For value received and in consideration of advances made or to be made, or
credit given or to be given, or other financial accommodation afforded or to be
afforded to U.S. Aggregates, Inc. (hereinafter designated as "Borrower") by
Xxxxxx Trust and Savings Bank (hereinafter called the "Bank"), from time to
time, the undersigned hereby guarantees the full and prompt payment to the Bank
at maturity and at all times thereafter of any and all indebtedness, obligations
and liabilities of every kind and nature of the Borrower to the Bank (including
liabilities of partnerships created or arising while the Borrower may have been
or may be a member thereof) howsoever evidenced, whether now existing or
hereafter created or arising, whether direct or indirect, absolute or contingent
or joint or several, and howsoever owned, held or acquired, whether through
discount, overdraft, purchase, direct loan or as collateral, or otherwise
(hereinafter all such indebtedness, obligations and liabilities being
collectively referred to as the "Indebtedness"); and the undersigned further
agrees to pay all expenses, legal and/or otherwise (including court costs and
reasonable attorneys' fees), paid or incurred by the Bank in endeavoring to
collect the Indebtedness, or any part thereof, and in protecting, defending or
enforcing the guaranty in any liquidation, bankruptcy or insolvency proceedings
or otherwise. The liability of the undersigned hereunder is limited to
$17,500,000.00 plus interest on all loans and/or advances hereunder and all
expenses hereinbefore mentioned.
The undersigned further acknowledges and agrees with the Bank that:
1. This guaranty is a continuing, absolute and unconditional guaranty, and
shall remain in full force and effect until written notice of its discontinuance
shall be actually received by the Bank, and also until any and all of the
indebtedness created, existing or committed to before receipt of such notice
shall be fully paid. The death or dissolution of the undersigned shall not
terminate this guaranty until such notice shall be fully paid. The granting of
credit from time to time by the Bank to the Borrower in excess of the amount to
which the right of recovery under this guaranty is limited and without notice to
the undersigned, is hereby also authorized and shall in no way affect or impair
this guaranty.
2. In case of the death, incompetency, dissolution, liquidation or insolvency
(howsoever evidenced) of, or the institution of bankruptcy or receivership
proceedings against the Borrower or the undersigned, all of the Indebtedness
then existing shall, at the option of the Bank, immediately become due or
accrued and payable from the undersigned. All dividends or other payments
received from the Borrower or on account of the Indebtedness from whatsoever
source shall be taken and applied as payment in gross, and this guaranty shall
apply to and secure any ultimate balance that shall remain owing to the Bank.
3. The liability hereunder shall in no wise be affected or
impaired by (and the Bank is hereby authorized to make from time to time,
without notice to anyone), any sale, pledge, surrender, compromise,
settlement, release, renewal, extension, indulgence, alteration,
substitution, exchange, change in, modification or other disposition of any
of the Indebtedness, either express or implied, or of any contract or
contracts evidencing any of the Indebtedness, or of any, security or
collateral therefor. The liability hereunder shall in no wise be affected or
impaired by any acceptance by the Bank of any security for, or other
guarantors upon, any of the Indebtedness, or by any failure, neglect or
omission an the part of the Bank to realize upon or protect any of the
Indebtedness, or any collateral or security therefor, or to exercise any lien
upon or right of appropriation at any moneys, credits or property of the
Borrower, possessed by the Bank, toward the liquidation of the Indebtedness,
or by any application of payments or credits, if any, shall be made on the
Indebtedness, or any part thereof, in order to hold the undersigned liable
hereunder, there shall be no obligation on the part of the Bank, at any time,
to resort for payment to the Borrower or to any other guaranty, or to any
other persons or corporations, their properties or estates, or resort to any
collateral, security, property, liens or other rights or remedies whatsoever,
and the Bank shall have the right to enforce this guaranty irrespective of
whether or not other proceedings or steps seeking resort or realization upon
or from any of the foregoing are pending.
4. All diligence in collection or protection, and all presentment, demand,
protest and/or notice, as to any and everyone, whether or not the Borrower or
the undersigned or others, of dishonor and of default and of non-payment and of
the creation and existence of any and all of the Indebtedness, and of any
security and collateral therefor, and at the acceptance of this guaranty, and of
any and all extensions of credit and Indulgence hereunder, are waived. No act of
commission or omission of any kind, or at any time, upon the part of the Bank in
respect to any matter whatsoever, shall in any way affect or impair this
guaranty.
5. The undersigned will not exercise or enforce any fight of exoneration,
contribution, reimbursement, recourse or subrogation available to the
undersigned against any person liable for payment of the Indebtedness, or as to
any security therefor, unless and until the full amount owing to the Bank on the
Indebtedness has been paid and the payment by the undersigned at any amount
pursuant to this guaranty shall not in any wise entitle the undersigned to any
right, title or interest (whether by way of subrogation or otherwise) in and to
any of the Indebtedness or any proceeds thereof or any security therefore unless
and until the full amount owing to the Bank on the Indebtedness has been paid.
*See Rider I
6. The Bank may, without any notice whatsoever to anyone, sell, assign or
transfer all of the Indebtedness. or any part thereof, or grant participations
therein, and in that event each and every immediate and successive assignee,
transferee, or holder of or participant in all or any part of the Indebtedness,
shall have the
right to enforce this guaranty, by suit or otherwise, for the benefit of such
assignee, transferee, holder or participant, as fully as if such assignee,
transferee, holder or participant were herein by name specifically given such
rights, powers and benefits; but the Bank shall have an unimpaired right to
enforce this guaranty for the benefit of the Bank or any such participant, as
to so much of the Indebtedness that it has not sold, assigned or transferred.
7. The undersigned waives any and all defenses, claims and discharges of the
Borrower, or any other obligor, pertaining to the Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the undersigned will not assert, plead or enforce against the Bank
any defense of waiver, release, discharge in bankruptcy, statute at limitations,
res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to the
Borrower or any other person liable in respect of any of the Indebtedness, or
any setoff available against the Bank to the Borrower or any such other person,
whether of not on account of a related transaction. The undersigned agrees that
the undersigned shall be and remain liable for arty deficiency remaining after
foreclosure of any mortgage or security interest securing the Indebtedness,
whether or not the liability of the Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision.
8. If any payment applied by the Bank to the Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason (including
without limitation, the bankruptcy, insolvency or reorganization of the Borrower
or any other obligor), the Indebtedness to which such payment was applied shall
for the purposes of this guaranty be deemed to have continued in existence.
notwithstanding such application, and this guaranty shall be enforceable as to
such of the Indebtedness as fully as if such application had never been made.
9. The liability of the undersigned under this guaranty is in addition to and
shall be cumulative with all other liabilities of the undersigned to the Bank as
guarantor of the Indebtedness, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary. *See Rider I
10. Any invalidity or unenforceability of any provision or application of this
guaranty shall not effect other lawful provisions and applications hereof, and
to this end the provisions of this guaranty are declared to be severable. This
guaranty shall be construed according to the laws of the State of Illinois, in
which Stale it shall be performed by the undersigned and may not be waived,
amended, released or otherwise changed except by a writing signed by the Bank,
11. This guaranty and every part thereof shall be effective upon
delivery to the Bank, without further act, condition or acceptance by the
Bank, shall be binding upon the undersigned, jointly and severally, and upon
the heirs, legal representatives, successors and assigns of the undersigned,
and shall inure to the benefit of the Bank, its successors, legal
representatives and assigns. The undersigned waives notice of the Bank's
acceptance hereof.
SIGNED AND DELIVERED by the undersigned at ________ this 15th day of April,
1999. THE UNDERSIGNED ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS GUARANTY
AS OF THE TIME OF EXECUTION,
Xxxxxx, Xxxxx, Xxxxxxx, Rauner, Fund Golder, Thoma, Xxxxxxx, Xxxxxx Fund
IV, X.X. XX, L.P.
6100 Sears Tower By: GTCR IV, L.P., Its General
Chicago, IL 60606 Partner
By: Xxxxxx, Xxxxx, Xxxxxxx, Xxxxxx,
Inc.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Its: Principal
IMPORTANT NOTICE TO GUARANTORS
YOU ARE BEING ASKED TO GUARANTEE THIS DEBT, AS WELL AS ALL FUTURE DEBTS OF
THE BORROWER ENTERED INTO WITH THIS BANK. THINK CAREFULLY BEFORE YOU DO. IF THE
BORROWER DOESN'T PAY THE DEBT, YOU WILL HAVE TO. BE SURE YOU CAN AFFORD TO PAY
IF YOU HAVE TO, AND THAT YOU WENT TO ACCEPT THIS RESPONSIBILITY.
YOU MAY HAVE TO PAY UP TO THE FULL AMOUNT OF THE DEBT IF THE BORROWER DOES
NOT PAY. YOU MAY ALSO HAVE TO PAY LATE FEES OR COLLECTION COSTS, WHICH INCREASE
THIS AMOUNT.
THE BANK CAN COLLECT THIS DEBT FROM YOU WITHOUT FIRST TRYING TO COLLECT
FROM THE BORROWER. THE BANK CAN USE THE SAME COLLECTION METHODS AGAINST YOU
THAT CAN BE USED AGAINST THE BORROWER, SUCH AS SUING YOU, GARNISHING YOUR WAGES,
ETC. IF THIS DEBT IS EVER IN DEFAULT, THAT FACT MAY BECOME PART AT YOUR CREDIT
RECORD.
THIS NOTICE IS NOT THE CONTRACT THAT MAKES YOU LIABLE FOR THE DEBT.
RIDER I TO GUARANTY
PARAGRAPH 5. Notwithstanding anything contained herein to the contrary, this
paragraph 5 shall not prohibit the undersigned from enforcing any of its direct
claims (arising in the ordinary course of the Borrowers and the undersigned's
business as presently conducted) against the Borrower which are unrelated to the
Indebtedness, this guaranty or the obligations of the undersigned hereunder.
PARAGRAPH 9. The liability of the undersigned under this guaranty Is in
addition to and shall be cumulative with all other liabilities to the Bank under
that certain letter agreement from the undersigned to the Bank of even date
herewith.
