\nIV. SECTION 6.10(a) MAINTENANCE CAPITAL EXPENDITURES<\/p>\n Maximum Permitted $ 5,000,000
\n ———–<\/p>\n
Actual
\n ———–
\n<\/c><\/c><\/s><\/table>\n
SCHUFF INTERNATIONAL, INC., a Delaware
\n corporation<\/p>\n
By:
\n —————————————-
\n Name:
\n ————————————–
\n Its:
\n —————————————
\n Senior Officer<\/p>\n
-3-<\/p>\n
EXHIBIT “D”<\/p>\n
CONTINUING GUARANTY<\/p>\n
TO: WELLS FARGO BANK, NATIONAL ASSOCIATION for itself and as Agent<\/p>\n
1. GUARANTY; DEFINITIONS. In consideration of any credit or other
\nfinancial accommodation heretofore, now or hereafter extended or made to SCHUFF
\nINTERNATIONAL, INC., a Delaware corporation (“Borrower”), by WELLS FARGO BANK,
\nNATIONAL ASSOCIATION, for itself and as agent for one or more Lenders (“Bank”),
\nand for other valuable consideration, the undersigned ,
\na corporation (“Guarantor”), jointly and severally
\nunconditionally guarantees and promises to pay to Bank, or order, on demand in
\nlawful money of the United States of America and in immediately available
\nfunds, any and all Indebtedness of Borrower to Bank. The term “Indebtedness” is
\nused herein in its most comprehensive sense and includes any and all advances,
\ndebts, obligations and liabilities of Borrower, heretofore, now or hereafter
\nmade, incurred or created, whether voluntary or involuntary and however
\narising, whether due or not due, absolute or contingent, liquidated or
\nunliquidated, determined or undetermined, and whether Borrower may be liable
\nindividually or jointly with others, or whether recovery upon such Indebtedness
\nmay be or hereafter becomes unenforceable. The term “Lenders” means those
\nLenders listed from time to time in that Credit Agreement dated as of June 30,
\n1998 between Schuff Steel Company, a Delaware corporation as predecessor in
\ninterest to Borrower and Bank as Administrative Agent for the Lenders and as
\nArranger, Issuing Bank and Swing Line Lender.<\/p>\n
2. MAXIMUM LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION
\nUNDER OTHER GUARANTIES. The liability of Guarantor shall not exceed at any one
\ntime the sum of FIFTEEN MILLION AND NO\/100 DOLLARS ($15,000,000.00) for
\nprincipal, plus all interest thereon and costs and expenses pertaining to the
\nenforcement of this Guaranty and\/or the collection of the Indebtedness of
\nBorrower to Bank. Notwithstanding the foregoing, Bank may permit the
\nIndebtedness of Borrower to exceed Guarantor’s liability. This is a continuing
\nguaranty and all rights, powers and remedies hereunder shall apply to all past,
\npresent and future Indebtedness of Borrower to Bank, including that arising
\nunder successive transactions which shall either continue the Indebtedness,
\nincrease or decrease it, or from time to time create new Indebtedness after all
\nor any prior Indebtedness has been satisfied, and notwithstanding the death,
\nincapacity, dissolution, liquidation or bankruptcy of Borrower or Guarantor or
\nany other event or proceeding affecting Borrower or Guarantor. This Guaranty
\nshall not apply to any new Indebtedness created after actual receipt by Bank of
\nwritten notice of its revocation as to such new Indebtedness; provided however,
\nthat loans or advances made by Bank to Borrower after revocation under
\ncommitments existing prior to receipt by Bank of such revocation, and
\nextensions, renewals or modifications, of any kind, of Indebtedness incurred by
\nBorrower or committed by Bank prior to receipt by Bank of such revocation,
\nshall not be considered new Indebtedness. Any such notice must be sent to Bank
\nby registered U.S. mail, postage prepaid, addressed to its office at 100 West
\nWashington, Phoenix, Arizona 85003, Attention: John Helms #S4101-251, or at
\nsuch other address as Bank shall from time to time designate. Any payment by
\nGuarantor shall not reduce Guarantor’s maximum obligation hereunder unless
\nwritten notice to that effect is actually received by Bank at or prior to the
\ntime <\/p>\n
of such payment. The obligations of Guarantor hereunder shall be in addition to
\nany obligations of Guarantor under any other guaranties of any liabilities or
\nobligations of Borrower or any other person heretofore or hereafter given to
\nBank unless said other guaranties are expressly modified or revoked in writing;
\nand this Guaranty shall not, unless expressly herein provided, affect or
\ninvalidate any such other guaranties.<\/p>\n
3. OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF
\nLIMITATIONS; REINSTATEMENT OF LIABILITY. The obligations hereunder are joint and
\nseveral and independent of the obligations of Borrower, and a separate action
\nor actions may be brought and prosecuted against Guarantor whether action is
\nbrought against Borrower or any other person, or whether Borrower or any other
\nperson is joined in any such action or actions. Guarantor acknowledges that
\nthis Guaranty is absolute and unconditional, there are no conditions precedent
\nto the effectiveness of this Guaranty, and this Guaranty is in full force and
\neffect and is binding on Guarantor as of the date written below, regardless of
\nwhether Bank obtains collateral or any guaranties from others or takes any
\nother action contemplated by Guarantor. Guarantor waives the benefit of any
\nstatute of limitations affecting Guarantor’s liability hereunder or the
\nenforcement thereof, and Guarantor agrees that any payment of any Indebtedness
\nor other act which shall toll any statute of limitations applicable thereto
\nshall similarly operate to toll such statute of limitations applicable to
\nGuarantor’s liability hereunder. The liability of Guarantor hereunder shall be
\nreinstated and revived and the rights of Bank shall continue if and to the
\nextent for any reason any amount at any time paid on account of any
\nIndebtedness guaranteed hereby is rescinded or must otherwise be restored by
\nBank, whether as a result of any proceedings in bankruptcy or reorganization or
\notherwise, all as though such amount had not been paid. The determination as to
\nwhether any amount so paid must be rescinded or restored shall be made by Bank
\nin its sole discretion; provided however, that if Bank chooses to contest any
\nsuch matter at the request of Guarantor, Guarantor agrees to indemnify and hold
\nBank harmless from and against all costs and expenses, including reasonable
\nattorneys’ fees, expended or incurred by Bank in connection therewith,
\nincluding without limitation,in any litigation with respect thereto.<\/p>\n
4. AUTHORIZATIONS TO BANK. Guarantor authorizes Bank either before or
\nafter revocation hereof, without notice to or demand on Guarantor, and without
\naffecting Guarantor’s liability hereunder, from time to time to: (a) alter,
\ncompromise, renew, extend, accelerate or otherwise change the time for payment
\nof, or otherwise change the terms of the Indebtedness or any portion thereof,
\nincluding increase or decrease of the rate of interest thereon; (b) take and
\nhold security for the payment of this Guaranty or the Indebtedness or any
\nportion thereof, and exchange, enforce, waive, subordinate or release any such
\nsecurity; (c) apply such security and direct the order or manner of sale
\nthereof, including without limitation, a non-judicial sale permitted by the
\nterms of the controlling security agreement or deed of trust, as Bank in its
\ndiscretion may determine; (d) release or substitute any one or more of the
\nendorsers or any other guarantors of the Indebtedness, or any portion thereof,
\nor any other party thereto; and (e) apply payments received by Bank from
\nBorrower to any Indebtedness of Borrower to Bank, in such order as Bank shall
\ndetermine in its sole discretion, whether or not such Indebtedness is covered
\nby this Guaranty, and Guarantor hereby waives any provision of law regarding
\napplication of payments which specifies otherwise. Bank may without notice
\nassign this Guaranty in whole or in part. Upon Bank’s request, Guarantor agrees
\nto provide to Bank copies of Guarantor’s financial statements.<\/p>\n
-2-<\/p>\n
5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
\nBank that: (a) this Guaranty is executed at Borrower’s request; (b) Guarantor
\nshall not, without Bank’s prior written consent, sell, lease, assign, encumber,
\nhypothecate, transfer or otherwise dispose of all or a substantial or material
\npart of Guarantor’s assets other than in the ordinary course of Guarantor’s
\nbusiness; (c) Bank has made no representation to Guarantor as to the
\ncreditworthiness of Borrower; and (d) Guarantor has established adequate means
\nof obtaining from Borrower on a continuing basis financial and other
\ninformation pertaining to Borrower’s financial condition. Guarantor agrees to
\nkeep adequately informed from such means of any facts, events or circumstances
\nwhich might in any way affect Guarantor’s risks hereunder, and Guarantor
\nfurther agrees that Bank shall have no obligation to disclose to Guarantor any
\ninformation or material about Borrower which is acquired by Bank in any manner.<\/p>\n
6. GUARANTOR’S WAIVERS.<\/p>\n
(a) Guarantor waives any right to require Bank to: (i) proceed against
\nBorrower or any other person; (ii) marshal assets or proceed against or exhaust
\nany security held from Borrower or any other person; (iii) give notice of the
\nterms, time and place of any public or private sale of personal property
\nsecurity held from Borrower or any other person, or otherwise comply with the
\nprovisions of A.R.S. section 47-9504; (iv) take any action or pursue any other
\nremedy in Bank’s power; or (v) make any presentment or demand for performance,
\nor give any notice of nonperformance, protest, notice of protest or notice of
\ndishonor hereunder or in connection with any obligations or evidences of
\nindebtedness held by Bank as security for or which constitute in whole or in
\npart the Indebtedness guaranteed hereunder, or in connection with the creation
\nof new or additional Indebtedness.<\/p>\n
(b) Guarantor waives any defense to its obligations hereunder based
\nupon or arising by reason of: (i) any disability or other defense of Borrower
\nor any other person; (ii) the cessation or limitation from any cause
\nwhatsoever, other than payment in full, of the Indebtedness of Borrower or any
\nother person; (iii) any lack of authority of any officer, director, partner,
\nagent or any other person acting or purporting to act on behalf of Borrower, if
\na corporation, partnership or other type of entity, or any defect in the
\nformation of such Borrower; (iv) the application by Borrower of the proceeds of
\nany Indebtedness for purposes other than the purposes represented by Borrower
\nto, or intended or understood by, Bank or Guarantor; (v) any act or omission by
\nBank which directly or indirectly results in or aids the discharge of Borrower
\nor any portion of the Indebtedness by operation of law or otherwise, or which
\nin any way impairs or suspends any rights or remedies of Bank against Borrower;
\n(vi) any impairment of the value of any interest in any security for the
\nIndebtedness or any portion thereof, including without limitation, the failure
\nto obtain or maintain perfection or recordation of any interest in any such
\nsecurity, the release of any such security without substitution, and\/or the
\nfailure to preserve the value of, or to comply with applicable law in disposing
\nof, any such security; or (vii) any modification of the Indebtedness, in any
\nform whatsoever, including any modification made after revocation hereof to any
\nIndebtedness incurred prior to such revocation, and including without
\nlimitation the renewal, extension, acceleration or other change in time for
\npayment of, or other change in the terms of, the Indebtedness or any portion
\nthereof, including increase or decrease of the rate of interest thereon. Until
\nall Indebtedness shall have been paid in full, Guarantor shall have no right of
\nsubrogation, and Guarantor waives any right to enforce any remedy which Bank
\nnow has or may hereafter have against Borrower or any other person, and waives
\nany benefit of,<\/p>\n
-3-<\/p>\n
or any right to participate in, any security now or hereafter held by Bank.
\nGuarantor further waives all rights and defenses Guarantor may have arising out
\nof (A) any election of remedies by Bank, even though that election of remedies,
\nsuch as a non-judicial foreclosure with respect to any security for any portion
\nof the Indebtedness, destroys Guarantor’s rights of subrogation or Guarantor’s
\nrights to proceed against Borrower for reimbursement, or (B) any loss of rights
\nGuarantor may suffer by reason of any rights, powers or remedies of Borrower in
\nconnection with any anti-deficiency laws or any other laws limiting, qualifying
\nor discharging Borrower’s Indebtedness, whether by operation of law or
\notherwise, including any rights Guarantor may have to a fair market value
\nhearing to determine the size of a deficiency following any trustee’s
\nforeclosure sale or other disposition of any real property security for any
\nportion of the Indebtedness, and Guarantor waives the benefits of A.R.S.
\nsections 12-1566, 12-1641 et seq., 33-814,44-142 and Rule 17(F) of the Arizona
\nRules of Civil Procedure.<\/p>\n
7. BANK’S RIGHTS WITH RESPECT TO GUARANTOR’S PROPERTY IN BANK’S
\nPOSSESSION. In addition to all liens upon and rights of setoff against the
\nmonies, securities or other property of Guarantor given to Bank by law, Bank
\nshall have a lien upon and a right of setoff against all monies, securities and
\nother property of Guarantor now or hereafter in the possession of or on deposit
\nwith Bank, whether held in a general or special account or deposit or for
\nsafekeeping or otherwise, and every such lien and right of setoff may be
\nexercised without demand upon or notice to Guarantor. No lien or right of setoff
\nshall be deemed to have been waived by any act or conduct on the part of Bank,
\nor by any neglect to exercise such right of setoff or to enforce such lien, or
\nby any delay in so doing, and every right of setoff and lien shall continue in
\nfull force and effect until such right of setoff or lien is specifically waived
\nor released by Bank in writing.<\/p>\n
8. SUBORDINATION. Any Indebtedness of Borrower now or hereafter held by
\nGuarantor is hereby subordinated to the Indebtedness of Borrower to Bank. Such
\nIndebtedness of Borrower to Guarantor is assigned to Bank as security for this
\nGuaranty and the Indebtedness and, if Bank requests, shall be collected and
\nreceived by Guarantor as trustee for Bank and paid over to Bank on account of
\nthe Indebtedness of Borrower to Bank but without reducing or affecting in any
\nmanner the liability of Guarantor under the other provisions of this Guaranty.
\nAny notes or other instruments now or hereafter evidencing such Indebtedness of
\nBorrower to Guarantor shall be marked with a legend that the same are subject to
\nthis Guaranty and, if Bank so requests, shall be delivered to Bank. Guarantor
\nwill, and Bank is hereby authorized in the name of Guarantor from time to time
\nto, execute and file financing statements and continuation statements and
\nexecute such other documents and take such other action as Bank deems necessary
\nor appropriate to perfect, preserve and enforce it rights hereunder.<\/p>\n
9. REMEDIES; NO WAIVER. All rights, powers and remedies of Bank hereunder
\nare cumulative. No delay, failure or discontinuance of Bank in exercising any
\nright, power or remedy hereunder shall affect or operate as a waiver of such
\nright, power or remedy; nor shall any single or partial exercise of any such
\nright, power or remedy preclude, waive or otherwise affect any other or further
\nexercise thereof or the exercise of any other right, power or remedy. Any
\nwaiver, permit, consent or approval of any kind by Bank of any breach of this
\nGuaranty, or any such waiver of any provisions or conditions hereof, must be in
\nwriting and shall be effective only to the extent set forth in writing.<\/p>\n
-4-<\/p>\n
10. COSTS, EXPENSES AND ATTORNEYS’ FEES. Guarantor shall pay to Bank
\nimmediately upon demand the full amount of all payments, advances, charges,
\ncosts and expenses, including reasonable attorneys’ fees (to include outside
\ncounsel fees and all allocated costs of Bank’s in-house counsel), expended or
\nincurred by Bank in connection with the enforcement of any of Bank’s rights,
\npowers or remedies and\/or the collection of any amounts which become due to Bank
\nunder this Guaranty, and the prosecution or defense of any action in any way
\nrelated to this Guaranty, whether incurred at the trial or appellate level, in
\nan arbitration proceeding or otherwise, and including any of the foregoing
\nincurred in connection with any bankruptcy proceeding (including without
\nlimitation, any adversary proceeding, contested matter or motion brought by
\nBank or any other person) relating to Guarantor or any other person or entity.
\nAll of the foregoing shall be paid by Guarantor with interest from the date of
\ndemand until paid in full at a rate per annum equal to the greater of ten
\npercent (10%) or the Prime Rate in effect from time to time. The “Prime Rate”
\nis a base rate that Bank from time to time establishes and which serves as the
\nbasis upon which effective rates of interest are calculated for those loans
\nmaking reference thereto.<\/p>\n
11. SUCCESSORS; ASSIGNMENT. This Guaranty shall be binding upon and inure
\nto the benefit of the heirs, executors, administrators, legal representatives,
\nsuccessors and assigns of the parties; provided however, that Guarantor may not
\nassign or transfer any of its interests or rights hereunder without Bank’s
\nprior written consent. Guarantor acknowledges that Bank has the right to sell,
\nassign, transfer, negotiate or grant participations in all or any part of, or
\nany interest in, any Indebtedness of Borrower to Bank and any obligations with
\nrespect thereto, including this Guaranty. In connection therewith, Bank may
\ndisclose all documents and information which Bank now has or hereafter acquires
\nrelating to Guarantor and\/or this Guaranty, whether furnished by Borrower,
\nGuarantor or otherwise. Guarantor further agrees that Bank may disclose such
\ndocuments and information to Borrower.<\/p>\n
12. AMENDMENT. This Guaranty may be amended or modified only in writing
\nsigned by Bank and Guarantor.<\/p>\n
13. UNDERSTANDING WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS.
\nGuarantor warrants and agrees that each of the waivers set forth herein is made
\nwith Guarantor’s full knowledge of its significance and consequences, and that
\nunder the circumstances, the waivers are reasonable and not contrary to public
\npolicy or law. If any waiver or other provision of this Guaranty shall be held
\nto be prohibited by or invalid under applicable public policy or law, such
\nwaiver or other provision shall be ineffective only to the extent of such
\nprohibition or invalidity, without invalidating the remainder of such waiver or
\nother provision or any remaining provisions of this Guaranty.<\/p>\n
14. GOVERNING LAW. This Guaranty shall be governed by and construed in
\naccordance with the laws of the State of Arizona.<\/p>\n
15. ARBITRATION.<\/p>\n
(a) Arbitration. Upon the demand of any party, any Dispute shall be
\nresolved by binding arbitration (except as set forth in (e) below) in
\naccordance with the terms of this Guaranty. A “Dispute” shall mean any action,
\ndispute, claim or controversy of any kind,<\/p>\n
-5-<\/p>\n
whether in contract or tort, statutory or common law, legal or equitable, now
\nexisting or hereafter arising under or in connection with, or in any way
\npertaining to, this Guaranty and each other document, contract and instrument
\nrequired hereby or now or hereafter delivered to Bank in connection herewith
\n(collectively, the “Documents”), or any past, present or future extensions of
\ncredit and other activities, transactions or obligations of any kind related
\ndirectly or indirectly to any of the Documents, including without limitation,
\nany of the foregoing arising in connection with the exercise of any self-help,
\nancillary or other remedies pursuant to any of the Documents. Any party may by
\nsummary proceedings bring an action in court to compel arbitration of a
\nDispute. Any party who fails or refuses to submit to arbitration following a
\nlawful demand by any other party shall bear all costs and expenses incurred by
\nsuch other party in compelling arbitration of any Dispute.<\/p>\n
(b) Governing Rules. Arbitration proceedings shall be administered
\nby the American Arbitration Association (“AAA”) or such other administrator as
\nthe parties shall mutually agree upon in accordance with the AAA Commercial
\nArbitration Rules. All Disputes submitted to arbitration shall be resolved in
\naccordance with the Federal Arbitration Act (Title 9 of the United States
\nCode), notwithstanding any conflicting choice of law provision in any of the
\nDocuments. The arbitration shall be conducted at a location in Arizona selected
\nby the AAA or other administrator. If there is any inconsistency between the
\nterms hereof and any such rules, the terms and procedures set forth herein
\nshall control. All statutes of limitation applicable to any Dispute shall
\napply to any arbitration proceeding. All discovery activities shall be
\nexpressly limited to matters directly relevant to the Dispute being arbitrated.
\nJudgment upon any award rendered in an arbitration may be entered in any court
\nhaving jurisdiction; provided however, that nothing contained herein shall be
\ndeemed to be a waiver by any party that is a bank of the protections afforded
\nto it under 12 U.S.C. section 91 or any similar applicable state law.<\/p>\n
(c) No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
\nprovision hereof shall limit the right of any party to exercise self-help
\nremedies such as setoff, foreclosure against or sale of any real or personal
\nproperty collateral or security, or to obtain provisional or ancillary
\nremedies, including without limitation injunctive relief, sequestration,
\nattachment, garnishment or the appointment of a receiver, from a court of
\ncompetent jurisdiction before, after or during the pendency of any arbitration
\nor other proceeding. The exercise of any such remedy shall not waive the right
\nof any party to compel arbitration hereunder.<\/p>\n
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators must be
\nactive members of the Arizona State Bar or retired judges of the state or
\nfederal judiciary of Arizona, with expertise in the substantive law applicable
\nto the subject matter of the Dispute. Arbitrators are empowered to resolve
\nDisputes by summary rulings in response to motions filed prior to the final
\narbitration hearing. Arbitrators (i) shall resolve all Disputes in accordance
\nwith the substantive law of the state of Arizona, (ii) may grant any remedy or
\nrelief that a court of the state of Arizona could order or grant within the
\nscope hereof and such ancillary relief as is necessary to make effective any
\naward, and (iii) shall have the power to award recovery of all costs and fees,
\nto impose sanctions and to take such other actions as they deem necessary to
\nthe same extent a judge could pursuant to the Federal Rules of Civil Procedure,
\nthe Arizona Rules of Civil Procedure or other applicable law. Any Dispute in
\nwhich the amount in controversy is $5,000,000.00 or less shall be decided by a
\nsingle arbitrator who shall not render an award of greater than $5,000,000.00
\n(including damages, costs, fees and expenses). By submission to a<\/p>\n
-6-<\/p>\n
single arbitrator, each party expressly waives any right or claim to recover
\nmore than $5,000,000.00 Any Dispute in which the amount in controversy exceeds
\n$5,000,000.00 shall be decided by majority vote of a panel of three
\narbitrators; provided however, that all three arbitrators must actively
\nparticipate in all hearings and deliberations.<\/p>\n
(e) Judicial Review. Notwithstanding anything herein to the contrary, in
\nany arbitration in which the amount in controversy exceeds $25,000,000.00, the
\narbitrators shall be required to make specific, written findings of fact and
\nconclusions of law. In such arbitrations (i) the arbitrators shall not have the
\npower to make any award which is not supported by substantial evidence or which
\nis based on legal error, (ii) an award shall not be binding upon the parties
\nunless the findings of fact are supported by substantial evidence and the
\nconclusions of law are not erroneous under the substantive law of the state of
\nArizona, and (iii) the parties shall have in addition to the grounds referred
\nto in the Federal Arbitration Act for vacating, modifying or correcting an
\naward the right to judicial review of (A) whether the findings of fact rendered
\nby the arbitrators are supported by substantial evidence, and (B) whether the
\nconclusions of law are erroneous under the substantive law of the state of
\nArizona. Judgment confirming an award in such a proceeding may be entered only
\nif a court determines the award is supported by substantial evidence and not
\nbased on legal error under the substantive law of the state of Arizona.<\/p>\n
(f) Miscellaneous. To the maximum extent practicable, the AAA, the
\narbitrators and the parties shall take all action required to conclude any
\narbitration proceeding within 180 days of the filing of the Dispute with the
\nAAA. No arbitrator or other party to an arbitration proceeding may disclose the
\nexistence, content or results thereof, except for disclosures of information by
\na party required in the ordinary course of its business, by applicable law or
\nregulation, or to the extent necessary to exercise any judicial review rights
\nset forth herein. If more than one agreement for arbitration by or between the
\nparties potentially applies to a Dispute, the arbitration provision most
\ndirectly related to the Documents or the subject matter of the Dispute shall
\ncontrol. This arbitration provision shall survive termination, amendment or
\nexpiration of any of the Documents or any relationship between the parties.<\/p>\n
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
\nas of ____________, 20____.<\/p>\n
_______________________________, a<\/p>\n
__________________corporation<\/p>\n
By:_______________________________<\/p>\n
Name:_____________________________<\/p>\n
Title:____________________________<\/p>\n
-7-<\/p>\n
EXHIBIT “F”<\/p>\n
PLEDGE AND IRREVOCABLE PROXY SECURITY AGREEMENT<\/p>\n
THIS PLEDGE AND IRREVOCABLE PROXY SECURITY AGREEMENT is made and entered
\ninto as of the __ day of ________, 20__, by SCHUFF INTERNATIONAL, INC., a
\nDelaware corporation (hereinafter called “Pledgor”), whose chief executive
\noffice (or residence if Pledgor is an individual without an office) is located
\nat 420 South 19th Avenue, Phoenix, Arizona 85009, in favor of WELLS FARGO BANK,
\nNATIONAL ASSOCIATION, and its successors and assigns, for itself and as agent
\nfor one or more Lenders (as hereinafter defined) (hereinafter called “Secured
\nParty”), whose address is 100 West Washington, Phoenix, Arizona 85003,
\nAttention: John Helms #S4101-251.<\/p>\n
1. RECITALS<\/p>\n
1.1 Secured Party has agreed to make certain financial accommodations to
\nPledgor.<\/p>\n
1.2 Secured Party’s agreement to make financial accommodations to Pledgor
\nis conditioned upon Secured Party’s receiving a pledge and security interest in
\nall stock and securities issued by ____________________________________________,
\na(n) _________________________________ corporation (hereinafter when referred
\nto in this capacity called the “Company”), now owned or hereafter acquired by
\nPledgor.<\/p>\n
1.3 Pledgor is the owner of ______ shares of the ______ stock of the
\nCompany that Pledgor desires to pledge to Secured Party in connection with
\nSecured Party’s financial accommodations to Pledgor.<\/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
\nupon the 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
\nthe “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
\nappropriate stock transfer powers therefor duly executed by Pledgor in blank in
\nthe form of Exhibit “1” attached hereto. 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
\nPledgor, together with appropriate stock transfer powers therefor duly executed
\nby Pledgor in blank, and any other property<\/p>\n
constituting part of the Pledged Securities, free and clear of any prior lien,
\nclaim, 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
\nauthorized hereunder. In its discretion and without notice to Pledgor, Secured
\nParty may take any one or more of the following actions, without liability
\nexcept to account for property actually received by it:<\/p>\n
(a) transfer to or register in its name or the name of its nominee
\n any of the Pledged Securities, with or without indication of the security
\n interest herein created, and whether or not so transferred or registered,
\n receive the income, dividends and other distributions thereon and hold them
\n or apply them to the Obligation in any order of priority;<\/p>\n
(b) exercise or cause to be exercised all voting and corporate powers
\n with respect to any of the Pledged Securities so registered or transferred,
\n including all rights of conversion, exchange, subscription or any other
\n rights, privileges or options pertaining to such Pledged Securities, as if
\n 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 upon a
\n reorganization, recapitalization or other readjustment and, in connection
\n therewith, deposit any of the Pledged Securities with any committee or
\n depositary upon such terms as the Secured Party may determine;<\/p>\n
(e) in its name, or in the name of Pledgor, demand, sue for, collect
\n or receive any money or property at any time payable or receivable on
\n account of, or in exchange for, any of the Pledged Securities and, in
\n connection therewith, endorse notes, checks, drafts, money orders,
\n documents of title or other evidences of payment, shipment or storage in
\n the name of Pledgor; and<\/p>\n
(f) make any compromise or settlement deemed advisable with respect
\n 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
\nany failure 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-<\/p>\n
(a) Payment of the aggregate sum of $15,000,000.00 according to the
\n terms of those Revolving Promissory Notes dated June 30, 1998, each made by
\n Schuff Steel Company, a Delaware corporation (the “Prior Borrower”) to
\n which Pledgor is the successor in interest, payable respectively to the
\n order of one of the Lenders, each evidencing a revolving line of credit,
\n all or any part of which may be advanced to Pledgor, repaid by Pledgor and
\n readvanced to Pledgor, from time to time, subject to the terms and
\n conditions thereof, with interest thereon, extension and other fees, late
\n charges, prepayment premiums and attorneys’ fees, according to the terms
\n thereof, and all extensions, modifications, renewals or replacements
\n thereof (hereinafter called the “RLC Notes”);<\/p>\n
(b) Payment of the sum of $5,000,000.00, according to the terms of that
\n Revolving Promissory Note dated June 30, 1998, made by the Prior Borrower,
\n payable to the order of Secured Party as the Swing Line Lender, evidencing
\n a revolving line of credit, all or any part of which may be advanced to
\n Pledgor, repaid by Pledgor and readvanced to Pledgor, from time to time,
\n subject to the terms and conditions thereof, with interest thereon,
\n extension and other fees, late charges, prepayment premiums and attorneys’
\n fees, according to the terms thereof, and all extensions, modifications,
\n renewals or replacements thereof (hereinafter called the “Swing Line Note”
\n and with the RLC Notes, the “Note”);<\/p>\n
(c) Payment, performance and observance by Pledgor of each covenant,
\n condition, provision and agreement contained in that Credit Agreement dated
\n June 30, 1998, by and between the Prior Borrower, and the lenders listed
\n from time to time therein (collectively, the “Lenders”), and Secured Party,
\n as Arranger, Administrative Agent, Issuing Bank and Swing Line Lender
\n (hereinafter called the “Credit Agreement”) and of all monies expended or
\n advanced by Secured Party pursuant to the terms thereof or to preserve any
\n right of Secured Party thereunder;<\/p>\n
(d) Payment, performance and observance by Pledgor of each covenant,
\n condition, provision and agreement contained herein and of all monies
\n expended or advanced by Secured Party pursuant to the terms hereof, or to
\n preserve any right of Secured Party hereunder, or to protect or preserve
\n the Collateral or any part thereof; 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 and
\n character, direct or indirect, absolute or contingent, due or to become
\n due, now existing or hereafter incurred, whether such indebtedness is from
\n time to time reduced and thereafter increased or entirely extinguished and
\n thereafter reincurred.<\/p>\n
All of the indebtedness and obligations secured by this Agreement are
\nhereinafter collectively called the “Obligation.”<\/p>\n
-3-<\/p>\n
4. REPRESENTATIONS AND WARRANTIES OF PLEDGOR<\/p>\n
Pledgor hereby represents and warrants that:<\/p>\n
4.1 If Pledgor is a corporation, partnership or trust, it (i) is duly
\norganized, validly existing and in good standing under the laws of the state in
\nwhich it is organized; (ii) is qualified to do business and is in good standing
\nunder the laws of each state in which it is doing business; (iii) has full
\npower and authority to own its properties and assets and to carry on its
\nbusiness as now conducted; and (iv) is fully authorized and permitted to
\nexecute and deliver this Agreement. The execution, delivery and performance by
\nPledgor of this Agreement and all other documents and instruments relating to
\nthe Obligation will not result in any breach of the terms and conditions of,
\nnor constitute a default under, any agreement or instrument under which Pledgor
\nis a party or is obligated. Pledgor is not in default in the performance or
\nobservance of any covenants, conditions or provisions of any such agreement or
\ninstrument.<\/p>\n
4.2 The address of Pledgor set forth at the beginning of this Agreement is
\nthe chief executive office of Pledgor (or Pledgor’s residence if Pledgor is an
\nindividual without an office).<\/p>\n
4.3 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
4.4 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 or
\nnot the Pledged Securities have been transferred into the name of Secured Party
\nor its nominee, as Pledgor’s proxy with full power, in the same manner, to the
\nsame extent and with the same effect as if Pledgor were to do the same, in the
\nsole discretion of Secured Party:<\/p>\n
(a) To call a meeting of the stockholders of the Company and to vote the
\nPledged Securities, to seek the consent of such stockholders, to remove the
\ndirectors of the Company, or any of them, and to elect new directors of the
\nCompany, who thereafter shall manage the affairs of the Company, operate its
\nproperties and carry on its business, and otherwise take any action with
\nrespect to the business, properties and affairs of the Company that such new
\ndirectors shall deem necessary or appropriate, including, but not limited to,
\nthe maintenance, repair, renewal or alteration of any or all of the properties
\nof the Company, the leasing, subleasing, sale or other disposition of any or all
\nof such properties, the borrowing of money on the credit of the Company
\n(whether from Secured Party or others) that in the judgment of such new
\ndirectors shall be necessary to<\/p>\n
-4-<\/p>\n
preserve any of such properties or to discharge the obligations of the
\n Company, and the employment of any or all agents, attorneys, counsel, or
\n other employees as deemed by such new directors to be necessary for the
\n proper operation or conduct of the business, properties and affairs of the
\n Company;<\/p>\n
(b) To consent to any and all actions by or with respect to the
\n Company for which consent of the stockholders of the Company is or may be
\n necessary or appropriate; and<\/p>\n
(c) Without limitation, to do all things that Pledgor can do or could
\n do as stockholder of the Company, giving Secured Party full power of
\n 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
\npowers, so long as there is no Event of Default hereunder, and (ii) this
\nirrevocable proxy shall terminate at such time as this Agreement is no longer
\nin full force and effect. The foregoing proxy is coupled with an interest
\nsufficient in law to support an irrevocable power and shall be irrevocable and
\nshall survive the death or incapacity of Pledgor. Pledgor hereby revokes any
\nproxy or proxies heretofore given to any person or persons and agrees not to
\ngive any other proxies in derogation hereof until such time as this Agreement
\nis no longer in full force and effect.<\/p>\n
6. COVENANTS OF PLEDGOR<\/p>\n
6.1 Pledgor shall not sell, transfer, assign or otherwise dispose of any
\nof the Pledged Securities or any interest therein without obtaining the prior
\nwritten consent of Secured Party and shall keep the Pledged Securities free of
\nall security interests or other encumbrances except the lien and security
\ninterests granted herein.<\/p>\n
6.2 Pledgor shall pay when due all taxes, assessments, expenses and other
\ncharges 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
\nof Pledgor’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 Pledged
\nSecurities, this Agreement and all of the rights of Secured Party hereunder
\nagainst all claims and demands of other parties. Pledgor shall pay all claims
\nand charges that in the opinion of Secured Party might prejudice, imperil or
\notherwise affect the Pledged Securities. Pledgor shall promptly notify Secured
\nParty of any levy, distraint or other seizure, by legal process or otherwise,
\nof all or any part of the Pledged Securities and of any threatened or filed
\nclaims or proceedings that might in any way affect or impair the terms of this
\nAgreement.<\/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
-5-<\/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, preserving
\nand protecting the Pledged Securities in its possession as it uses in handling
\nsimilar property for its own account. Secured Party, however, shall have no
\nliability for the loss, destruction or disappearance of any Pledged Securities
\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, distribution or
\ndisappearance. Secured Party shall not be required to take any steps necessary
\nto preserve any rights in the Pledged Securities against prior parties or to
\nprotect, perfect, preserve or maintain any security interest given to secure the
\nPledged 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 such
\nEvent of Default is continuing, Secured Party shall have the following rights
\nand remedies and may do one or more of the following:<\/p>\n
(a) Declare all or any part of the Obligation to be immediately due
\n and payable, and the same, with all costs and charges, shall be collectible
\n thereupon by action at law:<\/p>\n
(b) Transfer the Pledged Securities or any part thereof into its own
\n name or that of its nominee so that Secured Party or its nominee may appear
\n of record as the sole owner thereof;<\/p>\n
-6-<\/p>\n
(c) Vote any or all of the Pledged Securities and give all consents,
\n waivers and ratifications in respect thereof and otherwise acting with
\n respect thereto as though it were the absolute owner thereof;<\/p>\n
(d) Exercise any and all rights of conversion, exchange,
\n subscription, or any other rights, privileges or options pertaining to any
\n of the Pledged Securities including, but not limited to, the right to
\n exchange, at its discretion, any or all of the Pledged Securities upon the
\n merger, consolidation, reorganization, recapitalization or other
\n readjustment of the Company or upon the exercise by Pledgor or Secured
\n Party of any right, privilege or option pertaining to any of the shares of
\n the Pledged Securities, and in connection therewith to deposit and deliver
\n such shares of Pledged Securities with any committee, depository, transfer
\n agent, registrar or any other agency upon such terms as Secured Party may
\n determine without liability except to account for the property actually
\n received by it;<\/p>\n
(e) Receive and retain any dividend or other distribution on account
\n of the Pledged Securities; and<\/p>\n
(f) Sell any or all of the Pledged Securities in accordance with the
\n 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 or
\n more units, at the same or different times, and all right, title
\n and interest, claim and demand therein, and right of redemption
\n thereof, at private sale, or at public sale to the highest bidder
\n for cash, upon credit or for future delivery, Pledgor hereby waiving
\n and releasing to the fullest extent permitted by law any and all
\n equity or right of redemption. If any of the Pledged Securities are
\n sold by Secured Party upon credit or for future delivery, Secured
\n Party shall not be liable for the failure of the purchaser to
\n purchase or pay for same, and, in the event of any such failure,
\n Secured Party may resell such Pledged Securities. In no event shall
\n Pledgor be credited with any part of<\/p>\n
-7-<\/p>\n
the proceeds of the sale of any Pledged Securities until cash payment
\n thereof has actually been received by Secured Party.<\/p>\n
(ii) No demand, advertisement or notice, all of which are hereby
\n expressly waived, shall be required in connection with any sale or other
\n disposition of all or any part of the Pledged Securities that threatens to
\n decline speedily in value or that is of a type customarily sold on a
\n recognized market; otherwise Secured Party shall give Pledgor at least five
\n (5) days’ prior notice of the time and place of any public sale or of the
\n time after which any private sale or other dispositions are to be made,
\n which Pledgor agrees is reasonable, all other demands, advertisements and
\n notices being hereby waived. Upon any sale, whether under this Agreement or
\n by virtue of judicial proceedings, Secured Party may bid for and purchase
\n any or all of the Pledged Securities and, upon compliance with the terms of
\n the sale, may hold, retain, possess and dispose of such items in its own
\n absolute right without further accountability, and as purchaser at such
\n sale, in paying the purchase price, may turn in any note or notes held by
\n Secured Party in lieu of cash up to the amount that would, upon
\n distribution of the net proceeds of such sale in accordance with
\n Subparagraph 7.3(c) hereof, be payable to Secured Party. In case the amount
\n so payable thereon shall be less than the amount due thereon, the note or
\n notes turned in (in lieu of cash) shall be returned to the holder thereof
\n after being properly stamped to show the partial payment effected by such
\n purchase.<\/p>\n
(b) Pledgor recognizes that Secured Party may be unable to effect a sale to
\nthe public of all or a part of the Pledged Securities by reason of prohibitions
\ncontained in applicable securities laws, but may be compelled to resort to one
\nor more sales to a restricted group of purchasers who will be obliged to agree,
\namong other things, to acquire such Pledged Securities for their own account,
\nfor investment and not with a view to the distribution or resale thereof.
\nPledgor agrees that sales so made may be at prices and other terms less
\nfavorable to the seller than if such Pledged Securities were sold to the public,
\nand that Secured Party has no obligation to delay sale of any such Pledged
\nSecurities for the period of time necessary to permit the issuer of such Pledged
\nSecurities to register the same for sale to the public under applicable
\nsecurities laws. Pledgor agrees that negotiated sales made under the foregoing
\ncircumstances shall be deemed to have been made in a commercially reasonable
\nmanner.<\/p>\n
(c) In all sales of Pledged Securities, public or private, Secured Party
\nshall apply the proceeds of sale as follows:<\/p>\n
(i) First, to the payment of all costs and expenses, incurred hereunder
\n or for the sale, transfer, or delivery, including broker’s and attorneys’
\n fees.<\/p>\n
-8-<\/p>\n
(ii) Next to the payment of the Obligation; and<\/p>\n
(iii) The balance, if any, to Pledgor or to the person or
\n 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 limitation
\ncourt costs and reasonable attorneys’ fees, incurred by Secured Party in
\nenforcing payment and performance of the Obligation or in exercising the rights
\nand remedies of Secured Party hereunder. All such costs and expenses shall be
\nsecured by this Agreement and by all other lien and security documents securing
\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 Default,
\nSecured Party shall have all the rights and remedies afforded a secured party
\nunder the Uniform Commercial Code and all other legal and equitable remedies
\nallowed under applicable law. No failure on the part of Secured Party to
\nexercise any of its rights hereunder arising upon any Event of Default shall be
\nconstrued to prejudice its rights upon the occurrence of any other or subsequent
\nEvent of Default. No delay on the part of Secured Party in exercising any such
\nrights shall be construed to preclude it from the exercise thereof at any time
\nwhile that Event of Default is continuing. Secured Party may enforce any one or
\nmore rights or remedies hereunder successively or concurrently. By accepting
\npayment or performance of any of the Obligation after its due date, Secured
\nParty shall not thereby waive the agreement contained herein that time is of the
\nessence, nor shall Secured Party waive either its right to require prompt
\npayment or performance when due of the remainder of the Obligation or its right
\nto 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<\/p>\n
-9-<\/p>\n
herein, Secured Party, from time to time, may: (i) extend the time for payment
\nof all or any part of the Obligation, accept a renewal note therefor, reduce the
\npayments thereon, release any person liable for all or any part thereof, or
\notherwise change the terms of all or any part of the Obligation; (ii) take and
\nhold other security for the payment or performance of the Obligation and
\nenforce, exchange, substitute, subordinate, waive or release any such security;
\n(iii) join in any extension or subordination agreement; or (iv) release any part
\nof the Pledged Securities 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
8.4 The terms herein shall have the meanings in and be construed under the
\nUniform 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
\nexecuted by Pledgor and a duly authorized officer of Secured Party.<\/p>\n
8.6 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
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 is named
\nherein, the word Pledgor shall mean all and any one or more of them, severally
\nand collectively. All liability hereunder shall be joint and several. This
\nAgreement shall be binding upon, and shall inure to the benefit of, the parties
\nhereto and their heirs, personal representatives, successors and assigns. The
\nterm “Secured Party” shall include not only the original Secured Party hereunder
\nbut also any future owner and holder, including pledgees, of the note or notes
\nevidencing the Obligation. The provisions hereof shall apply to the parties
\naccording to the context thereof and without regard to the number or gender of
\nwords or expressions used.<\/p>\n
-10-<\/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
IN WITNESS WHEREOF, these presents are executed as of the date indicated
\nabove.<\/p>\n
SCHUFF INTERNATIONAL, INC., a Delaware
\n corporation<\/p>\n
By:
\n ____________________________________<\/p>\n
Name:
\n ____________________________________<\/p>\n
Title:
\n ____________________________________<\/p>\n
PLEDGOR<\/p>\n
-11-<\/p>\n
SCHEDULE “A”<\/p>\n
All issued and outstanding shares of stock in ______________________, a(n)
\n__________________________ corporation, now or hereafter owned by Pledgor, which
\nas of the date hereof consists of the __________ shares of ____________ stock.<\/p>\n
EXHIBIT “1”<\/p>\n
ASSIGNMENT SEPARATE FROM CERTIFICATE<\/p>\n
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
\nto _____________________________________, ______________ (_______) shares of
\ncommon stock of ______________________________, a(n) ___________ corporation
\n(the “Corporation”), represented by certificate number ____ in the name of the
\nundersigned on the books of the Corporation.<\/p>\n
The undersigned does hereby irrevocably constitute and appoint any officer
\nof the Corporation as attorney to transfer said stock on the books of the
\nCorporation with full power of substitution in the premises.<\/p>\n
Dated as of _____________________.<\/p>\n
SCHUFF INTERNATIONAL, INC., a Delaware
\n corporation<\/p>\n
By:
\n ____________________________________<\/p>\n
Name:
\n ____________________________________<\/p>\n
Title:
\n ____________________________________<\/p>\n
EXHIBIT “G”<\/p>\n
SECURITY AGREEMENT
\n (____________)<\/p>\n
THIS SECURITY AGREEMENT is made and entered into as of the _____ day of
\n___________, 20___, by __________________________________________________, a
\n_______________ corporation (hereinafter called “Debtor”), whose chief
\nexecutive office is located at 420 South 19th Avenue, Phoenix, Arizona 85009,
\nin favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking
\nassociation, and its successors and assigns, for itself and as agent for one or
\nmore Lenders (as hereinafter defined) (hereinafter called “Secured Party”),
\nwhose address is 100 West Washington, Phoenix, Arizona 85003, Attention: John
\nHelms #S4101-251.<\/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 personal property described on Schedule “A” attached hereto and by
\nthis reference incorporated herein (the “Collateral”).<\/p>\n
2. OBLIGATION SECURED<\/p>\n
The Security Interest shall secure, in such order of priority as Secured
\n Party may elect:<\/p>\n
(a) Payment of the aggregate sum of $15,000,000.00 according to the
\n terms of those Revolving Promissory Notes dated June 30, 1998, each made by
\n Schuff Steel Company, a Delaware corporation (as predecessor in interest to
\n Schuff International, Inc., a Delaware corporation) (hereinafter called
\n “Borrower”), payable respectively to the order of one of the Lenders, each
\n evidencing a revolving line of credit, all or any part of which may be
\n advanced to Borrower, repaid by Borrower and readvanced to Borrower, from
\n time to time, subject to the terms and conditions thereof, with interest
\n thereon, extension and other fees, late charges, prepayment premiums and
\n attorneys’ fees, according to the terms thereof, and all extensions,
\n modifications, renewals or replacements thereof (hereinafter called the
\n “RLC Notes”);<\/p>\n
(b) Payment of the sum of $5,000,000.00, according to the terms of
\n that Revolving Promissory Note dated June 30, 1998, made by Borrower,
\n payable to the order of Secured Party as the Swing Line Lender, evidencing
\n a revolving line of credit, all or any part of which may be advanced to
\n Borrower, repaid by Borrower and readvanced to Borrower, from time to time,
\n subject to the terms and conditions thereof, with interest thereon,
\n extension and other fees, late charges, prepayment premiums and attorneys’
\n fees, according to the strict terms thereof, and all extensions,
\n modifications, renewals or replacements thereof (hereinafter called the
\n “Swing Line Note” and with the RLC Notes, the “Note”);<\/p>\n
(c) Payment, performance and observance by Borrower of each covenant,
\ncondition, provision and agreement contained in that Credit Agreement dated
\nJune 30, 1998 (the “Credit Agreement”), by and between Borrower, and the
\nlenders listed from time to time therein (collectively, the “Lenders”), and
\nSecured Party, as Arranger, Administrative Agent, Issuing Bank and Swing Line
\nLender and of all monies expended or advanced by Secured Party pursuant to the
\nterms thereof or to preserve any right of Secured Party thereunder as
\npermitted hereunder;<\/p>\n
(d) Payment, performance and observance by Debtor of each covenant,
\ncondition, provision and agreement contained herein and of all monies expended
\nor advanced by Secured Party pursuant to the terms hereof, or to preserve any
\nright of Secured Party hereunder, or to protect or preserve the Collateral or
\nany part thereof as permitted hereunder; and<\/p>\n
(e) Payment and performance of any and all other indebtedness,
\nobligations and liabilities of Debtor and\/or Borrower to Secured Party of every
\nkind and character, direct or indirect, absolute or contingent, due or to
\nbecome due, now existing or hereafter incurred, whether such indebtedness is
\nfrom time to time reduced and thereafter increased or entirely extinguished and
\nthereafter 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 business
\npurposes.<\/p>\n
3.2 The Collateral will be kept at Debtor’s address set forth at the
\nbeginning of this Agreement.<\/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.<\/p>\n
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR<\/p>\n
Debtor hereby represents and warrants that:<\/p>\n
4.1 If Debtor is a “registered organization” (as defined in the UCC), it
\n(i) represents that its name as described in the preamble to this Agreement is
\naccurate; (ii) represents that its chief executive office is located at the
\naddress described in the preamble to this Agreement; (iii) is duly organized,
\nvalidly existing and in good standing under the laws of the State of Texas (the
\n“State”) as a corporation; (iv) is qualified to do business and is in good
\nstanding under the laws of the state in which the Collateral is located and in
\neach state in which it is doing business; (v) has full power and authority to
\nown its properties and assets and to carry on its businesses as now conducted;
\nand (vi) is fully authorized and permitted to execute and deliver this
\nAgreement and to enter into any transactions evidenced by any portion of the
\nCollateral. The execution, delivery<\/p>\n
-2-<\/p>\n
and performance by Debtor of this Agreement and all other documents and
\ninstruments relating to the Obligation will not result in any material breach
\nof the terms and conditions or constitute a default under any material
\nagreement or instrument under which Debtor is a party or is obligated. Debtor
\nis not in material default in the performance or observance of any covenants,
\nconditions or provisions of any such agreement or instrument.<\/p>\n
4.2 Debtor is the owner of the Collateral free of all security interests
\nor other encumbrances except the Security Interest and Permitted Encumbrances
\nand no financing statement covering the Collateral is filed or recorded in any
\npublic office except those necessary to perfect the interests which constitute
\nPermitted Encumbrances.<\/p>\n
4.3 The Collateral is, and is intended to be, used, produced or acquired
\nby Debtor for use primarily for the purpose marked in Section 3 above. The
\naddress of Debtor set forth at the beginning of this Agreement is the chief
\nexecutive office of Debtor. If a portion of the Collateral is or will become a
\nfixture, it 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 subject only to Permitted Encumbrances. Each Obligor is solvent, and
\nthe amount that Debtor has represented to Secured Party as owing by each
\nObligor is the amount actually and unconditionally owing by that Obligor,
\nwithout deduction except for normal cash discounts where applicable; no Obligor
\nhas any defense, setoff, claim or counterclaim against Debtor that can be
\nasserted against Secured Party whether in any proceeding to enforce the
\nSecurity Interest or otherwise. Each document, instrument and chattel paper
\nincluded in the Collateral is complete and regular on its face and free from
\nevidence of forgery or alteration. No default has occurred in connection with
\nany instrument, document or chattel paper included in the Collateral,
\nno payment in connection therewith is overdue and no presentment, dishonor or
\nprotest has occurred in connection therewith.<\/p>\n
4.5 The Debtor’s Federal employer identification number is ____________.<\/p>\n
4.6 If the Debtor is a registered organization, the Debtor’s state
\norganization number is 004232773.<\/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 in the Credit
\nAgreement) without obtaining the prior written consent of Secured Party and
\nshall keep the Collateral free of all security interests or other encumbrances
\nexcept the Security Interest and Permitted Liens. Although proceeds of
\nCollateral are covered by this Agreement, this shall not be construed to mean
\nthat Secured Party consents to any 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-<\/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 as required in the Credit Agreement. At Secured Party’s request, Debtor
\nshall deliver to Secured Party the original policies of insurance containing
\nendorsements naming Secured Party as a loss 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 as required in the
\nCredit Agreement.<\/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 or
\npermit such motor vehicles to be removed from the State of Arizona without the
\nprior written consent of Secured Party, shall keep all titled vehicles properly
\nregistered with and licensed by the State of Arizona, shall provide Secured
\nParty with the license numbers of all titled vehicles, shall cause the Security
\nInterest to be shown as a valid first lien on the Certificate of Title for all
\ntitled vehicles subject to Permitted Encumbrances and shall deliver lien filing
\nreceipts to Secured Party as 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 reasonably related to the Collateral as may be necessary to perfect the
\nSecurity Interest in the Collateral. Debtor shall notify Secured Party
\nimmediately of any default by any Obligor in the payment or performance of its
\nobligations with respect to any Collateral. Debtor, without Secured Party’s
\nprior written consent, shall not make or agree to make any substitution for, or
\ncredit, adjustment or allowance on, any Collateral.<\/p>\n
5.8 Debtor shall give Secured Party immediate written notice of any change
\nin the location of: (i) Debtor’s chief executive office; (ii) the Collateral or
\nany part thereof; (iii) Debtor’s records concerning the Collateral or (iv) the
\nState of Debtor’s organization.<\/p>\n
5.9 Secured Party or its agents may inspect the Collateral at reasonable
\ntimes and may enter into any premises where the Collateral is or may be located.
\nDebtor shall keep records concerning the Collateral in accordance with generally
\naccepted accounting principles and, unless waived in writing by Secured Party,
\nshall mark its records and the Collateral to indicate the Security Interest.
\nSecured Party shall have free and complete access to Debtor’s records upon
\nreasonable request and shall have the right to make extracts therefrom or copies
\nthereof. Upon request of Secured Party from time to time, Debtor shall submit
\nup-to-date schedules of the items comprising the Collateral in such detail as
\nSecured Party may require and shall deliver to Secured Party confirming specific
\nassignments of all accounts, instruments, documents and chattel paper included
\nin the Collateral.<\/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 reasonable claims and charges<\/p>\n
-4-<\/p>\n
that in the opinion of Secured Party might materially prejudice, imperil or
\notherwise affect the Collateral or the Security Interest. Debtor shall promptly
\nnotify Secured Party of any material levy, distraint or other seizure by legal
\nprocess or otherwise of any part of the Collateral and of any threatened or
\nfiled material claims or proceedings that might materially affect or impair the
\nterms of this Agreement.<\/p>\n
5.11 The Security Interest, at all times, shall be perfected and
\nshall be prior to any other interests in the Collateral except any Permitted
\nLiens. Debtor shall act and perform as necessary and shall execute and file all
\nsecurity agreements, financing statements, continuation statements and other
\ndocuments reasonably requested by Secured Party to establish, maintain and
\ncontinue the perfected Security Interest. Debtor, on demand, shall promptly pay
\nall costs and expenses of filing and recording, including the costs of any
\nsearches, reasonably deemed necessary by Secured Party from time to time to
\nestablish and determine the validity and the continuing priority of the
\nSecurity 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, except any Permitted Liens to keep the Collateral in
\ngood condition and repair, to procure and maintain insurance thereon, or to
\nperform otherwise as required herein, Secured Party may advance the monies
\nnecessary to pay the same, to accomplish such repairs, to procure and maintain
\nsuch insurance or to so perform; Secured Party is hereby authorized to enter
\nupon any property in the possession 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
5.14 Debtor will not sign or authorize the signing on its behalf or
\nthe filing of any financing statement naming it as debtor covering all or any
\nportion of the Collateral except as permitted by the Credit Agreement.<\/p>\n
6. NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF COLLATERAL BY
\n 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
\nhas notified the Obligors to remit payments directly to it, Debtor, at Debtor’s
\nown cost and expense, shall collect or cause to be collected the accounts and
\nmonies<\/p>\n
-5-<\/p>\n
due 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 commingled with any assets of Debtor and shall be turned over to
\nSecured Party not later than the next business day following the day of receipt.
\nAll payments and other proceeds of Collateral received by Secured Party directly
\nor from Debtor shall be applied to the Obligation in such order and manner and
\nat such time as Secured Party, in its sole discretion, shall determine. in
\naddition, Debtor shall promptly notify Secured Party of the return to or
\npossession by Debtor of goods underlying any Collateral; Debtor shall hold the
\nsame in trust for Secured Party and shall dispose of the same as Secured Party
\ndirects.<\/p>\n
6.2 Secured Party, before or after the occurrence of an Event of Default,
\nmay demand, collect and sue on the Collateral (either in Debtor’s or Secured
\nParty’s name), enforce, compromise, settle or discharge the Collateral and
\nendorse Debtor’s name on any instruments, documents, or chattel paper included
\nin or pertaining to the Collateral; Debtor hereby irrevocably appoints Secured
\nParty its attorney in fact for all such purposes.<\/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, preserving
\nand protecting the Collateral in its possession as it uses in handling similar
\nproperty for its own account. Secured Party, however, shall have no liability
\nfor the loss, destruction or disappearance of any Collateral unless there is
\naffirmative proof of gross negligence or a lack of due care; the lack of due
\ncare shall not be implied solely by virtue of any loss, destruction or
\ndisappearance.<\/p>\n
7.2 Debtor shall be solely responsible for taking any and all actions to
\npreserve 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
-6-<\/p>\n
(a) Any failure or neglect to perform or observe any of the terms,
\n provisions, or covenants of this Agreement.<\/p>\n
(b) The occurrence of any event of default under the Credit
\n Agreement.<\/p>\n
8.2 Secured Party, so far as may be lawful, may purchase all or any part
\nof the Collateral offered at any public or private sale made in the enforcement
\nof Secured Party’s rights and remedies hereunder consistent with the Uniform
\nCommercial Code.<\/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 ten (10) 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 reasonable 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, reasonable court costs and
\nreasonable attorneys’ fees shall be set by the court and not by jury and shall
\nbe included in any judgment obtained by Secured Party.<\/p>\n
8.5 In addition to any remedies provided herein for an Event of Default,
\nSecured Party shall have all the rights and remedies afforded a secured party
\nunder the Uniform Commercial Code and all other legal and equitable remedies
\nallowed under applicable law. No failure on the part of Secured Party to
\nexercise any of its rights hereunder arising upon any Event of Default shall be
\nconstrued to prejudice its rights upon the occurrence of any other or subsequent
\nEvent of Default. No delay on the part of Secured Party in exercising any such
\nrights shall be construed to preclude it from the exercise thereof at any time
\nwhile that Event of Default is continuing. Secured Party may enforce any one or
\nmore rights or remedies hereunder successively or concurrently. By accepting
\npayment or performance of any of the Obligation after its due date, Secured
\nParty shall not thereby waive the agreement contained herein that time is of the
\nessence, nor shall Secured Party waive either its right to require prompt
\npayment or performance when due of the remainder of the Obligation or its right
\nto 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<\/p>\n
-7-<\/p>\n
may 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 Debtor
\nhereunder or the personal liability of any person for payment or performance of
\nthe Obligation, and without affecting the Security Interest or the priority
\nthereof, Secured Party, from time to time, may: (i) extend the time for payment
\nof all or any part of the Obligation, accept a renewal note therefor, reduce
\nthe payments thereon, release any person liable for all or any part thereof, or
\notherwise change the terms of all or any part of the Obligation; (ii) hold
\nother security for the payment or performance of the Obligation and enforce,
\nexchange, substitute, subordinate, waive or release any such security; (iii)
\njoin in any extension or subordination agreement; or (iv) release any part of
\nthe Collateral from 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 statute of limitations affecting the enforcement hereof;
\n(iii) demand, diligence, presentment for payment, protest and demand, and
\nnotice of extension, dishonor, protest, demand and nonpayment, relating to the
\nObligation; and (iv) 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 as in effect in the State of Arizona from time to
\ntime (the “UCC”). This Agreement shall be governed by and construed according
\nto the laws of the State of Arizona. Each provision of this Agreement shall be
\ninterpreted in such manner as to be effective and valid under applicable law,
\nbut if any provision of this Agreement is held to be void or invalid, the same
\nshall not affect the remainder hereof which shall be effective as though the
\nvoid 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
\nexecuted by 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
\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
\nextended by Secured Party before the receipt of such notice, shall have been
\npaid and performed in full.<\/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 is named
\nherein, the word “Debtor” shall mean all and any one or more of them,
\nseverally and collectively. All liability hereunder shall be joint and several.
\nThis Agreement shall be binding upon, and shall inure to the benefit of, the
\nparties hereto and their heirs, personal representatives, successors and
\nassigns.<\/p>\n
-8-<\/p>\n
The term “Secured Party” shall include not only the original Secured Party
\nhereunder but also any future owner and holder, including pledgees, of note or
\nnotes evidencing the Obligation. The provisions hereof shall apply to the
\nparties according to the context thereof and without regard to the number or
\ngender of words or expressions 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 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,
\nthirty-six (36) 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
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. Debtor hereby authorizes the filing
\nof a financing statement with respect to the Collateral by the Secured Party.<\/p>\n
9.11 The capitalized terms used herein and not otherwise defined shall
\nhave the same meanings as set forth in the Credit Agreement.<\/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 or partnership, it is not necessary for Secured Party to inquire
\ninto the powers of Borrower or the officers, directors, partners or agents
\nacting or purporting to act on its behalf. Debtor is and shall continue to be
\nfully informed as to all aspects of the business affairs of Borrower that it
\ndeems relevant to the risks it is assuming and hereby waives and fully
\ndischarges Secured Party from any and all obligations to communicate to Debtor
\nany facts of any nature whatsoever regarding Borrower and Borrower’s business
\naffairs.<\/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
\nrequest of any person primarily obligated therefor, to renew, compromise,
\nextend, accelerate or otherwise change the time for payment or performance of,
\nor otherwise 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
\nsurety, including without limitation the benefit of Section 12-1641, et seq.,
\nof the Arizona 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-<\/p>\n
IN WITNESS WHEREOF, these presents are executed as of the date indicated
\n above.<\/p>\n
______________________________________, a<\/p>\n
______________________ corporation<\/p>\n
By:__________________________________<\/p>\n
Name:________________________________<\/p>\n
Title:_______________________________<\/p>\n
DEBTOR<\/p>\n
-10-<\/p>\n
SCHEDULE “A”<\/p>\n
COLLATERAL DESCRIPTION
\n ———– ———–<\/p>\n
A. All of the property described below in, to or under which Debtor now
\nhas or hereafter acquires any right, title or interest, whether present,
\nfuture, or contingent, and in Debtor’s expectancy to acquire such property (all
\nof the property described on this schedule is herein called the “Collateral”):<\/p>\n
(a) All money, accounts, general intangibles, instruments, documents
\n and chattel paper now existing or hereafter arising or acquired from time
\n to time in the course of Debtor’s business as now or hereafter conducted,
\n including all accounts receivable, notes, drafts, lease agreements and
\n security agreements, and all goods, if any, represented thereby;<\/p>\n
(b) All inventory now owned or hereafter arising or acquired,
\n including all goods held for sale or lease in Debtor’s business, as now or
\n hereafter conducted, and all materials, work in process and finished goods
\n used or to be consumed in Debtor’s business (whether or Debtor holds legal
\n title thereto or whether any such inventory is represented by warehouse
\n receipts or bills of lading or has been or may be placed in transit or
\n delivered to a public warehouse);<\/p>\n
(c) All equipment, including all furniture, fixtures, furnishings,
\n vehicles (whether titled or non-titled), machinery, materials and supplies,
\n wherever located, including but not limited to such items used in
\n connection with Debtor’s business and\/or described on the Collateral
\n Schedule (if any) attached hereto and by this reference made a part hereof,
\n together with all parts, accessories, attachments, additions thereto or
\n replacements therefor;<\/p>\n
(d) All rights as unpaid seller or lienor that arise in connection
\n with any of the Collateral, including the rights of replevin, reclamation
\n and stoppage in transit, and the right to sue or file mechanics’ or
\n materialmen’s liens in the name of Debtor or otherwise for the unpaid
\n balances due thereunder;<\/p>\n
(e) All tax refund claims, all policies or certificates of insurance
\n covering any of the Collateral, all contracts, agreements or rights of
\n indemnification, guaranty or surety relating to any of the Collateral, and
\n all claims, awards, loss payments, proceeds and premium refunds that may
\n become payable with respect to any such policies, certificates, contracts,
\n agreements or rights;<\/p>\n
(f) All ledger cards, invoices, delivery receipts, worksheets, books
\n of accounts, statements, correspondence, customer lists, files, journals,
\n ledgers and records in any form, written or otherwise, related to any of
\n the Collateral;<\/p>\n
(g) Tradenames, trademarks and service marks (subject to any
\n franchise or license agreements relating thereto);<\/p>\n
(h) All claims for loss or damage to or in connection with any of the
\n Collateral, all other claims in any form for the payment of money,
\n including tort claims, and all rights with respect to such claims and all
\n proceeds thereof;<\/p>\n
(i) All accessions to any of the Collateral;<\/p>\n
(j) All products and proceeds of the Collateral, in any form,
\n including all proceeds received, due or to become due from any sale,
\n exchange or other disposition of any of the Collateral, whether such
\n proceeds are cash or noncash in nature or are represented by checks,
\n drafts, notes or other instruments for the payment of money; and<\/p>\n
(k) All property that is now or at any time hereafter may be in
\n Secured Party’s possession or control in any capacity, including without
\n limitation all money owed or that becomes owed to Debtor and all money
\n deposited for the account of Debtor.<\/p>\n
All “Collateral Schedules,” if any, attached hereto are hereby incorporated
\ninto this collateral description as if set forth here and at each reference
\nthereto.<\/p>\n
B. All of Debtor’s right, title and interest in and to all Accounts (as
\ndefined in the Arizona UCC), Chattel Paper (as defined in the Arizona UCC),
\nDocuments (as defined in the Arizona UCC), Equipment (as defined in the Arizona
\nUCC), Fixtures (as defined in the Arizona UCC), General Intangibles (as defined
\nin the Arizona UCC), Instruments (as defined in the Arizona UCC), Inventory (as
\ndefined in the Arizona UCC), Investment Property (as defined in the Arizona
\nUCC), Letter-of-Credit Rights (as defined in the Arizona UCC), Supporting
\nObligations (as defined in the Arizona UCC), any Deposit Accounts (as defined in
\nthe Arizona UCC) pledged to Secured Party, Deposits, cash, letters of credit,
\nstock rights and other deposits, it being intended that the Collateral include
\nall property of the Debtor other than real property, whether located in which
\nthe Debtor now has or hereafter acquires any right or interest, and the
\nproceeds, insurance proceeds and products thereof, together with all books and
\nrecords, customer lists, credit files, computer files, programs, printouts and
\nother computer materials and records related thereto, together with (i) all
\npolicies or certificates of insurance covering any of the foregoing property,
\nand all awards, loss payments, proceeds and premium refunds that may become
\npayable with respect to such policies; (ii) all property of Debtor that is now
\nor may hereafter be in the possession or control of Secured Party in any
\ncapacity, including without limitation all monies owed or that become owed by
\nSecured Party to Debtor; and (iii) all proceeds and products of any of the
\nforegoing property, whether due or to become due from any sale, exchange or
\nother disposition thereof, whether cash or non-cash in nature, and whether
\nrepresented by checks, drafts, notes or other instruments for the payment of
\nmoney, including, without limitation, all property, whether cash or non-cash in
\nnature, derived from tort, contractual or other claims arising in connection
\nwith any of the foregoing property. The terms herein shall have the meaning in
\nand be construed under the Uniform Commercial Code as in effect in the State of
\nArizona from time to time (the “Arizona UCC”). All property described above is
\nhereinafter called the “Collateral.”<\/p>\n
-2-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8773,9312],"corporate_contracts_industries":[9415,9481],"corporate_contracts_types":[9560,9567],"class_list":["post-41167","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-schuff-international-inc","corporate_contracts_companies-wells-fargo---co","corporate_contracts_industries-financial__banks","corporate_contracts_industries-construction__specialty","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41167","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=41167"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41167"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41167"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41167"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}