of Delaware and has the requisite corporate power and authority to own its property and to
conduct the business in which it is currently engaged; (b) Each of GCC and GLC is a corporation
duly incorporated and validly existing under the laws of California and has the requisite corporate
power and authority to own its property and to conduct the business in which it is currently
engaged; (c) GHC is a corporation duly incorporated and validly existing under the laws of New York
and has the requisite corporate power and authority to own its property and to conduct the business
in which it is currently engaged; (d) GILC is a California limited partnership validly existing
under the laws of California and has the requisite partnership power and authority to own its
property and to conduct the business in which it is currently engaged; (e) Intermountain is a
corporation duly incorporated and validly existing under the laws of Wyoming and has the requisite
corporate power and authority to own its property and to conduct the business in which it is
currently engaged; (f) Pozzolan is a corporation duly incorporated and validly existing under the
laws of Utah and has the requisite corporate power and authority to own its property and to conduct
the business in which it is currently engaged.



 









 





Bank of America, N.A.,

as Administrative Agent and the Lenders

June 24, 2005

Page 4



     2. Borrower (a) has taken all necessary and appropriate corporate action to authorize the
execution, delivery and performance of the Credit Agreement and the Notes or any such other
documents as contemplated thereunder, and (b) has the corporate power and authority to execute,
deliver and perform the Credit Agreement and the Notes, or any such other documents as contemplated
thereunder. Each Guarantor (a) has taken all necessary and appropriate corporate action or
partnership action, as applicable, to authorize the execution, delivery and performance of the
Guaranty to which it is a party, and (b) has the corporate power or partnership power, as
applicable, and authority to execute, deliver and perform such Guaranty.



     3. The Credit Agreement and the Notes have been duly executed and delivered by the Borrower.
The Guaranty has been duly executed and delivered by each Guarantor. The Credit Agreement and the
Notes constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in
accordance with their terms. The Guaranty constitutes a legal, valid and binding obligation of each
Guarantor, enforceable against each Guarantor in accordance with its terms.



     4. The execution, delivery and performance by Borrower of the Credit Agreement and the Notes
do not: (a) violate or contravene any injunction, order, writ, judgment, decree, determination or
award of any United States or Governmental Authority as presently in effect applicable to Borrower;
(b) conflict with or result in a breach of or constitute a default under the certificate of
incorporation and bylaws of Borrower; (c) violate or result in a breach of or constitute any
default under any agreements of Borrower, and, do not result in or require the creation or
imposition of any lien on any of Borrower’s properties or revenues pursuant to any injunction,
order, decree or undertaking as presently in effect or any such agreements of Borrower; or (d)
result in or require the creation or imposition of any lien on any of its properties or revenues
pursuant to any provision of any law, rule or regulation as presently in effect.



     5. The execution, delivery and performance by each Guarantor of its Guaranty do not: (a)
violate or contravene any injunction, order, writ, judgment, decree, determination or award of any
United States or Governmental Authority as presently in effect applicable to each Guarantor; (b)
conflict with or result in a breach of or constitute a default under the articles/certificates of
incorporation and bylaws or partnership agreements, as applicable, of each Guarantor; (c) violate
or result in a breach of or constitute any default under any agreements of each Guarantor, and do
not result in or require the creation or imposition of any lien on any Guarantor’s properties or
revenues pursuant to any injunction, order, decree or undertaking as presently in effect or any
such agreements of each Guarantor; or (d) result in or require the creation or imposition of any
lien on any of its properties or revenues pursuant to any provision of any law, rule or regulation
as presently in effect.





 









 





Bank of America, N.A.,

as Administrative Agent and the Lenders

June 24, 2005

Page 5



     6. Borrower and each of the Guarantors are duly qualified to do business and are in good
standing in the states listed below their names on Exhibit 1 attached hereto.



     7. No authorization, consent, approval, license, qualification or formal exemption from, nor
notice to, nor any filing, recordation, declaration or registration with, any United States or
California Governmental Authority, or to my knowledge any other Governmental Authority, is
necessary or required on the part of Borrower in connection with the execution, delivery, or
performance by Borrower of the Credit Agreement and the Notes.



     8. No authorization, consent, approval, license, qualification or formal exemption from, nor
notice to, nor any filing, recordation, declaration or registration with any United States or
California Governmental Authority, or to my knowledge any other Governmental Authority, is
necessary or required on the part of each Guarantor in connection with the execution, delivery, or
performance by each Guarantor of the Guaranty.



     9. There is no claim, dispute, injunction, temporary restraining order, action, litigation,
investigation or proceeding pending or, to the best of my knowledge, threatened against Borrower
before any court, arbitrator, administrative agency or Governmental Authority of any kind which, if
adversely determined, would have a Material Adverse Effect with respect to the Credit Agreement or
the Notes.



     10. Other than the litigation described in Exhibit 2 attached hereto, there is no
claim, dispute, injunction, temporary restraining order, action, litigation, investigation or
proceeding pending or, to the best of my knowledge, threatened against any Guarantor before any
court, arbitrator, administrative agency or Governmental Authority of any kind which, if adversely
determined, would have a Material Adverse Effect with respect to the Credit Agreement, the Notes,
or any Guaranty.



     11. Neither the Borrower nor any Guarantor is an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940,
as amended. Neither the Borrower nor any Subsidiary is subject to regulation under the Public
Utility Holding Company Act of 1935, the Interstate Commerce Act or the Federal Power Act, which
would limit its ability to incur Indebtedness.



     12. Neither the Borrower nor any Guarantor is generally engaged in the business of purchasing
or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.
The aggregate value of all Margin Stock directly or indirectly owned by the Borrower and its
Guarantors is less than 25% of the aggregate value of the consolidated assets of the Borrower and
its Guarantors.



 









 





Bank of America, N.A.,

as Administrative Agent and the Lenders

June 24, 2005

Page 6



     13. The only Subsidiaries of Borrower are the Guarantors and GILC Incorporated, a
California corporation, Granite SR 91 Corporation, a California corporation, GTC, Inc., a Texas
corporation, Wilcott Corporation, a Colorado corporation, Granite Construction International, a
California corporation, Wilder Construction Company, a Washington corporation, Granite Road
Builders, a British Columbia company, and Granite SR 91 L.P., a California limited partnership, of
which Granite SR 91 Corporation is the general partner and Borrower is the sole limited partner,
and those identified in Schedule 5.13 to the Credit Agreement.



     This opinion is intended solely for the benefit of the Administrative Agent, and the Lenders
and their Assignees and Participants, as defined in Section 10.07(d) of the Credit Agreement, and
is not to be made available to or relied upon by any other person, firm, or entity, other than
regulatory authorities and their respective legal counsel in connection with bank examinations,
without our prior written consent.



Very truly yours,




	 	 	 
	/s/ James M. Cady

	 	 
	 
	 	 
	James M. Cady

Assistant General Counsel and Assistant Secretary
	 	 







 









 






EXHIBIT 1




	 	 	 
	 	 	STATE OF
	COMPANY	 	INCORPORATION/QUALIFICATION
	Granite Construction Incorporated

	 	Delaware*
	(Borrower)

	 	California
	Granite Construction Company

	 	California*
	 

	 	Arizona
	 

	 	Arkansas
	 

	 	Colorado
	 

	 	Florida
	 

	 	Georgia
	 

	 	Idaho
	 

	 	Kentucky
	 

	 	Maryland
	 

	 	Minnesota
	 

	 	Missouri
	 

	 	Nevada
	 

	 	New Jersey
	 

	 	New Mexico
	 

	 	New York
	 

	 	North Carolina
	 

	 	Oklahoma
	 

	 	Pennsylvania
	 

	 	Tennessee
	 

	 	Texas
	 

	 	Utah
	 

	 	Virginia
	 

	 	Washington
	 

	 	Wyoming
	Granite Halmar Construction Company,

	 	New York*
	Inc.

	 	Connecticut
	 

	 	New Jersey
	 

	 	Pennsylvania
	Granite Land Company

	 	California*
	GILC, L.P.

	 	California*
	 

	 	Arizona
	 

	 	Colorado
	 

	 	Florida
	 

	 	Georgia
	 

	 	Idaho
	 

	 	Missouri
	 

	 	Nevada
	 

	 	New Mexico
	 

	 	Texas






 









 






	 	 	 
	 	 	STATE OF
	COMPANY	 	INCORPORATION/QUALIFICATION
	 

	 	Utah
	 

	 	Wyoming
	Intermountain Slurry Seal, Inc.

	 	Wyoming*
	 

	 	Arizona
	 

	 	California
	 

	 	Colorado
	 

	 	Idaho
	 

	 	Nevada
	 

	 	New Mexico
	 

	 	Oregon
	 

	 	Utah
	 

	 	Washington
	Pozzolan Products Company (P.P.C.)

	 	Utah*
	 

	 	Arizona
	 

	 	California
	 

	 	Colorado
	 

	 	Idaho
	 

	 	Nevada








 




	*	 	State of Incorporation/Organization






 









 








EXHIBIT 2




USA ex rel Maxfield & Peterson v. Wasatch. Granite Construction Company, et
al., Case No. 2:99CV-0040-PGC




Granite Construction Company, as a member of a joint venture, Wasatch Constructors, is among a
number of construction companies and the Utah Department of Transportation that were named in a
lawsuit filed in the United States District Court for the District of Utah. The plaintiffs are two
independent contractor truckers who filed the lawsuit on behalf of the United States under the
federal False Claims Act seeking to recover damages and civil penalties in excess of $46.4 million.




Among other things, the plaintiffs allege that certain defendants, who were subcontractors to
Wasatch, defrauded the Government by charging Wasatch for dirt and fill material they did not
provide and that Wasatch and UDOT knowingly paid for such excess material. The plaintiffs also
allege that Wasatch committed certain other acts including providing substandard workmanship and
materials; failure to comply with clean air and clean water standards and the filing of false
certifications regarding its entitlement to the payment of bonuses.




The original complaint was filed in January 1999 and the Third Amended Complaint was filed in
February 2003. On May 30, 2003, Wasatch Constructors and the coordinated defendants filed their
motion to dismiss the Third Amended Complaint. On December 23, 2003, the Court issued its order
granting Wasatch Constructors and the coordinated defendants’ motion to dismiss the Third Amended
Complaint but allowed the plaintiffs one last opportunity to amend their complaint. Plaintiffs’
Fourth Amended Complaint was filed on July 12, 2004. Granite believes that the allegations in the
lawsuit are without merit and intends to defend them vigorously.




Apisa, et al. v. Abraxives, Granite Construction Company, et al., Case No. CGC04432515

Arbuckle, et al. v. Abraxives, Granite Construction Company, et al., Case No. 03-427520

Barker, et al. v. Abraxives, Granite Construction Company, et al., Case No. RG04162485

Bass, et al. v. Abraxives, Granite Construction Company, et al., Case No. 04432581

Bowser, et al. v. Abraxives, Granite Construction Company, et al., Case No. CG04432171

Campos, et al. v. Abraxives, Granite Construction Company, et al., Case No. RG04161759



Granite Construction Company is one of approximately one hundred defendants named in six California
State Court lawsuits filed in 2004 where six plaintiffs have, by way of various causes of action,
including strict product and market share liability, alleged personal injuries caused by exposure
to silica products and related materials during plaintiffs’ use or association with sandblasting or
grinding concrete. The plaintiffs in each lawsuit have categorized the defendants as equipment
defendants, respirator defendants, premises defendants and sand defendants. Granite has been
identified as a sand defendant, meaning a party that manufactured, supplied or distributed
silica-containing products. Preliminary investigation reveals that Granite has not knowingly sold
or distributed abrasive silica sand for sandblasting.





 









 








Eldredge v. Las Vegas Valley Water District and Granite Construction Company,
CaseNo. A419853




On June 23, 1998, Plaintiff sustained a personal injury while working in a trench clearing dirt
around a broken Water District water line. Plaintiff filed a worker compensation claim against
Granite at the time of the injury. On June 5, 2000, Plaintiff filed a complaint against the Water
District alleging negligence. Approximately, three years later Granite was included in the lawsuit.
The trial against only Granite began on May 23, 2005, and on May 27, 2005 the jury returned a
general verdict on two causes of action (assault and battery and intentional infliction of
emotional distress) in favor of Plaintiff and awarded damages against Granite in the amount of
$8,900,000. On June 3, 2005, Plaintiff filed a Motion for Monetary Sanctions in the sum of
$26,805,000. The motion alleges Granite attempted to hide, bribe, or intimidate witnesses. Granite
is preparing the necessary post-trial motions for the court’s reconsideration of the judgment and
amount of award and a response to the Motion for Monetary Sanctions. Granite intends to vigorously
appeal the general verdict judgment and oppose the post-trial motion for sanctions.





 









 









GRANITE CONSTRUCTION INCORPORATED




Schedule A

LIST OF CONTRACTS IN EXCESS OF $30,000,000 as of
April 30, 2005




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Original	 	 	Estimated	 	Backlog Amount	 
	Contract Description	 	Customer Name	 	Contract Amount	 	 	Completion Date	 	as of 04/30/05	 
	Highway 50
	 	CA Department of Transportation	 	 	30,852,952	 	 	Feb-05	 	 	15,732	 
	l-80/Madison
	 	CA Department of Transportation	 	 	31,814,532	 	 	Jan-05	 	 	28,284	 
	1-80 Truckee to Floriston
	 	CA Department of Transportation	 	 	86,396,096	 	 	May-05	 	 	43,024	 
	Blue Rock Country Club
	 	Hayward 1900, Inc.	 	 	35,734,250	 	 	Dec-05	 	 	27,518,866	 
	HLB Rt 15Baker/CIMA
	 	CA Department of Transportation	 	 	43,683,368	 	 	Jan-05	 	 	133,827	 
	Atlantic City Design Build
	 	NJ Department of Transportation	 	 	72,428,000	 	 	Dec-03	 	 	—	 
	Hiawatha Light Rail
	 	MN Department of Transportation	 	 	164,584,644	 	 	Jun-05	 	 	3,175,859	 
	Largo Station
	 	WMATA	 	 	65,355,000	 	 	Jun-05	 	 	1,253,988	 
	McAlpine Lock replacement
	 	US Army Corp of Engineers	 	 	55,360,367	 	 	Jun-07	 	 	38,412,436	 
	Woodrow Wilson bridge
	 	VA Department of Transportation	 	 	91,249,418	 	 	Jun-08	 	 	49,221,558	 
	I-494
	 	MN Department of Transportation	 	 	81,374,386	 	 	Sep-06	 	 	56,603,080	 
	Market Street Improvements
	 	Southeastern PA Transit Authority	 	 	96,449,235	 	 	Jul-08	 	 	81,150,414	 
	Dallas Co SH190/IH35
	 	TX Department of Transportation	 	 	92,385,879	 	 	Dec-03	 	 	—	 
	Williamson Co IH35 Widening
	 	TX Department of Transportation	 	 	34,199,590	 	 	Jan-04	 	 	—	 
	DFW Terminal D Apron
	 	TX Department of Transportation	 	 	39,850,000	 	 	Nov-04	 	 	19,455	 
	EW Freeway Loop 289
	 	TX Department of Transportation	 	 	46,530,289	 	 	Jun-05	 	 	6,476,407	 
	George Bush Tollway
	 	TX Department of Transportation	 	 	75,585,190	 	 	Oct-05	 	 	7,942,123	 
	Lake Fort Smith Dam Phase II
	 	City of Fort Smith	 	 	53,430,000	 	 	Jul-06	 	 	25,933,586	 
	Lubbock Co US82 Flyover
	 	TX Department of Transportation	 	 	32,724,165	 	 	Aug-06	 	 	30,603,367	 
	Grand Prairie Pumping Station
	 	US Army Corp of Engineers	 	 	34,850,000	 	 	Jul-07	 	 	34,453,869	 
	Lubbock US82 EW Freeway Phase I
	 	TX Department of Transportation	 	 	131,098,888	 	 	Oct-08	 	 	129,810,822	 
	Lake Fort Smith Dam Phase I
	 	City of Fort Smith	 	 	38,039,134	 	 	Aug-05	 	 	3,437,087	 
	SH183A Hill Country Constructors
	 	TX Department of Transportation	 	 	124,819,039	 	 	Jul-07	 	 	114,250,440	 
	SH45 Granite-JD Abrams
	 	TX Department of Transportation	 	 	39,202,000	 	 	Dec-05	 	 	18,347,386	 
	I-85/US70 Durham Co, NC
	 	NC Department of Transportation	 	 	48,903,201	 	 	Jun-05	 	 	2,967,507	 
	Hathaway Bridge Replacement
	 	FL Department of Transportation	 	 	81,520,000	 	 	Jul-04	 	 	109,432	 
	Seminole Co SR417 Sect 3
	 	FL Department of Transportation	 	 	36,337,589	 	 	Dec-03	 	 	—	 
	Durham 1-85 Broad to Camden
	 	NC Department of Transportation	 	 	73,300,000	 	 	Jun-06	 	 	21,028,299	 
	Durham 1-40
	 	NC Department of Transportation	 	 	44,790,000	 	 	Apr-05	 	 	406,842	 
	1-306, 1-85 Widening
	 	NC Department of Transportation	 	 	66,628,383	 	 	Aug-06	 	 	34,701,299	 
	Tri County Rail
	 	Tri County Authority	 	 	69,491,000	 	 	Mar-06	 	 	8,313,739	 
	Western Beltway SR429
	 	Orlando-Orange County Expressway Auth	 	 	42,348,475	 	 	Dec-03	 	 	—	 
	1-4/1-275 Interchange
	 	FL Department of Transportation	 	 	73,537,984	 	 	Feb-06	 	 	14,854,863	 
	1-4 John Young Parkway
	 	FL Department of Transportation	 	 	38,870,470	 	 	Apr-06	 	 	19,943,782	 
	SR429 Sec 2B & 3A
	 	FL Department of Transportation	 	 	45,575,518	 	 	Mar-06	 	 	21,500,888	 
	I-4/US192 Interchange
	 	FL Department of Transportation	 	 	58,856,707	 	 	Dec-06	 	 	49,337,991	 
	Jewfish Creek Bridge
	 	FL Department of Transportation	 	 	147,765,000	 	 	Apr-09	 	 	141,670,440	 
	St. John’s River Bridge
	 	FL Department of Transportation	 	 	65,943,000	 	 	Jan-05	 	 	314,919	 
	Reno Re-Trac
	 	City of Reno	 	 	170,730,624	 	 	Apr-05	 	 	52,954,251	 
	SR-22
	 	Orange County Transportation Authority	 	 	214,707,908	 	 	Jul-07	 	 	177,700,393	 
	Table Rock Dam Spillway
	 	US Army Corp of Engineers	 	 	43,376,905	 	 	May-05	 	 	578,155	 
	Las Vegas Monorail
	 	Las Vegas Monorail Company	 	 	153,958,000	 	 	Jul-04	 	 	—	 
	Superstition Highway
	 	AZ Department of Transportation	 	 	119,790,320	 	 	Dec-03	 	 	—	 
	US70 Hondo Valley
	 	NM Department of Transportation	 	 	67,330,794	 	 	Jul-05	 	 	6,391,992	 
	JKFITA Term 4
	 	Morse Diesel International	 	 	83,847,241	 	 	Oct-02	 	 	—	 
	British Airways
	 	Morse Diesel International	 	 	79,808,561	 	 	Apr-03	 	 	52,542	 
	Palisades Parkway
	 	NY Department of Transportation	 	 	62,044,286	 	 	Jan-02	 	 	563	 
	Zerega Ave Bus Maint Facility
	 	NY City Transit Authority (MTA)	 	 	63,839,923	 	 	Jan-05	 	 	855,175	 
	Harlem 3rd Track
	 	Metro North Railroad	 	 	31,452,895	 	 	Sep-04	 	 	—	 
	Belt Parkway over Ocean Parkway
	 	NY Department of Transportation	 	 	55,300,600	 	 	Jan-05	 	 	203,493	 
	Howland Hook
	 	NY Port Authority	 	 	35,401,740	 	 	Aug-05	 	 	2,985,845	 
	Reconstruction of ventilation shafts
	 	Amtrak	 	 	66,340,000	 	 	Jan-07	 	 	43,976,283	 
	Concourse Line Div B
	 	NY City Transit Authority (MTA)	 	 	162,000,000	 	 	Apr-07	 	 	72,027,980	 
	Taconic State Parkway
	 	NY Department of Transportation	 	 	62,301,000	 	 	May-06	 	 	31,786,036	 
	Grand Avenue
	 	NY City Transit Authority (MTA)	 	 	216,750,000	 	 	Aug-06	 	 	154,216,177	 
	6th Avenue Vent Plant Rehab
	 	NY City Transit Authority (MTA)	 	 	49,800,000	 	 	Jul-08	 	 	47,976,912	 
	Staten Island Rapid Transit
	 	NY City Transit Authority (MTA)	 	 	71,767,196	 	 	Jun-05	 	 	3,941,118	 
	Stillwell Avenue
	 	NY City Transit Authority (MTA)	 	 	113,859,600	 	 	Jun-05	 	 	5,604,780	 






Sch.A





 









 









GRANITE CONSTRUCTION INCORPORATED

Schedule A

LIST OF CONTRACTS IN EXCESS OF $30,000,000 as of April 30, 2005




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Original	 	 	Estimated	 	 	Backlog Amount	 
	Contract Description	 	Customer Name	 	Contract Amount	 	 	Completion Date	 	 	as of 04/30/05	 
	Timesquare Reconstruction
	 	NY City Transit Authority (MTA)	 	 	36,275,600	 	 	May-06	 	 	14,983,488	 
	South Ferry Terminal
	 	NY City Transit Authority (MTA)	 	 	104,400,000	 	 	Jun-05	 	 	100,029,374	 
	AA JFK Airside Redevelopment
	 	VRH Torcon	 	 	64,892,000	 	 	Jun-05	 	 	3,157,626	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$30MM notional amount floating interest
rate swap agreement
	 	BNP Paribas	 	 	30,000,000	 	 	 	 	 	 	NA
	$20MM notional amount floating interest
rate swap agreement
	 	BNP Paribas	 	 	20,000,000	 	 	 	 	 	 	NA






Sch. A




 









 






EXHIBIT H




LENDER JOINDER AGREEMENT




                    , 20___



Bank of America, N.A., as Administrative Agent

Mail Code: WA1-501-37-20
 800 5th Avenue,

Floor 37
 Seattle, WA 98104



	 	 	 
	Attention:

	 	Brenda H. Little
	 

	 	Agency Management






Granite Construction Incorporated 
P.O.
Box 50085
 Watsonville, CA 95077



	 	 	 
	Attention:

	 	William Barton
	 

	 	Vice President/Chief Financial Officer






     Ladies and Gentlemen:



     We refer to the Credit Agreement dated as of June 24, 2005 (as amended, restated, modified,
supplemented or renewed from time to time, the “Credit
Agreement”) among Granite Construction
Incorporated, a Delaware corporation (the “Borrower”), Bank of America, N.A., as Administrative
Agent, L/C Issuer and Swing Line Lender (the “Administrative
Agent”), and the Lenders parties
thereto. Terms defined in the Credit Agreement are used herein as therein defined.



     This Lender Joinder Agreement (this “Agreement”) is made and delivered pursuant to Section
2.14 of the Credit Agreement.



     The Borrower, by its execution hereof, hereby confirms its agreement to increase the
aggregate Revolving Credit Commitments by
$            in accordance with the terms of said
Section 2.14 effective as of                     , 20___(the “Effective Date”).



     As of the Effective Date,                     (“                    ”) will become a party to
the Credit Agreement as a Lender and, after giving effect to said Section 2.14,                     will
have a Revolving Credit Commitment of $                     .                     hereby confirms and
agrees that with effect on and after the Effective Date, it shall be and become a party to the
Credit Agreement as a Lender, and shall have all of the rights and be obligated to perform all of
the obligations of a Lender thereunder with a Revolving Credit Commitment in the amount set
forth above.                     (a) acknowledges that it has received a copy of the Credit Agreement
and the schedules and exhibits thereto and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter into this Agreement;
and (b) agrees that it will, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it





H-1









 








shall deem appropriate at the time, continue to make its own credit and legal decisions in
taking or not taking action under the Credit Agreement and the other Loan Documents.




     The following administrative details apply to _________:



	 	 	 	 	 
	 	 	(for payments and Requests for Credit Extensions)
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Attention: ___________________	 	 
	 

	 	Telephone: (___)___-___	 	 
	 

	 	Facsimile: (___)___-___	 	 
	 

	 	Electronic Mail: ___________________
	 	@ ___.com
	 
	 	 	 	 
	 	 	(for other notices as a Lender)
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Attention: ___________________	 	 
	 

	 	Telephone: (___)___-___	 	 
	 

	 	Facsimile: (___)___-___	 	 
	 

	 	Electronic Mail: ___________________
	 	@ ___.com






     This Agreement shall constitute a Loan Document.



H-2









 





     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CALIFORNIA, NOTWITHSTANDING ITS EXECUTION OUTSIDE SUCH STATE.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	, as Lender
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 	 	 	 	 





	 	 	 	 	 
	ACKNOWLEDGED as of                     , 20_:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., as Administrative	 	 
	Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	GRANITE CONSTRUCTION INCORPORATED	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 






H-3