\nARTICLE 10 MISCELLANEOUS……………………………………………………………………37
\n 10.1 Modification…………………………………………………………………….37
\n 10.2 Waiver………………………………………………………………………….37
\n 10.3 Payment of Expenses………………………………………………………………37
\n 10.4 Notices…………………………………………………………………………37
\n 10.5 Governing Law……………………………………………………………………38
\n 10.6 Invalid Provisions……………………………………………………………….38
\n 10.7 Binding Effect…………………………………………………………………..38
\n 10.8 Entirety………………………………………………………………………..38
\n 10.9 Time……………………………………………………………………………38
\n 10.10 Headings………………………………………………………………………..39
\n 10.11 Survival………………………………………………………………………..39
\n 10.12 No Third Party Beneficiary………………………………………………………..39
\n 10.13 Indemnity……………………………………………………………………….39
\n 10.14 Schedules and Exhibits Incorporated………………………………………………..39
\n 10.15 Counterparts…………………………………………………………………….40
\n<\/c><\/s><\/table>\nExhibit “A” – Form of Pledge Agreement
\nExhibit “B” – Form of Guaranty
\nExhibit “C” – Form of Security Agreement
\nExhibit “D” – Form of Deed of Trust
\nExhibit “E” – Form of Environmental Indemnity Agreement<\/p>\n
-iii-
\n 44
\n EXHIBIT “A”<\/p>\n
FORM OF PLEDGE AGREEMENT
\n 45
\n EXHIBIT “B”<\/p>\n
FORM OF GUARANTY
\n 46
\n EXHIBIT “C”<\/p>\n
FORM OF SECURITY AGREEMENT
\n 47
\n EXHIBIT “D”<\/p>\n
FORM OF DEED OF TRUST
\n 48
\n EXHIBIT “E”<\/p>\n
FORM OF ENVIRONMENTAL INDEMNITY AGREEMENT<\/p>\n
49
\n EXHIBIT “A”<\/p>\n
PLEDGE AND IRREVOCABLE PROXY SECURITY AGREEMENT<\/p>\n
THIS PLEDGE AND IRREVOCABLE PROXY SECURITY AGREEMENT is made and
\nentered into as of the _____ day of _____________, 19___, by SCHUFF STEEL
\nCOMPANY, a Delaware corporation (hereinafter called “Pledgor”), whose chief
\nexecutive office is located at Post Office Box 39670, Phoenix, Arizona 85069, in
\nfavor of BANK ONE, ARIZONA, NA, a national banking association, and its
\nsuccessors and assigns (hereinafter called “Secured Party”), whose address is
\nPost Office Box 71, Phoenix, Arizona 85001, Attention: Commercial Banking Dept.
\nAZ1-1178.<\/p>\n
1. RECITALS<\/p>\n
1.1 Secured Party has agreed to make certain financial accommodations
\nto Pledgor (hereinafter when referred to in this capacity called “Borrower”).<\/p>\n
1.2 Secured Party’s agreement to make financial accommodations to
\nPledgor is conditioned upon Secured Party’s receiving a pledge and security
\ninterest in all stock and securities issued by the Company (as defined on
\nSchedule A attached hereto) now owned or hereafter acquired by Pledgor.<\/p>\n
1.3 Pledgor is the owner of _______________ shares of the stock of the
\nCompany that are described on Schedule A and Pledgor desires to pledge them to
\nSecured Party in connection with Secured Party’s financial accommodations to
\nPledgor.<\/p>\n
2. PLEDGE OF STOCK<\/p>\n
2.1 Pledgor hereby assigns, transfers, pledges and delivers to Secured
\nParty and grants Secured Party a security interest in all issued and outstanding
\nstock in the Company now owned or hereafter acquired by Pledgor, including
\nwithout limitation the stock described on Schedule “A” attached hereto and by
\nthis reference made a part hereof, together with all earnings thereon, all
\nadditions thereto, all proceeds thereof from sale or otherwise, all
\nsubstitutions therefor, and all securities issued with respect thereto as a
\nresult of any stock dividend, stock split, warrants or other rights,
\nreclassification, readjustment or other change in the capital structure of the
\nCompany, and the securities of any corporation or other properties received upon
\nthe conversion or exchange thereof pursuant to any merger, consolidation,
\nreorganization, sale of assets or other agreement or received upon any
\nliquidation of the Company or such other corporation (all hereinafter called the
\n“Pledged Securities”).<\/p>\n
2.2 Upon the execution of this Agreement, Pledgor shall deliver to
\nSecured Party certificates for the Pledged Securities, together with appropriate
\nstock transfer powers therefor duly executed by Pledgor in blank substantially
\nin the form attached hereto as Exhibit 1. Immediately upon receipt, Pledgor
\nshall deliver to Secured Party all certificates and other evidences of the
\nPledged Securities that come into the possession, custody or control of Pledgor,
\ntogether with
\n 50
\nappropriate stock transfer powers therefor duly executed by Pledgor in blank,
\nand any other property constituting part of the Pledged Securities, free and
\nclear of any prior lien, claim, charge or encumbrance.<\/p>\n
2.3 Secured Party may receive, hold and\/or dispose of the Pledged
\nSecurities subject and pursuant to all the terms, conditions and provisions
\nhereof and of the Loan Agreement (defined below) until the Obligation (defined
\nbelow) has been discharged in full. Secured Party is hereby authorized and
\nempowered to take any and all action with respect to such property as authorized
\nhereunder. In its discretion and without notice to Pledgor, Secured Party may
\ntake any one or more of the following actions, without liability except to
\naccount for property actually received by it:<\/p>\n
(a) transfer to or register in its name or the name of its
\n nominee any of the Pledged Securities, with or without indication of
\n the security interest herein created, and whether or not so transferred
\n or registered, receive the income, dividends and other distributions
\n thereon and hold them or apply them to the Obligation in any order of
\n priority;<\/p>\n
(b) exercise or cause to be exercised all voting and corporate
\n powers with respect to any of the Pledged Securities so registered or
\n transferred, including all rights of conversion, exchange, subscription
\n or any other rights, privileges or options pertaining to such Pledged
\n Securities, as if the absolute owner thereof;<\/p>\n
(c) insure any of the Pledged Securities;<\/p>\n
(d) exchange any of the Pledged Securities for other property
\n upon a reorganization, recapitalization or other readjustment and, in
\n connection therewith, deposit any of the Pledged Securities with any
\n committee or depositary upon such terms as the Secured Party may
\n determine;<\/p>\n
(e) in its name, or in the name of Pledgor, demand, sue for,
\n collect or receive any money or property at any time payable or
\n receivable on account of, or in exchange for, any of the Pledged
\n Securities and, in connection therewith, endorse notes, checks, drafts,
\n money orders, documents of title or other evidences of payment,
\n shipment or storage in the name of Pledgor; and<\/p>\n
(f) make any compromise or settlement deemed advisable with
\n respect to any of the Pledged Securities.<\/p>\n
Secured Party shall be under no duty to exercise, or to withhold the exercise
\nof, any of the rights, powers, privileges and options expressly or implicitly
\ngranted to Secured Party in this Agreement, and shall not be responsible for any
\nfailure to do so or delay in so doing.<\/p>\n
3. OBLIGATION SECURED<\/p>\n
This Agreement shall secure, in such order of priority as Secured Party
\nmay elect:<\/p>\n
-2-
\n 51
\n (a) Payment of the sum of $10,000,000.00 with interest
\n thereon, extension and other fees, late charges, prepayment premiums
\n and attorneys’ fees, according to the terms of that Promissory Note
\n dated December 10, 1997, made by Pledgor, payable to the order of
\n Secured Party, and all extensions, modifications, renewals or
\n replacements thereof (hereinafter called the “Line Note”);<\/p>\n
(b) Payment of the sum of $10,000,000.00 according to the
\n terms of that Promissory Note dated June 30, 1995, made by Pledgor,
\n payable to the order of Secured Party, evidencing a revolving line of
\n credit, all or any part of which may be advanced to Pledgor, repaid by
\n Pledgor and readvanced to Pledgor, from time to time, subject to the
\n terms and conditions thereof, with interest thereon, extension and
\n other fees, late charges, prepayment premiums and attorneys’ fees,
\n according to the terms thereof, and all extensions, modifications,
\n renewals or replacements thereof (hereinafter called with the Line Note
\n the “Note”);<\/p>\n
(c) Payment, performance and observance by Pledgor of each
\n covenant, condition, provision and agreement contained herein and of
\n all monies expended or advanced by Secured Party pursuant to the terms
\n hereof, or to preserve any right of Secured Party hereunder, or to
\n protect or preserve the Pledged Securities or any part thereof;<\/p>\n
(d) Payment, performance and observance by Pledgor of each
\n covenant, condition, provision and agreement contained in that Credit
\n Agreement dated December 10, 1997, by and between Pledgor and Secured
\n Party (hereinafter called the “Loan Agreement”) and in any other
\n document or instrument related to the indebtedness hereby secured and
\n of all monies expended or advanced by Secured Party pursuant to the
\n terms thereof or to preserve any right of Secured Party thereunder; and<\/p>\n
(e) Payment and performance of any and all other indebtedness,
\n obligations and liabilities of Pledgor to Secured Party of every kind
\n and character, direct or indirect, absolute or contingent, due or to
\n become due, now existing or hereafter incurred, whether such
\n indebtedness is from time to time reduced and thereafter increased or
\n entirely extinguished and thereafter reincurred.<\/p>\n
All of the indebtedness and obligations secured by this Agreement are
\nhereinafter collectively called the “Obligation.”<\/p>\n
4. REPRESENTATIONS AND WARRANTIES OF PLEDGOR<\/p>\n
Pledgor hereby represents and warrants that:<\/p>\n
4.1 The address of Pledgor set forth at the beginning of this Agreement
\nis the chief executive office of Pledgor.<\/p>\n
-3-
\n 52
\n 4.2 The Pledged Securities are and shall be duly and validly issued and
\npledged in accordance with applicable law, and this Agreement shall not
\ncontravene any law, agreement or commitment binding Pledgor or the Company, and
\nPledgor shall defend the right, title, lien and security interest of Secured
\nParty in and to the Pledged Securities against the claims and demands of all
\npersons and other entities whatsoever.<\/p>\n
4.3 Pledgor has the right, power and authority to convey good and
\nmarketable title to the Pledged Securities; and the Pledged Securities and the
\nproceeds thereof are and shall be free and clear of all claims, mortgages,
\npledges, liens, encumbrances and security interest of every nature whatsoever
\nother than as imposed hereby or as set forth, if at all, on Schedule “A”
\nattached hereto.<\/p>\n
5. IRREVOCABLE PROXY<\/p>\n
5.1 Pledgor irrevocably constitutes and appoints Secured Party, whether
\nor not the Pledged Securities have been transferred into the name of Secured
\nParty or its nominee, as Pledgor’s proxy with full power, in the same manner, to
\nthe same extent and with the same effect as if Pledgor were to do the same, in
\nthe sole discretion of Secured Party:<\/p>\n
(a) To call a meeting of the stockholders of the Company and
\n to vote the Pledged Securities, to seek the consent of such
\n stockholders, to remove the directors of the Company, or any of them,
\n and to elect new directors of the Company, who thereafter shall manage
\n the affairs of the Company, operate its properties and carry on its
\n business, and otherwise take any action with respect to the business,
\n properties and affairs of the Company that such new directors shall
\n deem necessary or appropriate, including, but not limited to, the
\n maintenance, repair, renewal or alteration of any or all of the
\n properties of the Company, the leasing, subleasing, sale or other
\n disposition of any or all of such properties, the borrowing of money on
\n the credit of the Company (whether from Secured Party or others) that
\n in the judgment of such new directors shall be necessary to preserve
\n any of such properties or to discharge the obligations of the Company,
\n and the employment of any or all agents, attorneys, counsel, or other
\n employees as deemed by such new directors to be necessary for the
\n proper operation or conduct of the business, properties and affairs of
\n the Company;<\/p>\n
(b) To consent to any and all actions by or with respect to
\n the Company for which consent of the stockholders of the Company is or
\n may be necessary or appropriate; and<\/p>\n
(c) Without limitation, to do all things that Pledgor can do
\n or could do as stockholder of the Company, giving Secured Party full
\n power of substitution and revocation;<\/p>\n
provided, however, that (i) the foregoing irrevocable proxy shall not be
\nexercisable by Secured Party, and Pledgor alone shall have the foregoing powers,
\nso long as there is no Event of Default hereunder, and (ii) this irrevocable
\nproxy shall terminate at such time as this Agreement is no longer in full force
\nand effect. The foregoing proxy is coupled with an interest sufficient in law to
\nsupport an<\/p>\n
-4-
\n 53
\nirrevocable power and shall be irrevocable and shall survive the death or
\nincapacity of Pledgor. Pledgor hereby revokes any proxy or proxies heretofore
\ngiven to any person or persons and agrees not to give any other proxies in
\nderogation hereof until such time as this Agreement is no longer in full force
\nand effect.<\/p>\n
6. COVENANTS OF PLEDGOR<\/p>\n
6.1 Pledgor shall not sell, transfer, assign or otherwise dispose of
\nany of the Pledged Securities or any interest therein without obtaining the
\nprior written consent of Secured Party and shall keep the Pledged Securities
\nfree of all security interests or other encumbrances except the lien and
\nsecurity interests granted herein.<\/p>\n
6.2 Pledgor shall pay when due all taxes, assessments, expenses and
\nother charges which may be levied or assessed against the Pledged Securities.<\/p>\n
6.3 Pledgor shall give Secured Party immediate written notice of any
\nchange in Pledgor’s name as set forth above and of any change in the location of
\nPledgor’s chief executive office (or residence if Pledgor is an individual
\nwithout an office).<\/p>\n
6.4 Pledgor, at its cost and expense, shall protect and defend the
\nPledged Securities, this Agreement and all of the rights of Secured Party
\nhereunder against all claims and demands of other parties. Pledgor shall pay all
\nclaims and charges that in the opinion of Secured Party might prejudice, imperil
\nor otherwise affect the Pledged Securities. Pledgor shall promptly notify
\nSecured Party of any levy, distraint or other seizure, by legal process or
\notherwise, of all or any part of the Pledged Securities and of any threatened or
\nfiled claims or proceedings that might in any way affect or impair the terms of
\nthis Agreement.<\/p>\n
6.5 If Pledgor shall fail to pay any taxes, assessments, expenses or
\ncharges, to keep all of the Pledged Securities free from other security
\ninterests, encumbrances or claims, or to perform otherwise as required herein,
\nSecured Party may advance the monies necessary to pay the same or to so perform.<\/p>\n
6.6 All rights, powers and remedies granted Secured Party herein, or
\notherwise available to Secured Party, are for the sole benefit and protection of
\nSecured Party, and Secured Party may exercise any such right, power or remedy at
\nits option and in its sole and absolute discretion without any obligation to do
\nso. In addition, if, under the terms hereof, Secured Party is given two or more
\nalternative courses of action, Secured Party may elect any alternative or
\ncombination of alternatives at its option and in its sole and absolute
\ndiscretion. All monies advanced by Secured Party under the terms hereof, all
\namounts paid, suffered or incurred by Secured Party under the terms hereof and
\nall amounts paid, suffered or incurred by Secured Party in exercising any
\nauthority granted herein, including reasonable attorneys’ fees, shall be added
\nto the Obligation, shall be secured hereby, shall bear interest at the highest
\nrate payable on any of the Obligation until paid, and shall be due and payable
\nby Pledgor to Secured Party immediately without demand.<\/p>\n
6.7 Secured Party shall use such reasonable care in handling,
\npreserving and protecting the Pledged Securities in its possession as it uses in
\nhandling similar property for its own account.<\/p>\n
-5-
\n 54
\nSecured Party, however, shall have no liability for the loss, destruction or
\ndisappearance of any Pledged Securities unless there is affirmative proof of a
\nlack of due care; the lack of due care shall not be implied solely by virtue of
\nany loss, destruction or disappearance. Secured Party shall not be required to
\ntake any steps necessary to preserve any rights in the Pledged Securities
\nagainst prior parties or to protect, perfect, preserve or maintain any security
\ninterest given to secure the Pledged Securities.<\/p>\n
6.8 Immediately upon demand by Secured Party, Pledgor shall execute and
\ndeliver to Secured Party such other and additional applications, acceptances,
\nstock powers, authorizations, irrevocable proxies, dividend and other orders,
\nchattel paper, instruments or other evidences of payment and such other
\ndocuments as Secured Party may reasonably request to secure to Secured Party the
\nrights, powers and authorities intended to be conferred upon Secured Party by
\nthis Agreement. All assignments and endorsements by Pledgor shall be in such
\nform and substance as may be satisfactory to Secured Party.<\/p>\n
7. EVENTS OF DEFAULT; REMEDIES<\/p>\n
7.1 “Event of Default” hereunder shall mean any “Event of Default” as
\ndefined in the Loan Agreement.<\/p>\n
7.2 Upon the occurrence of any Event of Default and at any time while
\nsuch Event of Default is continuing, Secured Party shall have the following
\nrights and remedies and may do one or more of the following:<\/p>\n
(a) Declare all or any part of the Obligation to be
\n immediately due and payable, and the same, with all costs and charges,
\n shall be collectible thereupon by action at law;<\/p>\n
(b) Transfer the Pledged Securities or any part thereof into
\n its own name or that of its nominee so that Secured Party or its
\n nominee may appear of record as the sole owner thereof;<\/p>\n
(c) Vote any or all of the Pledged Securities and give all
\n consents, waivers and ratifications in respect thereof and otherwise
\n acting with respect thereto as though it were the absolute owner
\n thereof;<\/p>\n
(d) Exercise any and all rights of conversion, exchange,
\n subscription, or any other rights, privileges or options pertaining to
\n any of the Pledged Securities including, but not limited to, the right
\n to exchange, at its discretion, any or all of the Pledged Securities
\n upon the merger, consolidation, reorganization, recapitalization or
\n other readjustment of the Company or upon the exercise by Pledgor or
\n Secured Party of any right, privilege or option pertaining to any of
\n the shares of the Pledged Securities, and in connection therewith to
\n deposit and deliver such shares of Pledged Securities with any
\n committee, depository, transfer agent, registrar or any other agency
\n upon such terms as Secured Party may determine without liability except
\n to account for the property actually received by it;<\/p>\n
-6-
\n 55
\n (e) Receive and retain any dividend or other distribution on
\n account of the Pledged Securities; and<\/p>\n
(f) Sell any or all of the Pledged Securities in accordance
\n with the provisions hereof;<\/p>\n
but Secured Party shall have no duty to exercise any of the aforesaid rights,
\nprivileges or options and shall not be responsible for any failure to do so or
\ndelay in so doing. Pledgor waives all rights to be advised or to receive any
\nnotices, statements or communications received by Secured Party or its nominee
\nas the record owner of all or any of the Pledged Securities. Any cash received
\nand retained by Secured Party as additional collateral hereunder may be applied
\nto payment in the manner provided in Subparagraph 7.3(c) below.<\/p>\n
7.3 In connection with Secured Party’s right to sell any or all of the
\nPledged Securities, upon the occurrence of any Event of Default and at any time
\nwhile such Event of Default is continuing:<\/p>\n
(a) (i) Secured Party shall have the right at any time and
\n from time to time to sell, resell, assign and deliver, in its
\n discretion, all or any part of the Pledged Securities in one
\n or more units, at the same or different times, and all right,
\n title and interest, claim and demand therein, and right of
\n redemption thereof, at private sale, or at public sale to the
\n highest bidder for cash, upon credit or for future delivery,
\n Pledgor hereby waiving and releasing to the fullest extent
\n permitted by law any and all equity or right of redemption. If
\n any of the Pledged Securities are sold by Secured Party upon
\n credit or for future delivery, Secured Party shall not be
\n liable for the failure of the purchaser to purchase or pay for
\n same, and, in the event of any such failure, Secured Party may
\n resell such Pledged Securities. In no event shall Pledgor be
\n credited with any part of the proceeds of the sale of any
\n Pledged Securities until cash payment thereof has actually
\n been received by Secured Party.<\/p>\n
(ii) No demand, advertisement or notice, all of which
\n are hereby expressly waived, shall be required in connection
\n with any sale or other disposition of all or any part of the
\n Pledged Securities that threatens to decline speedily in value
\n or that is of a type customarily sold on a recognized market;
\n otherwise Secured Party shall give Pledgor at least five (5)
\n days’ prior notice of the time and place of any public sale or
\n of the time after which any private sale or other dispositions
\n are to be made, which Pledgor agrees is reasonable, all other
\n demands, advertisements and notices being hereby waived. Upon
\n any sale, whether under this Agreement or by virtue of
\n judicial proceedings, Secured Party may bid for and purchase
\n any or all of the Pledged Securities and, upon compliance with
\n the terms of the sale, may hold, retain, possess and dispose
\n of such items in its own<\/p>\n
-7-
\n 56
\n absolute right without further accountability, and as
\n purchaser at such sale, in paying the purchase price, may turn
\n in any note or notes held by Secured Party in lieu of cash up
\n to the amount that would, upon distribution of the net
\n proceeds of such sale in accordance with Subparagraph 7.3(c)
\n hereof, be payable to Secured Party. In case the amount so
\n payable thereon shall be less than the amount due thereon, the
\n note or notes turned in (in lieu of cash) shall be returned to
\n the holder thereof after being properly stamped to show the
\n partial payment effected by such purchase.<\/p>\n
(b) Pledgor recognizes that Secured Party may be unable to
\n effect a sale to the public of all or a part of the Pledged Securities
\n by reason of prohibitions contained in applicable securities laws, but
\n may be compelled to resort to one or more sales to a restricted group
\n of purchasers who will be obliged to agree, among other things, to
\n acquire such Pledged Securities for their own account, for investment
\n and not with a view to the distribution or resale thereof. Pledgor
\n agrees that sales so made may be at prices and other terms less
\n favorable to the seller than if such Pledged Securities were sold to
\n the public, and that Secured Party has no obligation to delay sale of
\n any such Pledged Securities for the period of time necessary to permit
\n the issuer of such Pledged Securities to register the same for sale to
\n the public under applicable securities laws. Pledgor agrees that
\n negotiated sales made under the foregoing circumstances shall be deemed
\n to have been made in a commercially reasonable manner.<\/p>\n
(c) In all sales of Pledged Securities, public or private,
\n Secured Party shall apply the proceeds of sale as follows:<\/p>\n
(i) First, to the payment of all costs and expenses
\n incurred hereunder or for the sale, transfer, or delivery,
\n including broker’s and attorneys’ fees;<\/p>\n
(ii) Next to the payment of the Obligation; and<\/p>\n
(iii) The balance, if any, to Pledgor or to the
\n person or persons entitled thereto upon proper demand.<\/p>\n
7.4 Secured Party shall have the right, for and in the name, place and
\nstead of Pledgor, to execute endorsements, assignments or other instruments of
\nconveyance or transfer with respect to all or any of the Pledged Securities and
\nany instruments, documents and statements that Pledgor is obligated to furnish
\nor execute hereunder. Pledgor shall execute and deliver such additional
\ndocuments as may be necessary to enable Secured Party to implement such right.<\/p>\n
7.5 Pledgor shall pay all costs and expenses, including without
\nlimitation court costs and reasonable attorneys’ fees, incurred by Secured Party
\nin enforcing payment and performance of the Obligation or in exercising the
\nrights and remedies of Secured Party hereunder. All such costs and expenses
\nshall be secured by this Agreement and by all other lien and security documents
\nsecuring<\/p>\n
-8-
\n 57
\nthe Obligation. In the event of any court proceedings, court costs and
\nattorneys’ fees shall be set by the court and not by jury and shall be included
\nin any judgment obtained by Secured Party.<\/p>\n
7.6 In addition to any remedies provided herein for an Event of
\nDefault, Secured Party shall have all the rights and remedies afforded a secured
\nparty under the Uniform Commercial Code and all other legal and equitable
\nremedies allowed under applicable law. No failure on the part of Secured Party
\nto exercise any of its rights hereunder arising upon any Event of Default shall
\nbe construed to prejudice its rights upon the occurrence of any other or
\nsubsequent Event of Default. No delay on the part of Secured Party in exercising
\nany such rights shall be construed to preclude it from the exercise thereof at
\nany time while that Event of Default is continuing. Secured Party may enforce
\nany one or more rights or remedies hereunder successively or concurrently. By
\naccepting payment or performance of any of the Obligation after its due date,
\nSecured Party shall not thereby waive the agreement contained herein that time
\nis of the essence, nor shall Secured Party waive either its right to require
\nprompt payment or performance when due of the remainder of the Obligation or its
\nright to consider the failure to so pay or perform an Event of Default.<\/p>\n
8. MISCELLANEOUS PROVISIONS<\/p>\n
8.1 The acceptance of this Agreement by Secured Party shall not be
\nconsidered a waiver of or in any way to affect or impair any other security that
\nSecured Party may have, acquire simultaneously herewith, or hereafter acquire
\nfor the payment or performance of the Obligation, nor shall the taking by
\nSecured Party at any time of any such additional security be construed as a
\nwaiver of or in any way to affect or impair the right and interest granted
\nherein; Secured Party may resort, for the payment or performance of the
\nObligation, to its several securities therefor in such order and manner as it
\nmay determine.<\/p>\n
8.2 Without notice or demand, without the necessity for any additional
\nendorsements, without affecting the obligations of Pledgor hereunder or the
\npersonal liability of any person for payment or performance of the Obligation,
\nand without affecting the rights and interests granted herein, Secured Party,
\nfrom time to time, may: (i) extend the time for payment of all or any part of
\nthe Obligation, accept a renewal note therefor, reduce the payments thereon,
\nrelease any person liable for all or any part thereof, or otherwise change the
\nterms of all or any part of the Obligation; (ii) take and hold other security
\nfor the payment or performance of the Obligation and enforce, exchange,
\nsubstitute, subordinate, waive or release any such security; (iii) join in any
\nextension or subordination agreement; or (iv) release any part of the Pledged
\nSecurities from this Agreement.<\/p>\n
8.3 Pledgor waives and agrees not to assert: (i) any right to require
\nSecured Party to proceed against any guarantor, to proceed against or exhaust
\nany other security for the Obligation, to pursue any other remedy available to
\nSecured Party, or to pursue any remedy in any particular order or manner; (ii)
\nthe benefits of any statute of limitations affecting the enforcement hereof;
\n(iii) the benefits of any legal or equitable doctrine or principle of
\nmarshalling; (iv) demand, diligence, presentment for payment, protest and
\ndemand, and notice of extension, dishonor, protest, demand and nonpayment,
\nrelating to the Obligation; and (v) any benefit of, and any right to participate
\nin, any other security now or hereafter held by Secured Party.<\/p>\n
-9-
\n 58
\n 8.4 The terms herein shall have the meanings in and be construed under
\nthe Uniform Commercial Code. This Agreement shall be governed by and construed
\naccording to the internal laws of the State of Arizona. Each provision of this
\nAgreement shall be interpreted in such manner as to be effective and valid under
\napplicable law, but if any provision of this Agreement is held to be void or
\ninvalid, the same shall not affect the remainder hereof which shall be effective
\nas though the void or invalid provision had not been contained herein.<\/p>\n
8.5 No modification, rescission, waiver, release or amendment of any
\nprovision of this Agreement shall be made except by a written agreement executed
\nby Pledgor and a duly authorized officer of Secured Party.<\/p>\n
8.6 This is a continuing agreement, which shall remain in full force
\nand effect until actual receipt by Secured Party of written notice of its
\nrevocation as to future transactions and shall remain in full force and effect
\nthereafter until all of the Obligation incurred before the receipt of such
\nnotice, and all of the Obligation incurred thereafter under commitments extended
\nby Secured Party before the receipt of such notice, shall have been paid and
\nperformed in full.<\/p>\n
8.7 No setoff or claim that Pledgor now has or may in the future have
\nagainst Secured Party shall relieve Pledgor from paying or performing its
\nobligations hereunder.<\/p>\n
8.8 Time is of the essence hereof. If more than one Pledgor or more
\nthan one Borrower is named herein, the word Pledgor and the word “Borrower,”
\nrespectively, shall mean all and any one or more of them, severally and
\ncollectively. All liability hereunder shall be joint and several. This Agreement
\nshall be binding upon, and shall inure to the benefit of, the parties hereto and
\ntheir heirs, personal representatives, successors and assigns. The term “Secured
\nParty” shall include not only the original Secured Party hereunder but also any
\nfuture owner and holder, including pledgees, of the note or notes evidencing the
\nObligation. The provisions hereof shall apply to the parties according to the
\ncontext thereof and without regard to the number or gender of words or
\nexpressions used.<\/p>\n
8.9 All notices required or permitted to be given hereunder shall be in
\nwriting and may be given in person or by United States mail, by delivery service
\nor by electronic transmission. Any notice directed to a party to this Agreement
\nshall become effective upon the earliest of the following: (i) actual receipt by
\nthat party; (ii) delivery to the designated address of that party, addressed to
\nthat party; or (iii) if given by certified or registered United States mail,
\ntwenty-four (24) hours after deposit with the United States Postal Service,
\npostage prepaid, addressed to that party at its designated address. The
\ndesignated address of a party shall be the address of that party shown at the
\nbeginning of this Agreement or such other address as that party, from time to
\ntime, may specify by notice to the other parties.<\/p>\n
8.10 A carbon, photographic or other reproduced copy of this Agreement
\nand\/or any financing statement relating hereto shall be sufficient for filing
\nand\/or recording as a financing statement.<\/p>\n
-10-
\n 59
\n IN WITNESS WHEREOF, these presents are executed as of the date
\nindicated above.<\/p>\n
Witnessed by: SCHUFF STEEL COMPANY, a Delaware
\n(Other than notary) corporation<\/p>\n
By
\n Name
\n Its<\/p>\n
PLEDGOR<\/p>\n
-11-
\n 60
\nSTATE OF ___________ )
\n ) ss.
\nCounty of ____________ )<\/p>\n
The foregoing instrument was acknowledged before me this _____ day of
\n_______________________, _____, by
\n_______________________________________________, the ___________________________
\nof SCHUFF STEEL COMPANY, a Delaware corporation, on behalf of that corporation.<\/p>\n
IN WITNESS WHEREOF, I hereunto set my hand and official seal.<\/p>\n
—————————
\n Notary Public<\/p>\n
My commission expires:<\/p>\n
———————-<\/p>\n
-12-
\n 61
\n SCHEDULE “A”<\/p>\n
All issued and outstanding shares of stock in
\n_______________________________ _________________________________, a(n)
\n_________________ corporation (“Company”), now or hereafter owned by Pledgor,
\nwhich as of the date hereof consists of _________ shares of __________ stock.<\/p>\n
62
\n EXHIBIT “1”<\/p>\n
ASSIGNMENT SEPARATE FROM CERTIFICATE<\/p>\n
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
\ntransfer to __________________________________________, ____________ (_____)
\nshares of common stock of ___________________________________________________,
\nan ___________________ corporation (the “Corporation”), represented by
\ncertificate number __ in the name of the undersigned on the books of the
\nCorporation.<\/p>\n
The undersigned does hereby irrevocably constitute and appoint any
\nofficer of the Corporation as attorney to transfer said stock on the books of
\nthe Corporation with full power of substitution in the premises.<\/p>\n
Dated as of _____________________.<\/p>\n
Witnessed by: SCHUFF STEEL COMPANY, a Delaware
\n(Other than notary) corporation<\/p>\n
By
\n Name
\n Its<\/p>\n
-14-
\n 63
\nSTATE OF ___________ )
\n ) ss.
\nCounty of ____________ )<\/p>\n
The foregoing instrument was acknowledged before me this _____ day of
\n_______________________, _____, by
\n_______________________________________________, the ___________________________
\nof SCHUFF STEEL COMPANY, a Delaware corporation, on behalf of that corporation.<\/p>\n
IN WITNESS WHEREOF, I hereunto set my hand and official seal.<\/p>\n
—————————
\n Notary Public<\/p>\n
My commission expires:<\/p>\n
———————-<\/p>\n
-15-<\/p>\n
64
\n EXHIBIT “B”<\/p>\n
CONTINUING GUARANTEE<\/p>\n
TO: BANK ONE, ARIZONA, NA, a national banking association<\/p>\n
1. For valuable consideration, the undersigned (hereinafter called
\n“Guarantor”), whose address is set forth after Guarantor’s signature below,
\njointly and severally, and unconditionally, guarantees and promises to pay to
\nBANK ONE, ARIZONA, NA, a national banking association (hereinafter called
\n“Lender”), or order, on demand, in lawful money of the United States, any and
\nall indebtedness of SCHUFF STEEL COMPANY, a Delaware corporation (hereinafter
\ncalled “Borrower”) to Lender. If more than one Borrower is named herein, or if
\nthis Guarantee is executed by more than one Guarantor, the word “Borrower” and
\nthe word “Guarantor” respectively shall mean all and any one or more of them,
\nseverally and collectively. The word “indebtedness” is used in its most
\ncomprehensive sense and includes any and all advances, debts, obligations and
\nliabilities of Borrower heretofore, now or hereafter made, incurred or created,
\nwith or without notice to Guarantor, whether voluntary or involuntary and
\nhowever arising, whether due or not due, absolute or contingent, liquidated or
\nunliquidated, determined or undetermined, and whether Borrower is liable
\nindividually or jointly with others, or whether recovery upon such indebtedness
\nmay be or hereafter become barred by any statute of limitations, or whether such
\nindebtedness may be or hereafter become otherwise unenforceable, exclusive,
\nhowever, of any indebtedness of Borrower to Lender presently covered by existing
\nguaranties executed by Guarantor, but without derogation to such existing
\nguaranties, if any, which are hereby ratified and reaffirmed.<\/p>\n
2. Guarantor agrees that to the extent Borrower or Guarantor makes any
\npayment to Lender in connection with the Indebtedness, and all or any part of
\nsuch payment is subsequently invalidated, declared to be fraudulent or
\npreferential, set aside or required to be repaid by Lender or paid over to a
\ntrustee, receiver or any other entity, whether under any bankruptcy act or
\notherwise (any such payment is hereinafter referred to as a “Preferential
\nPayment”), then this Guarantee shall continue to be effective or shall be
\nreinstated, as the case may be, and, to the extent of such payment or repayment
\nby Lender, the Indebtedness or part thereof intended to be satisfied by such
\nPreferential Payment shall be revived and continued in full force and effect as
\nif said Preferential Payment had not been made.<\/p>\n
3. This is a continuing guarantee that shall remain in full force and
\neffect and includes all indebtedness arising under future transactions or under
\nsuccessive transactions which either continue then existing indebtedness or from
\ntime to time renew it after it has been satisfied, but shall not apply to any
\nindebtedness created after actual receipt by Lender of written notice of the
\nrevocation of this Guarantee as to future transactions. Any such revocation of
\nthis Guarantee at any time by any Guarantor as to future transactions shall not
\naffect the liability of any other guarantor for indebtedness of Borrower and
\nshall not affect the liability of that Guarantor or any other guarantor for
\nindebtedness incurred or credit committed by Lender to Borrower prior to the
\neffective time of that revocation; this Guarantee shall remain in full force and
\neffect as to all such indebtedness. The death of any Guarantor shall not operate
\nas a revocation of liability hereunder of the estate of that Guarantor for
\nindebtedness created or incurred or credit committed by Lender to<\/p>\n
65
\nBorrower subsequent to such death until actual receipt by Lender of written
\nnotice of the death of that Guarantor. Guarantor waives notice of revocation
\ngiven by any other guarantor.<\/p>\n
4. Guarantor is providing this Guarantee at the instance and request of
\nBorrower to induce Lender to extend or continue financial accommodations to
\nBorrower. Guarantor hereby represents and warrants that Guarantor is and will
\ncontinue to be fully informed about all aspects of the financial condition and
\nbusiness affairs of Borrower that Guarantor deems relevant to the obligations of
\nGuarantor hereunder and hereby waives and fully discharges Lender from any and
\nall obligations to communicate to Guarantor any information whatsoever regarding
\nBorrower or Borrower’s financial condition or business affairs.<\/p>\n
5. Guarantor authorizes Lender, without notice or demand and without
\naffecting Guarantor’s liability hereunder, from time to time, to: (a) renew,
\nmodify, compromise, extend, accelerate or otherwise change the time for payment
\nof, or otherwise change the terms of the indebtedness or any part thereof,
\nincluding increasing or decreasing the rate of interest thereon; (b) release,
\nsubstitute or add any one or more endorsers, Guarantor or other guarantors; (c)
\ntake and hold security for the payment of this Guarantee or the indebtedness,
\nand enforce, exchange, substitute, subordinate, waive or release any such
\nsecurity; (d) proceed against such security and direct the order or manner of
\nsale of such security as Lender in its discretion may determine; and (e) apply
\nany and all payments from Borrower, Guarantor or any other guarantor, or
\nrecoveries from such security, in such order or manner as Lender in its
\ndiscretion may determine.<\/p>\n
6. Guarantor waives and agrees not to assert: (a) any right to require
\nLender to proceed against Borrower or any other guarantor, to proceed against or
\nexhaust any security for the indebtedness, to pursue any other remedy available
\nto Lender, or to pursue any remedy in any particular order or manner; (b) the
\nbenefit of any statute of limitations affecting Guarantor’s liability hereunder
\nor the enforcement thereof; (c) demand, diligence, presentment for payment,
\nprotest and demand, and notice of extension, dishonor, protest, demand,
\nnonpayment and acceptance of this Guarantee; (d) notice of the existence,
\ncreation or incurring of new or additional indebtedness of Borrower to Lender;
\n(e) the benefits of any statutory provision limiting the liability of a surety,
\nincluding without limitation the provisions of A.R.S. Sections 12-1641, et seq.;
\n(f) any defense arising by reason of any disability or other defense of Borrower
\nor by reason of the cessation from any cause whatsoever (other than payment in
\nfull) of the liability of Borrower for the indebtedness; and (g) the benefits of
\nany statutory provision limiting the right of Lender to recover a deficiency
\njudgment, or to otherwise proceed against any person or entity obligated for
\npayment of the indebtedness, after any foreclosure or trustee’s sale of any
\nsecurity for the indebtedness, including without limitation the benefits, if
\nany, to Guarantor of A.R.S. Section 33-814. Guarantor shall have no right of
\nsubrogation and hereby waives any right to enforce any remedy which Lender now
\nhas, or may hereafter have, against Borrower, and waives any benefit of, and any
\nright to participate in, any security now or hereafter held by Lender.<\/p>\n
7. All existing and future indebtedness of Borrower to Guarantor is
\nhereby subordinated to the indebtedness of Borrower to Lender and such
\nindebtedness of Borrower to Guarantor, if Lender so requests, shall be
\ncollected, enforced and received by Guarantor as trustee for Lender and shall be
\npaid over to Lender on account of the indebtedness of Borrower to Lender, but
\nwithout<\/p>\n
-2-
\n 66
\nreducing or affecting in any manner the liability of Guarantor under the other
\nprovisions of this Guarantee.<\/p>\n
8. In addition to all liens upon, and rights of setoff against, the
\nmonies, securities or other property of Guarantor given to Lender by law, Lender
\nshall have a lien and a right of setoff against, and Guarantor hereby grants to
\nLender a security interest in, all monies, securities and other property of
\nGuarantor now and hereafter in the possession of or on deposit with Lender,
\nwhether held in a general or special account or deposit, or for safekeeping or
\notherwise; every such lien and right of setoff may be exercised without demand
\nupon or notice to Guarantor. No lien or right of setoff shall be deemed to have
\nbeen waived by any act or conduct on the part of Lender, by any neglect to
\nexercise such right of setoff or to enforce such lien, or by any delay in so
\ndoing.<\/p>\n
9. If Guarantor is a corporation, a limited liability company or a
\npartnership, Guarantor represents and warrants that: (a) it has the necessary
\npower under law and its governing documents to make the agreements on its part
\nherein contained; (b) the execution of this Guarantee has been authorized by all
\nnecessary and proper actions; (c) the execution and delivery of this Guarantee,
\nthe consummation of the transactions contemplated hereby, and the fulfillment of
\nor compliance with the terms and conditions of this Guarantee do not conflict
\nwith or result in a breach of any of the terms, conditions or provisions of any
\nagreement or instrument to which it is a party or by which it is bound; and (d)
\nGuarantor agrees that during the term of this Guarantee it will maintain its
\nseparate existence, and will not dissolve, terminate, merge or consolidate.<\/p>\n
10. Guarantor agrees to pay all attorneys’ fees and all other costs and
\nexpenses which may be incurred by Lender in enforcing this Guarantee.<\/p>\n
11. The obligations of Guarantor hereunder are joint and several if
\nGuarantor is more than one person or entity, are separate and independent of the
\nobligations of Borrower and of any other guarantor, and a separate action or
\nactions may be brought and prosecuted against Guarantor whether action is
\nbrought against Borrower or any other guarantor or whether Borrower or any other
\nguarantor is joined in any action or actions. The obligations of Guarantor
\nhereunder shall survive and continue in full force and effect until payment in
\nfull of the indebtedness is actually received by Lender, notwithstanding any
\nrelease or termination of Borrower’s liability by express or implied agreement
\nwith Lender or by operation of law and notwithstanding that the indebtedness or
\nany part thereof is deemed to have been paid or discharged by operation of law
\nor by some act or agreement of Lender. For purposes of this Guarantee, the
\nindebtedness shall be deemed to be paid only to the extent that Lender actually
\nreceives immediately available funds and to the extent of any credit bid by
\nLender at any foreclosure or trustee’s sale of any security for the
\nindebtedness.<\/p>\n
12. This Guarantee sets forth the entire agreement of Guarantor and
\nLender with respect to the subject matter hereof and supersedes all prior oral
\nand written agreements and representations by Lender to Guarantor. No
\nmodification or waiver of any provision of this Guarantee or any right of Lender
\nhereunder and no release of Guarantor from any obligation hereunder shall be
\neffective unless in a writing executed by an authorized officer of Lender.<\/p>\n
-3-
\n 67
\n 13. This Guarantee shall inure to the benefit of Lender and its
\nsuccessors and assigns and shall be binding upon Guarantor and its heirs,
\npersonal representatives, successors and assigns. Lender may assign this
\nGuarantee in whole or in part without notice.<\/p>\n
14. Notwithstanding anything else herein to the contrary, if the
\nGuarantor’s obligations hereunder are subject to avoidance by a trustee or
\ndebtor-in-possession in any bankruptcy proceedings under the United States
\nBankruptcy Code or any comparable provisions or subject to avoidance by any
\ncreditor under applicable state fraudulent transfer acts then, in such event,
\nthe Guarantor’s obligations hereunder shall be reduced to the maximum amount
\nwhich would not be subject to such avoidance.<\/p>\n
15. Guarantor acknowledges that the execution of this Guarantee shall
\nnot entitle Guarantors to rely on the Lender to preserve or maintain any
\ncollateral or other security that Lender may not have or hereafter acquire in
\nconnection with the Indebtedness. Guarantor hereby releases Lender from any
\nobligation to inspect, preserve or maintain any collateral or other security
\nthat Lender may now have or hereafter acquire in connection with the
\nIndebtedness, and any obligation to monitor, control or see to the use of any
\nmonies advanced to the Borrower. Guarantor further waives any and all rights to
\nreceive reports or other information Bank may have relating to Borrower.<\/p>\n
16. Guarantor agrees that during the term of this Guarantee it will not
\ntransfer or dispose of any material part of its assets except in the ordinary
\ncourse of business for a full and fair consideration. Guarantor agrees that
\nduring the term of this Guarantee it will furnish annually, within 90 days after
\nthe close of each year or fiscal year, as the case may be, a financial statement
\nconsisting of a balance sheet and such other financial information as Lender may
\nreasonably request.<\/p>\n
17. If any part of parts of this Guarantee shall at any time be held to
\nbe invalid or unenforceable by binding arbitration or by a court of competent
\njurisdiction, the remaining part or parts of the Guarantee shall be and remain
\nin full force and effect.<\/p>\n
18. Guarantor acknowledges the Lender would not have allowed the
\nindebtedness to exist except for the consideration received from Guarantor’s
\npromise to pay pursuant to this Guarantee.<\/p>\n
19. This Guarantee shall be governed by and construed according to the
\nlaws of the State of Arizona.<\/p>\n
IN WITNESS WHEREOF these presents are executed as of the _____ day of
\n________________, 19___.<\/p>\n
WITNESS: GUARANTOR:<\/p>\n
Address: <\/p>\n
-4-<\/p>\n
68
\n EXHIBIT “C”<\/p>\n
SECURITY AGREEMENT<\/p>\n
THIS SECURITY AGREEMENT is made and entered into as of the _____ day of
\n_________________, 19___, by __________________________________________________
\n_____________________________________ (hereinafter called “Debtor”), whose chief
\nexecutive office is located at
\n______________________________________________________________
\n___________________________________________________________________, in favor of
\nBANK ONE, ARIZONA, NA, a national banking association, and its successors and
\nassigns (hereinafter called “Secured Party”), whose address is Post Office Box
\n71, Phoenix, Arizona 85001, Attention: Commercial Banking Dept. AZ1-1178.<\/p>\n
1. SECURITY INTEREST<\/p>\n
Debtor hereby grants to Secured Party a security interest (hereinafter
\ncalled the “Security Interest”) in all of Debtor’s right, title and interest in
\nand to the following described personal property described on Schedule “A”
\nattached hereto (the “Collateral”):<\/p>\n
2. OBLIGATION SECURED<\/p>\n
The Security Interest shall secure, in such order of priority as
\nSecured Party may elect:<\/p>\n
(a) Payment of the sum of $10,000,000.00 with interest
\n thereon, extension and other fees, late charges, prepayment premiums
\n and attorneys’ fees, according to the terms of that Promissory Note
\n dated December 10, 1997, made by SCHUFF STEEL COMPANY, a Delaware
\n corporation (“Borrower”), payable to the order of Secured Party, and
\n all extensions, modifications, renewals or replacements thereof
\n (hereinafter called the “Line Note”);<\/p>\n
(b) Payment of the sum of $10,000,000.00 according to the
\n terms of that Promissory Note dated June 30, 1995, made by Borrower,
\n payable to the order of Secured Party, evidencing a revolving line of
\n credit, all or any part of which may be advanced to Borrower, repaid by
\n Borrower and readvanced to Borrower, from time to time, subject to the
\n terms and conditions thereof, with interest thereon, extension and
\n other fees, late charges, prepayment premiums and attorneys’ fees,
\n according to the terms thereof, and all extensions, modifications,
\n renewals or replacements thereof (hereinafter called with the Line
\n Note, the “Note”);<\/p>\n
(c) Payment, performance and observance by Debtor of each
\n covenant, condition, provision and agreement contained herein and of
\n all monies expended or advanced by Secured Party pursuant to the terms
\n hereof, or to preserve any right of Secured Party hereunder, or to
\n protect or preserve the Collateral or any part thereof;
\n 69<\/p>\n
(d) Payment, performance and observance by Borrower of each
\n covenant, condition, provision and agreement contained in that Credit
\n Agreement dated December 10, 1997, by and between Borrower and Secured
\n Party (hereinafter called the “Loan Agreement”) and in any other
\n document or instrument related to the indebtedness described in
\n subparagraph (a) above and of all monies expended or advanced by
\n Secured Party pursuant to the terms thereof or to preserve any right of
\n Secured Party thereunder;<\/p>\n
(e) Payment and performance of any and all other indebtedness,
\n obligations and liabilities of Debtor and\/or Borrower to Secured Party
\n of every kind and character, direct or indirect, absolute or
\n contingent, due or to become due, now existing or hereafter incurred,
\n whether such indebtedness is from time to time reduced and thereafter
\n increased or entirely extinguished and thereafter reincurred.<\/p>\n
All of the indebtedness and obligations secured by this Agreement are
\nhereinafter collectively called the “Obligation.”<\/p>\n
3. USE; LOCATION; CONSTRUCTION<\/p>\n
3.1 The Collateral is or will be used or produced primarily for
\nbusiness purposes:<\/p>\n
3.2 The Collateral will be kept at Debtor’s address set forth at the
\nbeginning of this Agreement and\/or at the following location(s):
\n__________________________________________.<\/p>\n
3.3 Debtor’s records concerning the Collateral will be kept at Debtor’s
\naddress set forth at the beginning of this Agreement and\/or at the following
\nlocation(s): ____________.<\/p>\n
3.4 If any portion of the Collateral is or will be a fixture, it will
\nbe affixed to real property having the following legal description:
\n______________________________________________________________________; and a
\nfinancing statement relating hereto is to be filed (recorded) in the office
\nwhere a mortgage of that real property would be recorded.<\/p>\n
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR<\/p>\n
Debtor hereby represents and warrants that:<\/p>\n
4.1 If Debtor is a corporation, limited liability company, partnership
\nor trust, it (i) is duly organized, validly existing and in good standing under
\nthe laws of the state in which it is organized; (ii) is qualified to do business
\nand is in good standing under the laws of the state in which the <\/p>\n
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\n 70
\nCollateral is located and in each state in which it is doing business; (iii) has
\nfull power and authority to own its properties and assets and to carry on its
\nbusinesses as now conducted; and (iv) is fully authorized and permitted to
\nexecute and deliver this Agreement and to enter into any transactions evidenced
\nby any portion of the Collateral. The execution, delivery and performance by
\nDebtor of this Agreement and all other documents and instruments relating to the
\nObligation will not result in any breach of the terms and conditions or
\nconstitute a default under any agreement or instrument under which Debtor is a
\nparty or is obligated. Debtor is not in default in the performance or observance
\nof any covenants, conditions or provisions of any such agreement or instrument.<\/p>\n
4.2 Debtor is the owner of the Collateral free of all security
\ninterests or other encumbrances except the Security Interest and no financing
\nstatement covering the Collateral is filed or recorded in any public office.<\/p>\n
4.3 The Collateral is, and is intended to be, used, produced or
\nacquired by Debtor for use primarily for the purpose marked in Section 3 above.
\nThe address of Debtor set forth at the beginning of this Agreement is the chief
\nexecutive office of Debtor or Debtor’s residence if Debtor is an individual
\nwithout an office. If a portion of the Collateral is or will become a fixture,
\nit will be affixed to the real property as described above.<\/p>\n
4.4 Each account, chattel paper or general intangible included in the
\nCollateral is genuine and enforceable in accordance with its terms against the
\nparty named therein who is obligated to pay the same (hereinafter called
\n“Obligor”), and the security interests that are part of each item of chattel
\npaper included in the Collateral are valid, first and prior perfected security
\ninterests. Each Obligor is solvent, and the amount that Debtor has represented
\nto Secured Party as owing by each Obligor is the amount actually and
\nunconditionally owing by that Obligor, without deduction except for normal cash
\ndiscounts where applicable; no Obligor has any defense, setoff, claim or
\ncounterclaim against Debtor that can be asserted against Secured Party whether
\nin any proceeding to enforce the Security Interest or otherwise. Each document,
\ninstrument and chattel paper included in the Collateral is complete and regular
\non its face and free from evidence of forgery or alteration. No default has
\noccurred in connection with any instrument, document or chattel paper included
\nin the Collateral, no payment in connection therewith is overdue and no
\npresentment, dishonor or protest has occurred in connection therewith.<\/p>\n
5. COVENANTS OF DEBTOR<\/p>\n
5.1 Debtor shall not sell, transfer, assign or otherwise dispose of any
\nCollateral or any interest therein (except as permitted herein) without
\nobtaining the prior written consent of Secured Party and shall keep the
\nCollateral free of all security interests or other encumbrances except the
\nSecurity Interest. Although proceeds of Collateral are covered by this
\nAgreement, this shall not be construed to mean that Secured Party consents to
\nany sale of the Collateral.<\/p>\n
5.2 Debtor shall keep and maintain the Collateral in good condition and
\nrepair and shall not use the Collateral in violation of any provision of this
\nAgreement or any applicable statute, ordinance or regulation or any policy of
\ninsurance insuring the Collateral.<\/p>\n
-3-
\n 71<\/p>\n
5.3 Debtor shall provide and maintain insurance insuring the Collateral
\nagainst risks, with coverage and in form and amount satisfactory to Secured
\nParty. At Secured Party’s request, Debtor shall deliver to Secured Party the
\noriginal policies of insurance containing endorsements naming Secured Party as a
\nloss payee.<\/p>\n
5.4 Debtor shall pay when due all taxes, assessments and other charges
\nwhich may be levied or assessed against the Collateral.<\/p>\n
5.5 Debtor shall prevent any portion of the Collateral that is not a
\nfixture from being or becoming a fixture and shall prevent any portion of the
\nCollateral from being or becoming an accession to other goods that are not part
\nof the Collateral.<\/p>\n
5.6 If the Collateral includes motor vehicles, Debtor shall not remove
\nor permit such motor vehicles to be removed from the State of Arizona without
\nthe prior written consent of Secured Party, shall keep all titled vehicles
\nproperly registered with and licensed by the State of Arizona, shall provide
\nSecured Party with the license numbers of all titled vehicles, shall cause the
\nSecurity Interest to be shown as a valid first lien on the Certificate of Title
\nfor all titled vehicles and shall deliver lien filing receipts to Secured Party
\nas evidence thereof.<\/p>\n
5.7 Debtor, upon demand, shall promptly deliver to Secured Party all
\ninstruments, documents and chattel paper included in the Collateral and all
\ninvoices, shipping or delivery records, purchase orders, contracts or other
\nitems related to the Collateral. Debtor shall notify Secured Party immediately
\nof any default by any Obligor in the payment or performance of its obligations
\nwith respect to any Collateral. Debtor, without Secured Party’s prior written
\nconsent, shall not make or agree to make any alteration, modification or
\ncancellation of, or substitution for, or credit, adjustment or allowance on, any
\nCollateral.<\/p>\n
5.8 Debtor shall give Secured Party immediate written notice of any
\nchange in the location of: (i) Debtor’s chief executive office (or residence if
\nDebtor is an individual without an office); (ii) the Collateral or any part
\nthereof; or (iii) Debtor’s records concerning the Collateral.<\/p>\n
5.9 Secured Party or its agents may inspect the Collateral at
\nreasonable times and may enter into any premises where the Collateral is or may
\nbe located. Debtor shall keep records concerning the Collateral in accordance
\nwith generally accepted accounting principles and, unless waived in writing by
\nSecured Party, shall mark its records and the Collateral to indicate the
\nSecurity Interest. Secured Party shall have free and complete access to Debtor’s
\nrecords and shall have the right to make extracts therefrom or copies thereof.
\nUpon request of Secured Party from time to time, Debtor shall submit up-to-date
\nschedules of the items comprising the Collateral in such detail as Secured Party
\nmay require and shall deliver to Secured Party confirming specific assignments
\nof all accounts, instruments, documents and chattel paper included in the
\nCollateral.<\/p>\n
5.10 Debtor, at its cost and expense, shall protect and defend this
\nAgreement, all of the rights of Secured Party hereunder, and the Collateral
\nagainst all claims and demands of other parties, including without limitation
\ndefenses, setoffs, claims and counterclaims asserted by any Obligor against
\nDebtor and\/or Secured Party. Debtor shall pay all claims and charges that in the
\nopinion of Secured Party might prejudice, imperil or otherwise affect the
\nCollateral or the Security Interest. <\/p>\n
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\n 72
\nDebtor shall promptly notify Secured Party of any levy, distraint or other
\nseizure by legal process or otherwise of any part of the Collateral and of any
\nthreatened or filed claims or proceedings that might in any way affect or impair
\nthe terms of this Agreement.<\/p>\n
5.11 The Security Interest, at all times, shall be perfected and shall
\nbe prior to any other interests in the Collateral. Debtor shall act and perform
\nas necessary and shall execute and file all security agreements, financing
\nstatements, continuation statements and other documents requested by Secured
\nParty to establish, maintain and continue the perfected Security Interest.
\nDebtor, on demand, shall promptly pay all costs and expenses of filing and
\nrecording, including the costs of any searches, deemed necessary by Secured
\nParty from time to time to establish and determine the validity and the
\ncontinuing priority of the Security Interest.<\/p>\n
5.12 If Debtor shall fail to pay any taxes, assessments, expenses or
\ncharges, to keep all of the Collateral free from other security interests,
\nencumbrances or claims, to keep the Collateral in good condition and repair, to
\nprocure and maintain insurance thereon, or to perform otherwise as required
\nherein, Secured Party may advance the monies necessary to pay the same, to
\naccomplish such repairs, to procure and maintain such insurance or to so
\nperform; Secured Party is hereby authorized to enter upon any property in the
\npossession or control of Debtor for such purposes.<\/p>\n
5.13 All rights, powers and remedies granted Secured Party herein, or
\notherwise available to Secured Party, are for the sole benefit and protection of
\nSecured Party, and Secured Party may exercise any such right, power or remedy at
\nits option and in its sole and absolute discretion without any obligation to do
\nso. In addition, if under the terms hereof, Secured Party is given two or more
\nalternative courses of action, Secured Party may elect any alternative or
\ncombination of alternatives at its option and in its sole and absolute
\ndiscretion. All monies advanced by Secured Party under the terms hereof and all
\namounts paid, suffered or incurred by Secured Party in exercising any authority
\ngranted herein, including reasonable attorneys’ fees, shall be added to the
\nObligation, shall be secured by the Security Interest, shall bear interest at
\nthe highest rate payable on any of the Obligation until paid, and shall be due
\nand payable by Debtor to Secured Party immediately without demand.<\/p>\n
6. NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF
\n COLLATERAL BY DEBTOR<\/p>\n
6.1 Secured Party, before or after the occurrence of any Event of
\nDefault, defined below, and without notice to Debtor, may notify any or all
\nObligors of the existence of the Security Interest and may direct the Obligors
\nto make all payments on the Collateral to Secured Party. Until Secured Party has
\nnotified the Obligors to remit payments directly to it, Debtor, at Debtor’s own
\ncost and expense, shall collect or cause to be collected the accounts and monies
\ndue under the accounts, documents, instruments and general intangibles or
\npursuant to the terms of the chattel paper. Secured Party shall not be liable or
\nresponsible for any embezzlement, conversion, negligence or default by Debtor or
\nDebtor’s agents with respect to such collections; all agents used in such
\ncollections shall be agents of Debtor and not agents of Secured Party. Unless
\nSecured Party notifies Debtor in writing that it waives one or more of the
\nrequirements set forth in this sentence, any payments or other proceeds of
\nCollateral received by Debtor, before or after notification to Obligors, shall
\nbe held by Debtor in trust for Secured Party in the same form in which received,
\nshall not be <\/p>\n
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\n 73
\ncommingled with any assets of Debtor and shall be turned over to Secured Party
\nnot later than the next business day following the day of receipt. All payments
\nand other proceeds of Collateral received by Secured Party directly or from
\nDebtor shall be applied to the Obligation in such order and manner and at such
\ntime as Secured Party, in its sole discretion, shall determine. In addition,
\nDebtor shall promptly notify Secured Party of the return to or possession by
\nDebtor of goods underlying any Collateral; Debtor shall hold the same in trust
\nfor Secured Party and shall dispose of the same as Secured Party directs.<\/p>\n
6.2 Secured Party, before or after the occurrence of an Event of
\nDefault and without notice to Debtor, may demand, collect and sue on the
\nCollateral (either in Debtor’s or Secured Party’s name), enforce, compromise,
\nsettle or discharge the Collateral and endorse Debtor’s name on any instruments,
\ndocuments, or chattel paper included in or pertaining to the Collateral; Debtor
\nhereby irrevocably appoints Secured Party its attorney in fact for all such
\npurposes.<\/p>\n
6.3 Until the occurrence of an Event of Default, Debtor may: (i) use,
\nconsume and sell any inventory included in the Collateral in any lawful manner
\nin the ordinary course of Debtor’s business provided that all sales shall be at
\ncommercially reasonable prices; and (ii) subject to Paragraphs 6.1 and 6.2
\nabove, retain possession of any other Collateral and use it in any lawful manner
\nconsistent with this Agreement.<\/p>\n
7. COLLATERAL IN THE POSSESSION OF SECURED PARTY<\/p>\n
7.1 Secured Party shall use such reasonable care in handling,
\npreserving and protecting the Collateral in its possession as it uses in
\nhandling similar property for its own account. Secured Party, however, shall
\nhave no liability for the loss, destruction or disappearance of any Collateral
\nunless there is affirmative proof of a lack of due care; the lack of due care
\nshall not be implied solely by virtue of any loss, destruction or disappearance.<\/p>\n
7.2 Debtor shall be solely responsible for taking any and all actions
\nto preserve rights against all Obligors; Secured Party shall not be obligated to
\ntake any such actions whether or not the Collateral is in Secured Party’s
\npossession. Debtor waives presentment and protest with respect to any instrument
\nincluded in the Collateral on which Debtor is in any way liable and waives
\nnotice of any action taken by Secured Party with respect to any instrument,
\ndocument or chattel paper included in any Collateral that is in the possession
\nof Secured Party.<\/p>\n
8. EVENTS OF DEFAULT; REMEDIES<\/p>\n
8.1 The occurrence of any of the following events or conditions shall
\nconstitute and is hereby defined to be an “Event of Default”:<\/p>\n
(a) Any failure or neglect to perform or observe any of the
\n terms, provisions, or covenants of this Agreement.<\/p>\n
(b) The occurrence of any event of default under the Loan
\n Agreement.<\/p>\n
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\n 74
\n 8.2 Secured Party, so far as may be lawful, may purchase all or any
\npart of the Collateral offered at any public or private sale made in the
\nenforcement of Secured Party’s rights and remedies hereunder.<\/p>\n
8.3 Any demand or notice of sale, disposition or other intended action
\nhereunder or in connection herewith, whether required by the Uniform Commercial
\nCode or otherwise, shall be deemed to be commercially reasonable and effective
\nif such demand or notice is given to Debtor at least five (5) days prior to such
\nsale, disposition or other intended action, in the manner provided herein for
\nthe giving of notices.<\/p>\n
8.4 Debtor shall pay all costs and expenses, including without
\nlimitation costs of Uniform Commercial Code searches, court costs and reasonable
\nattorneys’ fees, incurred by Secured Party in enforcing payment and performance
\nof the Obligation or in exercising the rights and remedies of Secured Party
\nhereunder. All such costs and expenses shall be secured by this Agreement and by
\nall deeds of trust and other lien and security documents securing the
\nObligation. In the event of any court proceedings, court costs and attorneys’
\nfees shall be set by the court and not by jury and shall be included in any
\njudgment obtained by Secured Party.<\/p>\n
8.5 In addition to any remedies provided herein for an Event of
\nDefault, Secured Party shall have all the rights and remedies afforded a secured
\nparty under the Uniform Commercial Code and all other legal and equitable
\nremedies allowed under applicable law. No failure on the part of Secured Party
\nto exercise any of its rights hereunder arising upon any Event of Default shall
\nbe construed to prejudice its rights upon the occurrence of any other or
\nsubsequent Event of Default. No delay on the part of Secured Party in exercising
\nany such rights shall be construed to preclude it from the exercise thereof at
\nany time while that Event of Default is continuing. Secured Party may enforce
\nany one or more rights or remedies hereunder successively or concurrently. By
\naccepting payment or performance of any of the Obligation after its due date,
\nSecured Party shall not thereby waive the agreement contained herein that time
\nis of the essence, nor shall Secured Party waive either its right to require
\nprompt payment or performance when due of the remainder of the Obligation or its
\nright to consider the failure to so pay or perform an Event of Default.<\/p>\n
9. MISCELLANEOUS PROVISIONS<\/p>\n
9.1 The acceptance of this Agreement by Secured Party shall not be
\nconsidered a waiver of or in any way to affect or impair any other security that
\nSecured Party may have, acquire simultaneously herewith, or hereafter acquire
\nfor the payment or performance of the Obligation, nor shall the taking by
\nSecured Party at any time of any such additional security be construed as a
\nwaiver of or in any way to affect or impair the Security Interest; Secured Party
\nmay resort, for the payment or performance of the Obligation, to its several
\nsecurities therefor in such order and manner as it may determine.<\/p>\n
9.2 Without notice or demand, without affecting the obligations of
\nDebtor hereunder or the personal liability of any person for payment or
\nperformance of the Obligation, and without affecting the Security Interest or
\nthe priority thereof, Secured Party, from time to time, may: (i) extend the time
\nfor payment of all or any part of the Obligation, accept a renewal note
\ntherefor, reduce the payments thereon, release any person liable for all or any
\npart thereof, or otherwise <\/p>\n
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\n 75
\nchange the terms of all or any part of the Obligation; (ii) take and hold other
\nsecurity for the payment or performance of the Obligation and enforce, exchange,
\nsubstitute, subordinate, waive or release any such security; (iii) join in any
\nextension or subordination agreement; or (iv) release any part of the Collateral
\nfrom the Security Interest.<\/p>\n
9.3 Debtor waives and agrees not to assert: (i) any right to require
\nSecured Party to proceed against any guarantor, to proceed against or exhaust
\nany other security for the Obligation, to pursue any other remedy available to
\nSecured Party, or to pursue any remedy in any particular order or manner; (ii)
\nthe benefits of any legal or equitable doctrine or principle of marshalling;
\n(iii) the benefits of any statute of limitations affecting the enforcement
\nhereof; (iv) demand, diligence, presentment for payment, protest and demand, and
\nnotice of extension, dishonor, protest, demand and nonpayment, relating to the
\nObligation; and (v) any benefit of, and any right to participate in, any other
\nsecurity now or hereafter held by Secured Party.<\/p>\n
9.4 The terms herein shall have the meanings in and be construed under
\nthe Uniform Commercial Code. This Agreement shall be governed by and construed
\naccording to the laws of the State of Arizona. Each provision of this Agreement
\nshall be interpreted in such manner as to be effective and valid under
\napplicable law, but if any provision of this Agreement is held to be void or
\ninvalid, the same shall not affect the remainder hereof which shall be effective
\nas though the void or invalid provision had not been contained herein.<\/p>\n
9.5 No modification, rescission, waiver, release or amendment of any
\nprovision of this Agreement shall be made except by a written agreement executed
\nby Debtor and a duly authorized officer of Secured Party.<\/p>\n
9.6 This is a continuing Agreement which shall remain in full force and
\neffect until actual receipt by Secured Party of written notice of its revocation
\nas to future transactions and shall remain in full force and effect thereafter
\nuntil all of the Obligation incurred before the receipt of such notice, and all
\nof the Obligation incurred thereafter under commitments extended by Secured
\nParty before the receipt of such notice, shall have been paid and performed in
\nfull.<\/p>\n
9.7 No setoff or claim that Debtor now has or may in the future have
\nagainst Secured Party shall relieve Debtor from paying or performing the
\nObligation.<\/p>\n
9.8 Time is of the essence hereof. If more than one Debtor, or more
\nthan one Borrower, is named herein, the word “Debtor” and the word “Borrower,”
\nrespectively, shall mean all and any one or more of them, severally and
\ncollectively. All liability hereunder shall be joint and several. This Agreement
\nshall be binding upon, and shall inure to the benefit of, the parties hereto and
\ntheir heirs, personal representatives, successors and assigns. The term “Secured
\nParty” shall include not only the original Secured Party hereunder but also any
\nfuture owner and holder, including pledgees, of note or notes evidencing the
\nObligation. The provisions hereof shall apply to the parties according to the
\ncontext thereof and without regard to the number or gender of words or
\nexpressions used.<\/p>\n
9.9 All notices required or permitted to be given hereunder shall be in
\nwriting and may be given in person or by United States mail, by delivery service
\nor by electronic transmission. Any <\/p>\n
-8-
\n 76
\nnotice directed to a party to this Agreement shall become effective upon the
\nearliest of the following: (i) actual receipt by that party; (ii) delivery to
\nthe designated address of that party, addressed to that party; or (iii) if given
\nby certified or registered United States mail, twenty-four (24) hours after
\ndeposit with the United States Postal Service, postage prepaid, addressed to
\nthat party at its designated address. The designated address of a party shall be
\nthe address of that party shown at the beginning of this Agreement or such other
\naddress as that party, from time to time, may specify by notice to the other
\nparties.<\/p>\n
9.10 A carbon, photographic or other reproduced copy of this Agreement
\nand\/or any financing statement relating hereto shall be sufficient for filing
\nand\/or recording as a financing statement.<\/p>\n
10. NON-DEBTOR BORROWER PROVISIONS<\/p>\n
10.1 All advances of principal under the Note shall be made to Borrower
\nsubject to and in accordance with the terms thereof. If Borrower is a
\ncorporation, limited liabiilty company or partnership, it is not necessary for
\nSecured Party to inquire into the powers of Borrower or the officers, directors,
\npartners or agents acting or purporting to act on its behalf. Debtor is and
\nshall continue to be fully informed as to all aspects of the business affairs of
\nBorrower that it deems relevant to the risks it is assuming and hereby waives
\nand fully discharges Secured Party from any and all obligations to communicate
\nto Debtor any facts of any nature whatsoever regarding Borrower and Borrower’s
\nbusiness affairs.<\/p>\n
10.2 Debtor authorizes Secured Party, without notice or demand, without
\naffecting the obligations of Debtor hereunder or the personal liability of any
\nperson for payment or performance of the Obligation and without affecting the
\nlien or the priority of the Security Interest, from time to time, at the request
\nof any person primarily obligated therefor, to renew, compromise, extend,
\naccelerate or otherwise change the time for payment or performance of, or
\notherwise change the terms of, all or any part of the Obligation, including
\nincrease or decrease any rate of interest thereon. Debtor waives and agrees not
\nto assert: (i) any right to require Secured Party to proceed against Borrower;
\n(ii) the benefits of any statutory provision limiting the liability of a surety,
\nincluding without limitation the benefit of Section 12-1641, et seq., of the
\nArizona Revised Statutes; and (iii) any defense arising by reason of any
\ndisability or other defense of Borrower or by reason of the cessation from any
\ncause whatsoever of the liability of Borrower. Debtor shall have no right of
\nsubrogation and hereby waives any right to enforce any remedy which Secured
\nParty now has, or may hereafter have, against Borrower.<\/p>\n
-9-
\n 77<\/p>\n
IN WITNESS WHEREOF, these presents are executed as of the date
\nindicated above.<\/p>\n
Witnessed by:
\n ________________________________________
\n(other than notary)<\/p>\n
By:
\n _______________________________________<\/p>\n
Name:
\n__________________________ _____________________________________<\/p>\n
Title:
\n ____________________________________
\n DEBTOR<\/p>\n
-10-
\n 78<\/p>\n
STATE OF ___________ )
\n ) ss.
\nCounty of ____________ )<\/p>\n
The foregoing instrument was acknowledged before me this _____ day of
\n_______________________, _____, by
\n_______________________________________________, the ___________________________
\nof ____________________________________________, on behalf of that
\n_____________.<\/p>\n
IN WITNESS WHEREOF, I hereunto set my hand and official seal.<\/p>\n
___________________________<\/p>\n
Notary Public
\nMy commission expires:<\/p>\n
_________________________________<\/p>\n
-11-
\n 79
\n SCHEDULE “A”<\/p>\n
COLLATERAL DESCRIPTION<\/p>\n
All of the property described below in, to or under which Debtor now
\nhas or hereafter acquires any right, title or interest, whether present, future
\nor contingent, and in Debtor’s expectancy to acquire such property (all of the
\nproperty described on this schedule is herein called the “Collateral”):<\/p>\n
10.3 All money, accounts, general intangibles, instruments,
\n documents and chattel paper now existing or hereafter arising or
\n acquired from time to time in the course of Debtor’s business as now or
\n hereafter conducted, including all accounts receivable, notes, drafts,
\n lease agreements and security agreements, and all goods, if any,
\n represented thereby;<\/p>\n
10.4 All inventory now owned or hereafter arising or acquired,
\n including all goods held for sale or lease in Debtor’s business, as now
\n or hereafter conducted, and all materials, work in process and finished
\n goods used or to be consumed in Debtor’s business (whether or not
\n Debtor holds legal title thereto or whether any such inventory is
\n represented by warehouse receipts or bills of lading or has been or may
\n be placed in transit or delivered to a public warehouse);<\/p>\n
10.5 All equipment, including all furniture, fixtures,
\n furnishings, vehicles (whether titled or non-titled), machinery,
\n materials and supplies, wherever located, including but not limited to
\n such items used in connection with Debtor’s business and\/or described
\n on the Collateral Schedule (if any) attached hereto and by this
\n reference made a part hereof, together with all parts, accessories,
\n attachments, additions thereto or replacements therefor;<\/p>\n
10.6 All rights as unpaid seller or lienor that arise in
\n connection with any of the Collateral, including the rights of
\n replevin, reclamation and stoppage in transit, and the right to sue or
\n file mechanics’ or materialmen’s liens in the name of Debtor or
\n otherwise for the unpaid balances due thereunder;<\/p>\n
10.7 All tax refund claims, all policies or certificates of
\n insurance covering any of the Collateral, all contracts, agreements or
\n rights of indemnification, guaranty or surety relating to any of the
\n Collateral, and all claims, awards, loss payments, proceeds and premium
\n refunds that may become payable with respect to any such policies,
\n certificates, contracts, agreements or rights;<\/p>\n
10.8 All ledger cards, invoices, delivery receipts,
\n worksheets, books of accounts, statements, correspondence, customer
\n lists, files, journals, ledgers and records in any form, written or
\n otherwise, related to any of the Collateral;<\/p>\n
80<\/p>\n
10.9 Tradenames, trademarks and service marks (subject to any
\n franchise or license agreements relating thereto);<\/p>\n
10.10 All claims for loss or damage to or in connection with
\n any of the Collateral, all other claims in any form for the payment of
\n money, including tort claims, and all rights with respect to such
\n claims and all proceeds thereof;<\/p>\n
10.11 All accessions to any of the Collateral;<\/p>\n
10.12 All products and proceeds of the Collateral, in any
\n form, including all proceeds received, due or to become due from any
\n sale, exchange or other disposition of any of the Collateral, whether
\n such proceeds are cash or noncash in nature or are represented by
\n checks, drafts, notes or other instruments for the payment of money;
\n and<\/p>\n
10.13 All property that is now or at any time hereafter may be
\n in Secured Party’s possession or control in any capacity, including
\n without limitation all money owed or that becomes owed to Debtor and
\n all money deposited for the account of Debtor.<\/p>\n
All “Collateral Schedules,” if any, attached hereto are hereby incorporated into
\nthis collateral description as if set forth here and at each reference thereto.<\/p>\n
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\n 81
\n EXHIBIT “D”<\/p>\n
When recorded, return to:<\/p>\n
BANK ONE, ARIZONA, NA
\nPost Office Box 71
\nPhoenix, Arizona 85001
\nAttention: Commercial Banking Dept. AZ1-1178<\/p>\n
DEED OF TRUST, ASSIGNMENT OF RENTS,
\n SECURITY AGREEMENT AND FIXTURE FILING<\/p>\n
This Deed of Trust, Assignment of Rents, Security Agreement and Fixture
\nFiling (hereinafter called “Deed of Trust”) is made as of the _____ day of
\n_____________, 19___, by and among
\n____________________________________________________________________
\n_________________________________________________________________, whose mailing
\naddress and whose chief executive office is located at
\n____________________________________ ______________________________, hereinafter
\ncalled “Trustor,” ARIZONA TRUST DEED CORPORATION, an Arizona corporation, whose
\nmailing address is Post Office Box 71, Phoenix, Arizona 85001, hereinafter
\ncalled “Trustee,” and BANK ONE, ARIZONA, NA, a national banking association,
\nwhose mailing address is Post Office Box 71, Phoenix, Arizona 85001, Attention:
\nCommercial Banking Dept. AZ1-1178, hereinafter called “Beneficiary.”<\/p>\n
WITNESSETH:<\/p>\n
SECTION 1. GRANTING CLAUSE; WARRANTY OF TITLE<\/p>\n
1.1 Trustor hereby irrevocably grants, transfers, conveys and assigns
\nto Trustee, in trust, with power of sale, for the benefit of Beneficiary, all of
\nTrustor’s present and future estate, right, title and interest in and to that
\nreal property and all buildings and other improvements now thereon or hereafter
\nconstructed thereon (the “Premises”), in the County of ________________, State
\nof _______, described on Schedule “A” attached hereto and by this reference made
\na part hereof, together with all of the following which, with the Premises
\n(except where the context otherwise requires), are hereinafter collectively
\ncalled the “Trust Property”:<\/p>\n
(a) All appurtenances in and to the Premises;<\/p>\n
(b) All water and water rights, ditches and ditch rights,
\nreservoir and reservoir rights, stock or interests in irrigation or ditch
\ncompanies, minerals, oil and gas rights, royalties, lease or leasehold interests
\nowned by Trustor, now or hereafter used or useful in connection with,
\nappurtenant to or related to the Premises;<\/p>\n
82<\/p>\n
(c) All right, title and interest of Trustor now owned or
\nhereafter acquired in and to all streets, roads, alleys and public places, and
\nall easements and rights of way, public or private, now or hereafter used in
\nconnection with the Premises;<\/p>\n
(d) All machinery, equipment, fixtures and materials now or at
\nany time attached to the Premises together with all processing, manufacturing
\nand service equipment and other personal property now or at any time hereafter
\nlocated on or appurtenant to the Premises and used in connection with the
\nmanagement and operation thereof;<\/p>\n
(e) Any licenses, contracts, permits and agreements required
\nor used in connection with the ownership, operation or maintenance of the
\nPremises, and the right to the use of any tradename, trademark, or service mark
\nnow or hereafter associated with the operation of any business conducted on the
\nPremises;<\/p>\n
(f) Any and all insurance proceeds, and any and all awards,
\nincluding interest, previously and hereafter made to Trustor for taking by
\neminent domain of the whole or any part of the Premises or any easements
\ntherein;<\/p>\n
(g) Subject to the rights of Beneficiary under Section 3
\nhereof, all existing and future leases, subleases, licenses and other agreements
\nfor the use and occupancy of all or any portion of the Premises and all income,
\nreceipts, revenues, rents, issues and profits arising from the use or enjoyment
\nof all or any portion of the Premises.<\/p>\n
1.2 Trustor warrants that it is well and truly seized of a good and
\nmarketable title in fee simple to the Premises, that it is the lawful owner of
\nthe rest of the Trust Property, and that, except for those matters approved by
\nBeneficiary and specifically described on Schedule B to the title insurance
\npolicy insuring this Deed of Trust (hereinafter called the “Permitted
\nExceptions”), the title to all the Trust Property is clear, free and
\nunencumbered; Trustor shall forever warrant and defend the same unto
\nBeneficiary, its successors and assigns, against all claims whatsoever.<\/p>\n
TRUSTOR FURTHER REPRESENTS, WARRANTS, COVENANTS AND AGREES AS
\nFOLLOWS:<\/p>\n
SECTION 2. OBLIGATION SECURED<\/p>\n
This Deed of Trust is given for the purpose of securing, in such order
\nof priority as Beneficiary may elect:<\/p>\n
2.1 Payment of the sum of TEN MILLION AND NO\/100 DOLLARS
\n($10,000,000.00), which may include, without limitation, future advances of
\nprincipal made after the date hereof, with interest thereon, extension and other
\nfees, late charges, prepayment premiums and attorneys’ fees, according to the
\nterms of that Promissory Note dated December 10, 1997, made by SCHUFF STEEL
\nCOMPANY, a Delaware corporation (“Borrower”), payable to the order of
\nBeneficiary, and all extensions, modifications, renewals or replacements thereof
\n(hereinafter called the “Line Note”). The Note bears interest at a variable rate
\nin accordance with the terms and provisions thereof which are by this reference
\nincorporated herein;<\/p>\n
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\n 83
\n 2.2 Payment of the sum of TEN MILLION AND NO\/100 DOLLARS
\n($10,000,000.00) according to the terms of that Promissory Note dated June 30,
\n1995, made by Borrower, payable to the order of Beneficiary, evidencing a
\nrevolving line of credit, all or any part of which may be advanced to Borrower,
\nrepaid by Borrower and readvanced to Borrower, from time to time, subject to the
\nterms and conditions thereof, provided that the principal balance outstanding at
\nany time shall not exceed the sum set forth above in this Paragraph 2.2, with
\ninterest thereon, extension and other fees, late charges, prepayment premiums
\nand attorneys’ fees, according to the terms thereof, and all extensions,
\nmodifications, renewals or replacements thereof (hereinafter called the “RLC
\nNote”) (the Line Note and the RLC Note are hereinafter severally and
\ncollectively called the “Note”). The RLC Note bears interest at a variable rate
\nin accordance with the terms and provisions thereof which are by this reference
\nincorporated herein;<\/p>\n
2.3 Payment, performance and observance by Trustor of each covenant,
\ncondition, provision and agreement contained herein and of all monies expended
\nor advanced by Beneficiary pursuant to the terms hereof, or to preserve any
\nright of Beneficiary hereunder, or to protect or preserve the Trust Property or
\nany part thereof;<\/p>\n
2.4 Payment, performance and observance by Borrower of each covenant,
\ncondition, provision and agreement contained in that Credit Agreement dated
\nDecember 10, 1997, by and between Borrower and Beneficiary (hereinafter called
\nthe “Loan Agreement”) and in any other document or instrument related to the
\nindebtedness hereby secured and of all monies expended or advanced by
\nBeneficiary pursuant to the terms thereof or to preserve any right of
\nBeneficiary thereunder;<\/p>\n
2.5 Payment of any and all additional loans and advances made by
\nBeneficiary to Borrower, Trustor and\/or to the then record owner or owners of
\nthe Trust Property and any other indebtedness or obligation of Trustor, Borrower
\nand\/or the then record owner or owners of the Trust Property to Beneficiary of
\nany kind, direct or indirect (excluding, however, any such loan to, or
\nindebtedness or obligation of, an individual for personal, family or household
\npurposes) with interest thereon, late charges, extension and other fees,
\nprepayment premiums and attorneys’ fees, according to the terms of the
\npromissory note(s), credit agreement(s) and\/or guarantees evidencing such loans,
\nadvances, indebtedness and obligations, and all extensions, modifications,
\nrenewals or replacements thereof.<\/p>\n
All of the indebtedness and obligations secured by this Deed of Trust are
\nhereinafter collectively called the “Obligation.”<\/p>\n
SECTION 3. LEASES; ASSIGNMENT OF RENTS AND LEASES<\/p>\n
3.1 To facilitate payment and performance of the Obligation, Trustor
\nhereby absolutely transfers and assigns to Beneficiary all right, title and
\ninterest of Trustor in and to (i) all existing and future leases, subleases,
\nlicenses and other agreements for the use and occupancy of all or any part of
\nthe Trust Property, whether written or oral and whether for a definite term or
\nmonth to month, together with all guarantees of the lessee’s obligations
\nthereunder and together with all extensions, modifications and renewals thereof
\n(hereinafter called the “Leases”), and (ii) all income, receipts, revenues,
\nrents, issues and profits now or hereafter arising from or out of the Leases or
\nfrom or out <\/p>\n
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\nof the Trust Property or any part thereof, including without limitation room
\nrents, minimum rents, additional rents, percentage rents, occupancy and user
\nfees and charges, license fees, parking and maintenance charges and fees, tax
\nand insurance contributions, proceeds of the sale of utilities and services,
\ncancellation premiums, claims for damages arising from any breach of the Leases,
\nproceeds from any sale or other disposition of all or any portion of the Trust
\nProperty, and all other benefits arising from the use or enjoyment of, or the
\nlease, sale or other disposition of, all or any portion of the Trust Property,
\ntogether with the immediate and continuing right to receive all of the foregoing
\n(hereinafter called the “Rents”). In furtherance of this Assignment, and not in
\nlieu hereof, Beneficiary may require a separate assignment of rents and leases
\nand\/or separate specific assignments of rents and leases covering one or more of
\nthe Leases; the terms of all such assignments are incorporated herein by
\nreference.<\/p>\n
3.2 Trustor hereby authorizes and directs the lessees and tenants under
\nthe Leases that, upon written notice from Beneficiary, all Rents shall be paid
\ndirectly to Beneficiary as they become due. Trustor hereby relieves the lessees
\nand tenants from any liability to Trustor by reason of the payment of the Rents
\nto Beneficiary. Nevertheless, Trustor shall be entitled to collect the Rents
\nuntil Beneficiary notifies the lessees and tenants in writing to pay the Rents
\nto Beneficiary. Beneficiary is hereby authorized to give such notification upon
\nthe occurrence of an Event of Default and at any time thereafter while such
\nEvent of Default is continuing. Receipt and application of the Rents by
\nBeneficiary shall not constitute a waiver of any right of Beneficiary under this
\nDeed of Trust or applicable law, shall not cure any Event of Default hereunder,
\nand shall not invalidate or affect any act done in connection with such Event of
\nDefault, including, without limitation, any trustee’s sale or foreclosure
\nproceeding.<\/p>\n
3.3 All Rents collected by Trustor shall be applied in the following
\nmanner:<\/p>\n
First, to the payment of all taxes and lien assessments levied
\nagainst the Trust Property, where provision for paying such is not otherwise
\nmade;<\/p>\n
Second, to the payment of ground rents (if any) payable with
\nrespect to the Trust Property;<\/p>\n
Third, to the payment of any amounts due and owing under the
\nObligation;<\/p>\n
Fourth, to the payment of current operating costs and expenses
\n(including repairs, maintenance and necessary acquisitions of property and
\nexpenditures for capital improvements) arising in connection with the Trust
\nProperty;<\/p>\n
Fifth, to Trustor or its designee.<\/p>\n
All Rents collected by Beneficiary may be applied to the items above listed in
\nany manner that Beneficiary deems advisable and without regard to the
\naforestated priorities.<\/p>\n
3.4 Trustor represents and warrants that: (i) the Leases are in full
\nforce and effect and have not been modified or amended; (ii) the Rents have not
\nbeen waived, discounted, compromised, setoff or paid more than one month in
\nadvance; (iii) there are no other assignments, transfers, <\/p>\n
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\n 85
\npledges or encumbrances of any Leases or Rents; and (iv) neither Trustor nor the
\nlessees and tenants are in default under the Leases.<\/p>\n
3.5 Trustor shall (i) fulfill or perform each and every term, covenant
\nand provision of the Leases to be fulfilled or performed by the lessor
\nthereunder; (ii) give prompt notice to Beneficiary of any notice received by
\nTrustor of default thereunder or of any alleged default or failure of
\nperformance that could become a default thereunder, together with a complete
\ncopy of any such notice; and (iii) enforce, short of termination thereof, the
\nperformance or observance of each and every term, covenant and provision of each
\nLease to be performed or observed by the lessees and tenants thereunder.<\/p>\n
3.6 Trustor, without the prior written consent of Beneficiary, shall
\nnot: (i) cancel, modify or alter, or accept the surrender of, any Lease; (ii)
\nassign, transfer, pledge or encumber, the whole or any part of the Leases and
\nRents to anyone other than Beneficiary; (iii) accept any Rents more than one
\nmonth in advance of the accrual thereof; (iv) do or permit anything to be done,
\nthe doing of which, or omit or refrain from doing anything, the omission of
\nwhich, could be a breach or default under the terms of any Lease or a basis for
\ntermination thereof; or (v) enter in to any new tenant leases.<\/p>\n
3.7 Beneficiary does not assume and shall not be liable for any
\nobligation of the lessor under any of the Leases and all such obligations shall
\ncontinue to rest upon Trustor as though this assignment had not been made.
\nBeneficiary shall not be liable for the failure or inability to collect any
\nRents.<\/p>\n
3.8 Neither the Assignment of Rents and Leases contained herein or in
\nany separate assignment nor the exercise by Beneficiary of any of its rights or
\nremedies thereunder or in connection therewith, prior to Beneficiary obtaining
\nactual possession of the Trust Property as provided in Paragraph 8.2 hereof,
\nshall constitute Beneficiary a “mortgagee in possession” or otherwise make
\nBeneficiary responsible or liable in any manner with respect to the Trust
\nProperty or the occupancy, operation or use thereof. In the event Beneficiary
\nobtains actual possession of the Trust Property as provided in Paragraph 8.2
\nhereof, Beneficiary shall have the rights, and Beneficiary’s liability shall be
\nlimited, as provided in that Paragraph.<\/p>\n
SECTION 4. SECURITY AGREEMENT<\/p>\n
4.1 This Deed of Trust shall cover, and the Trust Property shall
\ninclude, all property now or hereafter affixed or attached to or incorporated
\nupon the Premises, which, to the fullest extent permitted by law, shall be
\ndeemed fixtures and a part of the Premises. To the extent any of the Trust
\nProperty consists of rights in action or personal property covered by the
\nUniform Commercial Code, this Deed of Trust shall also constitute a security
\nagreement, and Trustor hereby grants to Beneficiary, as secured party, a
\nsecurity interest in such property, including all proceeds thereof, for the
\npurpose of securing the Obligation. In addition, for the purpose of securing the
\nObligation, Trustor hereby grants to Beneficiary, as secured party, a security
\ninterest in all of the property described below in, to, or under which Trustor
\nnow has or hereafter acquires any right, title or interest, whether present,
\nfuture, or contingent: all equipment, inventory, accounts, general intangibles,
\ninstruments, documents, and chattel paper, as those terms are defined in the
\nUniform <\/p>\n
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\n 86
\nCommercial Code, and all other personal property of any kind (including without
\nlimitation money and rights to the payment of money), whether now existing or
\nhereafter created, that are now or at any time hereafter (i) in the possession
\nor control of Beneficiary in any capacity; (ii) erected upon, attached to, or
\nappurtenant to, the Premises; (iii) located or used on the Premises or
\nidentified for use on the Premises (whether stored on the Premises or
\nelsewhere); or (iv) used in connection with, arising from, related to, or
\nassociated with the Premises or any of the personal property described herein,
\nthe construction of any improvements on the Premises, the ownership,
\ndevelopment, maintenance, leasing, management, or operation of the Premises, the
\nuse or enjoyment of the Premises, or the operation of any business conducted on
\nthe Premises; including without limitation all such property more particularly
\ndescribed as follows:<\/p>\n
(a) Buildings, structures and improvements, and building
\nmaterials, fixtures and equipment to be incorporated into any buildings,
\nstructures or improvements;<\/p>\n
(b) Goods, materials, supplies, fixtures, equipment,
\nmachinery, furniture and furnishings, including without limitation, all such
\nitems used for (i) generation, storage or transmission of air, water, heat,
\nsteam, electricity, light, fuel, refrigeration or sound; (ii) ventilation,
\nair-conditioning, heating, refrigeration, fire prevention and protection,
\nsanitation, drainage, cleaning, transportation, communications, maintenance or
\nrecreation; (iii) removal of dust, refuse, garbage or snow; (iv) transmission,
\nstorage, processing or retrieval of information; and (v) floor, wall, ceiling
\nand window coverings and decorations;<\/p>\n
(c) Income, receipts, revenues, rents, issues and profits,
\nincluding without limitation, room rents, minimum rents, additional rents,
\npercentage rents, occupancy and user fees and charges, license fees, parking and
\nmaintenance charges and fees, tax and insurance contributions, proceeds of the
\nsale of utilities and services, cancellation premiums, and claims for damages
\narising from the breach of any leases;<\/p>\n
(d) Water and water rights, ditches and ditch rights,
\nreservoirs and reservoir rights, stock or interest in irrigation or ditch
\ncompanies, minerals, oil and gas rights, royalties, and lease or leasehold
\ninterests;<\/p>\n
(e) Plans and specifications prepared for the construction of
\nany improvements, including without limitation, all studies, estimates, data,
\nand drawings;<\/p>\n
(f) Documents, instruments and agreements relating to, or in
\nany way connected with, the operation, control or development of the Premises,
\nincluding without limitation, any declaration of covenants, conditions and
\nrestrictions and any articles of incorporation, bylaws and other membership
\ndocuments of any property owners association or similar group;<\/p>\n
(g) Claims and causes of action, legal and equitable, in any
\nform whether arising in contract or in tort, and awards, payments and proceeds
\ndue or to become due, including without limitation those arising on account of
\nany loss of, damage to, taking of, or diminution in value of, all or any part of
\nthe Premises or any personal property described herein;<\/p>\n
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\n 87
\n (h) Sales agreements, escrow agreements, deposit receipts, and
\nother documents and agreements for the sale or other disposition of all or any
\npart of the Premises or any of the personal property described herein, and
\ndeposits, proceeds and benefits arising from the sale or other disposition of
\nall or any part of the Premises or any of the personal property described
\nherein;<\/p>\n
(i) Policies or certificates of insurance, contracts,
\nagreements or rights of indemnification, guaranty or surety, and awards, loss
\npayments, proceeds, and premium refunds that may be payable with respect to such
\npolicies, certificates, contracts, agreements or rights;<\/p>\n
(j) Contracts, agreements, permits, licenses, authorizations
\nand certificates, including without limitation all architectural contracts,
\nconstruction contracts, management contracts, service contracts, maintenance
\ncontracts, franchise agreements, license agreements, building permits and
\noperating licenses;<\/p>\n
(k) Trade names, trademarks, and service marks (subject to any
\nfranchise or license agreements relating thereto);<\/p>\n
(l) Refunds and deposits due or to become due from any utility
\ncompanies or governmental agencies;<\/p>\n
(m) Replacements and substitutions for, modifications of, and
\nsupplements, accessions, addenda and additions to, all of the personal property
\ndescribed herein;<\/p>\n
(n) Books, records, correspondence, files and electronic
\nmedia, and all information stored therein;<\/p>\n
together with all products and proceeds of all of the foregoing, in any form,
\nincluding all proceeds received, due or to become due from any sale, exchange or
\nother disposition thereof, whether such proceeds are cash or non-cash in nature,
\nand whether represented by checks, drafts, notes or other instruments for the
\npayment of money. The personal property described or referred to in this
\nParagraph 4.1 is hereinafter called the “Personal Property.” The security
\ninterests granted in this Paragraph 4.1 are hereinafter severally and
\ncollectively called the “Security Interest.”<\/p>\n
4.2 The Security Interest shall be self-operative with respect to the
\nPersonal Property, but Trustor shall execute and deliver on demand such
\nadditional security agreements, financing statements and other instruments as
\nmay be requested in order to impose the Security Interest more specifically upon
\nthe Personal Property. The Security Interest, at all times, shall be prior to
\nany other interests in the Personal Property except any lien or security
\ninterest granted in connection with any Permitted Exception. Trustor shall act
\nand perform as necessary and shall execute and file all security agreements,
\nfinancing statements, continuation statements and other documents requested by
\nBeneficiary to establish, maintain and continue the perfected Security Interest.
\nTrustor, on demand, shall promptly pay all costs and expenses of filing and
\nrecording, including the costs of any searches, deemed necessary by Beneficiary
\nfrom time to time to establish and determine the validity and the continuing
\npriority of the Security Interest.<\/p>\n
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\n 88
\n 4.3 Trustor shall not sell, transfer, assign or otherwise dispose of
\nany Personal Property or any interest therein without obtaining the prior
\nwritten consent of Beneficiary, except Personal Property that Trustor is obliged
\nto replace pursuant to the terms hereof. Unless Beneficiary then agrees
\notherwise in writing, all proceeds from any permitted sale or disposition in
\nexcess of that required for replacements shall be paid to Beneficiary to be
\napplied to the Obligation, whether or not then due. Trustor shall keep the
\nPersonal Property free of all security interests or other encumbrances, except
\nthe Security Interest and any security interests and encumbrances granted in
\nconnection with any Permitted Exception. Although proceeds of Personal Property
\nare covered hereby, this shall not be construed to mean that Beneficiary
\nconsents to any sale of the Personal Property.<\/p>\n
4.4 Trustor shall keep and maintain the Personal Property in good
\ncondition and repair, and shall promptly replace any part thereof that from time
\nto time may become obsolete, badly worn or in a state of disrepair. All such
\nreplacements shall be free of any other security interest or encumbrance, except
\nany security interest or encumbrance granted in connection with any Permitted
\nException.<\/p>\n
4.5 Except for purposes of replacement and repair, Trustor, without the
\nprior written consent of Beneficiary, shall not remove, or permit the removal
\nof, any Personal Property from the Premises.<\/p>\n
4.6 Trustor hereby warrants, covenants and agrees that: (i) the
\nPersonal Property is or will be used primarily for business (other than farm)
\npurposes; (ii) the Personal Property will be kept at the Premises; and (iii)
\nTrustor’s records concerning the Personal Property will be kept at Trustor’s
\naddress as set forth in the beginning of this Deed of Trust.<\/p>\n
4.7 Trustor represents and warrants that (i) the name specified above
\nfor Trustor is the true and correct legal name of Trustor, and (ii) the address
\nspecified above is the address of Trustor’s chief executive office (or residence
\nif Trustor is an individual without an office). Trustor shall give Beneficiary
\nimmediate written notice of any change in the location of: (i) Trustor’s chief
\nexecutive office (or residence if Trustor is an individual without an office),
\nas set forth in the beginning of this Deed of Trust; (ii) the Personal Property
\nor any part thereof; or (iii) Trustor’s records concerning the Personal
\nProperty. Trustor shall give Beneficiary immediate written notice of any change
\nin the name, identity or structure of Trustor.<\/p>\n
4.8 All covenants and warranties of Trustor contained in this Deed of
\nTrust shall apply to the Personal Property whether or not expressly referred to
\nin this Section 4. The covenants and warranties of Trustor contained in this
\nSection 4 are in addition to, and not in limitation of, those contained in the
\nother provisions of this Deed of Trust.<\/p>\n
4.9 Upon its recording in the real property records, this Deed of Trust
\nshall be effective as a financing statement filed as a fixture filing. In
\naddition, a carbon, photographic or other reproduced copy of this Deed of Trust
\nand\/or any financing statement relating hereto shall be sufficient for filing
\nand\/or recording as a financing statement. The filing of any other financing
\nstatement relating to any personal property, rights or interests described
\nherein shall not be construed to diminish any right or priority hereunder.<\/p>\n
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\n 89
\nSECTION 5. PROTECTION AND PRESERVATION OF THE TRUST PROPERTY<\/p>\n
5.1 Trustor shall neither commit nor permit to occur any waste upon the
\nTrust Property but shall at all times make or cause to be made all repairs,
\nmaintenance, renewals and replacements as may be necessary to maintain the Trust
\nProperty in good condition and repair. Trustor shall keep the Trust Property
\nfree of termites, dry rot, fungus, beetles and all other harmful or destructive
\ninsects and shall keep all plants, trees and shrubs included in the Trust
\nProperty neatly pruned and in good condition. Trustor shall keep the Trust
\nProperty free of rubbish and other unsightly or unhealthful conditions. Trustor
\nshall neither use nor permit the use of the Trust Property in violation of any
\napplicable statute, ordinance or regulation, including, without limitation, the
\nAmericans With Disabilities Act of 1990 and corresponding rules and regulations
\n(the “ADA”), or any policy of insurance insuring the Trust Property.<\/p>\n
5.2 Trustor shall promptly complete any improvements that may be
\ncommenced, in good and workmanlike manner and in conformity with the ADA and
\nwith plans and specifications approved by Beneficiary. Trustor shall repair and
\nrestore, in conformity with the ADA, any portions of the Trust Property that may
\nbe damaged or destroyed. Trustor shall pay when due all claims for work
\nperformed and materials furnished on or in connection with the Trust Property or
\nany part thereof and shall pay, discharge, or cause to be removed, all
\nmechanic’s, artisan’s, laborer’s or materialman’s charges, liens, claims of
\nliens or encumbrances upon the Trust Property. Trustor shall comply with all
\nlaws, ordinances and regulations now or hereafter enacted, including, without
\nlimitation, the ADA, affecting the Trust Property or requiring any alterations
\nor improvements to be made. Except as required by law, Trustor shall not remove,
\nsubstantially alter, or demolish any building or improvement included in the
\nTrust Property without Beneficiary’s prior written consent.<\/p>\n
5.3 (a) Trustor shall provide and maintain policies of fire and
\nextended coverage insurance on the Trust Property in an amount not less than the
\nfull insurable value, on a replacement-cost basis, of the Trust Property and,
\nwhen requested by Beneficiary, shall also provide and maintain policies of
\ninsurance in amounts required by Beneficiary covering vandalism and malicious
\nmischief, sprinkler leakage, rent abatement and\/or business loss, flood damage,
\nearthquake and all other risks commonly insured against by persons owning like
\nproperties in the locality of the Trust Property or commonly required by prudent
\ninstitutional lenders making loans secured by liens against such properties. All
\nsuch policies shall contain standard, non-contributory trust beneficiary clauses
\nmaking losses payable to Beneficiary. Trustor shall also provide and maintain
\ncomprehensive public liability insurance in amounts required by Beneficiary and
\ncontaining endorsements naming Beneficiary as an additional insured. All
\ninsurance policies shall be with companies from time to time approved by
\nBeneficiary, shall provide that Beneficiary is to receive thirty (30) days’
\nnotice prior to cancellation and shall otherwise be in form and substance
\nsatisfactory to Beneficiary. Original policies of insurance shall be delivered
\nto Beneficiary; renewal policies shall be delivered to Beneficiary thirty (30)
\ndays before the expiration of the then-existing policies with satisfactory proof
\nthat the premiums for renewal have been paid.<\/p>\n
(b) In the event of loss, Trustor shall give immediate notice
\nto Beneficiary, and Beneficiary may make proof of loss if not made promptly by
\nTrustor. Each insurance company is hereby authorized and directed to make
\npayment for loss directly to Beneficiary, instead of to Trustor or to Trustor
\nand Beneficiary jointly; Beneficiary may apply all or any part of such insurance<\/p>\n
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\n 90
\nproceeds to the payment of the Obligation, whether or not then due, or the
\nrestoration or repair of the Trust Property. Beneficiary shall not be
\nresponsible for any insurance, for the collection of any insurance proceeds, or
\nfor the insolvency of any insurer. Application of insurance proceeds by
\nBeneficiary shall not cure nor waive any Event of Default nor invalidate any act
\ndone hereunder because of any such Event of Default. In the event of the sale of
\nthe Trust Property under the power of sale herein granted to Trustee, or upon
\nforeclosure of this Deed of Trust as a mortgage, or in the event Beneficiary or
\na receiver appointed by the court shall take possession of the Trust Property
\nwithout sale, then all right, title and interest of Trustor in and to all
\ninsurance policies then in force shall inure to the benefit of and pass to the
\nbeneficiary in possession, receiver or purchaser at such sale, as the case may
\nbe. Beneficiary is hereby appointed attorney in fact for Trustor to assign and
\ntransfer such policies.<\/p>\n
(c) If the insurance proceeds are to be used for the
\nrestoration and repair of the Trust Property, they shall be held by Beneficiary
\nin a non-interest bearing account selected by Beneficiary in its sole and
\nabsolute discretion (the “Restoration Account”). Trustor, at its expense, shall
\npromptly prepare and submit to Beneficiary all plans and specifications
\nnecessary for the restoration and repair of the damaged Trust Property, together
\nwith evidence acceptable to Beneficiary setting forth the total expenditure
\nneeded for the restoration and repair based upon a fixed price contract with a
\nreputable builder and covered by performance and labor and material payment
\nbonds. The plans and specifications and all other aspects of the proposed
\nrestoration and repair shall be subject to Beneficiary’s approval. In the event
\nthe insurance proceeds held in the Restoration Account are insufficient to
\ncomplete the restoration and repair, Trustor shall deposit in the Restoration
\nAccount an amount equal to the difference between the amount then held in the
\nRestoration Account and the total contract price for the restoration and repair.
\nTrustor may commence restoration and repair of the damaged Trust Property only
\nwhen authorized in writing by Beneficiary to do so and thereafter shall proceed
\ndiligently with the restoration and repair until completed. Disbursements shall
\nbe made from the Restoration Account for the restoration and repair in
\naccordance with a disbursement schedule, and subject to other terms and
\nconditions, acceptable to Beneficiary. Disbursements from the Restoration
\nAccount shall be charged first against funds deposited by Trustor and, after
\nsuch funds are exhausted, against the insurance proceeds deposited therein. In
\nthe event the amounts held in the Restoration Account exceed the cost of the
\nrestoration and repair of the damaged Trust Property, the excess funds shall be
\ndisbursed to Trustor to the extent of any amounts deposited therein by Trustor.
\nAny funds remaining after such disbursement, at Beneficiary’s option, may be
\napplied by Beneficiary to the payment of the Obligation, whether or not then
\ndue, or may be disbursed to Trustor. All funds held in the Restoration Account
\nare hereby assigned to Beneficiary as further security for the Obligation.
\nBeneficiary, at any time, may apply all or any part of the funds held in the
\nRestoration Account to the curing of any Event of Default.<\/p>\n
5.4 Trustor shall pay or cause to be paid all taxes and assessments of
\nevery kind, nature and description levied or assessed on or against the Trust
\nProperty and shall deliver to Beneficiary, at least ten (10) days before they
\nbecome delinquent, receipts showing payment of all such taxes and assessments
\nand shall pay when due all dues and charges for water and water delivery,
\nelectricity, gas, sewers, waste removal, bills for repairs, and any and all
\nother claims, encumbrances and expenses incident to the ownership of the Trust
\nProperty. Trustor may contest in good faith the validity or amount of any tax,
\nassessment, charge or encumbrance in the manner provided by law, provided that
\nTrustor shall have furnished Beneficiary a cash deposit or other security in an
\namount<\/p>\n
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\n 91
\nand form satisfactory to Beneficiary to protect Beneficiary against the creation
\nof any lien on, or any sale or forfeiture of, the Trust Property. Upon the final
\ndetermination of Trustor’s contest, Trustor shall promptly pay all sums
\ndetermined to be due. Any deposit or security provided by Trustor shall be
\nreturned to Trustor upon the final determination of Trustor’s contest and the
\npayment by Trustor of the sums, if any, determined to be due.<\/p>\n
5.5 Beneficiary may contest, by appropriate legal proceedings, the
\nvalidity of any valuation for real or personal property tax purposes or of any
\nlevy or assessment of any real or personal property taxes against the Trust
\nProperty either in the name of Beneficiary or the name of Trustor or both.
\nTrustor, upon notice and request by Beneficiary, shall join in any such
\nproceedings. Trustor shall cooperate with Beneficiary in any such proceeding and
\nexecute any documents or pleadings required for such purposes. Trustor shall
\nprovide Beneficiary with a copy of the Notice of Valuation within ten (10) days
\nafter receipt (five (5) days in the case of personal property). Trustor shall
\nreimburse Beneficiary for all costs and legal expenses incurred by Beneficiary
\nin connection with any such proceedings, but in no event shall such
\nreimbursement exceed the tax savings achieved for the period covered by the
\nNotice of Valuation. To facilitate the right of Beneficiary to contest any real
\nor personal property tax valuation, levy, or assessment as described above,
\nTrustor does hereby make, constitute and appoint Beneficiary, and its successors
\nand assigns, Trustor’s true and lawful attorney-in-fact, in Trustor’s name,
\nplace and stead, or otherwise, to file any claim or proceeding or to take any
\naction, either in its own name, in that of its nominee, in the name of Trustor,
\nor otherwise, to contest any real or personal property tax valuation, levy, or
\nassessment. The power of attorney given herein is a power coupled with an
\ninterest and shall be irrevocable so long as any part of the Obligation remains
\nunpaid or unperformed. Beneficiary shall have no obligation to exercise any of
\nthe foregoing rights and powers in any event.<\/p>\n
5.6 In order to insure the payment of taxes and assessments that are
\nnow, or hereafter may be, a lien upon the Trust Property, and to insure the
\npayment of all premiums on policies of insurance required herein, Trustor, if
\nrequired by Beneficiary after the occurrence of any Event of Default or any
\nfailure to pay taxes, assessments or insurance premiums as required herein,
\nshall pay to Beneficiary each month, in addition to any other payments required
\nhereunder, an amount equal to the taxes and special assessments levied or to be
\nlevied against the Trust Property and the premium or premiums that will become
\ndue and payable to maintain the insurance on the Trust Property, all as
\nreasonably estimated by Beneficiary (giving due consideration to the previous
\nyear’s taxes, assessments and premiums) less all deposits therefore already
\nmade, divided by the number of months remaining before one month prior to the
\ndate when the taxes, assessments and premiums become delinquent. If amounts paid
\nto Beneficiary under the terms of this paragraph are insufficient to pay all
\ntaxes, assessments and premiums as they become due, Trustor shall pay to
\nBeneficiary upon demand all additional sums necessary to fully pay and discharge
\nthese items. All moneys paid to Beneficiary under the terms of this paragraph
\nmay be either held by Beneficiary to pay the taxes, assessments and premiums
\nbefore the same become delinquent or applied to the Obligation upon payment by
\nBeneficiary from its own funds of the taxes, assessments and premiums. To the
\nextent provision is not made for payment pursuant to this paragraph, Trustor
\nshall remain obligated to pay all taxes, assessments and premiums as they become
\ndue and payable. Deposits made under this paragraph may be commingled with
\nBeneficiary’s general funds; Beneficiary shall have no liability to Trustor for
\ninterest on any deposits.<\/p>\n
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\n 5.7 Trustor hereby assigns, transfers and conveys to Beneficiary all
\ncompensation and each and every award of damages in connection with any
\ncondemnation for public or private use of, or injury to, the Trust Property or
\nany part thereof, to the extent of the Obligation then remaining unpaid, and all
\nsuch compensation and awards shall be paid directly to Beneficiary. Beneficiary
\nmay apply all or any part of such compensation and awards to the payment of the
\nObligation, whether or not then due, or to the restoration or repair of the
\nTrust Property in accordance with the procedures specified in Paragraph 5.3(c)
\nabove for insurance proceeds.<\/p>\n
SECTION 6. PROTECTION AND PRESERVATION OF BENEFICIARY’S INTEREST<\/p>\n
6.1 Trustor, by the payment of any such tax or taxes, shall protect
\nBeneficiary against any and all loss from any taxation of indebtedness or deeds
\nof trust, direct or indirect, that may be imposed upon this Deed of Trust, the
\nlien of this Deed of Trust on the Trust Property, or upon the Obligation, by any
\nlaw, rule, regulation or levy of the federal government, any state government,
\nor any political subdivision thereof. In the event the burden of such taxation
\ncannot lawfully be shifted from Beneficiary to Trustor, Beneficiary may declare
\nthe entire Obligation due and payable sixty (60) days after notice to Trustor.<\/p>\n
6.2 If Trustor shall fail to pay any taxes, assessments, expenses or
\ncharges, to keep all of the Trust Property free from liens and claims of liens,
\nto maintain and repair the Trust Property, or to procure and maintain insurance
\nthereon, or otherwise fail to perform as required herein, Beneficiary may
\nadvance the monies necessary to pay the same, to accomplish such maintenance and
\nrepairs, to procure and maintain such insurance or to so perform; Beneficiary is
\nhereby authorized to enter upon the Trust Property for such purposes.<\/p>\n
6.3 Upon written request by Beneficiary, Trustor shall appear in and
\nprosecute or defend any action or proceeding that may affect the lien or the
\npriority of the lien of this Deed of Trust or the rights of Beneficiary
\nhereunder and shall pay all costs, expenses (including the cost of searching
\ntitle) and attorneys’ fees incurred in such action or proceeding. Beneficiary
\nmay appear in and defend any action or proceeding purporting to affect the lien
\nor the priority of the lien of this Deed of Trust or the rights of Beneficiary.
\nBeneficiary may pay, purchase, contest or compromise any adverse claim,
\nencumbrance, charge or lien that in the judgment of Beneficiary appears to be
\nprior or superior to the lien of this Deed of Trust, other than any Permitted
\nExceptions.<\/p>\n
6.4 Without obtaining the prior written consent of Beneficiary, Trustor
\nshall not sell, transfer, convey, assign or otherwise dispose of, or further
\nencumber, all or any part of the Trust Property or any interest therein,
\nvoluntarily or involuntarily, by operation of law or otherwise. If Trustor is a
\ncorporation, limited liability company, partnership, joint venture or trust, any
\nmaterial change in the ownership or management of, or interest in, Trustor, or
\nany pledge or encumbrance of any interest in Trustor, shall be deemed to be a
\ntransfer of the Trust Property. Upon the occurrence of any such transaction with
\nBeneficiary’s consent, or without Beneficiary’s consent if Beneficiary elects
\nnot to exercise its rights and remedies for an Event of Default, Beneficiary (i)
\nmay increase the interest rate on all or any part of the Obligation to its then
\ncurrent market rate for similar indebtedness; (ii) may charge a loan fee and a
\nprocessing fee in connection with the change; and (iii) shall not be obligated
\nto release Trustor from any liability hereunder or for the Obligation except to<\/p>\n
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\nthe extent required by law. Consent to any such transaction shall not be deemed
\nto be consent or a waiver of the requirement of consent to any other such
\ntransaction.<\/p>\n
6.5 Without obtaining the prior written consent of Beneficiary, Trustor
\nshall not consent to, or vote in favor of, the inclusion of all or any part of
\nthe Trust Property in any Community Facilities District formed pursuant to the
\nCommunity Facilities District Act, A.R.S. Section 48-701, et seq., as amended
\nfrom time to time. Trustor shall immediately give notice to Beneficiary of any
\nnotification or advice that Trustor may receive from any municipality or other
\nthird party of any intent or proposal to include all or any part of the Trust
\nProperty in a Community Facilities District. Beneficiary shall have the right to
\nfile a written objection to the inclusion of all or any part of the Trust
\nProperty in a Community Facilities District, either in its own name or in the
\nname of Trustor, and to appear at, and participate in, any hearing with respect
\nto the formation of any such district.<\/p>\n
6.6 All rights, powers and remedies granted Beneficiary herein, or
\notherwise available to Beneficiary, are for the sole benefit and protection of
\nBeneficiary, and Beneficiary may exercise any such right, power or remedy at its
\noption and in its sole and absolute discretion without any obligation to do so.
\nIn addition, if, under the terms hereof, Beneficiary is given two or more
\nalternative courses of action, Beneficiary may elect any alternative or
\ncombination of alternatives, at its option and in its sole and absolute
\ndiscretion. All monies advanced by Beneficiary under the terms hereof and all
\namounts paid, suffered or incurred by Beneficiary in exercising any authority
\ngranted herein, including reasonable attorneys’ fees, shall be added to the
\nObligation, shall be secured by this Deed of Trust, shall bear interest at the
\nhighest rate payable on any of the Obligation until paid, and shall be due and
\npayable by Trustor to Beneficiary immediately without demand.<\/p>\n
6.7 Trustor, upon request of Beneficiary, shall promptly correct any
\ndefect, error or omission that may be discovered in the content of this Deed of
\nTrust or in the execution or acknowledgment hereof. In addition, Trustor shall
\ndo such further acts as may be necessary or that Beneficiary may reasonably
\nrequest to carry out more effectively the purposes of this Deed of Trust, to
\nsubject any property intended to be encumbered hereby to the lien and security
\ninterest hereof, and to perfect and maintain the lien and security interest
\nhereof.<\/p>\n
SECTION 7. REPRESENTATIONS AND WARRANTIES<\/p>\n
7.1 If Trustor is a corporation, limited liability company, partnership
\nor trust, it (i) is duly organized, validly existing and in good standing under
\nthe laws of the state in which it is organized; (ii) is qualified to do business
\nand is in good standing under the laws of the state in which the Trust Property
\nis located and in each state in which it is doing business; (iii) has full power
\nand authority to own its properties and assets and to carry on its business as
\nnow conducted; and (iv) is fully authorized and permitted to execute and deliver
\nthis Deed of Trust. The execution, delivery and performance by Trustor of this
\nDeed of Trust and all other documents and instruments relating to the Obligation
\nwill not result in any breach of the terms or conditions or constitute a default
\nunder any agreement or instrument under which Trustor is a party or is
\nobligated. Trustor is not in default in the performance or observance of any
\ncovenants, conditions or provisions of any such agreement or instrument.<\/p>\n
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\n 7.2 The liens, security interests and assignments created hereby will
\nbe valid, effective, properly perfected and enforceable liens, security
\ninterests and assignments.<\/p>\n
7.3 All financial statements, profit and loss statements, statements as
\nto ownership and other statements or reports previously or hereafter given to
\nBeneficiary by or on behalf of Trustor are and shall be true, complete and
\ncorrect as of the date thereof. There has been no material adverse change in the
\nfinancial condition or the results of the operation of Trustor since the latest
\nfinancial statement of Trustor given to Beneficiary.<\/p>\n
7.4 Trustor has filed all federal, state and local tax returns and has
\npaid all of its current obligations before delinquent, including all federal,
\nstate and local taxes and all other payments required under federal, state or
\nlocal law.<\/p>\n
7.5 The Trust Property is not in violation of the ADA and is not
\nsubject to any existing, pending or threatened investigation in connection with
\nthe ADA.<\/p>\n
7.6 All representations and warranties made herein shall survive the
\nexecution hereof, the execution and delivery of all other documents and
\ninstruments in connection with the Obligation, and until the Obligation has been
\nfully paid and performed.<\/p>\n
SECTION 8. DEFAULTS; REMEDIES<\/p>\n
8.1 The occurrence of any of the following events or conditions shall
\nconstitute an “Event of Default” under this Deed of Trust:<\/p>\n
(a) The occurrence of any Event of Default, as that term is
\ndefined in the Loan Agreement.<\/p>\n
(b) The abandonment by Trustor of all or any part of the Trust
\nProperty.<\/p>\n
(c) The existence of any encroachment upon the Trust Property
\nthat has occurred without the approval of Beneficiary that is not removed or
\ncorrected within thirty (30) days after its creation.<\/p>\n
(d) The demolition or destruction of, or any substantial
\ndamage to, any portion of the Trust Property that is not adequately covered by
\ninsurance, or the loss, theft or destruction of, or any substantial damage to,
\nany portion of the Personal Property or any other collateral or security for the
\nObligation, that is not adequately covered by insurance.<\/p>\n
8.2 Upon the occurrence of any Event of Default, and at any time while
\nsuch Event of Default is continuing, Beneficiary may do one or more of the
\nfollowing:<\/p>\n
(a) Declare the entire Obligation to be immediately due and
\npayable, and the same, with all costs and charges, shall be collectible
\nthereupon by action at law.<\/p>\n
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\n (b) Give such notice of default and of election to cause the
\nTrust Property to be sold as may be required by law or as may be necessary to
\ncause Trustee to exercise the power of sale granted herein. Trustee shall then
\nrecord and give such notice of trustee’s sale as then required by law and, after
\nthe expiration of such time as may be required by law, may sell the Trust
\nProperty at the time and place specified in the notice of sale, as a whole or in
\nseparate parcels as directed by Beneficiary, or by Trustor to the extent
\nrequired by law, at public auction to the highest bidder for cash in lawful
\nmoney of the United States, payable at time of sale, all in accordance with
\napplicable law. Trustee, from time to time, may postpone or continue the sale of
\nall or any portion of the Trust Property by public declaration at the time and
\nplace last appointed for the sale. No other notice of the postponed sale shall
\nbe required. Upon any sale, Trustee shall deliver its deed conveying the
\nproperty sold, without any covenant or warranty, express or implied, to the
\npurchaser or purchasers at the sale. The recitals in such deed of any matters or
\nfacts shall be conclusive as to the accuracy thereof. Any person, including
\nTrustor, Trustee or Beneficiary, may purchase at the sale.<\/p>\n
(c) Commence proceedings for foreclosure of this Deed of Trust
\nin the manner provided by law for the foreclosure of a real property mortgage.<\/p>\n
(d) Exercise any or all of the remedies of a secured party
\nunder the Uniform Commercial Code with respect to the Personal Property. If
\nBeneficiary should proceed to dispose of any of the Personal Property in
\naccordance with the provisions of the Uniform Commercial Code, five (5) days’
\nnotice by Beneficiary to Trustor shall be deemed to be commercially reasonable
\nnotice under any provision of the Uniform Commercial Code requiring notice.
\nTrustor, however, agrees that all property of every nature and description,
\nwhether real or personal, covered by this Deed of Trust, together with all
\npersonal property used on or in connection with the Premises or any business
\nconducted thereon by the Trustor and covered by separate security agreements, is
\nencumbered as one unit, that this Deed of Trust and such security interests, at
\nBeneficiary’s option, may be foreclosed or sold in the same proceeding, and that
\nall property encumbered (both realty and personalty), at Beneficiary’s option,
\nmay be sold as such in one unit as a going business, subject to the provisions
\nof applicable law.<\/p>\n
(e) Without regard to the adequacy of any security for the
\nObligation or the solvency of Trustor or any other person or entity, send
\nnotifications to any and all lessees and tenants under the Leases that all Rents
\nshall be paid to Beneficiary. Thereafter, Beneficiary shall be entitled to
\ncollect the Rents until Trustor cures all Events of Default and may apply the
\nRents collected at its sole discretion to the maintenance of the Trust Property
\nand\/or the payment of the Obligation.<\/p>\n
(f) Apply any funds in the possession or control of
\nBeneficiary under the provisions of Paragraph 5.6 hereof to the payment of the
\nObligation, in lieu of the purposes specified in that paragraph.<\/p>\n
(g) Apply for and obtain, without regard to the adequacy of
\nany security for the Obligation or the solvency of the Trustor or any other
\nperson or entity, a receiver by any court of competent jurisdiction to take
\ncharge of all the Trust Property, to manage, operate and carry on any business
\nthen being conducted or that could be conducted on the Premises, to carry on,
\nprotect, preserve, replace and repair the Trust Property, and receive and
\ncollect all Rents and to apply the same to pay the receiver’s expenses for the
\noperation of the Trust Property and then in the manner<\/p>\n
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\nprovided in Paragraph 3.3 herein. Upon appointment of said receiver, Trustor
\nshall immediately deliver possession of all of the Trust Property to such
\nreceiver. Neither the appointment of a receiver for the Trust Property by any
\ncourt at the request of Beneficiary or by agreement with Trustor nor the
\nentering into possession of all or any part of the Trust Property by such
\nreceiver shall constitute Beneficiary a “mortgagee in possession” or otherwise
\nmake Beneficiary responsible or liable in any manner with respect to the Trust
\nProperty or the occupancy, operation or use thereof. Trustor agrees that
\nBeneficiary shall have the absolute and unconditional right to the appointment
\nof a receiver in any independent and\/or separate action brought by Beneficiary
\nregardless of whether Beneficiary seeks any relief in such action other than the
\nappointment of a receiver. In that respect, Trustor waives any express or
\nimplied requirement under common law or A.R.S. Section 12-1241 that a receiver
\nmay be appointed only ancillary to other judicial or non-judicial relief.<\/p>\n
(h) Without regard to the adequacy of any security for the
\nObligation or the solvency of Trustor or any other person or entity, enter upon
\nand take possession of all or any part of the Trust Property, either in person
\nor by agent or employee, or by a receiver appointed by a court of competent
\njurisdiction; Trustor shall on demand peaceably surrender possession of the
\nTrust Property to Beneficiary. Beneficiary, in its own name or in the name of
\nTrustor, may operate and maintain all or any part of the Trust Property to such
\nextent as Beneficiary deems advisable, may rent and lease the same to such
\npersons, for such periods of time, and on such terms and conditions as
\nBeneficiary in its sole discretion may determine, and may sue for or otherwise
\ncollect any and all Rents, including those past due and unpaid. In dealing with
\nthe Trust Property as a beneficiary in possession, Beneficiary shall not be
\nsubject to any liability, charge, or obligation therefor to Trustor, other than
\nfor wilful misconduct, and shall be entitled to operate any business then being
\nconducted or which could be conducted thereon or therewith at the expense of and
\nfor the account of Trustor (and all net losses, costs and expenses thereby
\nincurred shall be advances governed by Paragraph 6.6 hereof), to the same extent
\nas the owner thereof could do, and to apply the Rents to pay the receiver’s
\nexpenses, if any, for the operation of the Trust Property and then in the manner
\nprovided in Paragraph 3.3 herein.<\/p>\n
8.3 Trustor shall pay all costs and expenses, including without
\nlimitation costs of title searches and title policy commitments, Uniform
\nCommercial Code searches, court costs and reasonable in-house and outside
\nattorneys’ fees, incurred by Beneficiary in enforcing payment and performance of
\nthe Obligation or in exercising the rights and remedies of Beneficiary
\nhereunder. All such costs and expenses shall be secured by this Deed of Trust
\nand by all other lien and security documents securing the Obligation. In the
\nevent of any court proceedings, court costs and attorneys’ fees shall be set by
\nthe court and not by jury and shall be included in any judgment obtained by
\nBeneficiary.<\/p>\n
8.4 In addition to any remedies provided herein for an Event of
\nDefault, Beneficiary shall have all other legal or equitable remedies allowed
\nunder applicable law (including specifically that of foreclosure of this
\ninstrument as though it were a mortgage). No failure on the part of Beneficiary
\nto exercise any of its rights hereunder arising upon any Event of Default shall
\nbe construed to prejudice its rights upon the occurrence of any other or
\nsubsequent Event of Default. No delay on the part of Beneficiary in exercising
\nany such rights shall be construed to preclude it from the exercise thereof at
\nany time while that Event of Default is continuing. Beneficiary may enforce any
\none or more remedies or rights hereunder successively or concurrently. By
\naccepting payment or<\/p>\n
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\nperformance of any of the Obligation after its due date, Beneficiary shall not
\nthereby waive the agreement contained herein that time is of the essence, nor
\nshall Beneficiary waive either its right to require prompt payment or
\nperformance when due of the remainder of the Obligation or its right to consider
\nthe failure to so pay or perform an Event of Default. In any action by
\nBeneficiary to recover a deficiency judgment for any balance due under the Note
\nupon the foreclosure of this Deed of Trust or in any action to recover the
\nObligation or Obligations secured hereby, and as a material inducement to making
\nthe loan evidenced by the Note, Trustor acknowledges and agrees that the
\nsuccessful bid amount made at any judicial or non-judicial foreclosure sale, if
\nany, shall be conclusively deemed to constitute the fair market value of the
\nPremises, that such bid amount shall be binding against Trustor in any
\nproceeding seeking to determine or contest the fair market value of the Premises
\nand that such bid amount shall be the preferred alternative means of determining
\nand establishing the fair market value of the Premises. Trustor hereby waives
\nand relinquishes any right to have the fair market value of the Premises
\ndetermined by a judge or jury in any action seeking a deficiency judgment or any
\naction on the Obligation or Obligations secured hereby, including, without
\nlimitation, a hearing to determine fair market value pursuant to A.R.S.
\nSection 12-1566, Section 33-814, Section 33-725 or Section 33-727.<\/p>\n
SECTION 9. GENERAL PROVISIONS<\/p>\n
9.1 Trustor shall defend, indemnify and hold harmless Beneficiary, any
\nsuccessors to Beneficiary’s interest in the Trust Property, any purchaser of the
\nTrust Property upon foreclosure, and all shareholders, directors, officers,
\nemployees and agents of all of the foregoing and their heirs, personal
\nrepresentatives, successors and assigns from and against all claims, costs,
\nexpenses, actions, suits, proceedings, losses, damages and liabilities of any
\nkind whatsoever, including but not limited to all amounts paid in settlement of,
\nand all costs and expenses (including attorneys’ fees) incurred in defending or
\nsettling, any actual or threatened claim, action, suit or proceeding, directly
\nor indirectly arising out of or relating to the Obligation, this Deed of Trust,
\nor the Trust Property, including but not limited to (i) any violation of or
\nclaim of violation of the ADA with respect to the Trust Property; or (ii) any
\nbreach of any of the warranties, representations and covenants contained herein.
\nThis indemnity provision shall continue in full force and effect and shall
\nsurvive the payment and performance of the Obligation, the release of record of
\nthe lien of this Deed of Trust, any foreclosure (or action in lieu of
\nforeclosure) of this Deed of Trust, the exercise by Beneficiary of any other
\nremedy under this Deed of Trust or any other document or instrument evidencing
\nor securing the Obligation, and any suit, proceeding or judgment against Trustor
\nby Beneficiary hereon.<\/p>\n
9.2 The acceptance of this Deed of Trust by Beneficiary shall not be
\nconsidered a waiver of or in any way to affect or impair any other security that
\nBeneficiary may have, acquire simultaneously herewith, or hereafter acquire for
\nthe payment or performance of the Obligation, nor shall the taking by
\nBeneficiary at any time of any such additional security be construed as a waiver
\nof or in any way to affect or impair the security of this Deed of Trust;
\nBeneficiary may resort, for the payment or performance of the Obligation, to its
\nseveral securities therefor in such order and manner as it may determine.<\/p>\n
9.3 Without notice or demand, without affecting the obligations of
\nTrustor hereunder or the personal liability of any person for payment or
\nperformance of the Obligation, and without affecting the lien or the priority of
\nthe lien of this Deed of Trust, Beneficiary, from time to time,<\/p>\n
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\nmay: (i) extend the time for payment of all or any part of the Obligation,
\naccept a renewal note therefor, reduce the payments thereon, release any person
\nliable for all or any part thereof, or otherwise change the terms of all or any
\npart of the Obligation; (ii) take and hold other security for the payment or
\nperformance of the Obligation and enforce, exchange, substitute, subordinate,
\nwaive or release any such security; (iii) consent to the making of any map or
\nplat of the Trust Property; (iv) join in granting any easement on or in creating
\nany covenants, conditions or restrictions affecting the use or occupancy of the
\nTrust Property; (v) join in any extension or subordination agreement; or (vi)
\nrelease or direct Trustee to release any part of the Trust Property from this
\nDeed of Trust. Any such action by Beneficiary, or Trustee at Beneficiary’s
\ndirection, may be taken without the consent of any junior lienholder and shall
\nnot affect the priority of this Deed of Trust over any junior lien.<\/p>\n
9.4 Trustor waives and agrees not to assert: (i) any right to require
\nBeneficiary to proceed against any guarantor, to proceed against or exhaust any
\nother security for the Obligation, to pursue any other remedy available to
\nBeneficiary, or to pursue any remedy in any particular order or manner; (ii) the
\nbenefits of any legal or equitable doctrine or principle of marshalling; (iii)
\nthe benefits of any statute of limitations affecting the enforcement hereof;
\n(iv) demand, diligence, presentment for payment, protest and demand, and notice
\nof extension, dishonor, protest, demand and nonpayment, relating to the
\nObligation; and (v) any benefit of, and any right to participate in, any other
\nsecurity now or hereafter held by Beneficiary.<\/p>\n
9.5 Upon written request of Beneficiary stating that all of the
\nObligation has been paid, and upon surrender of this Deed of Trust and the Note
\nto Trustee for cancellation and retention or, if requested, delivery, then
\nTrustee (and Beneficiary if necessary to clear title), upon payment of Trustee’s
\nfees, shall reconvey, without warranty, the Trust Property. The recitals in such
\nreconveyance of any matters or facts shall be conclusive as to the accuracy
\nthereof. The grantee in such reconveyance may be described as “the person or
\npersons legally entitled thereto.” Five years after issuance of such full
\nreconveyance, Trustee may destroy the Note and this Deed of Trust (unless
\ndirected in such request to retain them), unless prior thereto Trustee has been
\ndirected to deliver them to the person or persons to whom the property was
\nreconveyed.<\/p>\n
9.6 Beneficiary or Trustee, or both, shall have the right to inspect
\nthe Trust Property at all reasonable times.<\/p>\n
9.7 Time is of the essence hereof. If more than one Trustor, or more
\nthan one Borrower, is named herein, the word “Trustor” and the word “Borrower,”
\nrespectively, shall mean all and any one or more of them, severally and
\ncollectively. All liability hereunder shall be joint and several. This Deed of
\nTrust shall be binding upon, and shall inure to the benefit of, the parties
\nhereto and their heirs, personal representatives, successors and assigns. The
\nterm “Beneficiary” shall include not only the original Beneficiary hereunder but
\nalso any future owner and holder, including pledgees, of the Note. The
\nprovisions hereof shall apply to the parties according to the context thereof
\nand without regard to the number or gender of words or expressions used.<\/p>\n
9.8 The acceptance by Trustee of this trust shall be evidenced when
\nthis Deed of Trust, duly executed and acknowledged, is made a public record as
\nprovided by law. The trust created hereby is irrevocable by Trustor.<\/p>\n
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\n 9.9 This Deed of Trust cannot be changed except by agreement, in
\nwriting, signed by Trustor and Beneficiary.<\/p>\n
9.10 No setoff or claim that Trustor now has or may in the future have
\nagainst Beneficiary shall relieve Trustor from paying or performing the
\nObligation.<\/p>\n
9.11 Each term, condition and provision of this Deed of Trust shall be
\ninterpreted in such manner as to be effective and valid under applicable law but
\nif any term, condition or provision of this Deed of Trust shall be held to be
\nvoid or invalid, the same shall not affect the remainder hereof which shall be
\neffective as though the void or invalid term, condition or provision had not
\nbeen contained herein. In addition, should this instrument be or become
\nineffective as a deed of trust, then these presents shall be construed and
\nenforced as a realty mortgage with the Trustor being the Mortgagor and
\nBeneficiary being the Mortgagee.<\/p>\n
9.12 This Deed of Trust, the Obligation and the agreements of any
\nperson or entity to pay or perform the Obligation shall be governed by and
\nconstrued according to the laws of the State of Arizona, without giving effect
\nto conflict of laws principles, the state in which the Trust Property is located
\nmay require that its laws be applied to the creation and priority of liens, to
\nthe perfection of security interests and to any foreclosure, trustee’s sale,
\nappointment of receiver or other remedy with respect to the Trust Property. Any
\nprocedures provided herein for such remedies shall be modified by and replaced
\nwith, where inconsistent with or required by, any procedures or requirements of
\nthe laws of the state in which the Trust Property is located.<\/p>\n
9.13 All notices required or permitted to be given hereunder shall be
\nin writing and may be given in person or by United States mail, by delivery
\nservice or by electronic transmission. Any notice directed to a party to this
\nDeed of Trust shall become effective upon the earliest of the following: (i)
\nactual receipt by that party; (ii) delivery to the designated address of that
\nparty, addressed to that party; or (iii) if given by certified or registered
\nUnited States mail, twenty-four (24) hours after deposit with the United States
\nPostal Service, postage prepaid, addressed to that party at its designated
\naddress. The designated address of a party shall be the address of that party
\nshown at the beginning of this Deed of Trust or such other address as that
\nparty, from time to time, may specify by notice to the other parties.<\/p>\n
SECTION 10. NON-TRUSTOR BORROWER PROVISIONS (If Applicable)<\/p>\n
10.1 All advances of principal under the Note shall be made to Borrower
\nsubject to and in accordance with the terms thereof. If Borrower is a
\ncorporation, limited liability company, partnership or trust, it is not
\nnecessary for Beneficiary or Trustee to inquire into the powers of Borrower or
\nthe officers, directors, members, managers, partners, trustees or agents acting
\nor purporting to act on its behalf. Trustor is and shall continue to be fully
\ninformed as to all aspects of the business affairs of Borrower that it deems
\nrelevant to the risks it is assuming and hereby waives and fully discharges
\nBeneficiary and Trustee from any and all obligations to communicate to Trustor
\nany facts of any nature whatsoever regarding Borrower and Borrower’s business
\naffairs.<\/p>\n
10.2 Trustor authorizes Beneficiary, without notice or demand, without
\naffecting the obligations of Trustor hereunder or the personal liability of any
\nperson for payment or performance<\/p>\n
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\n 100
\nof the Obligation and without affecting the lien or the priority of the lien of
\nthis Deed of Trust, from time to time, at the request of any person primarily
\nobligated therefor, to renew, compromise, extend, accelerate or otherwise change
\nthe time for payment or performance of, or otherwise change the terms of, all or
\nany part of the Obligation, including increase or decrease any rate of interest
\nthereon. Trustor waives and agrees not to assert: (i) any right to require
\nBeneficiary to proceed against Borrower; (ii) the benefits of any statutory
\nprovision limiting the liability of a surety, including without limitation the
\nbenefit of Section 12-1641, et seq., of the Arizona Revised Statutes; and (iii)
\nany defense arising by reason of any disability or other defense of Borrower or
\nby reason of the cessation from any cause whatsoever of the liability of
\nBorrower. Trustor shall have no right of subrogation and hereby waives any right
\nto enforce any remedy which Beneficiary now has, or may hereafter have, against
\nBorrower.<\/p>\n
(a) All costs and expenses of Beneficiary relating to all
\npartial releases shall be paid by Trustor, including but not limited to
\nreconveyance fees, title fees, recording fees and legal expenses.<\/p>\n
(b) No partial release shall impair or adversely affect
\nBeneficiary’s security in the Trust Property remaining subject to this Deed of
\nTrust or any term or provision of this Deed of Trust as it pertains to the Trust
\nProperty remaining subject to this Deed of Trust.<\/p>\n
IN WITNESS WHEREOF, these presents are executed as of the date
\nindicated above.<\/p>\n
Witnessed by: __________________________________________
\n(other than notary)<\/p>\n
By
\n Name
\n Its<\/p>\n
TRUSTOR<\/p>\n
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\n 101
\nSTATE OF ___________ )
\n ) ss.
\nCounty of _____________ )<\/p>\n
The foregoing instrument was acknowledged before me this _____ day of
\n_______________________, 1997, by __________________________________________,
\nthe ______________________________ of ________________________________________,
\na(n) _________________________________, on behalf of that
\n_______________________.<\/p>\n
IN WITNESS WHEREOF, I hereunto set my hand and official seal.<\/p>\n
__________________________________________
\n Notary Public<\/p>\n
My commission expires:<\/p>\n
______________________<\/p>\n
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\n 102
\n SCHEDULE “A”<\/p>\n
Legal Description:<\/p>\n
All that real property situate in the County of ____________, State of
\n ___________, more particularly described as follows:<\/p>\n
103
\n EXHIBIT “E”<\/p>\n
ENVIRONMENTAL INDEMNITY AGREEMENT<\/p>\n
BY THIS AGREEMENT, executed as of the _____ day of _______________,
\n199__, in connection with and as partial consideration for financial
\naccommodations by BANK ONE, ARIZONA, NA, a national banking association
\n(“Lender”), to SCHUFF STEEL COMPANY, a Delaware corporation (“Borrower”),
\nguaranteed by __________________________________
\n____________________________________________________ (“Guarantor(s)”) (Borrower
\nand Guarantor(s) are hereinafter severally and collectively called “Indemnitor”)
\nin the amount of TWENTY MILLION AND NO\/100 DOLLARS ($20,000,000.00)
\n(collectively the “Loan”), evidenced by one or more promissory notes
\n(collectively the “Note”), secured or to be secured in part by one or more deeds
\nof trust (severally and collectively, the “Deed of Trust”) on the property
\ndescribed on Schedule “A” attached hereto and by this reference incorporated
\nherein (the “Property”), Indemnitor hereby certifies, represents, and warrants
\nto Lender, and agrees as follows:<\/p>\n
1. As used herein, the following terms shall have the meanings
\nspecified below:<\/p>\n
DEFINITIONS<\/p>\n
1.1 The term “Agreement” shall mean this Environmental
\nIndemnity Agreement and all modifications, supplements, and amendments thereto.<\/p>\n
1.2 The term “De Minimis Amounts” shall mean any Hazardous
\nSubstance either (1) being transported on or from the Property or being stored
\nfor use by Borrower or its tenant on the Property within a year from original
\narrival on the Property in connection with Borrower’s current operations or (2)
\nbeing currently used by Borrower or its tenant on Property, in both instances in
\na manner that both (a) does not constitute a violation or threatened violation
\nof any Environmental Law or require any reporting or disclosure under any
\nEnvironmental Law and (b) is consistent with customary business practice for
\nsuch operations in the state where the Property is located.<\/p>\n
1.3 The term “Environmental Claim” shall mean any and all
\nactual or threatened liabilities, claims, actions, causes of action, judgments,
\norders, inquiries, investigations, studies or notices relating to any Hazardous
\nSubstance or any Environmental Law, including, without limitation, those arising
\nas a result of strict liability, whether under Environmental Law or otherwise,
\nand those arising out of the negligence of the Indemnified Party.<\/p>\n
1.4 The term “Environmental Law” shall mean any federal, state or local
\nlaw, whether common law, statute, ordinance, rule, regulation, or judicial or
\nadministrative decision or policy or guideline, pertaining to Hazardous
\nSubstances, health, industrial hygiene, environmental conditions, or the
\nregulation or protection of the environment, and all amendments thereto as of
\nthis date and to be added in the future and any successor statute or rule or
\nregulation promulgated thereto.<\/p>\n
1.5 The term “Hazardous Substance” shall mean all of the following:
\n 104
\n (a) Any substance, material, or waste that is
\n included within the definitions of “hazardous substances,” “hazardous
\n materials,” “hazardous waste,” “toxic substances,” “toxic materials,”
\n “toxic waste,” or words of similar import in any Environmental Law;<\/p>\n
(b) Those substances listed as hazardous substances
\n by the United States Department of Transportation (or any successor
\n agency) (49 C.F.R. 172.101 and amendments thereto) or by the
\n Environmental Protection Agency (or any successor agency) (40 C.F.R.
\n Part 302 and amendments thereto); and<\/p>\n
(c) Any substance, material, or waste that is
\n petroleum, petroleum-related, or a petroleum by-product, asbestos or
\n asbestos-containing material, polychlorinated biphenyls, flammable,
\n explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or
\n any other agricultural chemical.<\/p>\n
1.6 The term “Indemnified Parties” shall mean and includes
\nLender, any parent, subsidiary, or affiliated company of Lender, any assignee or
\nsuccessor in interest of all or part of Lender’s interest in the Loan or the
\nLoan Documents, any owner of a participation interest in the Loan or the Loan
\nDocuments, any purchaser who acquires all or part of the Property from Lender,
\nits parent, or any of its subsidiaries or affiliates, any recipient of a deed or
\nassignment in lieu of foreclosure of all or part of the Property, any court
\nappointed receiver, and the officers, directors, employees and agents of each of
\nthem.<\/p>\n
1.7 The term “Loan Documents” shall mean the Note, the Deed of
\nTrust and any other documents evidencing, securing or otherwise relating to the
\nLoan, specifically excluding, however, this Agreement. Notwithstanding anything
\ncontained in the Loan Documents to the contrary, the obligations of Indemnitor
\nunder this Agreement shall not be secured by the Deed of Trust, and in the event
\nof any conflict between this paragraph and the terms and conditions of the Loan
\nDocuments, this paragraph shall control.<\/p>\n
1.8 The term “Note Rate” shall mean at any given time, (a) the
\nrate of interest then applicable to the balance outstanding under the Note, or,
\n(b) if the Note is in default, the default rate of interest under the Note. If
\nthe Note has been paid in full, the Note Rate shall mean the rate of interest
\nthat would have been applicable under the Note, if it had not been paid in full
\nand there was a balance outstanding.<\/p>\n
1.9 The term “Property” shall mean all property that is or was
\nat any time affected by the Deed of Trust, which may later include any and all
\nproperty previously released from the Deed of Trust.<\/p>\n
1.10 The term “Release” shall mean any releasing, spilling,
\nleaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
\nleaching, migrating, disposing, or dumping of any substance into the
\nenvironment.<\/p>\n
2. Except as disclosed in writing by Borrower to Lender, Borrower
\nrepresents and warrants to the Indemnified Parties that neither the Property nor
\nBorrower nor, to Borrower’s<\/p>\n
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\n 105
\nknowledge, any tenant are in violation of any Environmental Law applicable to
\nthe Property, and neither the Property nor Borrower nor, to Borrower’s
\nknowledge, any tenant are subject to any existing, pending or threatened
\ninvestigation pertaining to the Property by any federal, state or local
\ngovernmental authority or are subject to any remedial obligation or lien under
\nor in connection with any Environmental Law.<\/p>\n
3. Except as disclosed in writing by Borrower to Lender, Borrower
\nrepresents and warrants to the Indemnified Parties that (a) neither Borrower
\nnor, to Borrower’s knowledge, any tenant has obtained, or is not required by any
\nEnvironmental Law to obtain, any permit, approval, or license or file any
\nregistration to construct or use any improvements, fixtures or equipment that
\nare or are intended to be part of, or are located on, the Property or to operate
\nany business that is being conducted or intended to be conducted on the
\nProperty, and (b) there are no factors or circumstances related to Hazardous
\nSubstances or any environmental conditions known to Borrower that would
\nmaterially impair the ability of Borrower or its tenant to obtain any permit,
\napproval, registration, or license necessary for the future development of the
\nProperty or to otherwise continue the contemplated development of the Property.<\/p>\n
4. Borrower has undertaken an appropriate inquiry into the previous
\nownership and uses of the Property consistent with good commercial practice. If
\nany environmental questionnaire is executed by Borrower and delivered to Lender,
\nBorrower represents and warrants to the Indemnified Parties that, to Borrower’s
\nknowledge, the information disclosed in any such environmental questionnaire is
\ntrue, complete and correct. Based on Borrower’s inquiry, Borrower represents and
\nwarrants to the Indemnified Parties that Borrower, including, without
\nlimitation, any officer, director, employee, agent, affiliate, tenant, partner
\nor joint venturer of Borrower, has no actual knowledge or notice of the actual,
\nalleged or threatened presence or release of Hazardous Substances in, on, around
\nor potentially affecting any part of the Property or the soil, groundwater or
\nsoil vapor on or under the Property, or the migration of any Hazardous
\nSubstance, from or to any other property adjacent to or in the vicinity of the
\nProperty, provided that the foregoing representation and warranty does not apply
\nto De Minimis Amounts. Borrower’s intended future use of Property will not
\nresult in the Release of any Hazardous Substance other than De Minimis Amounts,
\nin, on, around or potentially affecting any part of the Property or in the soil,
\ngroundwater or soil vapor on or under the Property, or the migration of any
\nHazardous Substance from or to any other property adjacent to or in the vicinity
\nof the Property. Indemnitor shall promptly notify Lender in writing if
\nIndemnitor, including, without limitation, any officer, director, employee,
\nagent, affiliate, partner, or joint venturer, of Indemnitor, has any actual
\nknowledge or notice that any statement in this Paragraph 4 is no longer
\naccurate.<\/p>\n
5. Borrower shall neither use nor permit any third party to use,
\ngenerate, manufacture, produce, store, or Release, on, under or about the
\nProperty, or transfer to or from the Property, any Hazardous Substance except in
\ncompliance with all applicable Environmental Laws, provided that if any third
\nparty, by act or omission or by intent or accident, allows any foregoing action
\nto occur, Indemnitor shall promptly remedy such condition, at its sole expense
\nand responsibility, in accordance with Paragraph 8 below. Furthermore,
\nIndemnitor shall not permit any environmental liens to be placed on any portion
\nof the Property.<\/p>\n
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\n 106
\n 6. Borrower has complied, and shall comply and require all occupants of
\nthe Property, regardless of length of occupancy, to comply, at Borrower’s sole
\nexpense and responsibility, with all Environmental Laws governing or applicable
\nto Hazardous Substances, including those requiring disclosures to prospective
\nand actual buyers of all or any portion of the Property.<\/p>\n
7. Borrower shall give prompt written notice to Lender at the address
\nset forth in the Loan Documents executed in connection with the Loan if any of
\nthe following occur:<\/p>\n
(a) Borrower knows, suspects or believes there may be any
\n Hazardous Substance, except in De Minimis Amounts, in, on, around or
\n potentially affecting the Property or the soil, groundwater or soil
\n vapor on or under the Property, or that Borrower or the Property or, to
\n Borrower’s knowledge, any tenant may be subject to any threatened or
\n pending investigation by any governmental agency under any law,
\n regulation or ordinance pertaining to any Hazardous Substance;<\/p>\n
(b) Any proceeding, including lawsuit, investigation or
\n settlement by or with any federal, state or local governmental
\n authority (including, without limitation, the U.S. Environmental
\n Protection Agency or any other federal, state or local governmental
\n agency) with respect to the presence of any Hazardous Substance on the
\n Property or the migration thereof from or to any other property
\n adjacent to, or in the vicinity of, the Property;<\/p>\n
(c) All claims made or threatened by any third party against
\n Borrower or the Property relating to any loss or injury resulting from
\n any Hazardous Substance;<\/p>\n
(d) Borrower’s discovery of any occurrence or condition on any
\n property adjoining or in the vicinity of the Property that could cause
\n the Property or any part thereof to be subject to any restrictions on
\n its ownership, occupancy, transferability or use under any
\n Environmental Law;<\/p>\n
(e) Borrower’s discovery of a violation of any Environmental
\n Law that Borrower is legally required to report to any federal, state
\n or local governmental authority or the discovery of a Release of a
\n Hazardous Substance in sufficient quantities to be reportable under any
\n Environmental Law to any federal, state or local governmental
\n authority;<\/p>\n
(f) Borrower’s discovery, receipt, or notice that an
\n environmental lien has been or will be placed on the Property; and<\/p>\n
(g) Borrower knows, suspects or believes that an Environmental
\n Claim has been or will be asserted against either Borrower or the
\n Property.<\/p>\n
8. Indemnitor has complied and shall comply, to Lender’s satisfaction,
\nwith the reasonable recommendations of any qualified environmental engineer or
\nother expert, who shall be acceptable to Lender, which apply or pertain to the
\nProperty. Indemnitor shall conduct and complete, to Lender’s satisfaction, all
\ninvestigations, studies, sampling, and testing as may be (i)<\/p>\n
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\n 107
\nrecommended by any qualified environmental engineer or other expert, who shall
\nbe acceptable to Lender and (ii) required by Lender. Indemnitor shall provide to
\nLender copies of all results and reports relating to such investigations,
\nstudies, sampling and testing. Indemnitor shall conduct and complete, to
\nLender’s satisfaction, all remedial, removal, and other actions necessary to
\nclean up and remove Hazardous Substances in, on, or materially affecting the
\nProperty:<\/p>\n
(a) In accordance with all applicable Environmental Laws; and<\/p>\n
(b) In accordance with all applicable orders and directives of
\n all governmental authorities.<\/p>\n
Indemnitor shall provide to Lender copies of all results and reports relating to
\nsuch remedial, removal, and other actions.<\/p>\n
9. Indemnitor shall, within thirty (30) days after demand by Lender,
\nprovide Lender with a bond, letter of credit, or similar financial assurance
\nevidencing to Lender’s satisfaction that sufficient funds are available to pay
\nthe cost of complying with the requirements of Paragraph 8 above.<\/p>\n
10. Indemnitor’s obligations under this Agreement shall not be
\ndiminished or affected in any respect as a result of any notice, disclosure or
\nknowledge, if any, to or by any of the Indemnified Parties of the release,
\npresence, existence or threatened release of Hazardous Substances in, on,
\naround, or potentially affecting the Property or the soil, groundwater or soil
\nvapor on or under the Property, or of any matter covered by Indemnitor’s
\nobligations hereunder. No Indemnified Party shall be deemed to have permitted,
\ncaused, contributed to or acquiesced in any such release, presence, existence or
\nthreatened release of Hazardous Substances or any other matter covered by
\nIndemnitor’s obligations hereunder solely because Lender or any other
\nIndemnified Party had notice, disclosure or knowledge thereof, whether at the
\ntime this Agreement is delivered or at any other time.<\/p>\n
11. If at any time any Indemnified Party reasonably believes that there
\nexists on the Property any condition that could result in any material (in the
\nsole judgment of Lender) liability, cost, or expense to the owner, occupier, or
\noperator of the Property arising under any Environmental Law, then the
\nIndemnified Parties and their contractors, agents and representatives
\n(hereinafter, “Site Reviewers”) shall have the right at any time and from time
\nto time to enter upon and visit the Property for the purposes of observing the
\nProperty, taking and removing soil or groundwater samples, and conducting tests
\nand\/or site assessments on any part of the Property (collectively, “Site
\nAssessments”) for the purpose of determining whether there exists on the
\nProperty any such condition. The Indemnified Parties have no duty, however, to
\nconduct any Site Assessment, and no Site Assessment shall impose any liability
\non any Indemnified Party. In no event shall the completion of any Site
\nAssessment be a representation that Hazardous Substances are or are not present
\nin, on, under or around the Property, or that there has been or shall be
\ncompliance with any Environmental Law or any other law or governmental
\nregulatory or liability pronouncement. The Indemnified Parties owe no duty of
\ncare to protect Indemnitor or any other party against, or to inform Indemnitor
\n(except as provided herein) or any other party of, any Hazardous Substances or
\nany other adverse condition affecting the Property. The Indemnified Party shall
\nmake reasonable<\/p>\n
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\n 108
\nefforts to avoid interfering with Borrower’s use of the Property in exercising
\nany rights provided in this Section. The Site Reviewers are hereby authorized to
\nenter upon the Property for the purpose of conducting Site Assessments. The Site
\nReviewers are further authorized to perform both above and below the ground
\ntesting for environmental conditions or the presence of Hazardous Substances on
\nthe Property and such other tests on the Property as may be necessary to conduct
\nthe Site Assessments in the reasonable opinion of the Site Reviewers. Indemnitor
\nwill supply to the Site Reviewers such historical and operational information
\nregarding the Property as may be reasonably requested by the Site Reviewers to
\nfacilitate the Site Assessments and will make available for meetings with the
\nSite Reviewers appropriate personnel having knowledge of such matters. The cost
\nof performing such Site Assessments shall be paid by Indemnitor upon demand of
\nLender. On request, Lender shall make the results of such Site Assessments fully
\navailable to Indemnitor provided (i) that Indemnitor has fully reimbursed Lender
\nfor the cost of such Site Assessments, and (ii) neither Indemnitor nor any other
\nparty is entitled to rely on any Site Assessment conducted by or on behalf of
\nany Indemnified Party, which Site Assessment shall be for the sole benefit and
\nuse of the Indemnified Party.<\/p>\n
12. Lender shall have the right, but not the obligation, without in any
\nway limiting Lender’s other rights and remedies under the Loan Documents, to
\nenter onto the Property or to take such other actions as it deems necessary or
\nadvisable to clean up, remove, resolve, or minimize the impact of, or otherwise
\ndeal with, any Hazardous Substances on or affecting the Property following
\nreceipt of any notice from any person or entity asserting the existence or
\npossible existence of any Hazardous Substances pertaining to the Property or any
\npart thereof that, if true, could result in an Environmental Claim, order,
\nnotice, suit, imposition of a lien on the Property, or other action and\/or that,
\nin Lender’s sole opinion, could jeopardize Lender’s security under the Loan
\nDocuments. All reasonable costs and expenses paid or incurred by Lender in the
\nexercise of any such rights shall be secured by the Loan Documents and shall be
\npayable by Indemnitor upon demand.<\/p>\n
13. Lender shall have the right at any time to appear in and to
\nparticipate in, as a party if it elects, and be represented by counsel of its
\nown choice in, any action or proceeding in connection with any Environmental Law
\nthat affects the Property. Upon demand by any Indemnified Party, Indemnitor
\nshall defend any investigation, action or proceeding involving any matter
\ncovered by Indemnitor’s obligations hereunder which is brought or commenced
\nagainst any Indemnified Party, whether alone or together with Borrower or any
\nother person, all at Indemnitor’s own cost and by counsel to be approved by the
\nIndemnified Party in the exercise of its reasonable judgment. In the
\nalternative, any Indemnified Party may elect to conduct its own defense at the
\nexpense of Indemnitor.<\/p>\n
14. Indemnitor shall indemnify and hold the Indemnified Parties
\nharmless from, for and against any and all Environmental Claims, liabilities,
\ndamages (including foreseeable and unforeseeable consequential damages), losses,
\nfines, penalties, judgments, awards, settlements, and costs and expenses
\n(including, without limitation, reasonable attorneys’ fees, experts’, engineers’
\nand consultants’ fees, and costs and expenses of investigation, testing,
\nremediation and dispute resolution) (collectively referred to as “Environmental
\nCosts”) that directly or indirectly arise out of or relate in any way to:<\/p>\n
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\n 109
\n (a) Any investigation, cleanup, remediation, removal, or
\n restoration work of site conditions of the Property relating to
\n Hazardous Substances (whether on the Property or any other property);<\/p>\n
(b) Any resulting damages, harm, or injuries to the person or
\n property of any third parties or to any natural resources involving
\n Hazardous Substances relating to the Property;<\/p>\n
(c) Any actual or alleged past or present disposal,
\n generation, manufacture, presence, processing, production, Release,
\n storage, transportation, treatment, or use of any Hazardous Substance
\n on, under, or about the Property;<\/p>\n
(d) Any actual or alleged presence of any Hazardous Substance
\n on the Property;<\/p>\n
(e) Any actual or alleged past or present violation of any
\n Environmental Law relating to the Property;<\/p>\n
(f) Any actual or alleged past or present migration of any
\n Hazardous Substance from the Property to any other property, whether
\n adjoining, in the vicinity, or otherwise, or migration of any Hazardous
\n Substance onto the Property from any other property, whether adjoining,
\n in the vicinity, or otherwise;<\/p>\n
(g) Any lien on any part of the Property under any
\n Environmental Law;<\/p>\n
(h) Any Environmental Claim by any federal, state, or local
\n governmental agency and any claim that any Indemnified Party is liable
\n for any such asserted Environmental Claim allegedly because it is an
\n “owner” or “operator” of the Property under any Environmental Law;<\/p>\n
(i) Any Environmental Claim asserted against any Indemnified
\n Party by any person other than a governmental agency, including any
\n person who may purchase or lease all or any portion of the Property
\n from Borrower, from any Indemnified Party, or from any other purchaser
\n or lessee; any person who may at any time have any interest in all or
\n any portion of the Property; any person who may at any time be
\n responsible for any cleanup costs or other Environmental Claims
\n relating to the Property; and any person claiming to have been injured
\n in any way as a result of exposure to any Hazardous Substance relating
\n to the Property;<\/p>\n
(j) Any Environmental Claim which any Indemnified Party
\n reasonably believes at any time may be incurred to comply with any law,
\n judgment, order, regulation, or regulatory directive relating to
\n Hazardous Substances and the Property, or which any Indemnified Party
\n reasonably believes at any time may be incurred to protect the public
\n health or safety;<\/p>\n
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\n 110
\n (k) Any Environmental Claim resulting from currently existing
\n conditions in, on, around, or materially affecting the Property,
\n whether known or unknown by Borrower or the Indemnified Parties at the
\n time this Agreement is executed, and any such Environmental Claim
\n resulting from the activities of Borrower, Borrower’s tenants, or any
\n other person, in, on, around, or materially affecting the Property; or<\/p>\n
(l) Breach of any representation or warranty by or covenant of
\n Indemnitor in this Agreement.<\/p>\n
Notwithstanding anything contained herein to the contrary, the foregoing
\nindemnity shall not apply to (i) matters resulting from the gross negligence or
\nwillful misconduct of any Indemnified Party, or (ii) matters resulting solely
\nfrom the actions of Indemnified Parties taken after such parties have taken
\ntitle to, or exclusive possession of the Property, provided that, in both cases,
\nsuch matters shall not arise from or be accumulated with any condition of the
\nProperty, which condition was not caused by an Indemnified Party. THE FOREGOING
\nINDEMNITY IS EXPRESSLY INTENDED TO INCLUDE, AND DOES INCLUDE, ANY ENVIRONMENTAL
\nCOSTS ARISING AS A RESULT OF ANY STRICT LIABILITY IMPOSED OR THREATENED TO BE
\nIMPOSED ON AN INDEMNIFIED PARTY IN CONNECTION WITH ANY OF THE INDEMNIFIED
\nMATTERS DESCRIBED IN THIS PARAGRAPH 14 OR ARISING AS A RESULT OF THE NEGLIGENCE
\nOF AN INDEMNIFIED PARTY IN CONNECTION WITH SUCH MATTERS.<\/p>\n
15. Nothing in this Agreement shall be construed to limit any claim or
\nright which any Indemnified Party may otherwise have at any time against
\nIndemnitor or any other person arising from any source other than this
\nAgreement, including any claim for fraud, misrepresentation, waste, or breach of
\ncontract other than this Agreement, and any rights of contribution or indemnity
\nunder federal, state or local environmental law or other applicable law,
\nregulation or ordinance.<\/p>\n
16. If any Indemnified Party delays or fails to exercise any right or
\nremedy against Indemnitor, that alone shall not be construed as a waiver of that
\nright or remedy. All remedies of any Indemnified Party against Indemnitor are
\ncumulative.<\/p>\n
17. This Agreement shall be binding upon Indemnitor and its successors
\nand assigns and shall inure to the benefit of the Indemnified Parties.<\/p>\n
18. The indemnity obligations of Indemnitor pursuant to Paragraph 14
\nand all other obligations of Indemnitor hereunder shall survive until terminated
\nin accordance with this Paragraph 18, which termination shall occur upon the
\nfull satisfaction of either of the following conditions:<\/p>\n
(a) The Loan shall have been repaid in full and in accordance
\n with its terms, and all obligations under the Loan Documents shall have
\n been performed in full in accordance with their terms, in both cases
\n rather than through the occurrence of one or more of (i) the acceptance
\n by Lender of the surrender of the Note and reconveyance of the Deed of
\n Trust, (ii) the foreclosure of the Deed of Trust, (iii) the
\n extinguishment of the Deed of Trust by any means, including deed or
\n assignment in lieu of foreclosure, (iv) the acquisition of the Property
\n or any portion of it by any of the Indemnified Parties, and (v) the
\n transfer of all of Lender’s rights in the Loan<\/p>\n
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\n 111
\n Documents, or through the exercise of any other rights and remedies by
\n Lender (including, without limitation, foreclosure, trustee’s sale or
\n actions on promissory notes, guaranties or other obligations); or<\/p>\n
(b) One or more of the events described in (i) – (v) of
\n subparagraph (a) above has occurred, Lender has not received notice of
\n any Environmental Claim relating to the Property that has not been
\n fully satisfied or settled to Lender’s satisfaction, and two (2) years
\n have elapsed from the date which is the latest of (i) the date of the
\n occurrence of one or more of the events described in (i) – (v) of
\n subparagraph (a) above, (ii) the date Indemnitor has been fully
\n released of all of its obligations under the Loan Documents, and (iii)
\n the date any Environmental Claim relating to the Property is fully
\n satisfied or settled to Lender’s satisfaction. Notwithstanding the
\n foregoing and in addition to its rights under Paragraph 11, Lender, or
\n any Site Reviewer selected by Lender, shall have the right at any time
\n and from time to time to enter upon and visit the Property to conduct a
\n Site Assessment and prepare, at Lender’s own expense, an environmental
\n report regarding environmental conditions on the Property prior to the
\n Termination Date. Based upon such report, Lender may assert an
\n Environmental Claim.<\/p>\n
19. The indemnity contained herein shall not be subject to any
\nnonrecourse or other limitation of liability provisions contained in any
\ndocument or instrument executed and delivered in connection with the Loan and
\nthe liability of Indemnitor hereunder shall not be limited by any such
\nnonrecourse or similar limitation of liability provisions.<\/p>\n
20. If any material warranty, representation or statement contained
\nherein shall be or shall prove to have been false when made or if Indemnitor
\nshall fail or neglect to perform or observe any of the terms, provisions or
\ncovenants contained herein, the same shall constitute an Event of Default (as
\ndefined in the Loan Documents) under the Loan Documents.<\/p>\n
21. Any notice required or permitted in connection herewith shall be
\ngiven in the manner provided in any Loan Document.<\/p>\n
22. Indemnitor acknowledges that Lender has and will rely upon the
\nrepresentations, warranties and agreements herein set forth in closing and
\nfunding (or modifying as the case may be) the Loan and that the execution and
\ndelivery of this Agreement is an essential condition but for which Lender would
\nnot close or fund (or modify) the Loan.<\/p>\n
23. Indemnitor waives any right or claim of right to cause a marshaling
\nof the assets of Indemnitor or to cause Lender to proceed against any of the
\nsecurity for the Loan before proceeding under this Agreement against Indemnitor;
\nIndemnitor agrees that any payments required to be made hereunder shall become
\ndue on demand; Indemnitor expressly waives and relinquishes all rights and
\nremedies accorded by applicable law to sureties, indemnitors or guarantors,
\nexcept any rights of subrogation that Indemnitor may have, provided that the
\nindemnity provided for hereunder shall neither be contingent upon the existence
\nof any such rights of subrogation nor subject to any claims or defenses
\nwhatsoever that may be asserted in connection with the enforcement or attempted<\/p>\n
-9-
\n 112
\nenforcement of such subrogation rights, including, without limitation, any claim
\nthat such subrogation rights were abrogated by any acts or omissions of Lender.<\/p>\n
24. Notwithstanding any law to the contrary, the parties expressly
\nagree that a separate right of action hereunder shall arise each time Lender
\nacquires knowledge of any matter indemnified by Indemnitor under this Agreement.
\nSeparate and successive actions may be brought hereunder to enforce any of the
\nprovisions hereof at any time and from time to time. No action hereunder shall
\npreclude any subsequent action, and Indemnitor hereby waives and covenants not
\nto assert any defense in the nature of splitting of causes of action or merger
\nof judgments.<\/p>\n
25. In this Agreement, the word “person” includes any individual,
\ncompany, trust or other legal entity of any kind. If this Agreement is executed
\nby more than one person, the words “Indemnitor,” “Guarantor” and “Borrower”
\ninclude all such persons. The word “include(s)” means “include(s), without
\nlimitation,” and the word “including” means “including, but not limited to.”
\nWhen the context and construction so require, all words used in the singular
\nshall be deemed to have been used in the plural and vice versa. All headings
\nappearing in this Agreement are for convenience only and shall be disregarded in
\nconstruing this Agreement.<\/p>\n
26. Every provision of this Agreement is intended to be severable. If
\nany term, provision, section or subsection of this Agreement is declared to be
\nillegal or invalid, for any reason whatsoever, by a court of competent
\njurisdiction, such illegality or invalidity shall not affect the other terms,
\nprovisions, sections or subsections of this Agreement, which shall remain
\nbinding and enforceable.<\/p>\n
27. On demand, Indemnitor agrees to pay all of the Indemnified Parties’
\ncosts and expenses, including attorneys’ fees, which may be incurred in any
\neffort to enforce any term of this Agreement, including all such costs and
\nexpenses which may be incurred by any Indemnified Party in any legal action,
\nreference, mediation or arbitration proceeding. From the time(s) incurred until
\npaid in full to the Indemnified Party, those sums shall bear interest at the
\nNote Rate.<\/p>\n
28. Time is of the essence of this Agreement, and of each and every
\nprovision hereof. The waiver by Indemnified Party of any breach or breaches
\nhereof shall not be deemed, nor shall the same constitute, a waiver of any
\nsubsequent breach of breaches.<\/p>\n
29. This Agreement and the transaction contemplated hereunder shall be
\ngoverned by and construed in accordance with the laws of the State of Arizona,
\nwithout giving effect to conflict of laws principles.<\/p>\n
30. This Agreement may be executed in any number of counterparts each
\nof which shall be deemed an original, but all such counterparts together shall
\nconstitute but one Agreement.<\/p>\n
32. Each party executing this Agreement as an Indemnitor shall be
\njointly and severally liable for all obligations of Indemnitor hereunder.<\/p>\n
31. JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF)
\nHEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND<\/p>\n
-10-
\n 113
\nUNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
\nDISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE
\nUNDERSIGNED AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT OR
\nANY OTHER AGREEMENTS, DOCUMENTS OR INSTRUMENTS EXECUTED OR DELIVERED IN
\nCONNECTION WITH, OR OTHERWISE RELATING TO, THIS AGREEMENT OR THE LOAN (TOGETHER
\nWITH THIS AGREEMENT, THE “RELATED DOCUMENTS”). THIS PROVISION IS A MATERIAL
\nINDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER
\nRELATED DOCUMENTS.<\/p>\n
IN WITNESS WHEREOF, Indemnitor has executed this Agreement as of the
\ndate first indicated above.<\/p>\n
SCHUFF STEEL COMPANY, a Delaware
\n corporation<\/p>\n
By:
\n Name:
\n Title:<\/p>\n
BORROWER<\/p>\n
GUARANTOR(S)<\/p>\n
-11-
\n 114
\n SCHEDULE “A”<\/p>\n
REAL PROPERTY LEGAL DESCRIPTION<\/p>\n
115
\n ARBITRATION RESOLUTION<\/p>\n
(a) Binding Arbitration.<\/p>\n
The undersigned hereby agree that all controversies and claims of any
\n nature arising directly or indirectly out of any and all loan
\n transactions between them and any related agreements, instruments or
\n documents, shall at the written request of any party be arbitrated
\n pursuant to the applicable rules of the American Arbitration
\n Association. The arbitration shall occur in the State of Arizona.
\n Judgment upon any award rendered by the arbitrator(s) may be entered in
\n any court having jurisdiction. The Federal Arbitration Act shall apply
\n to the construction and interpretation of this arbitration agreement.<\/p>\n
(b) Arbitration Panel.<\/p>\n
A single arbitrator shall have the power to render a maximum award of
\n one hundred thousand dollars. When any party files a claim in excess of
\n this amount, the arbitration decision shall be made by the majority
\n vote of three arbitrators. No arbitrator shall have the power to
\n restrain any act of any party.<\/p>\n
(c) Provisional Remedies, Self-Help, and Foreclosure.<\/p>\n
No provision of subparagraph (a) shall limit the right of any party to
\n exercise self-help remedies, to foreclose against any real or personal
\n property collateral, or to obtain any provisional or ancillary remedies
\n (including but not limited to injunctive relief or the appointment of a
\n receiver) from a court of competent jurisdiction. At Lender’s option,
\n it may enforce its rights under a mortgage by judicial foreclosure, and
\n under a deed of trust either by exercise of power of sale or by
\n judicial foreclosure. The institution and maintenance of any remedy
\n permitted above shall not constitute a waiver of the right to submit
\n any controversy or claim to arbitration. The statute of limitations,
\n estoppel, waiver, laches, and similar doctrines which would otherwise
\n be applicable in an action brought by a party shall be applicable in
\n any arbitration proceeding.<\/p>\n
(d) Counterparts.<\/p>\n
This Arbitration Resolution may be executed in counterparts, all of
\n which executed counterparts shall together constitute a single
\n document. Signature pages may be detached
\n 116
\n from the counterparts and attached to a single copy of this Arbitration
\n Resolution to physically form one document.<\/p>\n
Agreed to this 10th day of December, 1997.<\/p>\n
BANK ONE, ARIZONA, NA, a national banking
\n association<\/p>\n
By:
\n Name:
\n Title:<\/p>\n
LENDER<\/p>\n
SCHUFF STEEL COMPANY, a Delaware
\n corporation<\/p>\n
By:
\n Name:
\n Title:<\/p>\n
BORROWER<\/p>\n
-2-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6850,8773],"corporate_contracts_industries":[9415,9481],"corporate_contracts_types":[9561,9560],"class_list":["post-40983","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-one-corp","corporate_contracts_companies-schuff-international-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-construction__specialty","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40983","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40983"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40983"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40983"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40983"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}