EXHIBIT 10.28
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AGREEMENT (hereinafter "Agreement"), is
dated effective as of March 10, 2000, and is made by JAMES E.
ACRIDGE, an unmarried man ("Acridge") and PINNACLE RODEO, L.L.C.,
an Arizona limited liability company ("Rodeo") (referred to
together in the singular, from time to time, as "Pledgor"), to
GIANT INDUSTRIES, INC., a Delaware corporation ("Pledgee").
PRELIMINARY STATEMENTS:
A. Acridge and Pledgee have entered into a loan
transaction wherein Pledgee has lent to Acridge the sum of
$5,000,000.00 in accordance with the terms of an Amended and
Restated Loan Agreement of even date herewith, and an Amended and
Restated Promissory Note of even date herewith (the "Note"). The
parties have also entered into an Amended and Restated Loan
Agreement of even date herewith (the "Loan Agreement"). The
obligations of Acridge under the Note and the Loan Agreement are
referred to from time to time hereafter as the "Obligations."
B. Acridge is the sole member of Rodeo, which in
turn is the sole owner of 100% of the membership interests (the
"Membership Interest") in Pinnacle Rawhide, L.L.C., an Arizona
limited liability company, (the "Company").
C. Pursuant to the terms of certain financing
agreements with Western Town, L.L.C. and Hirsch Investment Co.,
L.L.C., both Arizona limited liability companies, Pledgor is
entitled to pledge to third parties no more than 49% of the
ownership interests in the Company, and Pledgor is willing to do
so pursuant to the terms hereof.
D. Each capitalized term used herein that is not
otherwise defined herein shall have the meaning ascribed to such
term in the Note.
NOW, THEREFORE, in consideration of the premises,
Pledgor hereby agrees as follows:
1. PLEDGE. Pledgor hereby grants to Pledgee a first priority
security interest in the following (the "Pledged Collateral"):
1.1. Collateral Definition: The Collateral shall
consist of the following:
1.1.1. All rights of Rodeo as a member of the
Company to the extent of 49% of the total Membership
Interest therein (including without limitation the
right to distributions of cash or property from the
Company), which is herein called 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 means
the gross cash proceeds to the Company from all sources,
less the portion thereof used to pay or establish reserves
for Company expenses, debt payments, capital improvements,
replacements and contingencies, all as determined by the
Manager of Company, Rodeo, in its reasonable discretion.
1.3. Payment of Net Cash Flow with respect to the
Interest When No Default Exists: During the term of this
Pledge, and prior to any default under the Note, the Loan
Agreement or hereunder, the Net Cash Flow after accounting
for any payments or reserves required by the existing lenders
to Rodeo or Company attributable to the Interest shall be
paid as follows:
1.3.1. Pledgor shall cause the Company to
distribute from time to time sufficient amounts of all
Net Cash Flow to Pledgee to make payments then due; and
1.3.2. Pledgor shall cause the Company to
distribute from time to time the balance of all Net
Cash Flow to Pledgor.
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 or hereunder, Pledgor shall
cause the Company to distribute all Net Cash Flow after
accounting for any payments or reserves required by the
existing lenders to Rodeo or Company to Pledgee on account of
Acridge's Obligations under the Note, the Loan Agreement and
hereunder.
2. SECURITY FOR OBLIGATIONS.
2.1. Obligations Secured. This Agreement secures the
payment and performance of the Obligations by Acridge.
2.2. Acknowledgment of Consideration. Rodeo
acknowledges that it has benefited by the investment of
moneys by Acridge in Rodeo, and that the results of such
investment enabled it to acquire the Interest pledged herein.
Although the Obligations are those of Acridge and not of
Rodeo, Rodeo acknowledges that it has received valuable
consideration in the form of the aforesaid investment of
moneys by Acridge, the receipt and sufficiency of which are
hereby acknowledged, for its pledge of the Interest as set
forth herein, and all of the terms and conditions of this
Agreement are fully binding upon it 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"), Pledgor shall,
contemporaneously with the execution hereof, execute and deliver
to Pledgee a financing statement (the "Financing Statement") in
form satisfactory to Pledgee. Pledgor agrees that, from time to
time hereafter, it will execute and deliver to Pledgee such
further instruments and documents as Pledgee may reasonably
request which are necessary for the purpose of perfecting and
continuing the perfection of the security interest granted hereby.
4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants to Pledgee as follows:
4.1. Authorization. This Agreement has been duly
authorized, executed and delivered by Pledgor and creates a
valid security interest in the Pledged Collateral under the
Code, and when the Financing Statement is duly filed with the
Arizona Secretary of State, Pledgee will have a first
priority security interest in the Pledged Collateral.
4.2. No Default. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated herein will conflict with or result in a breach,
default or violation of any statute or governmental rule or
regulation, or theng Agreement or any other agreement to
which Pledgor is a party or by which any of Pledgor's
property is bound.
4.3. Good Title. Pledgor 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), except that there is an existing security
interest in the Pledged Collateral in favor of Western Town,
L.L.C. and/or Hirsch Investment Co., L.L.C., which existing
security interest will be subordinated to the Pledge herein
created under documents complying with the obligations of
such lienholders to subordinate to the Pledge herein created
(the "Subordinate Pledge").
4.4. Business Location. The chief place of business and
chief executive office of Pledgor are located at the address
for Pledgor specified on the signature page below. Pledgor
shall promptly notify Pledgee 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, at such time as the subordination
agreements to create Subordinate Pledge have been executed.
4.6. No Amendments. That it will not consent to or
permit any amendment to any governing document of, or to the
admission of any new member of, either Company or Rodeo,
without the prior written consent of Pledgee.
4.7. Consents. That no consent or approval of any
member of the Company is required to permit the pledge of the
Interest hereunder or such consent or approval has been
given.
5. OTHER LIENS. Other than the Subordinate Pledge described
herein, Pledgor 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.
6. REMEDIES OF PLEDGEE. In the event that an Event of Default
shall occur under the Note, then Pledgee 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 Arizona Uniform Commercial Code (the "Code"). Pledgee
may immediately direct the Company not to make any distributions
to Pledgor, and to make all distributions directly to Pledgee.
The proceeds from any foreclosure sale pursuant to the Code shall
be applied first toward the costs and expenses of such sale,
second towards any attorneys' fees owing to the Pledgee pursuant
to Section 15 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 (if any) to the Pledgor.
Prior to Pledgee's foreclosure of the security interest herein
granted in the Interest, none of Pledgor's rights, options,
elections, privileges or other benefits of any nature under any
governing document of Company or otherwise, including without
limitation all rights to receive distributions of cash or property
pursuant to any governing document of Company, shall be restricted
or limited by the existence of such security interest (nor may
Pledgee exercise any such rights, options, elections, privileges
or other benefits), and Pledgor may continue to receive such
distributions and exercise such other rights, options, elections,
privileges and benefits, subject to the provisions of any
governing document of Company. In the event that Pledgee has and
exercises remedies under the Code pursuant to and in accordance
with the terms of this Section 6, any notice of sale required by
law shall be deemed "commercially reasonable" if such notice is
given at least ten (10) days prior to the time of such sale.
Pledgor recognizes that Pledgee 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. Pledgor 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 Pledgor and Pledgee 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. 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.
8. 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 Pledgee under the Note or the Loan Agreement or
shall be construed to be a waiver of any default hereunder or
under the Note or the Loan Agreement.
9. 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 or by certified mail,
return receipt requested, to the addresses set forth beneath the
signature of each party hereto. Notices given by hand delivery
shall be effective as of the date delivered. Notices sent by mail
shall be effective three days following deposit with the United
States Postal Service. Both parties agree that, in the event of
any notice given to the other party, the notice shall also be sent
to the holder of the Subordinate Pledge at the following address:
c/o I. Jerome Hirsch, Jaren Corporation, 4455 East Camelback Road,
Suite 215-A, Phoenix, Arizona 85018. In the event any party
(including the holder of the Subordinate Pledge) 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.
10. 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.
11. 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.
12. 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
the Pledgor, its successors, transferees and assigns and (iii)
inure to the benefit of the Pledgee and its successors,
transferees and assigns. The security interest herein granted
shall terminate, and Pledgee shall execute and deliver to Pledgor
such termination statements and other instruments as shall be
necessary to release such security interest, when the Obligations
of Acridge have been fully satisfied and all liabilities and
obligations of Acridge under the Note or the Loan Agreement has
terminated. Pledgor shall promptly notify Pledgee of any transfer
of Pledgor's Interest and any change in Pledgor's name or the
location of its chief executive office or principal place of
business, and upon the happening of any of the foregoing events
shall cause the Pledgor 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 Pledgor's
Interest, regardless of whether such transfer may be permitted
pursuant to this Agreement or any governing document of the
Company. 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 successors and
assigns any rights, benefits or obligations hereunder.
13. INTERPRETATION. The parties hereto and their respective
legal counsel have participated extensively in the preparation,
negotiation and drafting of this Agreement. Accordingly, no
presumption will apply in favor of any party hereto in the
interpretation of this Agreement or in the resolution of the
ambiguity of any provision hereof.
14. 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.
15. 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.
IN WITNESS WHEREOF, Pledgor has caused this Agreement to
be duly executed and delivered by its authorized officer thereunto
duly authorized as of the date first above written.
PLEDGOR: PLEDGEE:
GIANT INDUSTRIES, INC., a
Delaware corporation
/s/ JAMES E. ACRIDGE
_________________________ By: /s/ MARK B. COX
James E. Acridge _______________________
Name: Mark B. Cox
Title: Treasurer
Address: Address:
23733 N. Scottsdale Road 23733 N. Scottsdale Road
Scottsdale, Arizona 85255 Scottsdale, Arizona 85255
PINNACLE RODEO, L.L.C., an Arizona
limited liability company
By: /s/ JAMES E. ACRIDGE
______________________________
James E. Acridge
Sole Member
Address:
23733 N. Scottsdale Road
Scottsdale, Arizona 85255
This Agreement is executed by the undersigned
limited liability company solely to consent to the pledge
of the Interest hereunder.
PINNACLE RAWHIDE, L.L.C., an Arizona
limited liability company
By: /s/ JAMES E. ACRIDGE
___________________________________
James E. Acridge, sole member of
Pinnacle Rodeo, L.L.C., its manager
Address:
23733 N. Scottsdale Road
Scottsdale, Arizona 85255