EXHIBIT 10.18
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT (this "Agreement") is made and
entered into as of the 28th day of February, 2001, by and among XXXXX
X. XXXXXXX ("Borrower"), GIANT INDUSTRIES, INC., a Delaware corporation
("Giant"), and PINNACLE RODEO, L.L.C., an Arizona limited liability
company ("Rodeo").
RECITALS
A. Under the Agreement, dated as of September 17, 1998, by and
between Borrower and Giant, as modified by the Modification Agreement,
dated as of December 23, 1998, by and between Borrower and Giant, as
further modified by the Amended and Restated Loan Agreement, dated as
of March 20, 2000, by and between Borrower and Giant (collectively, the
"Loan Agreement"), Giant agreed to make a loan to Borrower in the
principal amount of $5,000,000.00 (the "Loan").
B. In connection with the Loan, Borrower 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 December 23,
1998, in the total principal amount of $5,000,000.00, executed by
Borrower 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 Borrower in favor of
Giant (collectively, the "Note").
C. The Loan is secured by the collateral described in the
Pledge and Security Agreement (the "Pledge Agreement"), dated as of
March 10, 2000, by and among Borrower and Rodeo, as pledgor, and Giant,
as pledgee.
D. Giant and Borrower, 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 (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 the City of Scottsdale, Arizona (the "Property").
E. The Purchase Agreement requires that a portion of the
purchase price from the sale of the Property (the "Sale") be applied to
the payment of Borrower's accrued interest under the Loan.
F. Since the Sale has not yet closed and may not close until
March 28, 2001, Giant and Borrower wish to extend the maturity date of
the Loan from February 28, 2001 to March 28, 2001.
NOW THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Accuracy of Recitals. Borrower and Rodeo hereby
acknowledge that the Recitals set forth above are true, accurate and
correct, and are incorporated herein by this reference.
2. Loan Documents. This Agreement, all documents executed in
connection with this Agreement, the Loan Agreement, as modified hereby,
the Amended and Restated Promissory Note referred to Section 4 below,
and the Pledge Agreement are hereinafter collectively referred to as
the "Loan Documents".
3. Extension of Maturity Date. The maturity date of the Loan
is hereby extended from February 28, 2001 to March 28, 2001.
4. Repayment of Loan. 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.
5. Acknowledgments of Borrower. Borrower hereby acknowledges
and agrees that:
a. No Defenses. Borrower reaffirms all of its
obligations under the Loan Documents, and Borrower has no claim,
defense, offset or counterclaim with respect to the payment of the Loan
or with respect to the performance of Borrower's obligations under the
Loan Documents.
b. No Breach By Giant. Giant has not breached any duty
to Borrower in connection with the Loan, and Giant has fully performed
all obligations it may have had or now has to Borrower.
c. No Waiver. Except as specifically provided herein,
by entering into this Agreement, Giant does not waive any existing
event of default or default or any event of default or default
hereafter occurring, or become obligated to waive any condition or
obligation in any agreement between or among any of the parties hereto.
d. No Future Obligations. Giant has no obligation to
make any additional loan or extension of credit to or for the benefit
of Borrower, and no obligation to further modify the Loan or the Loan
Documents.
e. No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and benefit of Giant, Rodeo,
and Borrower and their permitted successors and assigns. No other
persons or entities shall have any right of action under this Agreement
or any right of the funds from the Loan.
f. Informed Consent to Agreement. 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. Borrower 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 Borrower hereby represents to Giant that he has
either sought and obtained such independent legal advice or that he
hereby waives such advice.
6. Acknowledgements of Rodeo. Rodeo hereby acknowledges and
agrees that:
a. No Defenses. Rodeo reaffirms all of its obligations
under the Loan Documents, and Rodeo has no claim, defense, offset or
counterclaim with respect to the performance of Rodeo's obligations
under the Loan Documents.
b. No Breach By Giant. Giant has not breached any duty
to Rodeo in connection with the Loan Documents, and Giant has fully
performed all obligations it may have had or now has to Rodeo.
c. No Waiver. Except as specifically provided herein,
by entering into this Agreement, Giant does not waive any existing
event of default or default or any event of default or default
hereafter occurring, or become obligated to waive any condition or
obligation in any agreement between or among any of the parties hereto.
d. No Future Obligations. Giant has no obligation to
make any additional loan or extension of credit to or for the benefit
of Borrower, and no obligation to further modify the Loan or the Loan
Documents.
e. No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and benefit of Giant, Rodeo,
and Borrower and their permitted successors and assigns. No other
persons or entities shall have any right of action under this Agreement
or any right of the funds from the Loan.
f. Informed Consent to Agreement. Rodeo acknowledges
that it 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 it and have been
fully and unconditionally consented to by it, and that Rodeo's
execution of this Agreement is done freely, voluntarily, with full
knowledge and without duress, and that in executing this Agreement,
Rodeo is relying on no other representations either written or oral,
express or implied, made to Rodeo by any other party hereto, and that
the consideration received by Rodeo hereunder has been actual and
adequate. Rodeo further acknowledges that it 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 Rodeo
hereby represents to Giant that it has either sought and obtained such
independent legal advice or that it hereby waives such advice.
7. Agreement of Rodeo. The Loan is secured by the collateral
described in the Pledge Agreement. Rodeo believes that it is in its
best interest for Rodeo and Borrower to enter into this Agreement with
Giant. Rodeo hereby reaffirms the full force and effectiveness of the
Pledge Agreement. Rodeo agrees that the Pledge Agreement continues to
secure all of the Obligations (as defined in the Pledge Agreement),
including obligations of Borrower under the Loan Documents. Rodeo
represents that this Agreement and the other Loan Documents are of
substantial economic benefit to Rodeo and that its reaffirmation and
consent is an essential part of the consideration to Giant to enter
into this Agreement. Rodeo hereby consents to the terms, conditions
and provisions of this Agreement and the other Loan Documents.
8. Release of Giant. In consideration of the agreements of
Giant set forth in this Agreement, Borrower and Rodeo, and all of their
respective permitted successors and assigns (individually and
collectively, the "Releasors"), hereby fully release, remise, and
forever discharge Giant and any affiliates of Giant, and their
predecessors, and all past and present officers, directors, agents,
employees, servants, partners, shareholders, attorneys and managers of
Giant and any affiliates of Giant and their predecessors and all of
their respective predecessors, successors and assigns, for, from, and
against any and all claims, liens, demands, causes of action,
controversies, offsets, obligations, losses, damages and liabilities of
every kind and character whatsoever, including any action, omission,
misrepresentation or other basis of liability founded either in tort or
contract and the duties arising thereunder, that the Releasors, or any
one or more of them, has had in the past, or now has, whether known or
unknown, whether asserted or unasserted, by reason of any matter, cause
or thing set forth in, relating to or arising out of, or in any way
connected with or resulting from, the Loan, the Loan Documents, the
transactions contemplated thereby or the negotiation, preparation, and
execution of this Agreement or the other Loan Documents. This release
shall not be deemed or construed as an admission of liability by Giant.
9. Incorporation. This Agreement shall form a part of each
Loan Document, and all references to a given Loan Document shall mean
that document as hereby modified.
10. No Prejudice; Reservation of Rights. This Agreement shall
not prejudice any rights or remedies of Giant under the Loan Documents.
Giant reserves, without limitation, all rights that it has against any
indemnitor, guarantor, or endorser or any of the Loan Documents.
11. No Impairment; Security. Except as specifically hereby
amended, the Loan Documents shall each remain unaffected by this
Agreement and all such documents shall remain in full force and effect.
Borrower's payment and performance of Borrower's various obligations to
Giant under the Loan Documents, including all extensions,
modifications, amendments, renewals or replacements of the foregoing,
continue to be and shall be secured by the liens arising under the Loan
Documents. Nothing contained in this Agreement shall annul, release or
affect the lien, or priority of the lien of any of the Loan Documents.
Nothing contained herein shall be deemed a waiver of or limit any of
the rights and remedies that Giant may have against Borrower or of any
of Giant's rights and remedies arising out of the Loan Documents, and
Giant specifically reserves, and shall have, all rights and remedies
available to Giant under the law or as provided in the Loan Documents,
as modified by this Agreement.
12. Integration. The Loan Documents, including this Agreement:
(a) integrate all the terms and conditions mentioned in or incidental
to the Loan Documents; (b) supersede all oral negotiations and prior
and other writings with respect to their subject matter; and (c) are
intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in those documents and as
the complete and exclusive statement of the terms agreed to by the
parties. If there is any conflict between the terms, conditions and
provisions of this Agreement and those of any other agreement or
instrument, including any of the other Loan Documents, the terms,
conditions and provisions of this Agreement shall prevail. No
amendment, modification, change, waiver, release or discharge hereof
and hereunder shall be effective unless evidenced by an instrument in
writing and signed by the party against whom enforcement is sought.
13. Severability. If any provision of this Agreement or the
other Loan Documents is invalid or unenforceable, the other provisions
of this Agreement or the other Loan Documents shall remain in full
force and effect and shall be liberally construed in favor of Giant in
order to effectuate the other provisions of this Agreement or the other
Loan Documents.
14. Governing Law. This Agreement and the other Loan Documents
shall be construed in accordance with and governed by the laws of the
State of Arizona, without regard to the choice of law rules of the
State of Arizona.
15. Time is of the Essence. Time is of the essence of this
Agreement and the other Loan Documents.
16. Further Performance. Borrower whenever and as often as it
shall be requested by Giant, shall execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered such further
instruments and documents and to do any and all things as may be
requested in order to carry out the intent and purpose of this
Agreement and the other Loan Documents.
17. Survival. All indemnities, warranties, representations,
and covenants made by Borrower in this Agreement or the other Loan
Documents, shall be considered to have been relied upon by Giant and
will survive the making and repayment of the Loan and delivery to Giant
of this Agreement.
18. No Consent. Except as specifically provided in this
Agreement, no express or implied consent to any further modifications
involving any of the matters set forth in this Agreement or otherwise
shall be inferred or implied by Giant's execution of this Agreement or
any other action of Giant. Giant's execution of this Agreement shall
not constitute a waiver, either express or implied, of the requirement
that any further modification of the Loan or of the Loan Documents
shall require the express written approval of Giant.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
BORROWER:
/s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
GIANT:
Giant Industries, Inc., a Delaware
corporation
By: /s/ XXXX X. XXX
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Name: XXXX X. XXX
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Its: VP TREASURER
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RODEO:
Pinnacle Rodeo, L.L.C., an Arizona
limited liability company
By: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
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Its: MEMBER
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