EXHIBIT 10.34
AGREEMENT
1. EFFECTIVE DATE: September 17, 1998.
2. PARTIES:
2.1. XXXXX X. XXXXXXX, an unmarried man ("Borrower"); and
2.2. GIANT INDUSTRIES, INC., a Delaware corporation
("Lender").
3. RECITALS:
3.1. Lender is making a loan in the original principal sum of
$4,000,000.00 (the "Loan") to Borrower in accordance with the
terms of a Promissory Note of even date herewith (the "Note").
3.2 Lender and Borrower desire to memorialize certain
agreements made between them in connection with the Loan.
3.3 Borrower is willing to make the agreements contained
herein in consideration of Lender having made the Loan to Borrower,
and Lender is willing to make the Loan to Borrower only upon the
additional terms and conditions set forth in this Agreement.
3.4 Lender has determined that it has, as one of the business
purposes in making the Loan to Borrower, the protection of the value
of its common stock, of which Borrower is one of the principal owners,
from the effects of any foreclosure of stock pledges made by Borrower
in the event of adverse action by lenders holding pledges of such stock
("Stock Pledges").
3.5 Borrower desires to avoid any such adverse action, and
desires to make certain agreements with Lender to protect against any
such adverse action.
4. AGREEMENTS
4.1 ADOPTION OF RECITALS. The foregoing recitals are adopted
as agreements of the parties and not as mere recitals of fact, and
are incorporated herein.
4.2 NOTICE OF STATUS OF STOCK PLEDGES. Borrower agrees to
provide to Lender, immediately upon receipt thereof, written notice
of (and in the case of an item which is written, true copies of):
4.2.1. any notice of default received on any Stock
Pledge or the underlying loan which Stock Pledge secures;
4.2.2. any margin call or other demand for the
furnishing of any additional security for any loan secured by a
Stock Pledge which Borrower is unable or unwilling to satisfy;
4.2.3. any notice of any fact which, with the passage of
time, will become a default under any loan secured by a Stock Pledge;
4.2.4. any notice that any lender holding a loan secured
by a Stock Pledge deems itself insecure or for any other reason
demands payment of the loan or gives notice that it will not renew the
loan upon its maturity even if such renewal is requested by Borrower;
4.2.5. any notice that any lender refuses to renew a
loan secured by a Stock Pledge following application or other request
for renewal by Borrower;
4.2.6. any demand for payment by any lender under a loan
secured by a Stock Pledge, whether or not there is any claim of
default (other than requests for payments due in the ordinary course
of such loan which are not of a material amount); or
4.2.7. the receipt of any levy or notice of levy or
issuance of a writ of replevin, execution or other writ of any
nature against any stock of Lender owned by Borrower, whether or not
such stock is subject to a Stock Pledge.
Any such notice shall be referred to herein as a "Default
Notice".
4.3 RIGHT OF FIRST REFUSAL. So long as there is an unpaid
balance under the Loan, in the event Borrower decides to sell or
otherwise dispose of any of the stock subject to a Stock Pledge,
Borrower shall first give written notice to Lender of his intent
to sell or otherwise dispose of the stock, with all details of the
intended disposition, including but not limited to the identity of
the transferee; the price upon sale or disposition; and the terms of
such sale or disposition. Borrower agrees that he shall not complete
such contemplated sale or disposition until the earlier of ten days
after said notice or a written waiver by Lender of this right of
first refusal. During the ten day period, Lender shall be entitled to
elect to exercise this right of first refusal by giving written
notice to Borrower of such election. In the event the election is to
exercise the right of first refusal, then Lender shall proceed to
close the transaction upon the same terms and conditions as were
contained in the original notice from Borrower, or upon such other
terms as Borrower and Lender may thereupon agree. If Lender does not
give notice of election to exercise the right of first refusal on or
before the close of business on the 10th day following receipt of
written notice by Lender, such right shall lapse as to the stock
involved in the notice, and Borrower may sell or dispose of such
stock on the same terms and conditions as contained in such notice.
4.4 NEGATIVE PLEDGE. Borrower agrees that, so long as there is
an outstanding balance under the Loan, Borrower shall not, without
the prior written consent of Lender (or compliance with the right of
first refusal set forth in the preceding section), sell, transfer,
encumber or further encumber any of the common stock of Lender owned
or controlled by Borrower, and that the sale, transfer or encumbrance
of any of such stock shall be a default hereunder, and shall entitle
Lender to accelerate the balance due under the Promissory Note and to
exercise any or all remedies available to it. The foregoing negative
pledge shall not prohibit Borrower from exercising his full borrowing
authority under any of the existing loans of Borrower that are
secured by a Stock Pledge.
4.5 PAYMENT OF LOANS SECURED BY STOCK PLEDGES. Borrower agrees
that he shall promptly discharge when due all sums due under each
loan secured by a Stock Pledge. If Lender determines that a default
exists or is imminent, Lender may give notice to Borrower to cure
such default or imminent default, and, if Borrower does not do so
within ten days (or such shorter period as may be required in any
Default Notice), Lender shall have the right, but not the obligation,
to cure such default on behalf of Borrower, and any amounts expended
pursuant to such cure by Lender shall be added to the indebtedness
and shall thereafter bear interest at the default rate set forth in
the Promissory Note until paid. Borrower hereby appoints Lender as
his attorney in fact for the purpose of making any such cure, which
power is coupled with an interest and is irrevocable so long as any
balance remains outstanding under the Loan.
4.6 VOTING RIGHTS. Notwithstanding anything in this agreement to
the contrary, during the period of this Agreement or until any stock
is actually sold or otherwise transferred out of the control of
Borrower, Borrower shall retain all voting rights attributable to
such stock, other than as may be specified in any Stock Pledge.
4.7 RELEASE OF GIANT. Borrower acknowledges with respect to the
amounts owing to Lender that Borrower has no offset, defense or
counterclaim with respect thereto, no claim or defense in the
abatement or reduction thereof, nor any other claim against Lender or
with respect to any document forming part of the transaction in
respect of which the Note was made, which shall include, but not be
limited to, any action which Lender may take in enforcing its rights
given under the Note or this Agreement. To the extent any such
offset, defense, counterclaim, or other claim (collectively,
"Claims") may exist, Borrower, on behalf of himself and his
successors and assigns,
4.7.1. hereby forever and irrevocably releases and
discharges Lender and its officers, successors, representatives,
agents, attorneys, employees, predecessors, and assigns, and each of
them, from any and all Claims, demands, obligations, suits, causes of
action, and liabilities whatsoever, in law or in equity, which
Borrower had, now has or may have which have arisen out of, or may
arise from, any matter, cause, event, or transaction, whether known
or unknown, or whether or not presently asserted, arising from or in
connection with the Loan, and
4.7.2. hereby waives the provisions of any law providing
that a general release does not extend to claims a party does not
know of or suspect to exist at the time it gives such release, and
4.7.3. Borrower does hereby agree that this waiver and
covenant on the part of Borrower is contractual, and not a mere
recital, and the parties acknowledge and agree that no liability
whatever is admitted by any party, except Borrower's indebtedness to
Lender under the Note and its associated documents and this
Agreement.
4.8 GENERAL BORROWER AGREEMENTS. Borrower agrees:
4.8.1. to provide Lender with all other documents
reasonably required by Lender to give effect to this Agreement;
4.8.2. Lender has no obligation whatsoever to make any
other loans or advances to or for his benefit;
4.8.3. this Agreement is not intended for and shall not be
construed for the benefit of any party not a signatory hereto;
4.8.4. this Agreement shall be binding upon, and inure to
the benefit of the parties hereto and their respective successors and
assigns;
4.8.5. this Agreement constitutes the entire agreement
(including all representations and promises made) among the parties
with respect to the subject matter hereof, and no modification or
waiver shall be effective unless in writing and signed by the party
to be charged;
4.8.6. the indebtedness represented by the Note and this
Agreement is for commercial or business purposes;
4.8.7. time is of the essence hereof; and
4.8.8. Borrower acknowledges that he has thoroughly read
and reviewed the terms and provisions of this Agreement and is
familiar with the same, that the terms and provisions contained
herein are clearly understood by him and have been fully and
unconditionally consented to by him, and that Borrower's execution of
this Agreement is done freely, voluntarily, with full knowledge and
without duress, and that in executing this Agreement, Borrower is
relying on no other representations either written or oral, express
or implied, made to Borrower by any other party hereto, and that the
consideration received by Borrower hereunder has been actual and
adequate.
4.9. NO RELEASE OF STOCK RESTRICTIONS. Nothing contained herein
shall annul, release, vary, modify or affect any currently-existing
restrictions on any stock of Lender owned by Borrower, all of which
shall continue in full force and effect. Lender specifically reserves
and shall have all rights and remedies available to it under such
stock restrictions for the purpose of compliance with law, regulation
or contract.
4.10. TIME OF THE ESSENCE. Time is of the essence of all
provisions of the Note and this Agreement.
4.11. NOTICES. Any notices required to be sent to any party
shall be sent to the parties as follows:
To Borrower:
Xxxxx X. Xxxxxxx
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile number (000) 000-0000
To Lender:
Office of the General Counsel
Giant Industries, Inc.
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile number (000) 000-0000
Notices shall be effective upon hand delivery or delivery by
facsimile transmission, followed by hand delivery. Either party shall
have the right to change the address for notices by delivery of a
written notice to such effect to the other party.
Dated as of the date first above written.
BORROWER:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
LENDER:
GIANT INDUSTRIES, INC., a Delaware corporation
By: /s/ Xxxx X. Xxx
----------------------------
Name: Xxxx X. Xxx
Title: Treasurer
