EXHIBIT 10.25
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (hereinafter "Agreement"), is
dated effective as of March 28, 2001, and is made by XXXXX X. XXXXXXX
("Xxxxxxx"), in favor of GIANT INDUSTRIES, INC., a Delaware corporation
("Giant").
RECITALS:
X. Xxxxxxx is the sole owner of 100% of the membership
interests in Pinnacle Rodeo, L.L.C., an Arizona limited liability company
("Rodeo"), which is the sole member of Pinnacle Rawhide, L.L.C., an Arizona
limited liability company ("Rawhide").
B. Under an Agreement dated as of September 17, 1998, by and
between Acridge and Giant, as modified by the Modification Agreement, dated
as of December 23, 1998, by and between Acridge and Giant, as modified by the
Amended and Restated Loan Agreement, dated as of March 20, 2000, by and
between Acridge and Giant, as modified by the Loan Modification Agreement,
dated as of February 28, 2001, by and between Acridge and Giant, as modified
by the First Amendment to Amended and Restated Promissory Note and Loan
Modification Agreement, dated effective the date hereof (collectively, with
any further amendments, the "Loan Agreement"), Giant has made a loan to
Acridge in the original principal amount of $5,000,000.00 (the "Loan").
C. In connection with the Loan, Acridge executed the
Promissory Note, dated as of September 17, 1998, in the stated principal
amount of $4,000,000.00, in favor of Giant, as modified by the Amended and
Restated Promissory Note, dated as of September 23, 1998, in the total
principal amount of $5,000,000.00, executed by Acridge in favor of Giant, as
further modified by the Amended and Restated Promissory Note, dated as of
March 10, 2000, in the total principal amount of $5,000,000.00, executed by
Acridge in favor of Giant, as further modified by the Amended and Restated
Promissory Note, dated as of February 28, 2001, in the total principal amount
of $5,000,000.00, executed by Acridge in favor of Giant, as modified by the
First Amendment to Amended and Restated Promissory Note and Loan Modification
Agreement, dated effective the date hereof (collectively, with any further
amendments, the "Note").
D. The Loan is secured by the collateral described in the
Pledge and Security Agreement, dated effective as of March 10, 2000, by and
among Acridge, Rodeo and Giant, as modified by the First Amendment to Pledge
and Security Agreement, dated as of March 9, 2001, by and among Acridge,
Rodeo and Giant (collectively, with any further amendments, the "Pledge
Agreement").
E. Certain financing statements were executed in connection
with the Loan (collectively, the "Financing Statements").
F. Giant and Acridge, as Trustee for and on behalf of the
Acridge Family Trust (the "Acridge Trust"), entered into a Purchase
Agreement, dated January 26, 2001, as amended (collectively, with any further
amendments, the "Purchase Agreement"), with respect to the sale by the
Acridge Trust to Giant of a parcel of land containing approximately 40 acres
located at 0000 Xxxx Xxxxx Xxxx in Scottsdale, Arizona (the "Property").
G. As of March 9, 2001, Giant and Acridge, as Trustee for and
on behalf of the Acridge Trust, entered into a Third Amendment to Purchase
Agreement with respect to the sale by the Acridge Trust to Giant of the
Property, wherein, among other things, Giant increased the Deposit (as
defined in the Purchase Agreement) by an additional $450,000.00 (the
"Additional Obligation").
H. The First Amendment to the Pledge and Security Agreement
establishes a contingent obligation of Giant to make a Surplus Payment in
connection with the sale of the Property (the "Surplus Payment"), which
Surplus Payment is also deemed an obligation secured by the Pledge Agreement.
I. Effective as of March 28, 2001, the parties intend to
extend the maturity date of the Loan from March 28, 2001 to March 28, 2003
(the "Extension").
J. As consideration for the Extension, as well as
consideration for the Additional Obligation and the Surplus Payment, and as
additional consideration for the obligations of Acridge under the Note and
Loan Agreement, and for other good and valuable consideration, Acridge
desires to grant Giant a first priority security interest in and to 100% of
the membership interests of Rodeo.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. PLEDGE. Acridge hereby grants to Giant a first priority security
interest in the following (the "Pledged Collateral"):
1.1 Collateral Definition: The Pledged Collateral consists of the
following:
1.1.1 100% of the membership interest of Rodeo and all rights of
Acridge as the sole member of Rodeo (including, without
limitation, the right to distributions of cash or property from
Rodeo) (collectively, the "Interest"); and
1.1.2 All proceeds of or distributions or payments under the
Interest.
1.2 Definition of "Net Cash Flow". For the purposes of this
Agreement, the term "Net Cash Flow" shall mean the gross cash proceeds
to Rodeo from all sources.
1.3 Payment of Net Cash Flow with respect to the Interest When No
Default Exists: During the term of this Agreement, and prior to any
default by Acridge of his obligations under the Note, the Loan
Agreement, the Pledge Agreement, the Purchase Agreement or hereunder
(collectively, the "Obligations"), the Net Cash Flow after accounting
for payments or reserves required by the existing lenders to Rodeo
attributable to the Interest may be paid to Acridge.
1.4 Payment of Net Cash Flow with respect to the Interest After
Default: After any default has occurred under the Note, the Loan
Agreement, the Pledge Agreement, the Purchase Agreement or hereunder,
Acridge shall cause Rodeo to distribute to Giant, on account of the
Obligations, all Net Cash Flow after accounting for any payments or
reserves required by the existing lenders to Rodeo.
2. SECURITY FOR OBLIGATIONS.
2.1 Obligations Secured. The pledge granted in this Agreement
secures the payment and performance of the obligations by Acridge under
the Note, the Loan Agreement, the Pledge Agreement, the Purchase
Agreement, and this Agreement.
2.2 Acknowledgment of Consideration. Acridge acknowledges that he has
benefited from the extension of the maturity date of the Loan from
February 28, 2001 to March 28, 2001, as well as by the further
Extension of the maturity date of the Loan from March 28, 2001 to March
28, 2003. In addition, Acridge has benefited by the assumption of the
creation of the Additional Obligation by Giant, as well as Giant's
contingent obligation to make the Surplus Payment, as well as by the
covenants and agreements of Giant set forth in the Purchase Agreement,
the Purchase Agreement Modification, the Note, the Loan Agreement and
the Pledge Agreement. Accordingly, Acridge acknowledges that he has
received valuable consideration in the form of the aforesaid. Acridge
acknowledges the receipt and sufficiency of adequate consideration for
his pledge of the Pledged Collateral as set forth herein, and all of
the terms and conditions of this Agreement are fully binding upon him
as set forth herein.
3. FINANCING STATEMENTS. To perfect the security interest granted hereby
in accordance with the Uniform Commercial Code in effect in the State of
Arizona (the "Code"), Acridge shall, contemporaneously with the execution
hereof, execute and deliver to Giant a financing statement (the "Financing
Statement") in form satisfactory to Giant. Acridge agrees that, from time to
time hereafter, he will execute and deliver to Giant such further instruments
and documents as Giant may reasonably request which are necessary for the
purpose of perfecting and continuing the perfection of the security interest
granted hereby.
4. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS. Acridge represents
and warrants to Giant as follows:
4.1 Authorization. This Agreement has been duly authorized, executed
and delivered by Acridge and creates a valid security interest in the
Pledged Collateral under the Uniform Commercial Code, as adopted by the
State of Arizona (the "Code") and when the Financing Statement is duly
filed with the Arizona Secretary of State, Giant will have a first
priority security interest in the Pledged Collateral.
4.2 No Default. The execution and delivery of this Agreement will not
conflict with or result in a breach, default or violation of any other
agreement to which Acridge is a party or by which any of Acridge's
property is bound. The consummation of the transactions contemplated
herein will not conflict with or result in a breach, default or
violation of any other agreement to which Acridge is a party or by
which any of Acridge's property is bound.
4.3 Good Title. Acridge is the legal owner of the Pledged Collateral
and has neither granted any other security interest in the Pledged
Collateral nor executed any financing statement with respect thereto
(other than the Financing Statement).
4.4 Location. The principal residence and location of Acridge is the
address for Acridge specified on the signature page below. Acridge
shall promptly notify Giant of any change in either.
4.5 Priority. This Agreement creates a first priority security
interest, free from any other liens, claims or security interests.
4.6 Informed Consent to Agreement. Acridge 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 Acridge's execution of
this Agreement is done freely, voluntarily, with full knowledge and
without duress, and that in executing this Agreement, Acridge is
relying on no other representations either written or oral, express or
implied, made to Acridge by any other party hereto, and that the
consideration received by Acridge hereunder has been actual and
adequate. Acridge further acknowledges that he has been advised, and
has been given the reasonable opportunity, to seek independent legal
advice with respect to the subject matter of this Agreement, and
Acridge hereby represents to Giant that he has either sought and
obtained such independent legal advice or that he hereby waives such
advice.
4.7 Consents. That no consent or approval of any third party is
required to permit the pledge of the Pledged Collateral hereunder.
5. COVENANTS OF ACRIDGE:
5.1 No other Liens. Acridge agrees that it will not create or permit
to exist any lien, security interest, or other charge or encumbrance
upon or with respect to the Pledged Collateral, except for the security
interest under this Agreement.
5.2 No Assignment. Acridge shall not sell, transfer, convey, assign,
or otherwise dispose of, or further encumber, all or any part of the
Pledged Collateral or any interest therein, voluntarily or
involuntarily, by operation of law or otherwise, directly or
indirectly. Nor shall Acridge cause, allow, or enable, Rodeo or
Rawhide to sell, transfer, convey, assign, or otherwise dispose of, or
further encumber, all or any part of its assets or property, or any
interest therein, voluntarily or involuntarily, by operation of law or
otherwise, directly or indirectly, however sales of inventory and
personal property in the ordinary course of business for full and fair
consideration shall not be prohibited hereby.
5.3 Notice of Default. Upon hearing of a Default, as defined in
Section 6 below, or upon knowledge or notice of the likelihood of a
Default, Acridge shall immediately provide (but in all events within 24
hours after first hearing of the Default or likelihood thereof) notice
to Giant of such Default or likelihood thereof.
5.4 Performance of Other Obligations. Acridge shall cause Rodeo and
Rawhide to timely and fully comply with, and perform, when due, all
terms, obligations, covenants and conditions contained in any
agreements with third parties, including the three promissory notes
dated January 18, 2000 by Rodeo in favor of Western Town, L.L.C., an
Arizona limited liability company, and Xxxxxx Investment Co., L.L.C.,
an Arizona limited liability company, in the aggregate original
principal amount of $28,851,250 (the "Xxxxxx Notes").
5.5 Notice of Payments. On or before the payment due dates set forth
under the Xxxxxx Notes, Acridge shall immediately provide Giant notice
of such payment being made, along with reasonable evidence of such
payment, which notice shall include a certification that all
obligations of Rodeo under the Xxxxxx Notes are current and that Rodeo
is not in default under any of the Xxxxxx Notes.
5.6 Reimbursement. Acridge shall reimburse all reasonable out of
pocket costs directly or indirectly related to Giant's protection of
collateral, including reasonable, prudent, or necessary costs incurred
to maintain its secured position in the Pledged Collateral, or the
value thereof.
5.7 Management. Acridge shall manage and operate Rodeo, and
therefore all assets and interests held by Rodeo, in a commercially
reasonable manner, not inconsistent with the rights and interests of
Giant created hereby. Acridge shall not cause or permit Rodeo, or any
entity controlled by Rodeo, to be in breach of, or to allow a default
(including, without limitation, a Default) to occur in regard to any of
their respective obligations.
5.8 Further Cooperation. From time to time, and immediately upon
request of Giant, Acridge shall cooperate with and assist Giant in its
efforts to preserve and protect the Pledged Collateral, and the secured
interests of Giant therein, including obtaining the express
subordination of Xxxxxx Investment Co., L.L.C. (or its affiliates), in
regard to Giant's security interest in the 49% membership interest in
Rawhide held by Giant, as such express subordination is contemplated by
Section 9 of the Settlement Agreement, dated January 18, 2000, by and
among Rodeo, Rawhide, Acridge, Xxxxxx Investment Co., L.L.C., I. Xxxxxx
Xxxxxx and others.
6. REMEDIES OF GIANT. In the event that (a) an Event of Default shall
occur under the Note, or (b) Acridge fails to comply with or perform when
due, any term, obligation, covenant or condition contained in this Agreement
or in the Loan Agreement, the Pledge Agreement, the Purchase Agreement, or
(c) Rodeo or Rawhide fails to comply with or perform when due, any term,
obligation, covenant or condition contained in any agreement with any third
parties, including, without limitation, the Xxxxxx Notes, and any other
obligations of Rodeo or Rawhide to any other creditor of Rodeo or Rawhide
(each, a "Default"), then Giant shall have and may exercise, with respect to
the Pledged Collateral and pursuant to the security interest created hereby,
all rights and remedies under the Code. The proceeds from any foreclosure
sale pursuant to the Code shall be applied first toward the costs and
expenses of such sale and all other reasonable costs incurred by Giant,
including without limitation, fairness opinions and attorneys' fees, second
towards any attorneys' fees owing to Giant pursuant to Section 18 hereof,
third towards the satisfaction of the defaulted Obligations, fourth toward
the satisfaction of any indebtedness secured by a subordinate security
interest in the Pledged Collateral, and the surplus to Acridge. In the event
that Giant has and exercises remedies under the Code pursuant to and in
accordance with the terms of this Section, any notice of sale required by law
shall be deemed "commercially reasonable" if such notice is given at least
five (5) days prior to the time of such sale. Acridge acknowledges that such
shorter period of time is necessary for Giant to protect any interests in the
Pledged Collateral and its property from the claims of other parties
including creditors having liens on assets owned, directly or indirectly, by
Acridge. Acridge recognizes that Giant may be unable to effect a public sale
of any or all of the Pledged Collateral by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities law, but may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire such Pledged Collateral for their own account
for investment and not with a view to the distribution or resale thereof.
Acridge acknowledges and agrees that any such private sale may result in
prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale (if otherwise commercially reasonable) shall be deemed to have
been made in a commercially reasonable manner. Nothing contained in the two
immediately preceding sentences shall be construed as an agreement between
Acridge and Giant that the Pledged Collateral does constitute a "security"
within the meaning of the Securities Act of 1933 or applicable state
securities laws, or that the Pledged Collateral cannot be sold at a public
sale.
7. COVENANT OF GIANT. If (a) Giant takes possession of any or all of the
Pledged Collateral, and thereafter all assets of Rodeo and Rawhide are
liquidated and all liabilities and obligations of Rodeo and Rawhide are paid
or satisfied in full, and (b) all of Acridge's Obligations to Giant have been
paid or satisfied in full, after reimbursing Giant for the Giant Claim
Amount, and the Additional Amounts, both as defined below, and (c) Rodeo has
any funds remaining, then Giant shall remit such remaining funds to Acridge.
As used above, the "Giant Claim Amount" shall mean an amount that shall be
fixed at the date of the foreclosure (the "Foreclosure") by Giant of the
Interest, and shall be equal to the aggregate of: (i) all outstanding amounts
due to Giant under the Note, the Loan Agreement, the Purchase Agreement and
hereunder; (ii) all reasonable costs and expenses incurred by Giant through
the date of the Foreclosure in connection with the Foreclosure, the
liquidation of Rodeo and Rawhide, and in enforcing its rights hereunder,
including as set forth in Sections 5.6 and 18. As used above, the
"Additional Amounts" shall mean an accretive factor which will be computed
upon the Giant Claim Amount (without regard to whether the Note is satisfied
or deemed satisfied) at the rate that would have been applicable upon default
under the Note, plus any additional reasonable costs or expenses incurred by
Giant after the Foreclosure with respect to the Foreclosure and the sale or
liquidation of all of the assets of Rodeo and Rawhide. Acridge's right to
receive funds as set forth above does not give Acridge or any persons acting
on his behalf, or any of Acridge's heirs, successors or assigns, any right to
control, question or attack any of the actions taken by Giant in its sole
discretion, with respect to the exercise of Giant's rights hereunder, or the
liquidation of Rodeo or Rawhide, including without limitation, the commercial
reasonableness of any sales, any consideration received, or any costs or
expenses incurred.
8. REAFFIRMATION OF OBLIGATIONS. Acridge believes that it is in his best
interests to enter into this Agreement with Giant. Acridge hereby reaffirms
the full force and effectiveness of the Note, the Loan Agreement, the Pledge
Agreement, the Purchase Agreement and the Financing Statements. Acridge
agrees that the Pledge Agreement, as amended, continues to secure all of the
obligations described therein, including the Additional Obligations. Acridge
represents that this Agreement is of substantial economic benefit to Acridge
and that his reaffirmation and consent is an essential part of the
consideration to Giant to enter into this Agreement and to extend the
Maturity Date of the Loan Agreement Modification. Acridge hereby consents to
the terms, conditions and the provisions of this Agreement.
9. NO IMPAIRMENT; SECURITY. Nothing contained herein shall be deemed a
waiver of or limit any of the rights and remedies that Giant may have against
Acridge or of any of Giant's rights and remedies arising out of any other
documents or agreements, and Giant specifically reserves, and shall have, all
rights and remedies available to Giant under the law or as provided in such
other documents and agreements.
10. REMEDIES CUMULATIVE. The remedies of the parties hereto under this
Agreement are cumulative and shall not exclude any other remedies to which
any party may be lawfully entitled including, without limitation, the
remedies under the Note or the Loan Agreement.
11. AMENDMENTS, ETC. Any amendment, modification or waiver of any
provision of this Agreement shall be void and of no force or effect unless
made in writing, signed by the party or parties to be bound, and specifying
with particularity the nature and extent of such amendment, modification or
waiver. No delay in exercising, or failure to exercise, any right, remedy or
power hereunder shall impair such right, remedy or power or any right, remedy
or power of Giant under any other Agreement or shall be construed to be a
waiver of any Default hereunder or under any other agreement.
12. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, any notice, request, instruction, correspondence or other document
to be given hereunder by either party to the other (herein collectively
called a "Notice") shall be in writing and shall be given either by hand
delivery against receipt (which includes delivery by commercial couriers such
as Federal Express or Express Mail) or by facsimile (but only if automatic
machine confirmation is issued by the transmitting fax machine), with
confirmation copy to the addresses set forth beneath the signature of each
party hereto. Notices shall be effective immediately upon delivery against
receipt, or 24 hours after being sent by facsimile. In the event any party
wishes to change the address for notices as specified herein, it shall give a
notice pursuant to this section, whereupon the new notice shall be effective
after the time stated herein.
13. SEVERABLE PROVISIONS; ENFORCEABILITY. Each provision of this Agreement
is intended to be severable. If any provisions hereof shall be declared by a
court of competent jurisdiction to be illegal, unenforceable or invalid for
any reason whatsoever, such illegality, unenforceability or invalidity shall
not affect the validity of the remainder of this Agreement. Time is of the
essence hereof.
14. TERMINOLOGY. All captions, headings or titles in the paragraphs or
sections of this Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement or affect the construction or
interpretation of this Agreement.
15. CONTINUING SECURITY INTEREST; TRANSFER OF OBLIGATIONS. This Agreement
creates a continuing security interest in the Pledged Collateral and shall
(i) remain in full force and effect until performance in full of the
Obligations, (ii) be binding upon Acridge, his heirs, successors, transferees
and assigns and (iii) inure to the benefit of the Giant and its successors,
transferees and assigns. The security interest herein granted shall
terminate, and Giant shall execute and deliver to Acridge such termination
statements and other instruments as shall be necessary to release such
security interest, when the Obligations of Acridge have been fully satisfied.
Acridge shall promptly notify Giant of any change in Acridge's name or the
location of his principal residence, chief executive office and/or principal
place of business, and upon the happening of any of the foregoing events
shall cause Acridge and transferee to execute such additional financing
statements, continuation statements or other documents as may be necessary to
continue the perfection of the security interest herein granted. The security
interest herein granted shall continue in effect notwithstanding any transfer
of Pledged Collateral, regardless of whether such transfer may be permitted
pursuant to this Agreement or any governing document of Rodeo. Nothing in
this Agreement, express or implied, is intended to confer upon any person or
entity other than the parties hereto and their respective permitted heirs,
successors and assigns, any rights, benefits or obligations hereunder.
16. COUNSEL; INTERPRETATION. Each party hereto acknowledges that it was
represented by legal counsel (or had the opportunity to be represented by
independent legal counsel) in connection with this Agreement and that each of
them and their counsel have reviewed and revised this Agreement, or have had
an opportunity to do so, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or any
exhibits hereto or thereto.
17. GOVERNING LAW; TERMS. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of Arizona.
Unless otherwise defined herein, terms defined in Article 9 of the Code are
used herein as therein defined.
18. ATTORNEYS' FEES. In the event of any claim, controversy or dispute
arising out of or relating to this Agreement, or the breach thereof, the
prevailing party shall be entitled to recover reasonable attorneys' fees
incurred in connection with any arbitration or court proceeding.
19. NO THIRD PARTY BENEFICIARIES. This Agreement is made and entered into
for the sole protection and benefit of Giant and its permitted successors and
assigns. No other persons or entities shall have any right of action under
this Amendment.
IN WITNESS WHEREOF, Acridge has caused this Agreement to be duly
executed and delivered by its authorized officer thereunto duly authorized as
of the date first above written.
ACRIDGE:
/s/ XXXXX X. XXXXXXX
------------------------------
Xxxxx X. Xxxxxxx
Address:
00000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile:____________________
Attn: ________________________
GIANT:
GIANT INDUSTRIES, INC., a Delaware
corporation
By: /s/ XXXX X. XXX
Name: XXXX X. XXX
-------------------------
Title: VP TREASURER
------------------------
Address:
00000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile:____________________
Attn:_________________________
This Agreement and the terms hereof are
consented and agreed to by:
PINNACLE RODEO, L.L.C., an Arizona limited
liability company
By: /s/ XXXXX X. XXXXXXX
----------------------------
Xxxxx X. Xxxxxxx
Its: Sole Member
