Exhibit 4.1.10
NINTH AMENDMENT
THIS NINTH AMENDMENT dated as of September 27, 2001 (this "Amendment")
is to the Third Amended and Restated Credit Agreement (as amended, the "Credit
Agreement") dated as of June 5, 1998 among U.S. AGGREGATES, INC., a Delaware
corporation (the "Company"), various financial institutions (the "Lenders") and
BANK OF AMERICA, N.A., as agent for the Lenders (the "Agent"). Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as defined
in the Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
1 SECTION AMENDMENTS. Effective on (and subject to the occurrence of) the Ninth
Amendment Effective Date (as defined below):
1.1 Section 1.1 of the Credit Agreement shall be amended by adding the
following definitions thereto, each in its appropriate alphabetical position:
Ninth Amendment means the Ninth Amendment to this Agreement dated as of
September 27, 2001.
Ninth Amendment Effective Date means the "Ninth Amendment Effective
Date" as defined in the Ninth Amendment.
1.2 Section 3.1 of the Credit Agreement shall be amended by (i)
amending and restating clause (e) to read in its entirety as follows
(e) Each Term C Loan (and all Capitalized Interest and other amounts
owing with respect thereto) of such Lender shall be paid in full on November 16,
2001.
and (ii) adding the following sentence at the end of such Section
Notwithstanding the foregoing, the quarterly installment of the Term B
Loans scheduled under clause (c) above to be paid on September 30, 2001
shall be deferred until November 16, 2001.
1.3 Section 4.2 of the Credit Agreement shall be amended by inserting
the following after the second sentence of such Section:
Notwithstanding the two immediately preceding sentences, any interest
that (but for this sentence) would be payable in cash (giving effect to
the fifth sentence of this Section) at any time from and including the
Ninth Amendment Effective Date to but excluding November 16, 2001 shall
be payable in cash on November 16, 2001.
1.4 Section 5.6 of the Credit Agreement shall be amended by deleting
the date "September 28, 2001" where it appears in such Section and inserting in
lieu thereof the date "November 16, 2001".
SECTION 2 WAIVERS. Effective on (and subject to the occurrence of) the
Ninth Amendment Effective Date, the Required Lenders hereby waive (i) any Event
of Default caused by the Company's noncompliance with Section 10.6.4 of the
Credit Agreement for the period ended September 30, 2001 and (ii) any Event of
Default under Section 12.1.2 of the Credit Agreement caused by any default after
September 30, 2001 under any of (1) the Master Lease Agreement dated as of
September 10, 1997 by and between BancBoston Leasing, Inc.("BBL") and SRM
Aggregates, Inc. ("SRM Aggregates"), (2) the Equipment Acquisition Agreement
dated as of January 20, 2000 between BBL and SRM Aggregates, Master Lease
Agreement No. 34577 dated as of September 25, 2000 between Fleet Capital
Corporation ("FCC") and SRM Aggregates, (3) any of the Equipment Acquisition
Agreements dated as of September 25, 2000 between FCC and SRM Aggregates with
respect to the Mulberry Quarry -- Crushing Plant, the Pride Quarry -- Rail and
Barge Loadout and the Pride Quarry Addition, (4) Master Lease Agreement by and
between BBL and Sandia Construction, Inc., (5) Master Lease Agreement by and
between BBL and Cox Transport Corporation, and (6) Master Lease Agreement by and
between BBL and Geodyne, Inc. (now known as Geodyne Beck Rock Products, Inc.)
(all of the agreements referred to the foregoing clauses (1) through (5) being
referred to herein as the "Fleet Lease Documents"), in each case to the extent
such defaults under the Fleet Lease Documents have been waived in a manner
satisfactory to the Agent in its sole and absolute discretion on or prior to the
Ninth Amendment Effective Date by the requisite holders of the Debt evidenced by
the Fleet Lease Documents.
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Lenders that (a) the representations and
warranties made in Section 9 (excluding Sections 9.6 and 9.8) of the Credit
Agreement are true and correct on and as of the Ninth Amendment Effective Date
with the same effect as if made on and as of the Ninth Amendment Effective Date
(except to the extent relating solely to an earlier date, in which case they
were true and correct as of such earlier date); (b) except as waived hereby, no
Event of Default or Unmatured Event of Default exists or will result from the
execution of this Amendment; (c) no event or circumstance has occurred since the
Effective Date that has resulted, or would reasonably be expected to result, in
a Material Adverse Effect; (d) the execution and delivery by the Company of this
Amendment and the performance by the Company of its obligations under the Credit
Agreement as amended hereby (as so amended, the "Amended Credit Agreement") (i)
are within the corporate powers of the Company, (ii) have been duly authorized
by all necessary corporate action, (iii) have received all necessary approval
from any Governmental Authority and (iv) do not and will not contravene or
conflict with any provision of any law, rule or regulation or any order, decree,
judgment or award which is binding on the Company or any Guarantor or any of
their respective Subsidiaries or of any provision of the certificate of
incorporation or bylaws or other organizational documents of the Company or of
any agreement, indenture, instrument or other document which is binding on the
Company or any Guarantor or any of their respective Subsidiaries; (e) the
Amended Credit Agreement is the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability; and (f) the obligation of the Company and
the other Loan Parties to repay the Loans and the other obligations under the
Loan Documents is absolute and unconditional, and there exists no right of
setoff or recoupment, counterclaim or defense of any nature whatsoever to
payment of such obligations.
SECTION 4 EFFECTIVENESS. The amendments set forth in Section 1 above
and the waivers set forth in Section 2 above shall become effective as of the
date hereof on such date (the "Ninth Amendment Effective Date") when the Agent
shall have received (a) a counterpart of this Amendment executed by the Company
and each of the Lenders (or, in the case of any party other than the Company
from which the Agent has not received a counterpart hereof, facsimile
confirmation of the execution of a counterpart hereof by such party) and (b)
each of the following documents, each in form and substance satisfactory to the
Agent:
4.1 Reaffirmation. Counterparts of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit A, executed by the Company, each Guarantor
and each Pledgor.
4.2 Resolutions. Certified copies of resolutions of the Board of
Directors of the Company authorizing or ratifying the execution, delivery and
performance by the Company of this Amendment, the Amended Credit Agreement and
each other Loan Document contemplated by this Amendment to which the Company is
a party.
4.3 Incumbency and Signature Certificates. A certificate of the
Secretary or an Assistant Secretary of the Company, certifying the names of the
officer or officers of the Company authorized to sign this Amendment and the
other Loan Documents contemplated hereby to which the Company is a party,
together with a sample of the true signature of each such officer.
4.4 Subordinated Debt Waiver. The holders of the 1996 Subordinated
Notes, the 1998 Subordinated Notes and the 2001 Subordinated Note shall have
waived, in form and substance satisfactory to the Agent, any default under
Section 8O of the Note and Warrant Purchase Agreement with respect to the period
ending September 30, 2001.
4.5 Fleet Loan Documents. Each of BBL and FCC shall have waived, in
form and substance satisfactory to the Agent, any default under the Fleet Lease
Documents.
4.6 Other Documents. Such other documents as the Agent or any Lender
may reasonably request.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Ninth Amendment Effective Date, all
references in the Credit Agreement, the Notes, each other Loan Document and any
similar document to the "Credit Agreement" or similar terms shall refer to the
Amended Credit Agreement. The waivers contained in Section 2 hereof are limited
strictly to their terms and shall not apply to non-compliance with any other
term of any Loan Document.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 Expenses. The Company agrees to pay the reasonable costs and
expenses of the Agent (including reasonable fees and disbursements of counsel,
including, without duplication, the allocable costs of internal legal services
and all disbursements of internal legal counsel and the reasonable fees of
PricewaterhouseCoopers, L.L.P. ("PwC"), which shall continue to be retained as
financial advisor to the Agent) in connection with the preparation, execution
and delivery of this Amendment and the ongoing work being done by PwC in
connection with the workout of the Company's Debt.
5.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be wholly performed within the State of Illinois.
5.5 Successors and Assigns. This Amendment shall be binding upon the
Company, the Lenders and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Company, the Lenders and the Agent and the
successors and assigns of the Lenders and the Agent.
5.6 Loan Document. This Amendment is a Loan Document.
5.7 Deferral of Seventh Amendment Fee. The undersigned hereby agree
that the fee specified in Section 3 of the Seventh Amendment shall not be
payable until the earlier to occur of (x) November 16, 2001 and (y) the closing
of the Southeastern Assets Sale.
SECTION 6 RELEASE OF CLAIMS. THE COMPANY HEREBY ACKNOWLEDGES AND AGREES
THAT IT DOES NOT HAVE ANY DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM
OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF LIABILITY OF THE COMPANY TO REPAY THE AGENT OR ANY
LENDER AS PROVIDED IN THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS OR TO
SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM THE AGENT OR ANY
LENDER. THE COMPANY HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENT AND THE LENDERS, AND THE AGENT'S AND EACH LENDER'S
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS OR EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY,
ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS
EXECUTED, WHICH THE MAY NOW OR HEREAFTER HAVE AGAINST THE AGENT OR ANY SUCH
LENDER, AND THE AGENT'S OR SUCH LENDER'S PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATION OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THE
CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION AND EXECUTION OF THIS
AMENDMENT.
Delivered as of the day and year first above written.
U.S. AGGREGATES, INC.
By:
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Title:
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BANK OF AMERICA, N.A., as Agent
By:
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Title:
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BANK OF AMERICA, N.A., as a Lender
and as Issuing Lender
By:
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Title:
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FLEET NATIONAL BANK (formerly known
as BankBoston, N.A.), as a Lender
By:
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Title:
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NATIONAL CITY BANK, as a Lender
By:
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Title:
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BANK OF SCOTLAND, as a Lender
By:
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Title:
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IBJ WHITEHALL BANK AND TRUST
COMPANY, as a Lender
By:
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Title:
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COMERICA BANK - CALIFORNIA, as a Lender
By:
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Title:
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ZIONS FIRST NATIONAL BANK, as a Lender
By:
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Title:
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UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:
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Title:
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PILGRIM PRIME RATE TRUST, as a Lender
By: Pilgrim Investments, Inc.,
as its Investment Manager
By:
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Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
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Title:
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EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management,
as Investment Advisor
By:
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Title:
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EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management,
as Investment Advisor
By:
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Title:
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KZH-HIGHLAND - 2 LLC
By:
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Title:
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ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors, LLC, as
Collateral Manager
By:
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Title:
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ARCHIMEDES FUNDING III, LLC
By: ING Capital Advisors, LLC, as
Collateral Manager
By:
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Title:
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SEQUILS-ING 1 (HBDGM), LTD.
By: ING Capital Advisors, LLC, as
Collateral Manager
By:
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Title:
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BANK ONE, N.A.
By:
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Title:
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BRANCH BANKING AND TRUST COMPANY
By:
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Title:
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HIGHLAND CRUSADER OFFSHORE PARTNERS
By:
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Title:
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EXHIBIT A
FORM OF REAFFIRMATION
OF LOAN DOCUMENTS
as of September __, 2001
Bank of America, N.A., as Agent
and the other parties to the Third
Amended and Restated Credit
Agreement referred to below
1455 Market Street
San Francisco, California 94103
Attn: Agency Management Services #5596
Re: Reaffirmation of Loan Documents
Ladies and Gentlemen:
Please refer to:
1. The Amended and Restated Security Agreement dated as of June 5, 1998
(the "Security Agreement") among U.S. Aggregates, Inc. (the "Company"), Western
Aggregates Holding Corporation, a Delaware corporation, Jensen Construction and
Development, Inc., a Nevada corporation, Sandia Construction, Inc., a Nevada
corporation, Cox Rock Products Inc., a Utah corporation, Cox Transport
Corporation, a Utah corporation, SRM Holdings Corp., a Delaware corporation, SRM
Aggregates, Inc., an Alabama corporation, A-Block Company, Inc., an Arizona
corporation, A-Block Company, Inc., a California corporation, Mohave Concrete
and Materials, Inc., an Arizona corporation, Mohave Concrete and Materials,
Inc., a Nevada corporation, Mulberry Rock Corporation, a Georgia corporation,
Valley Asphalt, Inc., a Utah corporation, BHY Ready Mix, Inc., a Tennessee
corporation, Geodyne Beck Rock Products, Inc., a Utah corporation, Western Rock
Products Corp., a Utah corporation, Tri-State Testing Laboratories, Inc., a Utah
corporation, Dekalb Stone, Inc., a Georgia corporation, Bradley Stone & Sand,
Inc., a Tennessee corporation, Monroc, Inc., a Delaware corporation, Western
Aggregates, Inc., a Utah corporation, Eagle Valley Materials, Inc., Nevada
Aggregates, Inc., Bama Crushed Corporation, Grove Materials Corporation and Bank
of America, N.A. in its capacity as Agent (in such capacity, the "Agent");
2. The Amended and Restated Guaranty dated as of June 5, 1998 (the
"Guaranty") executed in favor of the Agent and various other parties by Western
Aggregates Holding Corporation, Jensen Construction and Development, Inc.,
Sandia Construction, Inc., Cox Rock Products Inc., Cox Transport Corporation,
SRM Holdings Corp., SRM Aggregates, Inc., A-Block Company, Inc., A-Block
Company, Inc., Mohave Concrete and Materials, Inc., Mohave Concrete and
Materials, Inc., Mulberry Rock Corporation, Valley Asphalt, Inc., BHY Ready Mix,
Inc., Geodyne Beck Rock Products, Inc., Western Rock Products Corp., Tri-State
Testing Laboratories, Inc., Dekalb Stone, Inc.,
Bradley Stone & Sand, Inc., Monroc, Inc., Eagle Valley Materials, Inc., Nevada
Aggregates, Inc., Bama Crushed Corporation, Grove Materials Corporation;
3. The following Pledge Agreements:
(a) the Amended and Restated Company Pledge Agreement dated as of June
5, 1998 between the Company and the Agent, and
(b) the Amended and Restated Subsidiary Pledge Agreement dated as of
June 5, 1998 between Western Aggregates Holding Corp., Western Rock Products
Corp., SRM Holdings Corp., Southern Ready Mix, Inc., Monroc, Inc., and the
Agent, (all of the foregoing Pledge Agreements, in each case as heretofore
amended, being collectively referred to herein as the "Pledge Agreements").
4. The Patent Security Agreement made as of March 30, 1995 by Cox Rock
Products Inc. in favor of the Agent (the "Patent Security Agreement").
5. Each other Loan Document (as defined in the Credit Agreement
referred to below).
The Security Agreement, the Guaranty, the Pledge Agreements, the Patent
Security Agreement and the other Loan Documents referred to above, in each case
as heretofore amended, are collectively referred to herein as the "Documents".
Capitalized terms not otherwise defined herein will have the meanings given in
the Credit Agreement referred to below.
Each of the undersigned acknowledges that the Company, the Banks and the
Agent have executed the Ninth Amendment (the "Amendment") to the Third Amended
and Restated Credit Agreement dated as of June 5, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement").
Each of the undersigned hereby (i) confirms that each Document to which
such undersigned is a party remains in full force and effect after giving effect
to the effectiveness of the Amendment and that, upon such effectiveness, all
references in such Document to the "Credit Agreement" shall be references to the
Credit Agreement as amended by the Amendment, (ii) acknowledges and agrees that
its obligations under the Documents are absolute and unconditional, and there
exists no right of setoff or recoupment, counterclaim or defense of any nature
whatsoever thereto and (iii) VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENT AND THE LENDERS, AND THE AGENT'S AND LENDER'S PREDECESSORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, OR EXPENSES, AND LIABILITIES
WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THE FOREGOING AMENDMENT IS EXECUTED,
WHICH IT MAY NOW OR HEREAFTER HAVE AGAINST THE AGENT OR ANY SUCH LENDER, AND THE
AGENT'S OR SUCH LENDER'S PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR REGULATION, OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR
ANY OTHER DOCUMENT, AND NEGOTIATION AND EXECUTION OF THE FOREGOING AMENDMENT.
The letter agreement may be signed in counterparts and by the various
parties as herein on separate counterparts. This letter agreement shall be
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such State.
U.S. AGGREGATES, INC.
By:_______________________________
Title:____________________________
SRM HOLDINGS CORP.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES HOLDING CORP.
By:________________________________
Title:_____________________________
WESTERN ROCK PRODUCTS CORP.
By:________________________________
Title:_____________________________
JENSEN CONSTRUCTION & DEVELOPMENT, INC.
By:________________________________
Title:_____________________________
SANDIA CONSTRUCTION, INC.
By:________________________________
Title:_____________________________
TRI-STATE TESTING LABORATORIES, INC.
By:________________________________
Title:_____________________________
MOHAVE CONCRETE AND MATERIALS, INC.,
a Nevada corporation
By:________________________________
Title:_____________________________
MOHAVE CONCRETE AND MATERIALS, INC.,
an Arizona corporation
By:________________________________
Title:_____________________________
A-BLOCK COMPANY, INC.,
an Arizona corporation
By:________________________________
Title:_____________________________
A-BLOCK COMPANY, INC.,
a California corporation
By:________________________________
Title:_____________________________
COX ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
COX TRANSPORT CORPORATION
By:________________________________
Title:_____________________________
VALLEY ASPHALT, INC.
By:________________________________
Title:_____________________________
GEODYNE BECK ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
SRM AGGREGATES, INC.
By:________________________________
Title:_____________________________
DEKALB STONE, INC.
By:________________________________
Title:_____________________________
MULBERRY ROCK CORPORATION
By:________________________________
Title:_____________________________
BHY READY MIX, INC.
By:________________________________
Title:_____________________________
BRADLEY STONE & SAND, INC.
By:________________________________
Title:_____________________________
MONROC, INC.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES, INC.
By:________________________________
Title:_____________________________
EAGLE VALLEY MATERIALS, INC.
By:________________________________
Title:________________________
NEVADA AGGREGATES, INC.
By:________________________________
Title:_____________________________
BAMA CRUSHED CORPORATION
By:________________________________
Title:__________________________
GROVE MATERIALS CORPORATION
By:________________________________
Title:_____________________________
ACKNOWLEDGED AND AGREED
as of the date first written above
BANK OF AMERICA, N.A., as Agent
By:________________________________
Title:_______________________________