AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY, dated as of June 5, 1998 (as amended
or restated from time to time, this "Guaranty"), by SRM HOLDINGS CORP., a
Delaware corporation (together with its successors and assigns "SRM"), SOUTHERN
READY MIX, INC., an Alabama corporation (together with its successors and
assigns "SOUTHERN"), WESTERN AGGREGATES HOLDING CORP., a Delaware corporation
(together with its successors and assigns "WESTERN AGGREGATES"), WESTERN ROCK
PRODUCTS CORPORATION, a Utah corporation (together with its successors and
assigns "WESTERN ROCK"), XXX ROCK PRODUCTS, INCORPORATED, a Utah corporation
(together with its successors and assigns "XXX ROCK"), COX TRANSPORT
CORPORATION, a Utah corporation (together with its successors and assigns "COX
TRANSPORT"), XXXXXX CONSTRUCTION & DEVELOPMENT, INC., a Nevada corporation
(together with its successors and assigns "XXXXXX"), SANDIA CONSTRUCTION, INC.,
a Nevada corporation (together with its successors and assigns "SANDIA"),
SOUTHERN NEVADA AGGREGATES, INC., a Nevada corporation (together with its
successors and assigns "SOUTHERN NEVADA"), MOHAVE CONCRETE AND MATERIALS, INC. a
Nevada corporation (together with its successors and assigns "MOHAVE NEVADA"),
MOHAVE CONCRETE AND MATERIALS, INC., an Arizona corporation (together with its
successors and assigns "MOHAVE ARIZONA"), A-BLOCK COMPANY, INC., an Arizona
corporation (together with its successors and assigns "A-BLOCK ARIZONA"),
A-BLOCK COMPANY, INC., a California corporation (together with its successors
and assigns "A-BLOCK CALIFORNIA"), VALLEY ASPHALT, INC., a Utah corporation
(together with its successors and assigns "VALLEY"), DEKALB STONE, INC., a
Georgia corporation (together with its successors and assigns "DEKALB"), GEODYNE
TRANSPORT, INC., a Utah corporation (together with its successors and assigns
"GEODYNE"), FALCON RIDGE CONSTRUCTION, INC., a Utah corporation (together with
its successors and assigns "FALCON"), XXXX PAVING, INC., a Utah corporation
(together with its successors and assigns "XXXX"), MULBERRY ROCK CORPORATION, a
Georgia corporation (together with its successors and assigns "MULBERRY"), BHY
READY MIX, INC., a Tennessee corporation (together with its successors and
assigns "BHY"), XXXXXXX XXXXX & SAND, INC., a Tennessee corporation (together
with its successors and assigns "XXXXXXX"), TRI-STATE TESTING LABORATORIES,
INC., a Utah corporation (together with its successors and assigns "TRI-STATE"),
BIG HORN REDI MIX, INC., a Wyoming corporation (together with its successors and
assigns "BIG HORN"), TREASURE VALLEY CONCRETE, INC., an Idaho corporation
(together with its successors and assigns "TREASURE"), MONROC, INC., a Delaware
corporation (together with its successors and assigns "MONROC"), in favor of
each of the Noteholders (as such term is hereinafter defined).
1. PRELIMINARY STATEMENT.
1.1 U.S. AGGREGATES, INC. (together with its successors and assigns, the
"Obligor"), a Delaware corporation, has heretofore issued (i) its 10.34% Senior
Subordinated Notes due November 22, 2006 (collectively, as in effect immediately
prior to the Closing Date, and as may be amended or restated from time to time,
the "1996 Notes") in the aggregate original principal amount of Thirty Million
Dollars ($30,000,000) and (ii) an aggregate of Six Thousand Three Hundred
Twenty-Seven (6,327) warrants
(collectively, as in effect immediately prior to the Closing Date, and as may be
amended or restated from time to time, the "1996 Warrants") to purchase shares
of the Obligor's Common Stock, $.01 par value per share (the "Common Stock"),
pursuant to that certain Note and Warrant Purchase Agreement (as amended and in
effect immediately prior to the Closing Date, the "1996 Purchase Agreement"),
dated as of November 21, 1996, between the Obligor and The Prudential Insurance
Company of America (the "Purchaser").
1.2 In order to induce the Purchaser to purchase the 1996 Notes and the
1996 Warrants, the Obligor caused the Guarantors to enter into that certain
Guaranty dated as of November 21, 1996 (as in effect immediately prior to the
Closing Date, the "Existing Guaranty").
1.3 The Obligor wishes to amend and restate certain provisions of the 1996
Purchase Agreement pursuant to that certain Amended and Restated Note and
Warrant Purchase Agreement (the "Amended and Restated Purchase Agreement"),
dated as of June 5, 1998, between the Obligor and the Purchaser. Pursuant to the
Amended and Restated Purchase Agreement, the Obligor will authorize and issue
(i) its 10.09% Senior Subordinated Notes due November 22, 2008 (as may be
amended or restated from time to time, the "1998 Notes"), in the aggregate
principal amount of Fifteen Million Dollars ($15,000,000), and (ii) an aggregate
of 3,208 warrants (the "1998 Warrants") to purchase Common Stock, subject to
adjustment under certain circumstances as provided in the Warrant Agreement, as
more particularly described in the Amended and Restated Purchase Agreement.
1.4 In order to induce the Purchaser to purchase the 1998 Notes and the
1998 Warrants and to consent to the amendment and restatement of the 1996
Purchase Agreement, the Obligor has agreed, pursuant to the Amended and Restated
Purchase Agreement, that each Subsidiary (including each of the Guarantors) that
enters into a guaranty of Senior Debt will be required to jointly and severally
guaranty unconditionally all of the obligations of the Obligor under and in
respect of the Notes and the Amended and Restated Purchase Agreement pursuant to
the terms and provisions hereof.
1.5 Each Guarantor will receive direct and indirect economic, financial
and other benefits from the indebtedness incurred under the Amended and Restated
Purchase Agreement and the Notes by the Obligor, and under this Guaranty, and
the incurrence of such indebtedness is in the best interests of each Guarantor.
The Obligor and the Guarantors have explicitly induced the Purchaser to purchase
the Notes and the Warrants based upon and in reliance upon the consolidated
financial condition of the Obligor and the Restricted Subsidiaries, including
the Guarantors.
1.6 All acts and proceedings required by law and by the certificate or
articles of incorporation, as the case may be, and by-laws of each Guarantor
necessary to constitute this Guaranty a valid and binding agreement for the uses
and purposes set forth herein in accordance with its terms have been done and
taken, and the execution and delivery hereof have been in all respects duly
authorized.
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2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
2.1 Guarantied Obligations.
Each Guarantor, in consideration of the execution and delivery of the
Amended and Restated Purchase Agreement, the amendment and restatement of the
1996 Purchase Agreement affected thereby and the purchase of the 1998 Notes and
the 1998 Warrants by the Purchaser, subject to Section 2.16, hereby irrevocably,
unconditionally, absolutely, jointly and severally guarantees, on a continuing
basis, to each Noteholder, as and for the Guarantor's own debt, until final and
indefeasible payment has been made:
(a) the due and punctual payment by the Obligor of the principal of,
and interest, and the Yield-Maintenance Amount (if any) on, the Notes at
any time outstanding and the due and punctual payment of all other amounts
payable, and all other indebtedness owing, by the Obligor to the
Noteholders under the Amended and Restated Purchase Agreement and the
Notes, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise, all in accordance with the terms and provisions
hereof and thereof; it being the intent of the Guarantors that the
guaranty set forth herein shall be a continuing guaranty of payment and
not a guaranty of collection; and
(b) the punctual and faithful performance, keeping, observance, and
fulfillment by the Obligor of all duties, agreements, covenants and
obligations of the Obligor contained in the Amended and Restated Purchase
Agreement and the Notes.
All of the obligations set forth in subsection (a) and subsection (b) of this
Section 2.1 are referred to herein as the "Guarantied Obligations" and the
guaranty thereof contained herein is a primary, original and immediate
obligation of each Guarantor and is an absolute, unconditional, continuing and
irrevocable guaranty of payment and performance and shall remain in full force
and effect until the full, final and indefeasible payment of the Guarantied
Obligations.
2.2 Performance Under the Amended and Restated Purchase Agreement.
Subject to Section 2.19, in the event the Obligor fails to pay, perform,
keep, observe, or fulfill any Guarantied Obligation in the manner provided in
the Notes or in the Amended and Restated Purchase Agreement, the Guarantors
shall cause forthwith to be paid the moneys, or to be performed, kept, observed,
or fulfilled each of such obligations, in respect of which such failure has
occurred in accordance with the terms and provisions of the Amended and Restated
Purchase Agreement and the Notes.
2.3 Undertakings in Amended and Restated Purchase Agreement.
Subject to the same grace and cure periods as are provided in the Amended
and Restated Purchase Agreement, the Guarantors will comply with each of the
undertakings of the Obligor in the Amended and Restated Purchase Agreement in
respect of which the
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Obligor undertakes to cause the Guarantors (in their capacities, respectively,
as a Guarantor and as a Subsidiary) to comply with such undertakings, as if such
undertakings (as they apply to the Guarantors) were set forth at length herein
as the undertakings of the Guarantors.
2.4 Releases.
Each Guarantor consents and agrees that, without any notice whatsoever to
or by such Guarantor and without impairing, releasing, abating, deferring,
suspending, reducing, terminating or otherwise affecting the obligations of such
Guarantor hereunder, each Noteholder, by action or inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not, enforce, or may, by action or inaction, release all
or any one or more parties to, any one or more of the Notes, the Amended
and Restated Purchase Agreement, any other guaranty or agreement or
instrument related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one or
more of the Notes;
(c) grant waivers, extensions, consents and other indulgences of any
kind whatsoever to the Obligor or any Other Guarantor in respect of any
one or more of the Notes, the Amended and Restated Purchase Agreement, any
other guaranty or any agreement or instrument related thereto or hereto;
(d) amend, modify or supplement in any manner whatsoever and at any
time (or from time to time) any one or more of the Notes, the Amended and
Restated Purchase Agreement, any other guaranty or any agreement or
instrument related hereto;
(e) release or substitute any one or more of the endorsers or
guarantors of the Guarantied Obligations whether parties hereto or not;
and
(f) sell, exchange, release, surrender or enforce, by action or
inaction, any property at any time pledged or granted as security in
respect of the Guarantied Obligations, whether so pledged or granted by
the Obligor, such Guarantor or any Other Guarantor, or pursuant to any
other guaranty or any agreement or instrument related hereto.
2.5 Waivers.
To the fullest extent permitted by law, each Guarantor does hereby waive:
(a) any notice of
(i) acceptance of this Guaranty;
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(ii) any purchase of the Notes under the Amended and Restated
Purchase Agreement, or the creation, existence or acquisition of any
of the Guarantied Obligations, or the amount of the Guarantied
Obligations, subject to such Guarantor's right to make inquiry of
each Noteholder to ascertain the amount of the Guarantied
Obligations owing to such Noteholder at any reasonable time,
provided that such Guarantor will look solely to the Obligor for the
determination of the identities of the Noteholders;
(iii) any transfer of Notes from one Noteholder to another;
(iv) any adverse change in the financial condition of the
Obligor or any other fact that might increase, expand or affect such
Guarantor's risk hereunder;
(v) presentment for payment, demand, protest, and notice
thereof as to the Notes or any other instrument;
(vi) any Default or Event of Default; and
(vii) any kind or nature whatsoever to which such Guarantor
might otherwise be entitled, other than those specifically required
to be given to such Guarantor pursuant to the terms of this
Guaranty;
(b) the right by statute or otherwise to require any Noteholder to
institute suit against the Obligor or any Other Guarantor or to exhaust
the rights and remedies of any Noteholder against the Obligor or any Other
Guarantor;
(c) the benefit of any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now or at any
time hereafter in force which, but for this waiver, might be applicable to
any sale of property of the Guarantor made under any judgment, order or
decree based on this Guaranty, and the Guarantor covenants that it will
not at any time insist upon or plead, or in any manner claim or take the
benefit or advantage of such law;
(d) any defense or objection to the absolute, primary, continuing
nature, or the validity or enforceability of, or the amount guaranteed
pursuant to, this Guaranty, including, without limitation, any defense
based on (and the primary, continuing nature, and the validity,
enforceability and amount, of this Guaranty shall be unaffected by), any
of the following:
(i) any change in future conditions;
(ii) any change of law;
(iii) any invalidity or irregularity with respect to the
issuance or assumption of any obligations (including, without
limitation, the Amended
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and Restated Purchase Agreement, the Notes or any agreement or
instrument related hereto) by the Obligor or any other Person;
(iv) the execution and delivery of any agreement at any time
hereafter (including, without limitation, the Amended and Restated
Purchase Agreement, the Notes or any agreement or instrument related
hereto) by the Obligor or any other Person;
(v) the genuineness, validity, regularity or enforceability of
any of the Guarantied Obligations;
(vi) any default, failure or delay, willful or otherwise, in
the performance of any obligations by the Obligor or such Guarantor;
(vii) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Obligor or such Guarantor, or
sequestration or seizure of any property of the Obligor or such
Guarantor, or any merger, consolidation, reorganization,
dissolution, liquidation or winding up or change in corporate
constitution or corporate identity or loss of corporate identity of
the Obligor or such Guarantor;
(viii) any disability or other defense of the Obligor or such
Guarantor to payment and performance of all Guarantied Obligations
other than the defense that the Guarantied Obligations shall have
been fully and finally performed and indefeasibly paid;
(ix) impossibility or illegality of performance on the part of
the Obligor or such Guarantor under the Amended and Restated
Purchase Agreement, the Notes or this Guaranty;
(x) any change of the circumstances of the Obligor, such
Guarantor or any other Person, whether or not foreseen or
foreseeable, whether or not imputable to the Obligor or such
Guarantor, including, without limitation, impossibility of
performance through fire, explosion, accident, labor disturbance,
floods, droughts, embargoes, wars (whether or not declared), civil
commotions, acts of God or the public enemy, delays or failure of
suppliers or carriers, inability to obtain materials, economic or
political conditions, or any other causes affecting performance, or
any other force majeure, whether or not beyond the control of the
Obligor or such Guarantor and whether or not of the kind
hereinbefore specified;
(xi) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason,
similar or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments,
expenses, indebtedness, obligations or liabilities of any character,
foreseen or unforeseen, and whether or not valid, incurred by or
against any Person, or any claims, demands, charges or Liens of any
nature, foreseen or unforeseen, incurred by any Person, or
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against any sums payable under the Amended and Restated Purchase
Agreement, the Notes, or any agreement or instrument related hereto
so that such sums would be rendered inadequate or would be
unavailable to make the payment as herein provided;
(xii) any change in the ownership of the equity securities of
the Obligor, such Guarantor or any other Person liable in respect of
the Notes; or
(xiii) any other action, happening, event or reason whatsoever
that shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Obligor or such Guarantor
of any of its obligations under the Amended and Restated Purchase
Agreement, the Notes or this Guaranty.
2.6 Waivers of Subrogation, Reimbursement and Indemnity.
No Guarantor shall have any right of subrogation, reimbursement or
indemnity whatsoever in respect of the Guarantied Obligations, or any right of
recourse to or with respect to any assets or property of the Obligor.
2.7 Invalid Payments.
To the extent the Obligor makes a payment or payments to any Noteholder,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required, for any of the
foregoing reasons or for any other reason, to be repaid or paid over to a
custodian, trustee, receiver or any other party or officer under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, state or federal law, or any common law or
equitable cause, then to the extent of such payment or repayment, the obligation
or part thereof intended to be satisfied shall be revived and continued in full
force and effect as if said payment had not been made and each Guarantor shall
be primarily liable for such obligation.
2.8 Marshaling.
Neither any Noteholder nor any Person acting for the benefit of any
Noteholder shall be under any obligation to marshal any assets in favor of any
Guarantor or against or in payment of any or all of the Guarantied Obligations.
2.9 Setoff, Counterclaim or Other Deductions.
Except as otherwise required by law, each payment by any Guarantor shall
be made without setoff, counterclaim or other deduction.
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2.10 Election by Guarantors to Perform Obligations.
Any election by the Guarantor to pay or otherwise perform any of the
obligations of the Obligor under the Notes, the Amended and Restated Purchase
Agreement or any agreement or instrument related hereto shall not release the
Obligor, the Guarantor or any other Guarantor from any of such Person's other
obligations under the Notes, the Amended and Restated Purchase Agreement or any
agreement or instrument related hereto.
2.11 No Election of Remedies by Noteholders.
To the extent provided in the Amended and Restated Purchase Agreement,
each Noteholder shall, individually or collectively, have the right to seek
recourse against each Guarantor to the fullest extent provided for herein for
such Guarantor's obligations under this Guaranty in respect of the Guarantied
Obligations. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or proceeding or
against other parties (including, without limitation, any Other Guarantor)
unless such Noteholder has expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or proceeding by
any Noteholder against the Obligor or any Guarantor under any document or
instrument evidencing obligations of the Obligor or such Guarantor to such
Noteholder shall serve to diminish the liability of such Guarantor under this
Guaranty, except to the extent that such Noteholder finally and unconditionally
shall have realized payment by such action or proceeding in respect of the
Guarantied Obligations.
2.12 Separate Action; Other Enforcement Rights.
Upon acceleration of the Notes of any Noteholder in accordance with
paragraph 9A of the Amended and Restated Purchase Agreement, and subject to
paragraph 9B of the Amended and Restated Purchase Agreement, each of the rights
and remedies granted under this Guaranty to each Noteholder in respect of the
Notes held by such Noteholder may be exercised by such Noteholder without notice
by such Noteholder to, or the consent of or any other action by, any other
Noteholder. Each Noteholder may proceed to protect and enforce this Guaranty by
suit or suits or proceedings in equity, at law or in bankruptcy, and whether for
the specific performance of any covenant or agreement contained herein or in
execution or aid of any power herein granted or for the recovery of judgment for
the obligations hereby guarantied or for the enforcement of any other proper,
legal or equitable remedy available under applicable law.
2.13 Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder and no delay or failure
on the part of any such Person to exercise any right hereunder shall impair such
right or operate as a waiver of such right or otherwise prejudice such Person's
rights, powers and remedies hereunder. Every right and remedy given by this
Guaranty or by law to any Noteholder may be exercised from time to time as often
as may be deemed expedient by such Person.
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2.14 Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce any
right or remedy under this Guaranty or under any Note held by such Noteholder,
and such proceeding shall have been dismissed, discontinued or abandoned for any
reason, then and in every such case each such Noteholder, the Obligor and each
Guarantor shall, except as may be limited or affected by any determination
(including, without limitation, any determination in connection with any such
dismissal) in such proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and thereafter, subject as
aforesaid, the rights and remedies of such Noteholders shall continue as though
no such proceeding had been instituted.
2.15 Cumulative Remedies.
No remedy under this Guaranty, the Amended and Restated Purchase
Agreement, or the Notes is intended to be exclusive of any other remedy, but
each and every remedy shall be cumulative and in addition to any and every other
remedy given pursuant to this Guaranty, the Amended and Restated Purchase
Agreement or the Notes.
2.16 Limitation on Guarantied Obligations.
It is the intention of each Guarantor and each Noteholder that the maximum
amount of the obligations of any Guarantor hereunder shall be equal to, but not
in excess of, the amount equal to the lesser of
(a) the Guarantied Obligations, and
(b) the maximum amount permitted by applicable law.
To that end, with respect to the determination of the "maximum amount permitted
by applicable law," but only to the extent such obligations would otherwise be
avoidable, the obligations of each Guarantor hereunder shall be limited to the
maximum amount that, after giving effect to the incurrence thereof, would not
render such Guarantor insolvent or generally unable to pay its debts (within the
meaning of Title 11 of the United States Code or as defined in the analogous
applicable law) as they mature or leave such Guarantor with an unreasonably
small capital. The need for any such limitation shall be determined, and any
such needed limitation shall be effective, at the time or times that such
Guarantor is deemed, under applicable law, to incur obligations hereunder. Any
such limitation shall be apportioned among the Guarantied Obligations owed to
the Noteholders pro rata. This Section 2.16 is intended solely to preserve the
rights of each Noteholder hereunder to the maximum extent permitted by
applicable law, and neither the Guarantors nor any other Person shall have any
rights under this Section 2.16 that it would not otherwise have under applicable
law. For the purposes of this Section 2.16, "insolvency", "unreasonably small
capital" and "inability to pay debts (as so defined) as they mature" shall be
determined in accordance with applicable law.
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2.17 Maintenance of Offices.
The Guarantors will maintain an office at the address set forth in Section
5.3 where notices, presentations and demands in respect of this Guaranty may be
made upon them. Such office will be maintained at such address until such time
as any Guarantor shall notify the Noteholders of any change of location of such
office.
2.18 Further Assurances.
Each Guarantor will cooperate with the Noteholders and execute such
further instruments and documents as the Required Holders shall reasonably
request to carry out, to the reasonable satisfaction of the Required Holders,
the transactions contemplated by the Amended and Restated Purchase Agreement,
this Guaranty and the documents and instruments related thereto.
2.19 Subordination of Guarantied Obligations.
(a) Subordination. Each Noteholder covenants and agrees that the
obligations of each Guarantor under this Guaranty shall be subordinate and
junior in right of payment to the extent set forth in subparagraphs (i) to
(v), inclusive, below, to all obligations of such Guarantor in respect of
Senior Debt of the Obligor (without giving effect to any reduction thereto
necessary to render the obligation of such Guarantor with respect thereto
(as guarantor, obligor or otherwise) not voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer) (such
obligations of the Guarantors being "Guarantor Senior Debt").
(i) If the Obligor shall default in the payment of any
principal of or interest on any Senior Debt when the same becomes
due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then,
unless and until such default shall have been remedied by payment in
full in cash or waived, no Noteholder shall accept or receive any
direct or indirect payment from any Guarantor for or on account of
the Guarantied Obligations.
(ii) In the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings, or any receivership
proceedings in connection therewith, relative to the Obligor or such
Guarantor, and in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of the Obligor or such
Guarantor, whether or not involving insolvency or bankruptcy
proceedings, then all obligations of the Guarantors in respect of
Guarantor Senior Debt shall first be paid in full in cash before any
payment is made by the Guarantors for or on account of the
Guarantied Obligations.
(iii) During the existence of any default described in
subparagraph (i) above or any proceeding of a type referred to in
subparagraph (ii) above with respect to the Obligor or any
Guarantor, any payment or distribution of any kind or character,
whether in cash, Property, stock or obligations, which
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may be payable or deliverable by such Guarantor in respect of the
Guarantied Obligations, shall be paid or delivered directly to the
Agent (or, if the Bank Credit Agreement is no longer in effect, to a
banking institution selected by the court or Person making the
payment or delivery or designated by any holder of Senior Debt) for
application in payment thereof in accordance with the priorities
then existing among such holders, unless and until all Guarantor
Senior Debt shall have been paid in full in cash, provided, however,
that no such delivery shall be made to the holders of Guarantor
Senior Debt of stock or obligations which are issued pursuant to
reorganization proceedings if such stock or obligations are
subordinate and junior (whether by law or agreement) at least to the
extent provided herein to the payment of all Guarantor Senior Debt
then outstanding and to the payment of any stock or obligations
which are issued in exchange or substitution for any Guarantor
Senior Debt then outstanding.
(iv) No Noteholder shall accept or receive any direct or
indirect payment, by set-off or otherwise, for or on account of the
Guarantied Obligations from any Guarantor, during a period (a
"Stand-Still Period") commencing on the date of receipt by the
Obligor and the Significant Holders of a Stand-Still Notice, and
ending on the earliest of
(A) the date the relevant Subordination Event of Default
shall have been cured or waived in writing by the requisite
holders of the Senior Debt,
(B) the date such Stand-Still Period shall have been
terminated by written notice to the Obligor from the requisite
holders of the Senior Debt, and
(C) the date ninety (90) days from the date of receipt
of the applicable Stand-Still Notice.
Notwithstanding the foregoing, (x) during any three hundred
sixty-five (365) day period, the aggregate number of days during
which Stand-Still Periods may be in effect shall not exceed one
hundred eighty (180) days, and (y) in the case of any payment for or
on account of this Guaranty which would (in the absence of the
delivery of any such Stand-Still Notice) have been due and payable
on any date during any Stand-Still Period, the provisions of this
subparagraph (iv) shall not prevent such payment from being made by
any Guarantor on or after the date immediately following the last
day of such Stand-Still Period unless another Stand-Still Period
shall then be in effect.
(v) If any payment or distribution of any character, whether
in cash, Securities or other Property, shall be received by any
Noteholder from any Guarantor in contravention of any of the terms
herein and before all the Guarantor Senior Debt shall have been paid
in full in cash, such payment or distribution shall be received in
trust for the benefit of the
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holders of the Guarantor Senior Debt at the time outstanding and
shall forthwith be paid over or transferred to the Agent (or, if the
Bank Credit Agreement is no longer in effect, to the holders of the
Guarantor Senior Debt).
(b) Limitation on Remedies. So long as any Guarantor Senior Debt
remains outstanding, no Noteholder may
(i) demand payment of, or take any action to collect, amounts
owing under this Guaranty, or
(ii) commence any administrative, legal or equitable action
against any Guarantor, including filing or joining in the filing of
any insolvency petition against any Guarantor,
prior to the earlier of
(x) the fifteenth (15th) day after the date upon which any
Noteholder shall have given written notice to the holders of
Guarantor Senior Debt (or the Agent) of their intention to take such
action, or
(y) the acceleration of any Senior Debt;
provided, however, that no Noteholder may take any action described in
clause (i) or clause (ii) of this Section 2.19(b) during a Stand-Still
Period (so long as the Senior Debt shall not have been accelerated during
such Stand-Still Period).
(c) Obligations of the Guarantors Unconditional. The provisions of
this Section 2.19 are for the purpose of defining the relative rights of
the holders of Guarantor Senior Debt on the one hand, and the Noteholders
on the other hand, against the Guarantors and their respective Properties,
and nothing herein shall impair, as between each Guarantor and the
Noteholders, the obligation of each Guarantor, which is unconditional and
absolute, to pay to the Noteholders thereof all amounts on account of the
Guarantied Obligations in accordance with their terms and the provisions
of the Amended and Restated Purchase Agreement and the Notes, nor shall
anything herein (other than Section 2.19(b)) prevent any Noteholder from
exercising all remedies otherwise permitted by applicable law or hereunder
upon acceleration of the Notes of such Noteholder in accordance with
paragraph 9A of the Amended and Restated Purchase Agreement (including,
without limitation, the right to make demand upon the Guarantors for
payment of the Guarantied Obligations and xxx for any failure to make such
payment) subject to the rights, if any, of holders of Guarantor Senior
Debt to receive cash, Property, stock or obligations otherwise payable or
deliverable by the Guarantors to the Noteholders.
(d) Subrogation. Upon payment in full in cash of all Guarantor
Senior Debt, the Noteholders shall be subrogated to the rights of the
holders of the Guarantor Senior Debt to receive payments or distributions
of assets of the
12
Guarantors made on the Guarantor Senior Debt until the Guarantied
Obligations shall be paid in full, and, for the purposes of such
subrogation, no payments to the holders of Guarantor Senior Debt of any
cash, Property, stock or obligations to which the Noteholders would be
entitled except for the provisions of Section 2.19(a) above shall, as
between each Guarantor, its creditors (other than the holders of the
Guarantor Senior Debt) and the Noteholders, be deemed to be a payment by
such Guarantor for or on account of Guarantor Senior Debt.
(e) Other Guarantor Debt. Except as provided in this Section 2.19,
each Guarantor covenants that its obligations under this Guaranty do and
will rank at least pari passu with all its other present and future
unsecured Debt that is not in any manner subordinated in right of payment
or security in any respect to the Debt evidenced by this Guaranty or to
any other Debt of such Guarantor.
3. INTERPRETATION OF THIS GUARANTY
3.1 Terms Defined.
As used in this Guaranty, the capitalized terms have the respective
meanings specified in the Amended and Restated Purchase Agreement unless
otherwise specified below or set forth in the section of this Guaranty referred
to immediately following such term (such definitions, unless otherwise expressly
provided, to be equally applicable to both the singular and plural forms of the
terms defined):
A-Block Arizona -- has the meaning assigned to such term in the first
paragraph hereof.
A-Block California -- has the meaning assigned to such term in the first
paragraph hereof.
Affiliate -- means, with respect to any Person, any other Person that
directly or indirectly controls, or is controlled by, or is under direct or
indirect common control with, such first Person. For purposes of this Guaranty,
Restricted Subsidiaries shall not constitute "Affiliates" of the Obligor. A
Person shall be deemed to control another Person if such first Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities or other equity interests, by contract or otherwise. In the
case of a partnership, such partnership and all partners therein shall be deemed
to be Affiliates of each other.
Agent -- means, at any time, the agent for the Banks under the Bank Credit
Agreement at such time.
Amended and Restated Purchase Agreement -- Section 1.3.
Bank Credit Agreement -- means that certain Third Amended and Restated
Credit Agreement, dated as of June 5, 1998, by and among the Obligor, Bank of
America
13
Illinois, as agent, and the other financial institutions signatory thereto, as
amended from time to time.
Xxxx -- has the meaning assigned to such term in the first paragraph
hereof.
BHY -- has the meaning assigned to such term in the first paragraph
hereof.
Big Horn -- has the meaning assigned to such term in the first paragraph
hereof.
Xxxxxxx -- has the meaning assigned to such term in the first paragraph
hereof.
Common Stock -- Section 1.1.
Cox Rock -- has the meaning assigned to such term in the first paragraph
hereof.
Cox Transport -- has the meaning assigned to such term in the first
paragraph hereof.
Default -- has the meaning assigned to it in paragraph 13B of the Amended
and Restated Purchase Agreement.
DeKalb -- has the meaning assigned to such term in the first paragraph
hereof.
Event of Default -- has the meaning assigned to it in paragraph 13B of the
Amended and Restated Purchase Agreement.
Existing Guaranty -- Section 1.2.
Fair Value -- means the total amount at which the assets of the Obligor
and the Borrower would likely sell as part of a going concern, and for continued
use as part of a going concern, within a commercially reasonable period of time
and to one or more willing buyers with neither party being under any compulsion
to buy or sell and with all parties having reasonable knowledge of the facts.
Falcon -- has the meaning assigned to such term in the first paragraph
hereof.
Geodyne -- has the meaning assigned to such term in the first paragraph
hereof.
Guarantied Obligations -- Section 2.1.
Guarantor -- has the meaning assigned to such term in the first paragraph
hereof.
Guarantor Senior Debt -- Section 2.19(a).
Guaranty, this -- has the meaning assigned to such term in the first
paragraph hereof.
14
Xxxxxx -- has the meaning assigned to such term in the first paragraph
hereof.
Mohave Arizona -- has the meaning assigned to such term in the first
paragraph hereof.
Mohave Nevada -- has the meaning assigned to such term in the first
paragraph hereof.
Monroc -- has the meaning assigned to such term in the first paragraph
hereof.
Mulberry -- has the meaning assigned to such term in the first paragraph
hereof.
Noteholder -- means, at any time, each Person that is the holder of any
Note at such time.
1996 Notes -- Section 1.1.
1996 Purchase Agreement -- Section 1.1.
1996 Warrants -- Section 1.1.
1998 Notes -- Section 1.3.
1998 Warrants -- Section 1.3.
Notes -- means the 1996 Notes and the 1998 Notes.
Obligor -- Section 1.1.
Other Guarantors -- means, at any time with respect to any Guarantor, each
other Guarantor and all other guarantors of the Obligor's obligations under the
Amended and Restated Purchase Agreement and the Notes at such time.
Property -- means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
Purchaser -- Section 1.1.
Restricted Subsidiary -- means, at any time,
(i) a corporation incorporated in the United States of America of
which the Obligor owns, directly or indirectly, eighty percent (80%) or
more of the Voting Stock of such corporation at such time; and
(ii) Dekalb, provided that the Obligor owns, directly or indirectly,
seventy percent (70%) or more of the Voting Stock of Dekalb at such time.
15
Sandia -- has the meaning assigned to such term in the first paragraph
hereof.
Senior Debt -- has the meaning assigned to it in paragraph 12E of the
Amended and Restated Purchase Agreement.
Significant Holders -- means, at any time, (a) The Prudential Insurance
Company of America and (b) each other Noteholder holding at least ten percent
(10%) of the aggregate principal amount of the Notes at such time outstanding,
exclusive of Notes owned by the Obligor, any Subsidiary or any Affiliate.
Southern -- has the meaning assigned to such term in the first paragraph
hereof.
Southern Nevada -- has the meaning assigned to such term in the first
paragraph hereof.
SRM -- has the meaning assigned to such term in the first paragraph
hereof.
Stand-Still Notice -- means the notice referred to in paragraph 12A(iv) of
the Amended and Restated Purchase Agreement and defined in paragraph 12E of the
Amended and Restated Purchase Agreement.
Stand-Still Period -- Section 2.19(a)(iv).
Subordination Event of Default -- means (i) any default in the payment of
any principal of or interest on any Senior Debt owing under any single
instrument when the same becomes due and payable, or (ii) any event of default
or unmatured event of default under any agreement evidencing Senior Debt (other
than as a result of any non-payment of any amount owing in respect of such
Senior Debt).
Subsidiary -- means, at any time, a corporation of which the Obligor owns,
directly or indirectly, more than fifty percent (50%) of the Voting Stock at
such time.
Treasure -- has the meaning assigned to such term in the first paragraph
hereof.
Tri-State -- has the meaning assigned to such term in the first paragraph
hereof.
Valley -- has the meaning assigned to such term in the first paragraph
hereof.
Voting Stock -- means, with respect to any corporation, any shares of
capital stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
Warrant Agreement -- means that certain Warrant Agreement, dated as of
June 5, 1998, between the Obligor and the Purchaser.
Warrants -- means the 1996 Warrants and the 1998 Warrants.
16
Western Aggregates -- has the meaning assigned to such term in the first
paragraph hereof.
Western Rock -- has the meaning assigned to such term in the first
paragraph hereof.
3.2 Section Headings and Construction.
(a) Section Headings, etc. The titles of the Sections appear as a
matter of convenience only, do not constitute a part hereof and shall not
affect the construction hereof. The words "herein," "hereof," "hereunder"
and "hereto" refer to this Guaranty as a whole and not to any particular
Section or other subdivision.
(b) Construction. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each
other covenant contained herein, and compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
4. WARRANTIES AND REPRESENTATIONS
Each Guarantor represents and warrants to each Purchaser, as of the date
of effectiveness hereof, as follows:
4.1 Generally.
(a) Such Guarantor is fully aware of the financial condition of the
Obligor. Such Guarantor delivers this Guaranty based solely upon its own
independent investigation and in no part upon any representation or
statement of any one or more Noteholders with respect thereto. Such
Guarantor is in a position to obtain, and hereby assumes full
responsibility for obtaining, any additional information concerning the
financial condition of the Obligor as such Guarantor may deem material to
its obligations hereunder, and such Guarantor is not relying upon, nor
expecting, any Noteholder to furnish it any information concerning the
financial condition of the Obligor.
(b) There are no presently pending material court or administrative
proceedings or undischarged judgments against such Guarantor; and no tax
liens have been filed or, to the best of such Guarantor's knowledge,
threatened against such Guarantor, nor is such Guarantor in default under
any agreement for borrowed money.
(c) Such Guarantor is a corporation duly organized and existing in
good standing under the laws of its jurisdiction of incorporation. Such
Guarantor has the corporate power to own its properties and carry on its
business as it is now being conducted. Such Guarantor has the valid
authority and the corporate power to enter into and perform, and has taken
all necessary action to authorize its entry
17
into, and the performance and delivery of, this Guaranty and the
transactions contemplated hereby.
(d) This Guaranty has been duly authorized by all necessary action
on the part of such Guarantor, has been duly executed and delivered by
duly authorized officers of such Guarantor, and constitutes a legal, valid
and binding obligation of such Guarantor.
(e) The entry into and performance of this Guaranty and the
transactions contemplated hereby do not conflict with any applicable law
or regulation or official or judicial order, conflict with the articles or
certificate of incorporation, as the case may be, or by-laws, of such
Guarantor, conflict with any agreement or document to which such Guarantor
is a party or that is binding upon it or any of its properties, or result
in the creation or imposition of any Lien on any of its properties
pursuant to the provisions of any agreement or document.
4.2 Nature of Business of Obligor and Subsidiaries.
The Obligor and the Subsidiaries have sought and obtained the Amended and
Restated Purchase Agreement, the sale of the Notes and the Warrants and the
related transactions based upon their consolidated financial position and the
Obligor and the Subsidiaries understand that the Purchaser is relying upon the
consolidated financial condition of the Obligor and the Subsidiaries in
purchasing the Notes and the Warrants. Nothing herein shall be deemed to
prohibit any transfer by the Obligor or any Subsidiary of any of its or a
Subsidiary's stock otherwise permitted under the terms and provisions of the
Amended and Restated Purchase Agreement.
4.3 Solvency.
The Fair Value of the business and assets of each of the Obligor and the
Guarantors exceeds the amount that will be required to pay its liabilities
(including, without limitation, contingent, subordinated, unmatured and
unliquidated liabilities on existing debts, as such liabilities may become
absolute and matured), in each case after giving effect to the transactions
contemplated by the Amended and Restated Purchase Agreement, the Notes and this
Guaranty, including, without limitation, the provisions of Section 2.16. None of
the Guarantors nor the Obligor, after giving effect to the transactions
contemplated by the Amended and Restated Purchase Agreement, the Notes and this
Guaranty, will be insolvent, be generally unable to pay its debts (within the
meaning of Title 11 of the United States Code or as defined in the analogous
applicable law) as they mature or will be engaged in any business or
transaction, or about to engage in any business or transaction, for which such
Person has unreasonably small assets or capital (within the meaning of the
Uniform Fraudulent Transfer Act, the Uniform Fraudulent Conveyance Act and
Section 548 of Title 11 of the United States Code), and none of the Guarantors
nor the Obligor has any intent to hinder, delay or defraud any entity to which
it is, or will become, on or after the date of the Closing, indebted or incur
debts that would be beyond its ability to pay as they mature.
18
5. MISCELLANEOUS
5.1 Successors and Assigns.
(a) Whenever any Guarantor or any of the parties to the Amended and
Restated Purchase Agreement is referred to, such reference shall be deemed
to include the successors and assigns of such party, and all the
covenants, promises and agreements contained in this Guaranty by or on
behalf of such Guarantor shall bind the successors and assigns of such
Guarantor and shall inure to the benefit of each of the Noteholders from
time to time whether so expressed or not and whether or not an assignment
of the rights hereunder shall have been delivered in connection with any
assignment or other transfer of Notes.
(b) Each Guarantor agrees to take such action as may be reasonably
requested by any Noteholder to confirm such Guarantor's guaranty of the
Guarantied Obligations in connection with the transfer of the Notes of
such Noteholder.
5.2 Partial Invalidity.
The unenforceability or invalidity of any provision or provisions hereof
shall not render any other provision or provisions contained herein
unenforceable or invalid.
5.3 Communications.
(a) Method; Address. All communications hereunder shall be in
writing, shall be delivered in the manner required by the Amended and
Restated Purchase Agreement, and shall be addressed, if to the Guarantors,
at the address set forth on Annex 1 hereto, and if to any of the
Noteholders:
(A) if such Noteholder is a Purchaser, at the address set
forth on Annex 1 to the Amended and Restated Purchase Agreement for
such Noteholder, and further including any parties referred to on
such Annex 1 which are required to receive notices in addition to
such Noteholder, and
(B) if such Noteholder is not a Purchaser, at the address set
forth in the register for the registration and transfer of Notes or
Warrants maintained pursuant to paragraph 14D of the Amended and
Restated Purchase Agreement for such Noteholder,
or to any such party at such other address as such party may designate by
notice duly given in accordance with this Section 5.3.
(b) When Given. Any communication addressed and delivered as herein
provided shall be deemed to be received when actually delivered to the
address of the addressee (whether or not delivery is accepted) or received
by the telecopy machine of the recipient. Any communication not so
addressed and delivered shall be ineffective.
19
5.4 Governing Law.
THIS GUARANTY SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE
WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
5.5 Effective Date.
This Guaranty shall be effective as of the date hereof.
5.6 Benefits of Guaranty Restricted to Noteholders and Banks.
Nothing express or implied in this Guaranty is intended or shall be
construed to give to any Person other than the Guarantors and the Noteholders
any legal or equitable right, remedy or claim under or in respect hereof or any
covenant, condition or provision therein or herein contained, and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of the Guarantors and the Noteholders; provided that the
provisions set forth in Section 2.19 shall also be for the benefit of the Agent
and the Banks.
5.7 Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein or made in writing by
the Guarantors in connection herewith shall survive the execution and delivery
hereof. All representations and warranties contained in the Existing Guaranty or
made in writing by the Guarantors that are party thereto (as an original party
to the Existing Guaranty, as a party by execution of a Joinder Agreement
attached as Annex 2 to the Existing Guaranty or otherwise) in connection
therewith shall survive the execution and delivery of this Guaranty.
5.8 Expenses.
(a) The Guarantors agree, whether or not the transactions
contemplated hereby shall be consummated, to pay, and save each Purchaser
and any Transferee harmless against liability for the payment of, all
out-of-pocket expenses arising in connection with such transactions,
including (i) all document production and duplication charges and the fees
and expenses of any special counsel engaged by such Purchaser or such
Transferee in connection with this Guaranty, the transactions contemplated
hereby and any subsequent proposed modification of, or proposed consent
under, this Guaranty, whether or not such proposed modification shall be
effected or proposed consent granted, and (ii) the costs and expenses,
including attorneys' fees, incurred by such Purchaser or such Transferee
in enforcing (or determining whether or how to enforce) any rights under
this Guaranty or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in connection with this
Guaranty or the transactions contemplated hereby or by reason of such
Purchaser's or such Transferee's having acquired any Note, including
without limitation costs and expenses incurred in any bankruptcy case;
provided, however, that the obligations
20
of the Guarantors under this Section 5.8(a) (x) shall not include the
payment of any fees or expenses arising in connection with any
investigation or proceeding relating to the legal or regulatory status of
any Noteholder, and (y) shall be subordinate and junior in right of
payment under Section 2.19 in the manner and to the same extent as the
Guarantied Obligations.
(b) If the Guarantors shall fail to pay when due any principal of,
or Yield-Maintenance Amount or interest on, any Note, the Guarantors shall
pay to each Noteholder, to the extent permitted by law, such amounts as
shall be sufficient to cover the costs and expenses, including but not
limited to reasonable attorneys' fees, incurred by such Noteholder in
collecting any sums due on such Notes.
5.9 Amendment.
This Guaranty may be amended only in a writing executed by the Guarantors
and the Required Holders. Notwithstanding the foregoing, no amendment may be
made to Section 2.19 (or this sentence) without the consent of the Agent and the
Required Banks (as defined in the Bank Credit Agreement).
5.10 Jurisdiction; Jury Trial.
EACH OF THE GUARANTORS HERETO IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW
YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OF THE OTHER DOCUMENTS AND INSTRUMENTS CONTEMPLATED HEREBY AND
EACH OF THE GUARANTORS HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT. NONE OF THE GUARANTORS HERETO SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT
OF OR OTHERWISE RELATED TO THIS GUARANTY OR ANY OF THE NOTES AND EACH OF THE
GUARANTORS HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND
ALL RIGHT TO ANY SUCH JURY TRIAL AND ANY RIGHT EACH MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY SUCH
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 5.10.
5.11 Survival.
So long as the Guarantied Obligations and all payment obligations of the
Guarantors hereunder shall not have been fully and finally performed and
indefeasibly paid, the obligations of the Guarantors hereunder shall survive the
transfer and payment of any Note and the payment in full of all the Notes.
5.12 Entire Agreement.
This Guaranty constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms.
21
5.13 Duplicate Originals, Execution in Counterpart.
Two or more duplicate originals hereof may be signed by the parties, each
of which shall be an original but all of which together shall constitute one and
the same instrument. This Guaranty may be executed in one or more counterparts
and shall be effective as to each party hereto when at least one counterpart
shall have been executed by such party, and each set of counterparts that,
collectively, show execution by each party hereto shall constitute one duplicate
original.
5.14 Additional Guarantors.
In addition to SRM, Southern, Western Aggregates, Western Rock, Cox Rock,
Cox Transport, Xxxxxx, Xxxxxx, Southern Nevada, Mohave Nevada, Mohave Arizona,
A-Block Arizona, A-Block California, Valley, Dekalb, Geodyne, Falcon, Beck,
Mulberry, BHY, Xxxxxxx, Tri-State, Big Horn, Treasure and Monroc, other
Subsidiaries may become Guarantors hereunder in accordance with the terms of the
Amended and Restated Purchase Agreement, by execution of the form of Joinder
Agreement attached hereto as Annex 2.
5.15 Release of Guarantors.
Without any action required of any Noteholder, but subject to Section 2.7,
any Guarantor shall be released from its obligations under this Guaranty upon
the disposition of such Guarantor pursuant to paragraph 8H or 8I of the Amended
and Restated Purchase Agreement, provided that immediately after giving effect
to such designation or disposition, as the case may be, no Default or Event of
Default under the Amended and Restated Purchase Agreement would exist. The
Noteholders shall, at the expense of the Obligor or said Guarantor, execute and
deliver such documents as may be reasonably necessary to evidence such release.
[Remainder of page intentionally blank. Next page is signature page.]
22
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
on its behalf by one of its duly authorized officers.
SRM HOLDINGS CORP.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President,
SOUTHERN READY MIX, INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: CEO
WESTERN AGGREGATES
HOLDING CORP.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
WESTERN ROCK PRODUCTS
CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXX ROCK PRODUCTS, INCORPORATED
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
COX TRANSPORT CORPORATION
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
XXXXXX CONSTRUCTION &
DEVELOPMENT, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
SANDIA CONSTRUCTION, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
SOUTHERN NEVADA AGGREGATES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
MOHAVE CONCRETE AND MATERIALS,
INC. (NEVADA)
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
MOHAVE CONCRETE AND MATERIALS,
INC. (ARIZONA)
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
A-BLOCK COMPANY, INC.
(ARIZONA)
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
A-BLOCK COMPANY, INC. (CALIFORNIA)
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
VALLEY ASPHALT, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
DEKALB STONE, INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
GEODYNE TRANSPORT, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
FALCON RIDGE CONSTRUCTION, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
XXXX PAVING, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
MULBERRY ROCK CORPORATION
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
BHY READY MIX, INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
XXXXXXX XXXXX & SAND, INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
TRI-STATE TESTING LABORATORIES, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
BIG HORN REDI MIX, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
TREASURE VALLEY CONCRETE, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
MONROC, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
Annex 1
Address of Guarantors
The Address of each Guarantor is:
SRM Holdings Corp.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Southern Ready Mix, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Western Aggregates Holding Corp.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Western Rock Products Corporation
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxx Rock Products, Incorporated
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Cox Transport Corporation
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxx Construction & Development, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Annex 1-1
Sandia Construction, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Southern Nevada Aggregates, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Mohave Concrete and Materials, Inc. (Nevada)
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Mohave Concrete and Materials, Inc. (Arizona)
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
A-Block Company, Inc. (Arizona)
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
A-Block Company, Inc. (California)
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Valley Asphalt, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
DeKalb Stone, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Annex 1-2
Geodyne Transport, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Falcon Ridge Construction, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxx Paving, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Mulberry Rock Corporation
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
BHY Ready Mix, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxxx Xxxxx & Sand, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Tri-State Testing Laboratories, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Big Horn Redi Mix, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Annex 1-3
Treasure Valley Concrete, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Monroc, Inc.
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Annex 1-4
Annex 2
[FORM OF JOINDER AGREEMENT]
[DATE]
To each of the Noteholders (as defined in the Amended and
Restated Guaranty hereinafter referred to)
Ladies and Gentlemen:
Reference is made to the Amended and Restated Guaranty dated as of June 5,
1998 (as amended or restated from time to time, the "Guaranty"), among SRM
HOLDINGS CORP., a Delaware corporation, SOUTHERN READY MIX, INC., an Alabama
corporation, WESTERN AGGREGATES HOLDING CORP., a Delaware corporation, WESTERN
ROCK PRODUCTS CORPORATION, a Utah corporation, XXX ROCK PRODUCTS, INCORPORATED,
a Utah corporation, COX TRANSPORT CORPORATION, a Utah corporation, XXXXXX
CONSTRUCTION & DEVELOPMENT, INC., a Nevada corporation, SANDIA CONSTRUCTION,
INC., a Nevada corporation, SOUTHERN NEVADA AGGREGATES, INC., a Nevada
corporation, MOHAVE CONCRETE AND MATERIALS, INC. a Nevada corporation, MOHAVE
CONCRETE AND MATERIALS, INC., an Arizona corporation, A-BLOCK COMPANY, INC., an
Arizona corporation, A-BLOCK COMPANY, INC., a California corporation, VALLEY
ASPHALT, INC., a Utah corporation, DEKALB STONE, INC., a Georgia corporation,
GEODYNE TRANSPORT, INC., a Utah corporation, FALCON RIDGE CONSTRUCTION, INC., a
Utah corporation, XXXX PAVING, INC., a Utah corporation, MULBERRY ROCK
CORPORATION, a Georgia corporation, BHY READY MIX, INC., a Tennessee
corporation, XXXXXXX XXXXX & SAND, INC., a Tennessee corporation, TRI-STATE
TESTING LABORATORIES, INC., a Utah corporation, BIG HORN REDI MIX, INC., a
Wyoming corporation, TREASURE VALLEY CONCRETE, INC., an Idaho corporation,
MONROC, INC., a Delaware corporation, in favor of each of the Noteholders.
Capitalized terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Guaranty.
[NEW GUARANTOR], a [jurisdiction of incorporation] corporation (the
"Company"), agrees with you as follows:
1. Guaranty. The Company hereby unconditionally and expressly agrees to
become a party to the Guaranty and to perform and observe each and every one of
the covenants, agreements, terms, conditions, obligations, duties and
liabilities of a Guarantor thereunder, and that all references to the Guarantors
in the Guaranty or any document, instrument or agreement executed and delivered
or furnished, or to be executed and delivered or furnished, in connection
therewith shall be deemed to be references which include the Company, as a
Guarantor.
Annex 2-1
2. Warranties and Representations. The Company hereby warrants and
represents that each of the warranties and representations set forth in Sections
4.1 through 4.3, inclusive, of the Guaranty, are true and correct with respect
to the Company as of the date hereof and such warranties and representations are
incorporated by reference herein in their entirety. Such representations and
warranties shall survive the execution and delivery hereof.
3. Further Assurances. The Company agrees to cooperate with the
Noteholders and execute such further instruments and documents as the Required
Holders shall reasonably request to effect, to the reasonable satisfaction of
the Required Holders, the purposes of this Agreement.
4. Amendment. This Agreement may be amended only in a writing executed by
the Company and the Required Holders unless such amendment shall affect Section
2.19 of the Guaranty, in which event the written consent of the Agent and the
Required Banks (as defined in the Bank Credit Agreement) shall also be
necessary.
5. Binding Effect. This Agreement shall be binding upon the Company and
shall inure to the benefit of the Noteholders and their respective successors
and assigns.
6. Governing Law; Submission to Jurisdiction; Agent for Service of
Process. This Agreement shall be construed, interpreted and enforced in
accordance with, and governed by, the internal laws of the State of New York.
The provisions of Section 5.10 of the Guaranty shall apply to this Agreement as
if each reference to "this Guaranty" therein were a reference to this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf by one of its duly authorized officers.
[NEW GUARANTOR] CORPORATION
By
---------------------------------
Name:
Title:
Annex 2-2
