{"id":41302,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/security-agreement-wells-fargo-bank-na-and-aitken-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"security-agreement-wells-fargo-bank-na-and-aitken-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/security-agreement-wells-fargo-bank-na-and-aitken-inc.html","title":{"rendered":"Security Agreement &#8211; Wells Fargo Bank NA and Aitken Inc."},"content":{"rendered":"<pre>                               SECURITY AGREEMENT\n                                    (Aitken)\n\n\n         THIS SECURITY AGREEMENT is made and entered into as of the 27th day of\nSeptember, 2001, by AITKEN, INC., a Texas corporation (hereinafter called\n\"Debtor\"), whose chief executive office is located at 420 South 19th Avenue,\nPhoenix, Arizona 85009, in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, a\nnational banking association, and its successors and assigns, for itself and as\nagent for one or more Lenders (as hereinafter defined) (hereinafter called\n\"Secured Party\"), whose address is 100 West Washington, Phoenix, Arizona 85003,\nAttention: John Helms #S4101-251.\n\n1.       SECURITY INTEREST\n\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\").\n\n2.       OBLIGATION SECURED\n\n         The Security Interest shall secure, in such order of priority as\nSecured Party may elect:\n\n                  (a)      Payment of the aggregate sum of $15,000,000.00\n         according to the terms of those Revolving Promissory Notes dated June\n         30, 1998, each made by Schuff Steel Company, a Delaware corporation (as\n         predecessor in interest to Schuff International, Inc., a Delaware\n         corporation) (hereinafter called \"Borrower\"), payable respectively to\n         the order of one of the Lenders, each evidencing a revolving line of\n         credit, all or any part of which may be advanced to Borrower, repaid by\n         Borrower and readvanced to Borrower, from time to time, subject to the\n         terms and conditions thereof, with interest thereon, extension and\n         other fees, late charges, prepayment premiums and attorneys' fees,\n         according to the terms thereof, and all extensions, modifications,\n         renewals or replacements thereof (hereinafter called the \"RLC Notes\");\n\n                  (b)      Payment of the sum of $5,000,000.00, according to the\n         terms of that Revolving Promissory Note dated June 30, 1998, made by\n         Borrower, payable to the order of Secured Party as the Swing Line\n         Lender, evidencing a revolving line of credit, all or any part of which\n         may be advanced to Borrower, repaid by Borrower and readvanced to\n         Borrower, from time to time, subject to the terms and conditions\n         thereof, with interest thereon, extension and other fees, late charges,\n         prepayment premiums and attorneys' fees, according to the strict terms\n         thereof, and all extensions, modifications, renewals or replacements\n         thereof (hereinafter called the \"Swing Line Note\" and with the RLC\n         Notes, the \"Note\");\n\n                  (c)      Payment, performance and observance by Borrower of\n         each covenant, condition, provision and agreement contained in that\n         Credit Agreement dated June 30, 1998 (the \"Credit Agreement\"), by and\n         between Borrower, and the lenders listed from time to time therein\n         (collectively, the \"Lenders\"), and Secured\n\n         Party, as Arranger, Administrative Agent, Issuing Bank and Swing Line\n         Lender and of all monies expended or advanced by Secured Party pursuant\n         to the terms thereof or to preserve any right of Secured Party\n         thereunder as permitted hereunder;\n\n                  (d)      Payment, performance and observance by Debtor of each\n         covenant, condition, provision and agreement contained herein and of\n         all monies expended or advanced by Secured Party pursuant to the terms\n         hereof, or to preserve any right of Secured Party hereunder, or to\n         protect or preserve the Collateral or any part thereof as permitted\n         hereunder; and\n\n                  (e)      Payment and performance of any and all other\n         indebtedness, obligations and liabilities of Debtor and\/or Borrower to\n         Secured Party of every kind and character, direct or indirect, absolute\n         or contingent, due or to become due, now existing or hereafter\n         incurred, whether such indebtedness is from time to time reduced and\n         thereafter increased or entirely extinguished and thereafter\n         reincurred.\n\nAll of the indebtedness and obligations secured by this Agreement are\nhereinafter collectively called the \"Obligation.\"\n\n3.       USE; LOCATION; CONSTRUCTION\n\n         3.1      The Collateral is or will be used or produced primarily for\nbusiness purposes.\n\n         3.2      The Collateral will be kept at Debtor's address set forth at\nthe beginning of this Agreement.\n\n         3.3      Debtor's records concerning the Collateral will be kept at\nDebtor's address set forth at the beginning of this Agreement.\n\n4.       REPRESENTATIONS AND WARRANTIES OF DEBTOR\n\n         Debtor hereby represents and warrants that:\n\n         4.1      If Debtor is a \"registered organization\" (as defined in the\nUCC), it (i) represents that its name as described in the preamble to this\nAgreement is accurate; (ii) represents that its chief executive office is\nlocated at the address described in the preamble to this Agreement; (iii) is\nduly organized, validly existing and in good standing under the laws of the\nState of Texas (the \"State\") as a corporation; (iv) is qualified to do business\nand is in good standing under the laws of the state in which the Collateral is\nlocated and in each state in which it is doing business; (v) has full power and\nauthority to own its properties and assets and to carry on its businesses as now\nconducted; and (vi) is fully authorized and permitted to execute and deliver\nthis Agreement and to enter into any transactions evidenced by any portion of\nthe Collateral. The execution, delivery and performance by Debtor of this\nAgreement and all other documents and instruments relating to the Obligation\nwill not result in any material breach of the terms and conditions or constitute\na default under any material agreement or instrument under which Debtor is a\nparty or is obligated.\n\n\n                                      -2-\n\nDebtor is not in material default in the performance or observance of any\ncovenants, conditions or provisions of any such agreement or instrument.\n\n         4.2      Debtor is the owner of the Collateral free of all security\ninterests or other encumbrances except the Security Interest and Permitted\nEncumbrances and no financing statement covering the Collateral is filed or\nrecorded in any public office except those necessary to perfect the interests\nwhich constitute Permitted Encumbrances.\n\n         4.3      The Collateral is, and is intended to be, used, produced or\nacquired by Debtor for use primarily for the purpose marked in Section 3 above.\nThe address of Debtor set forth at the beginning of this Agreement is the chief\nexecutive office of Debtor. If a portion of the Collateral is or will become a\nfixture, it will be affixed to the real property as described above.\n\n         4.4      Each account, chattel paper or general intangible included in\nthe Collateral is genuine and enforceable in accordance with its terms against\nthe party 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 Obligor\nis the amount actually and unconditionally owing by that Obligor, without\ndeduction except for normal cash discounts where applicable; no Obligor has any\ndefense, setoff, claim or counterclaim against Debtor that can be asserted\nagainst Secured Party whether in any proceeding to enforce the Security Interest\nor otherwise. Each document, instrument and chattel paper included in the\nCollateral is complete and regular on its face and free from evidence of forgery\nor alteration. No default has occurred in connection with any instrument,\ndocument or chattel paper included in the Collateral, no payment in connection\ntherewith is overdue and no presentment, dishonor or protest has occurred in\nconnection therewith.\n\n         4.5      The Debtor's Federal employer identification number is\n_______________.\n\n         4.6      If the Debtor is a registered organization, the Debtor's state\norganization number is 004232773.\n\n5.       COVENANTS OF DEBTOR\n\n         5.1      Debtor shall not sell, transfer, assign or otherwise dispose\nof any Collateral 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.\n\n         5.2      Debtor shall keep and maintain the Collateral in good\ncondition and repair and shall not use the Collateral in violation of any\nprovision of this Agreement or any applicable statute, ordinance or regulation\nor any policy of insurance insuring the Collateral.\n\n\n                                      -3-\n\n         5.3      Debtor shall provide and maintain insurance insuring the\nCollateral against risks, with coverage and in form and amount satisfactory to\nSecured Party as required in the Credit Agreement. At Secured Party's request,\nDebtor shall deliver to Secured Party the original policies of insurance\ncontaining endorsements naming Secured Party as a loss payee.\n\n         5.4      Debtor shall pay when due all taxes, assessments and other\ncharges which may be levied or assessed against the Collateral as required in\nthe Credit Agreement.\n\n         5.5      Debtor shall prevent any portion of the Collateral that is not\na fixture 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.\n\n         5.6      If the Collateral includes motor vehicles, Debtor shall not\nremove or permit such motor vehicles to be removed from the State of Arizona\nwithout the prior written consent of Secured Party, shall keep all titled\nvehicles properly registered with and licensed by the State of Arizona, shall\nprovide Secured Party with the license numbers of all titled vehicles, shall\ncause the Security Interest to be shown as a valid first lien on the Certificate\nof Title for all titled vehicles subject to Permitted Encumbrances and shall\ndeliver lien filing receipts to Secured Party as evidence thereof.\n\n         5.7      Debtor, upon demand, shall promptly deliver to Secured Party\nall instruments, 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.\n\n         5.8      Debtor shall give Secured Party immediate written notice of\nany change in the location of: (i) Debtor's chief executive office; (ii) the\nCollateral or any part thereof; (iii) Debtor's records concerning the Collateral\nor (iv) the State of Debtor's organization.\n\n         5.9      Secured Party or its agents may inspect the Collateral at\nreasonable times and may enter into any premises where the Collateral is or may\nbe located. Debtor shall keep records concerning the Collateral in accordance\nwith generally accepted accounting principles and, unless waived in writing by\nSecured Party, shall mark its records and the Collateral to indicate the\nSecurity Interest. Secured Party shall have free and complete access to Debtor's\nrecords upon reasonable request and shall have the right to make extracts\ntherefrom or copies thereof. Upon request of Secured Party from time to time,\nDebtor shall submit up-to-date schedules of the items comprising the Collateral\nin such detail as Secured Party may require and shall deliver to Secured Party\nconfirming specific assignments of all accounts, instruments, documents and\nchattel paper included in the Collateral.\n\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\n\n\n                                      -4-\n\nthat 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.\n\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 Security\nInterest.\n\n         5.12     If Debtor shall fail to pay any taxes, assessments, expenses\nor charges, 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.\n\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.\n\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.\n\n6.       NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF COLLATERAL\n         BY DEBTOR\n\n         6.1      Secured Party, before or after the occurrence of any Event of\nDefault, defined below, and without notice to Debtor, may notify any or all\nObligors of the existence of the Security Interest and may direct the Obligors\nto make all payments on the Collateral to Secured Party. Until Secured Party has\nnotified the Obligors to remit payments directly to it, Debtor, at Debtor's own\ncost and expense, shall collect or cause to be collected the accounts and monies\n\n\n                                      -5-\n\ndue under the accounts, documents, instruments and general intangibles or\npursuant to the terms of the chattel paper. Secured Party shall not be liable or\nresponsible for any embezzlement, conversion, negligence or default by Debtor or\nDebtor's agents with respect to such collections; all agents used in such\ncollections shall be agents of Debtor and not agents of Secured Party. Unless\nSecured Party notifies Debtor in writing that it waives one or more of the\nrequirements set forth in this sentence, any payments or other proceeds of\nCollateral received by Debtor, before or after notification to Obligors, shall\nbe held by Debtor in trust for Secured Party in the same form in which received,\nshall not be 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.\n\n         6.2      Secured Party, before or after the occurrence of an Event of\nDefault, may demand, collect and sue on the Collateral (either in Debtor's or\nSecured Party's name), enforce, compromise, settle or discharge the Collateral\nand endorse Debtor's name on any instruments, documents, or chattel paper\nincluded in or pertaining to the Collateral; Debtor hereby irrevocably appoints\nSecured Party its attorney in fact for all such purposes.\n\n         6.3      Until the occurrence of an Event of Default, Debtor may: (i)\nuse, consume and sell any inventory included in the Collateral in any lawful\nmanner in the ordinary course of Debtor's business provided that all sales shall\nbe at commercially 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.\n\n7.       COLLATERAL IN THE POSSESSION OF SECURED PARTY\n\n         7.1      Secured Party shall use such reasonable care in handling,\npreserving and protecting the Collateral in its possession as it uses in\nhandling similar property for its own account. Secured Party, however, shall\nhave no liability for the loss, destruction or disappearance of any Collateral\nunless there is affirmative proof of gross negligence or a lack of due care; the\nlack of due care shall not be implied solely by virtue of any loss, destruction\nor disappearance.\n\n         7.2      Debtor shall be solely responsible for taking any and all\nactions to preserve rights against all Obligors; Secured Party shall not be\nobligated to take any such actions whether or not the Collateral is in Secured\nParty's possession. Debtor waives presentment and protest with respect to any\ninstrument included in the Collateral on which Debtor is in any way liable and\nwaives notice of any action taken by Secured Party with respect to any\ninstrument, document or chattel paper included in any Collateral that is in the\npossession of Secured Party.\n\n8.       EVENTS OF DEFAULT; REMEDIES\n\n         8.1      The occurrence of any of the following events or conditions\nshall constitute and is hereby defined to be an \"Event of Default\":\n\n\n                                      -6-\n\n                  (a)      Any failure or neglect to perform or observe any of\n         the terms, provisions, or covenants of this Agreement.\n\n                  (b)      The occurrence of any event of default under the\n         Credit Agreement.\n\n         8.2      Secured Party, so far as may be lawful, may purchase all or\nany part of the Collateral offered at any public or private sale made in the\nenforcement of Secured Party's rights and remedies hereunder consistent with the\nUniform Commercial Code.\n\n         8.3      Any demand or notice of sale, disposition or other intended\naction hereunder or in connection herewith, whether required by the Uniform\nCommercial Code or otherwise, shall be deemed to be commercially reasonable and\neffective if such demand or notice is given to Debtor at least ten (10) days\nprior to such sale, disposition or other intended action, in the manner provided\nherein for the giving of notices.\n\n         8.4      Debtor shall pay all reasonable costs and expenses, including\nwithout limitation costs of Uniform Commercial Code searches, court costs and\nreasonable attorneys' fees, incurred by Secured Party in enforcing payment and\nperformance of the Obligation or in exercising the rights and remedies of\nSecured Party hereunder. All such costs and expenses shall be secured by this\nAgreement and by all deeds of trust and other lien and security documents\nsecuring the Obligation. In the event of any court proceedings, reasonable court\ncosts and reasonable attorneys' fees shall be set by the court and not by jury\nand shall be included in any judgment obtained by Secured Party.\n\n         8.5      In addition to any remedies provided herein for an Event of\nDefault, Secured Party shall have all the rights and remedies afforded a secured\nparty under the Uniform Commercial Code and all other legal and equitable\nremedies allowed under applicable law. No failure on the part of Secured Party\nto exercise any of its rights hereunder arising upon any Event of Default shall\nbe construed to prejudice its rights upon the occurrence of any other or\nsubsequent Event of Default. No delay on the part of Secured Party in exercising\nany such rights shall be construed to preclude it from the exercise thereof at\nany time while that Event of Default is continuing. Secured Party may enforce\nany one or more rights or remedies hereunder successively or concurrently. By\naccepting payment or performance of any of the Obligation after its due date,\nSecured Party shall not thereby waive the agreement contained herein that time\nis of the essence, nor shall Secured Party waive either its right to require\nprompt payment or performance when due of the remainder of the Obligation or its\nright to consider the failure to so pay or perform an Event of Default.\n\n9.       MISCELLANEOUS PROVISIONS\n\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\n\n\n                                      -7-\n\nmay resort, for the payment or performance of the Obligation, to its several\nsecurities therefor in such order and manner as it may determine.\n\n         9.2      Without notice or demand, without affecting the obligations of\nDebtor hereunder or the personal liability of any person for payment or\nperformance of the Obligation, and without affecting the Security Interest or\nthe priority thereof, Secured Party, from time to time, may: (i) extend the time\nfor payment of all or any part of the Obligation, accept a renewal note\ntherefor, reduce the payments thereon, release any person liable for all or any\npart thereof, or otherwise change the terms of all or any part of the\nObligation; (ii) hold other security for the payment or performance of the\nObligation and enforce, exchange, substitute, subordinate, waive or release any\nsuch security; (iii) join in any extension or subordination agreement; or (iv)\nrelease any part of the Collateral from the Security Interest.\n\n         9.3      Debtor waives and agrees not to assert: (i) any right to\nrequire Secured Party to proceed against any guarantor, to proceed against or\nexhaust any other security for the Obligation, to pursue any other remedy\navailable to Secured Party, or to pursue any remedy in any particular order or\nmanner; (ii) the benefits of any statute of limitations affecting the\nenforcement hereof; (iii) demand, diligence, presentment for payment, protest\nand demand, and notice of extension, dishonor, protest, demand and nonpayment,\nrelating to the Obligation; and (iv) any benefit of, and any right to\nparticipate in, any other security now or hereafter held by Secured Party.\n\n         9.4      The terms herein shall have the meanings in and be construed\nunder the Uniform Commercial Code as in effect in the State of Arizona from time\nto time (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.\n\n         9.5      No modification, rescission, waiver, release or amendment of\nany provision of this Agreement shall be made except by a written agreement\nexecuted by Debtor and a duly authorized officer of Secured Party.\n\n         9.6      This is a continuing Agreement which shall remain in full\nforce and effect until actual receipt by Secured Party of written notice of its\nrevocation as to future transactions and shall remain in full force and effect\nthereafter until all of the Obligation incurred before the receipt of such\nnotice, and all of the Obligation incurred thereafter under commitments extended\nby Secured Party before the receipt of such notice, shall have been paid and\nperformed in full.\n\n         9.7      No setoff or claim that Debtor now has or may in the future\nhave against Secured Party shall relieve Debtor from paying or performing the\nObligation.\n\n         9.8      Time is of the essence hereof. If more than one Debtor is\nnamed herein, 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.\n\n\n                                      -8-\n\nThe 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.\n\n         9.9      All notices required or permitted to be given hereunder shall\nbe in writing and may be given in person or by United States mail, by delivery\nservice or by electronic transmission. Any notice directed to a party to this\nAgreement shall become effective upon the earliest of the following: (i) actual\nreceipt by that party; (ii) delivery to the designated address of that party,\naddressed to that party; or (iii) if given by certified or registered United\nStates mail, thirty-six (36) hours after deposit with the United States Postal\nService, postage 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.\n\n         9.10     A carbon, photographic or other reproduced copy of this\nAgreement and\/or any financing statement relating hereto shall be sufficient for\nfiling and\/or recording as a financing statement. Debtor hereby authorizes the\nfiling of a financing statement with respect to the Collateral by the Secured\nParty.\n\n         9.11     The capitalized terms used herein and not otherwise defined\nshall have the same meanings as set forth in the Credit Agreement.\n\n10.      NON-DEBTOR BORROWER PROVISIONS\n\n         10.1     All advances of principal under the Note shall be made to\nBorrower subject 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.\n\n         10.2     Debtor authorizes Secured Party, without notice or demand,\nwithout affecting the obligations of Debtor hereunder or the personal liability\nof any person for payment or performance of the Obligation and without affecting\nthe lien 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 surety,\nincluding without limitation the benefit of Section 12-1641, et seq., of the\nArizona Revised Statutes; and (iii) any defense arising by reason of any\ndisability or other defense of Borrower or by reason of the cessation from any\ncause whatsoever of the liability of Borrower. Debtor shall have no right of\nsubrogation and hereby waives any right to enforce any remedy which Secured\nParty now has, or may hereafter have, against Borrower.\n\n\n\n                                      -9-\n\n         IN WITNESS WHEREOF, these presents are executed as of the date\nindicated above.\n\n                                    AITKEN, INC., a Texas corporation\n\n\n\n                                    By:    \/s\/ Scott A. Schuff\n                                       -----------------------------------------\n                                    Name:      Scott A. Schuff\n                                         ---------------------------------------\n                                    Title:     V.P.\n                                          --------------------------------------\n\n                                                                          DEBTOR\n\n\n\n\n\n                                      -10-\n\n                                  SCHEDULE \"A\"\n\n                             COLLATERAL DESCRIPTION\n\n\n         A.       All of the property described below in, to or under which\nDebtor now has or hereafter acquires any right, title or interest, whether\npresent, future or contingent, and in Debtor's expectancy to acquire such\nproperty (all of the property described on this schedule is herein called the\n\"Collateral\"):\n\n                  (a)      All money, accounts, general intangibles,\n         instruments, documents and chattel paper now existing or hereafter\n         arising or acquired from time to time in the course of Debtor's\n         business as now or hereafter conducted, including all accounts\n         receivable, notes, drafts, lease agreements and security agreements,\n         and all goods, if any, represented thereby;\n\n                  (b)      All inventory now owned or hereafter arising or\n         acquired, including all goods held for sale or lease in Debtor's\n         business, as now or hereafter conducted, and all materials, work in\n         process and finished goods used or to be consumed in Debtor's business\n         (whether or not Debtor holds legal title thereto or whether any such\n         inventory is represented by warehouse receipts or bills of lading or\n         has been or may be placed in transit or delivered to a public\n         warehouse);\n\n                  (c)      All equipment, including all furniture, fixtures,\n         furnishings, vehicles (whether titled or non-titled), machinery,\n         materials and supplies, wherever located, including but not limited to\n         such items used in connection with Debtor's business and\/or described\n         on the Collateral Schedule (if any) attached hereto and by this\n         reference made a part hereof, together with all parts, accessories,\n         attachments, additions thereto or replacements therefor;\n\n                  (d)      All rights as unpaid seller or lienor that arise in\n         connection with any of the Collateral, including the rights of\n         replevin, reclamation and stoppage in transit, and the right to sue or\n         file mechanics' or materialmen's liens in the name of Debtor or\n         otherwise for the unpaid balances due thereunder;\n\n                  (e)      All tax refund claims, all policies or certificates\n         of insurance covering any of the Collateral, all contracts, agreements\n         or rights of indemnification, guaranty or surety relating to any of the\n         Collateral, and all claims, awards, loss payments, proceeds and premium\n         refunds that may become payable with respect to any such policies,\n         certificates, contracts, agreements or rights;\n\n                  (f)      All ledger cards, invoices, delivery receipts,\n         worksheets, books of accounts, statements, correspondence, customer\n         lists, files, journals, ledgers and records in any form, written or\n         otherwise, related to any of the Collateral;\n\n                  (g)      Tradenames, trademarks and service marks (subject to\n         any franchise or license agreements relating thereto);\n\n                  (h)      All claims for loss or damage to or in connection\n         with any of the Collateral, all other claims in any form for the\n         payment of money, including tort claims, and all rights with respect to\n         such claims and all proceeds thereof;\n\n                  (i)      All accessions to any of the Collateral;\n\n                  (j)      All products and proceeds of the Collateral, in any\n         form, including all proceeds received, due or to become due from any\n         sale, exchange or other disposition of any of the Collateral, whether\n         such proceeds are cash or noncash in nature or are represented by\n         checks, drafts, notes or other instruments for the payment of money;\n         and\n\n                  (k)      All property that is now or at any time hereafter may\n         be in Secured Party's possession or control in any capacity, including\n         without limitation all money owed or that becomes owed to Debtor and\n         all money deposited for the account of Debtor.\n\nAll \"Collateral Schedules,\" if any, attached hereto are hereby incorporated into\nthis collateral description as if set forth here and at each reference thereto.\n\n         B.       All of Debtor's right, title and interest in and to all\nAccounts (as defined in the Arizona UCC), Chattel Paper (as defined in the\nArizona UCC), Documents (as defined in the Arizona UCC), Equipment (as defined\nin the Arizona UCC), Fixtures (as defined in the Arizona UCC), General\nIntangibles (as defined in the Arizona UCC), Instruments (as defined in the\nArizona UCC), Inventory (as defined in the Arizona UCC), Investment Property (as\ndefined in the Arizona UCC), Letter-of-Credit Rights (as defined in the Arizona\nUCC), Supporting Obligations (as defined in the Arizona UCC), any Deposit\nAccounts (as defined in the Arizona UCC) pledged to Secured Party, Deposits,\ncash, letters of credit, stock rights and other deposits, it being intended that\nthe Collateral include all property of the Debtor other than real property,\nwhether located in which the Debtor now has or hereafter acquires any right or\ninterest, and the proceeds, insurance proceeds and products thereof, together\nwith all books and records, customer lists, credit files, computer files,\nprograms, printouts and other computer materials and records related thereto,\ntogether with (i) all policies or certificates of insurance covering any of the\nforegoing property, and all awards, loss payments, proceeds and premium refunds\nthat may become payable with respect to such policies; (ii) all property of\nDebtor that is now or may hereafter be in the possession or control of Secured\nParty in any capacity, including without limitation all monies owed or that\nbecome owed by Secured Party to Debtor; and (iii) all proceeds and products of\nany of the foregoing property, whether due or to become due from any sale,\nexchange or other disposition thereof, whether cash or non-cash in nature, and\nwhether represented by checks, drafts, notes or other instruments for the\npayment of money, including, without limitation, all property, whether cash or\nnon-cash in nature, derived from tort, contractual or other claims arising in\nconnection with any of the foregoing property. The terms herein shall have the\nmeaning in and be construed under the Uniform Commercial Code as in effect in\nthe State of Arizona from time to time (the \"Arizona UCC\"). All property\ndescribed above is hereinafter called the \"Collateral.\"\n\n\n                                      -2-\n\n<\/pre>\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":[9560,9570],"class_list":["post-41302","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__security"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41302","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=41302"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41302"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41302"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41302"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}