EXHIBIT 10.1
MODIFICATION AGREEMENT
1. EFFECTIVE DATE: February 28, 2001
2. PARTIES:
2.1. GIANT INDUSTRIES, INC., an Delaware corporation ("Giant"); and
2.2. JAMES E. ACRIDGE ("Borrower").
3. RECITALS:
3.1. Borrower and Giant entered into an Agreement dated September
17, 1998, providing for the loan by Giant to Borrower of Four Million
Dollars ($4,000,000.00) upon the terms set forth therein (the "Loan
Agreement"). Pursuant to the Loan Agreement, Borrower executed his
Promissory Note of the same date in favor of Giant calling for the
repayment of such sum (the "Original Note").
3.2. Lender and Borrower entered into a Modification Agreement
effective December 23, 1998 (the "Modification Agreement") to amend the
Original Agreement to provide for, among other things, an extension of
the period for repayment and for an additional advance by Lender to
Borrower of $1,000,000 (the "Additional Principal Amount" and,
collectively with the Original Principal Amount, the "Loan"). In
connection with the Modification Agreement, Borrower executed an Amended
and Restated Promissory Note of even date therewith.
3.3. Lender and Borrower entered into an Amended and Restated Loan
Agreement dated March 20, 2000 to memorialize certain agreements made
between them in connection with the Loan.
3.4. Giant and Borrower have entered into a Purchase Agreement
dated January 26, 2001, as amended, with respect to the sale by
Borrower, or an entity affiliated with Borrower, to Giant, or an entity
affiliated with Giant, of a parcel of land containing approximately 40
acres located at 9540 East Jomax Road in the City of Scottsdale, Arizona
(the "Property").
3.5. It is the intent of the parties that certain of the proceeds
from the sale of the Property (the "Sale") be used in connection with
the repayment of the Loan.
3.6. Since the Sale will not close on February 28, 2001, Giant and
Borrower wish to extend the Maturity Date of the Loan from February 28,
2001 to March 28, 2001 (the "Extended Maturity Date"), at which time all
outstanding principal and interest will be fully due and payable.
3.7. Giant is willing to extend the February 28, 2001 Maturity Date
of the Loan until March 28, 2001 in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
4. AGREEMENTS:
4.1. Giant hereby agrees to extend the Maturity Date of the Loan
from February 28, 2001 to March 28, 2001.
4.2. The Loan will be repaid by Borrower in accordance with the
terms of the Amended and Restated Promissory Note, in the form attached
hereto as Exhibit "A" and incorporated herein by this reference.
4.3. The provisions of the Amended and Restated Loan Agreement
dated March 20, 2000 shall continue in full force and effect in every
respect, except that the Amended and Restated Note dated February 28,
2001 shall govern the repayment of the Loan as extended by this
Modification Agreement and the Amended and Restated Promissory Note.
4.4. Giant and Borrower acknowledge and agree that (a) the unpaid
principal balance of the Loan as of the effective date hereof is as set
forth in the Amended and Restated Promissory Note; (b) the Amended and
Restated Loan Agreement is a valid, binding agreement enforceable in
accordance with its terms as amended hereby; (c) except as expressly
provided herein, this Modification Agreement shall not modify the
Amended and Restated Loan Agreement; (d) nothing herein contained, and
nothing done pursuant hereto (i) is intended to affect, shall affect, or
shall be construed as affecting, the obligations set forth in the
Amended and Restated Loan Agreement, or (ii) is intended to release or
affect, shall release or affect, or shall be construed as releasing or
affecting, the liability of any party or parties who may now or
hereafter be liable under or on account of the Amended and Restated Loan
Agreement; and (e) the restrictions and terms of the Amended and
Restated Loan Agreement continue in full force and effect except as
expressly modified hereby.
4.5. Borrower acknowledges that he has thoroughly read and reviewed
the terms and provisions of this Modification 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 Modification
Agreement is done freely, voluntarily, with full knowledge and without
duress, and that in executing this Modification 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.
4.6. Except as herein provided, all of the terms and conditions of
the Amended and Restated Loan Agreement shall remain in full force and
effect, and the parties hereby ratify and confirm the security and
enforceability of the Amended and Restated Loan Agreement, as expressly
modified by this Modification Agreement.
4.7. This Modification Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and
assigns and the subsequent holders or owners of the Amended and Restated
Loan Agreement. This Modification Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona.
4.8. Borrower acknowledges that he has been given an opportunity to
consult with legal counsel and other advisors prior to the execution of
this Modification Agreement.
4.9. This Modification Agreement may be executed by the signing in
counterparts of this instrument. The execution of this instrument by
each of the parties signing a counterpart hereof shall constitute a
valid execution, and this instrument and all of its counterparts so
executed shall be deemed for all purposes to be a single instrument.
The signature of a counterpart with the delivery thereof by facsimile
transmission, with the original to be placed in the U.S. Postal Service,
given to a recognized express delivery service or hand delivered is
acceptable for establishing the execution and effectiveness hereof, and
the parties are authorized to proceed upon receipt of such signed
counterparts by facsimile or delivery, even though the originals may not
arrive until later.
IN WITNESS WHEREOF, this Modification Agreement has been executed
to be effective (though not necessarily executed) as of the date first
above written.
[The parties' signatures appear on the following page.]
GIANT:
GIANT INDUSTRIES, INC., a Delaware corporation
By: /s/ MARK B. COX
----------------------------
Name: Mark B. Cox
Title: VP Treasurer
Address:
23733 N. Scottsdale Road
Scottsdale, Arizona 85255
Facsimile: ____________________
Attn:
BORROWER:
/s/ JAMES E. ACRIDGE
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JAMES E. ACRIDGE
Address:
23733 N. Scottsdale Road
Scottsdale, Arizona 85255
Facsimile: ____________________
Attn:
EXHIBIT "A"
AMENDED AND RESTATED
PROMISSORY NOTE
James E. Acridge
Initial Principal Amount: $4,000,000.00
Initial Rate: Prime plus 2.0%
Date of Original Note: September 17, 1998
Prior Additional Principal Amount: $1,000,000.00
Prior Amended Rate: Prime plus 3.0% from and after December 23, 1998
Effective Date of Prior Amendment: December 23, 1998
Current Principal Amount: $5,000,000.00
Effective Date of This Amendment: February 28, 2001
For value received, JAMES E. ACRIDGE ("Borrower") promises to pay
to GIANT INDUSTRIES, INC., a Delaware corporation ("Giant"), or order,
in lawful money of the United States of America, (a) the initial
principal amount of four million dollars ($4,000,000.00), together with
interest on the unpaid initial principal amount from September 17, 1998,
until paid in full and (b) the additional principal amount of one
million dollars ($1,000,000.00), together with interest on the unpaid
additional principal amount from December 23, 1998, until paid in full.
The annual interest rate on this Note is the Prime rate as published in
the Western Edition of the Wall Street Journal on September 17, 1998,
plus two percent (2.0%) from September 17, 1998, through December 22,
1998, and the Prime rate as published in the Western Edition of the Wall
Street Journal on September 17, 1998, plus three percent (3%) from
December 23, 1998, until paid in full.
Interest will accrue on the total principal amount of the Loan from
July 1, 1999 until March 28, 2001 (the "Extended Maturity Date"), at
which time all outstanding principal and interest shall be fully due and
payable.
Borrower will pay Giant at Giant's corporate offices, 23733 North
Scottsdale Road, Scottsdale, Arizona, 85255, or at such other place as
Giant may designate in writing. Unless otherwise agreed or required by
applicable law, payments will be applied first to accrued unpaid
interest, then to principal, and any remaining amount to any unpaid
collection costs and late charges.
The annual interest rate for this Note is computed on the basis of
a 365-day year; that is, by applying the ratio of the annual interest
rate over a year of 365 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance
is outstanding. Under no circumstances will the interest rate on this
Note be more than the maximum rate allowed by applicable law.
Borrower may pay without penalty all or a portion of the amount
owed earlier than it is due.
Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due; (b) Borrower fails to
comply with or to perform when due any other term, obligation, covenant,
or condition contained in this Note; (c) a receiver is appointed for any
part of Borrower's property, or any proceeding is commenced either by
Borrower or against Borrower under any bankruptcy or insolvency laws; or
(d) Borrower defaults under that certain Amended and Restated Loan
Agreement of even date herewith between Borrower and Giant.
Upon default, Giant may declare the entire unpaid principal balance
on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount. Upon default, including failure to pay
upon final maturity, Giant, at its option, may also, if permitted under
applicable law, increase the interest rate on this Note by an additional
three percent (3.0%). The interest rate will not exceed the maximum
rate permitted by applicable law. Giant may hire or pay someone else to
help collect this Note if Borrower does not pay, and Borrower also will
pay Giant that amount, if reasonable. This includes, subject to any
limits under applicable law, Giant's reasonable attorneys' fees and
Giant's reasonable legal expenses whether or not there is a lawsuit,
including attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. If not prohibited by applicable law, Borrower also will pay
any court costs, in addition to all other sums provided by Law.
This Note has been delivered to Giant and accepted by Giant in the
State of Arizona. If there is a lawsuit, Borrower agrees upon Giant's
request to submit to the jurisdiction of the courts of Maricopa County,
the State of Arizona. This Note shall be governed by and construed in
accordance with the laws of the State of Arizona.
Giant may delay or forgo enforcing any of its rights or remedies
under this Note without losing them. Borrower, to the extent allowed by
law, waives presentment, demand for payment, protest and notice of
dishonor. The parties agree that Giant may modify this loan without the
consent of or notice to anyone other than Borrower.
Borrower agrees to an effective rate of interest that is the rate
specified in this Note plus any additional rate resulting from any other
charges in the nature of interest paid or to be paid in connection with
this Note.
This Amended and Restated Note has been issued pursuant to an
initial Loan Agreement dated September 17, 1998, followed by various
amendments, including a Modification Agreement, of even date herewith,
between Borrower and Giant, the provisions of which are incorporated
herein by reference.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTANDS ALL THE
PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE AND
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
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James E. Acridge