Exhibit 10.2
Execution Version
GUARANTY
THIS
GUARANTY (this “ Guaranty ”) is made as of April
1, 2007 by U.S. Concrete, Inc., a Delaware corporation (“
Guarantor ”) in favor of Edw. C. Levy Co., a Michigan
corporation (“ Levy ”), and Superior Materials
Holdings, LLC (f/k/a Superior Joint Venture, LLC), a Michigan
limited liability company (the “ Company
”).
Recitals
A. BWB,
Inc. of Michigan, a Delaware corporation, Builders’ Redi-Mix,
LLC, a Delaware limited liability company, Kurtz Gravel Company, a
Michigan corporation (“ Kurtz ”), Superior
Holdings, Inc. (f/k/a Superior Redi-Mix, Inc.), a Michigan
corporation and USC Michigan, Inc., a Delaware corporation
(collectively, together with any successors or assigns, the “
USC Members ”), each an affiliate of Guarantor, Levy,
and the Company are parties to a Contribution Agreement dated as of
March 26, 2007 (the “ Contribution Agreement
”).
B. In
connection with the closing of the transactions contemplated by the
Contribution Agreement, (i) the USC Members, Levy and Company are
entering into the Operating Agreement (as defined in the
Contribution Agreement) (the “ Operating Agreement
”), (ii) Kurtz and Levy are entering into the Asset Purchase
Agreement (as defined in the Contribution Agreement) (the “
Purchase Agreement ”), (iii) Kurtz and the Company are
entering into the Kurtz Lease (as defined in the Contribution
Agreement) (the “ Kurtz Lease ”) and (iv) Kurtz
and Levy, or an affiliate of Levy, are entering into the Mining
Lease (as defined in the Contribution Agreement) (the “
Mining Lease ”), each dated as of the date
hereof.
C. As
a condition to Levy and the Company’s obligations to close
the transactions contemplated by the Contribution Agreement,
Guarantor has agreed to guarantee each of the USC Members’
obligations under the Contribution Agreement, the Operating
Agreement, the Purchase Agreement, the Kurtz Lease and the Mining
Lease (the “ Guaranteed Documents ”).
D. Guarantor
has received a copy of each of the Guaranteed Documents and
understands the obligations of each of the USC Members contained
therein. Guarantor is willing to guarantee each of the USC
Members’ performance of such obligations, on the terms set
forth below, in recognition that consummation of the transactions
contemplated by the Guaranteed Documents is in the best interests
of Guarantor and is necessary or convenient to the conduct,
promotion or attainment of Guarantor’s
business.
In
consideration of these premises and the commitments set forth
herein, the parties hereby agree as follows:
1.
Guaranty .
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1.1 Guarantor
hereby guarantees the full performance of all of the USC
Members’ obligations to Levy and to the Company under the
Guaranteed Documents (collectively, the “ Guaranteed
Obligations ”). Guarantor agrees that its guarantee
hereunder constitutes a guarantee of performance and payment when
due and not of collection. In the event of any default or
breach by any USC Member of any Guaranteed obligation owing to Levy
or the Company and guaranteed hereunder, then no later than 30 days
after Guarantor’s receipt of written notice of such default
or breach, Guarantor will perform or cause the performance of all
or any of such Guaranteed Obligation which is in default unless
such default has theretofore been cured. Levy and the Company
agree that Guarantor will not be deemed to be in default under this
Guaranty until such notice has been provided and the curative
period has expired.
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1.2 In
no event shall the obligations and liabilities of Guarantor
hereunder exceed the obligations and liabilities of the USC Members
under the Guaranteed Documents, as if Guarantor were itself a party
to the Guaranteed Documents instead of the USC Members.
Guarantor shall have all rights and defenses, set-offs,
counterclaims, reductions, diminutions or limitations of the USC
Members under the terms of the Guaranteed Documents; provided,
however, that the foregoing shall not absolve Guarantor, and
Guarantor agrees to continue to perform its obligations hereunder,
in the event a USC Member becomes insolvent, bankrupt, reorganizes
or otherwise involved in an action or proceeding affecting the
rights of creditors generally.
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1.3 This
Guarantee is and shall remain an unconditional and continuing
guarantee of the Guaranteed Obligations and not a guarantee of
collection, shall remain in full force and effect irrespective of
any interruption in the business and other dealings and relations
of the USC Members with Levy and the Company and shall apply to and
guarantee the due and punctual payment and performance of all the
Guaranteed Obligations of any USC Member due by any USC Member to
Levy or the Company, subject to the provisions set forth
herein. To that end, Guarantor hereby expressly waives (i)
any right to require Levy or the Company to bring any action
against the USC Members, and (ii) any right to require Levy or the
Company to bring any action against any other person.
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2.
Representations and Warranties of Guarantor .
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2.1 Guarantor
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. Guarantor
has the requisite corporate power and authority to enter into this
Guaranty. Guarantor is not in default under or in violation
of any provision of its articles or bylaws.
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2.2 This
Guaranty has been duly authorized by Guarantor and by all necessary
corporate action on the part of Guarant
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