Exhibit 10.1
RIGHTS PURCHASE AGREEMENT
This RIGHTS PURCHASE AGREEMENT (this "Agreement") is entered into
on September 20, 2001, by and between Giant Industries Arizona, Inc.,
an Arizona corporation ("Giant AZ") and James E. Acridge, Trustee for
and on behalf of the Acridge Family Trust ("Acridge Trust").
RECITALS
A. Pursuant to that certain Purchase Agreement (the "Jomax
Agreement"), dated January 26, 2001, and amended February 12, 2001,
March 1, 2001, and March 9, 2001, the Acridge Trust agreed to sell
certain real property located in north Scottsdale, Arizona, and more
particularly described in the Jomax Agreement (the "Property"), to
Giant Industries, Inc., a Delaware corporation ("Giant").
B. Pursuant to an Amendment to Escrow Instructions and/or
Purchase Contract, dated March 23, 2001, among Giant, Giant AZ and the
Acridge Trust, Giant nominated Giant AZ to replace Giant in the escrow
and to acquire title to the Property. Giant AZ acquired title to the
Property on March 28, 2001.
C. Pursuant to the Jomax Agreement, the Acridge Trust was
granted a right of first refusal and an option to purchase the
Property (the "Right" and the "Option" as those terms are defined in
the Jomax Agreement, and herein collectively, the "Rights").
D. The Acridge Trust now desires to sell to Giant AZ, and Giant
AZ now desires to purchase from the Acridge Trust, the Rights, upon
the terms and conditions set forth in this Agreement
AGREEMENT
For and in consideration of the representations and warranties, and
conditions herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1.
PURCHASE OF INTEREST IN THE TRANSFERRED ASSETS
1.1 Purchase of the Rights. Subject to the terms and conditions
set forth in this Agreement, the Acridge Trust agrees to sell, and
Giant AZ agrees to purchase, all of the Acridge Trust's right, title
and interest in and to the Rights.
ARTICLE 2.
PURCHASE PRICE; THE CLOSING
2.1 Purchase Price.
(a) The purchase price for the Rights shall be Six Hundred
Thousand Dollars ($600,000.00) (the "Purchase Price").
(b) Giant AZ shall pay the Acridge Trust the Purchase Price
on the Closing Date by certified check or by wire transfer of
immediately available funds to an account designated by the Acridge
Trust.
2.2 The Closing. The transaction contemplated by this Agreement
shall be consummated at a closing (the "Closing") held on the date
hereof (the "Closing Date") at the offices of Giant AZ or at such
other time and place as the Acridge Trust and Giant AZ shall mutually
agree.
2.3 Deliveries by the Acridge Trust. At the Closing, the Acridge
Trust shall deliver or cause to be delivered to Giant AZ, in form
satisfactory to Giant AZ and all duly executed:
(a) An Assignment in the form attached hereto as Exhibit A.
(b) All other documents reasonably required to consummate
the transaction herein contemplated.
2.4 Deliveries by Giant AZ. At the Closing, Giant AZ shall
deliver or cause to be delivered to the Acridge Trust, in form
satisfactory to the Acridge Trust and, if applicable, all duty
executed:
(a) The Purchase Price.
(b) The Assignment.
(c) All other documents reasonably required to consummate
the transaction herein contemplated.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE ACRIDGE TRUST
3.1 Nature of the Acridge Trust's Representations. Each of the
representations and warranties of the Acridge Trust contained in this
Article 3 constitutes a material part of the consideration to Giant AZ
and Giant AZ is relying on the correctness and completeness of these
representations and warranties in entering into this transaction. The
Acridge Trust represents that each of the following representations
and warranties is true and accurate as of the date of execution of
this Agreement by the Acridge Trust, and will survive the Closing
regardless of any investigation or inspection by Giant AZ.
3.2 Representations and Warranties of the Acridge Trust. The
Acridge trust represents and warrants to Giant AZ as follows:
(a) Organizational Status. The Acridge Trust is a trust
duly organized, validly existing and in good standing under the laws
of the State of Arizona, and has full power and authority to enter
into and to perform its obligations under this Agreement. The persons
executing this Agreement on behalf of the Acridge Trust have full
power and authority to do so and to perform every act and to execute
and deliver every document and instrument necessary or appropriate to
consummate the transactions contemplated by this Agreement.
(b) Entity Action. All action on the part of the Acridge
Trust that is required for the execution, delivery and performance by
the Acridge Trust of this Agreement and each of the documents and
agreements to be delivered by the Acridge Trust at the Closing has
been duly and effectively taken.
(c) Enforceable Nature of Agreement. This Agreement and
each of the documents and agreements to be delivered by the Acridge
Trust at the Closing, constitute legal, valid and binding obligations
of the Acridge Trust, enforceable against the Acridge Trust in
accordance with their respective terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, moratorium, or similar laws affecting the
enforcement of creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a court of law or equity).
(d) Violations; Consents; Defaults. Neither the execution
of this Agreement nor the performance by the Acridge Trust of its
obligations under this Agreement will result in any breach or
violation of the terms of any law, rule, ordinance, or regulation or
of any decree, judgment or order to which the Acridge Trust, or any
trustee, beneficiary or affiliate of the Acridge Trust, is a party now
in effect from any court or governmental body. There are no consents,
waivers, authorizations or approvals from any third party necessary to
be obtained by the Acridge Trust in order to carry out the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement and performance by the Acridge Trust of its
obligations under this Agreement will not conflict with or result in a
breach or default (or constitute an event which, with the giving of
notice or the passage of time, or both, would constitute a default)
under the Acridge Trust's trust agreement, or any other instrument to
which the Acridge Trust, or any trustee, beneficiary or affiliate of
the Acridge Trust, is a party or by which the Acridge Trust or any of
its assets may be bound. The execution and delivery of this Agreement
and performance by the Acridge Trust of its obligations under this
Agreement will not result in the creation of any new, or the
acceleration of any existing lien, charge, or encumbrance upon the
Rights.
(e) Litigation. Neither the Acridge Trust nor any of its
officers, directors or shareholders is a party to any pending or
threatened action, suit, proceeding or investigation, at law or in
equity or otherwise, in, for or by any court of governmental board,
commission, agency, department or officer arising from or relating to
this transaction or the Rights.
(f) Title. The Acridge Trust has good and marketable title
to the Rights, free and clear of any and all liens, claims, charges,
liabilities, encumbrances and security interests of every kind and
nature.
(g) No Further Rights. Upon the completion of the
transaction contemplated by this Agreement, neither the Acridge Trust,
James E. Acridge, nor any of their affiliates will have any remaining
interest in the Property.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF GIANT AZ
Giant AZ makes the following representations and warranties to
the Acridge Trust:
4.1 Due Incorporation. Giant AZ is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Arizona. Giant AZ has all requisite power and authority to own, lease
and operate its properties and to carry on its businesses as now being
conducted.
4.2 Due Authorization and Enforceability. Giant AZ has full
power and authority to enter into this Agreement and the instruments
and agreements hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement and the instruments and agreements hereunder have been duly
and validly approved by Giant AZ and no other proceedings on the part
of Giant AZ are necessary to authorize this Agreement, the instruments
and agreements hereunder or the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Giant AZ
and when duly and validly executed and delivered by the Acridge Trust
is enforceable against Giant AZ in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to
time in effect which affect creditors' rights generally and by legal
and equitable limitations on the availability of specific remedies.
ARTICLE 5.
SURVIVAL; INDEMNIFICATION
5.1 Survival of Representations, Warranties and Covenants. All
of the representations, warranties and covenants in this Agreement and
the obligations of the parties with respect thereto shall survive the
Closing.
5.2 Indemnification by the Acridge Trust. Except as set forth
below, the Acridge Trust shall indemnify and hold harmless Giant AZ
and its officers, directors, partners, affiliates, members, managers,
successors and assigns from and against any claims, liabilities,
losses, damages or expenses (including reasonable attorneys' fees and
expenses) ("Losses") which are caused by or arise out of: (i) the
Acridge Trust's ownership of the Rights prior to the Closing Date;
(ii) any breach or default in the performance of any covenant,
agreement or obligation of the Acridge Trust contained in this
Agreement; or (iii) any breach of any representation or warranty made
by the Acridge Trust herein or any other instrument expressly required
to be delivered by or on behalf of the Acridge Trust pursuant hereto.
5.3 Indemnification by Giant AZ. Giant AZ shall indemnify and
hold harmless the Acridge Trust and its officers, directors, partners,
affiliates, members, managers successors and assigns from and against
any Losses which are caused by or arise out of: (i) the ownership of
the Rights on and after the Closing Date; (ii) any breach or default
in the performance by Giant AZ of any covenant, agreement or
obligation of Giant AZ contained in this Agreement; or (iii) any
breach of any representation or warranty made by Giant AZ herein, or
in any other instrument expressly required to be delivered by or on
behalf of Giant AZ pursuant hereto.
5.4 Procedure. In the event that a claim of a third party arises
with respect to any matter which is covered by the indemnification
provisions contained in this Agreement, the party against whom the
claim is asserted (the "Indemnitee") shall give prompt written notice
to the other party (the "Indemnitor"), and the Indemnitor shall have
the right, at its election, to take over the defense or settlement of
such claim at its own expense by giving prompt written notice to the
Indemnitee; provided, however, that (a) the Indemnitee shall at all
times have the right, at its option and expense, to participate fully
therein and (b) if the Indemnitor does not give such notice and does
not proceed diligently to defend the claim within 30 days after
receipt of such notice of the claim, the Indemnitee shall have the
right, but not the obligation, to undertake the defense of any such
claim for the account of and at the risk of the Indemnitor and the
Indemnitor shall be bound by any defense or settlement that the
Indemnitee may make as to such claim. The parties shall cooperate in
defending any such claim, and the defending party shall have
reasonable access to the books, records and personnel in the
possession or control of the other party that are pertinent to the
defense. The parties agree that the Indemnitee may join the Indemnitor
in any action, claim or proceeding brought by a third party, as to
which any right of indemnification granted to the Indemnitee pursuant
to this Agreement would or might apply, for the purpose of enforcing
such right of indemnification.
5.5 Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, IN NO EVENT SHALL ANY PARTY BE LIABLE TO THE OTHER FOR ANY
EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR
SPECULATIVE DAMAGES.
ARTICLE 6.
GENERAL TERMS
6.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shell be given by mail and
facsimile:
If to the Acridge Trust, to:
James E. Acridge, as Trustee of the
Acridge Family Trust
23733 North Scottsdale Road
Scottsdale, Arizona 85255
Telephone: (480) 585-8802
Facsimile: (480) 585-8894
If to Giant AZ, to:
Giant Industries Arizona, Inc.
c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255
Attention: Treasurer
Telephone: (480) 585-8888
Facsimile: (480) 585-8894
or such other address or telecopy number as such party may hereafter
specify by notice in writing to the other party. Each such notice,
request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the number specified in
this Section and the appropriate confirmation is received, or (ii) if
given by any other means, when delivered at the address specified in
this Section 7.1.
6.2 Expenses. Each party shall pay and be responsible for the
costs and expenses (including, but not limited to, all attorneys' and
accountants' fees and expenses) incurred by such party in connection
herewith and the transactions contemplated hereby.
6.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement may not be assigned
by any party hereto without the prior written consent of the other
party.
6.4 Entire Agreement; Amendment. This Agreement and the exhibit
hereto and the related documents and agreements specifically referred
to herein embody the entire agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior
agreements with respect thereto. This Agreement may be amended, and
any provision hereof waived, but only in writing signed by the party
against whom such amendment or waiver is sought to be enforced.
6.5 Counterparts. This Agreement may be executed in one or more
counterparts all of which shall together constitute one and the same
instrument and shall become effective when a counterpart has been
signed by Giant AZ and delivered to the Acridge Trust and a
counterpart has been signed by the Acridge Trust and delivered to
Giant AZ.
6.6 Captions. Captions herein are inserted are the convenience
of reference only and shall not be used in the interpretation of this
Agreement. Unless context requires otherwise, all reference herein to
Articles and Sections are references to the articles and sections of
this Agreement.
6.7 No Third Party Beneficiaries. Nothing in this Agreement
shall create in any third Person any third party beneficiary rights.
6.8 Further Assurances. The Acridge Trust and Giant AZ agree, at
the request of the other without additional consideration, to execute
and deliver or cause to be executed and delivered, from time to time,
such further instruments and shall take such further action the other
may reasonably require in order to carry out more effectively the
intent and purposes of this Agreement or to bestow on Giant AZ the
benefits and rights intended to be transferred hereby.
6.9 Governing Law. The parties hereto agree that this Agreement
shall be governed by, and construed in accordance with, the laws of
the State of Arizona (without regard to conflicts of law principles
thereof) and the applicable laws of the United States of America.
6.10 Cumulative Remedies. No remedy conferred herein is to be
exclusive of any other remedy, and every remedy contained herein shall
be cumulative and shall be in addition to every other remedy given
hereunder as now or hereafter existing at law or in equity.
6.11 Joint Venture, Partnership and Agency. Nothing contained in
this Agreement shall be deemed to create a joint venture, partnership,
tax partnership or agency relationship between the parties.
6.12 Recording and Filing. Except as may be required by Law, this
Agreement shall not be recorded or filed by either party, or their
successors or assigns, in or with any public or government office,
officer, agency or records repository without the prior written
consent of the other party.
IN WITNESS WHEREOF, the Acridge Trust and Giant AZ have caused
this Agreement to be executed by their duly authorized representatives
as of the date first above written.
ACRIDGE FAMILY TRUST
By: /s/ JAMES E. ACRIDGE
---------------------------
Name: James E. Acridge
Title: Trustee
GIANT INDUSTRIES ARIZONA, INC.
By: /s/ MARK B. COX
---------------------------
Name: Mark B. Cox
Title: Vice President
EXHIBIT A
FORM OF ASSIGNMENT
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
For valuable consideration received, the Acridge Family Trust
("Assignor") hereby transfers and assigns unto Giant Industries
Arizona, Inc., an Arizona corporation ("Assignee"), its successors and
assigns, Assignor's right, title and interest in and to the right of
first refusal and option to purchase the Property (as defined in the
Jomax Agreement defined below) granted to Assignor pursuant to that
certain Purchase Agreement (the "Jomax Agreement"), dated January 26,
2001, and amended February 12, 2001, March 1, 2001, and March 9, 2001,
between Assignor and Giant Industries, Inc., a Delaware corporation
("Giant"). The right of first refusal and the option to purchase the
Property are the "Right" and the "Option" as those terms are defined
in the Jomax Agreement, and are herein collectively referred to as
the "Rights". Pursuant to an Amendment to Escrow Instructions and/or
Purchase Contract, dated March 23, 2001, among Giant, Assignor and
Assignee, Giant nominated Assignee to replace Giant in the escrow and
to acquire title to the Property. Assignee acquired title to the
Property on March 28, 2001. Pursuant to this Assignment, Assignee
agrees to be bound by all the terms, conditions and covenants of each
of the Rights herein assigned.
This Assignment is subject to that certain unrecorded Rights
Purchase Agreement, dated September __, 2001, by and between Assignor
and Assignee. In the event of a conflict between the terms of this
Assignment and the Rights Purchase Agreement, the terms of such Rights
Purchase Agreement shall prevail.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Agreement effective September __, 2001.
ATTEST: ACRIDGE FAMILY TRUST
By:_____________________
Name: James E. Acridge
Title: Trustee
ATTEST: GIANT INDUSTRIES ARIZONA, INC.
By:_____________________
Name:
Title:
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____
day of September, 2001, by James E. Acridge, as Trustee of the Acridge
Family Trust, on behalf of such trust.
Witness my hand and official seal.
__________________________
Notary Public
State of Arizona
My Commission Expires:__________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____
day of September, 2001, by _______________________, as
___________________ for Giant Industries Arizona, Inc., an Arizona
corporation, on behalf of such corporation.
Witness my hand and official seal.
__________________________
Notary Public
State of Arizona
My Commission Expires:__________