EXHIBIT 10.36
MODIFICATION AGREEMENT
1. EFFECTIVE DATE: December 23, 1998
2. PARTIES:
2.1. GIANT INDUSTRIES, INC., an Delaware corporation
("Giant"); and
2.2. XXXXX X. XXXXXXX ("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. Borrower has requested that Giant advance additional
funds pursuant to the terms set forth herein.
3.3. Giant is willing to advance the additional funds
described herein, and 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 advance to Borrower an
additional sum of One Million Dollars ($1,000,000.00), to 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.
4.2. Borrower agrees to make an early interest payment on
the principal balance outstanding on December 31, 1998 under
the Amended and Restated Promissory Note at the Prime rate
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 at the Prime rate
published in the Western Edition of the Wall Street Journal on
September 17, 1998, plus three percent (3%) from December 23,
1998, through December 31, 1998. Thereafter, interest shall be
payable in accordance with the terms of the Amended and
Restated Note.
4.3. Borrower agrees to present to Giant, on or before
March 31, 1999, a plan of repayment for the Amended and
Restated Note in reasonable detail for the information of
Giant's Board of Directors.
4.4. The provisions of the Loan Agreement shall continue
in full force and effect in every respect, except that the
Amended and Restated Note shall govern the repayment of the
Loan as increased and extended by this Modification Agreement
and the Amended and Restated Promissory Note.
4.5. 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 Loan Agreement is a valid, binding agreement
enforceable in accordance with its terms as amended hereby; (c)
except as expressly provided herein, this Agreement shall not
modify the 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 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
Loan Agreement; and (e) the restrictions and terms of the Loan
Agreement continue in full force and effect except as expressly
modified hereby.
4.6. 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.
4.7. Except as herein provided, all of the terms and
conditions of the Loan Agreement shall remain in full force and
effect, and the parties hereby ratify and confirm the security
and enforceability of the Loan Agreement, as expressly modified
by this Modification Agreement.
4.8. 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 Loan Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona.
4.9. This 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.
GIANT:
GIANT INDUSTRIES, INC., a Delaware corporation
By: /s/ Xxxx X. Xxx
----------------------------
Name: Xxxx X. Xxx
Title: Treasurer
BORROWER:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
