EXHIBIT 10.19
FIRST AMENDMENT TO AMENDED AND RESTATED PROMISSORY NOTE
AND
LOAN MODIFICATION AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED PROMISSORY NOTE AND
LOAN MODIFICATION AGREEMENT (this "Amendment"), is dated effective as of
March 28, 2001, and is made by XXXXX X. XXXXXXX ("Xxxxxxx"), and GIANT
INDUSTRIES, INC., a Delaware corporation ("Giant").
RECITALS:
A. Under an Agreement dated as of September 17, 1998, by and
between Acridge and Giant, as modified by the Modification Agreement, dated
as of December 23, 1998, by and between Acridge and Giant, as modified by the
Amended and Restated Loan Agreement, dated as of March 20, 2000, by and
between Acridge and Giant, as modified by the Loan Modification Agreement,
dated as of February 28, 2001, by and between Acridge and Giant,
(collectively, the "Loan Agreement"), Giant has made a loan to Acridge in the
original principal amount of $5,000,000.00 (the "Loan").
B. In connection with the Loan, Acridge executed a 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 Acridge 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 Acridge in
favor of Giant, as further modified by the Amended and Restated Promissory
Note, dated as of February 28, 2001, in the total principal amount of
$5,000,000.00, executed by Acridge in favor of Giant (collectively, the
"Note").
X. Xxxxxxx is the sole owner of 100% of the membership
interests of Pinnacle Rodeo, L.L.C., an Arizona limited liability company
("Rodeo"), which is the sole member of Pinnacle Rawhide, L.L.C., an Arizona
limited liability company ("Rawhide").
D. The Loan is secured by the collateral described in the
Pledge and Security Agreement, dated effective as of March 10, 2000, by and
among Acridge, Rodeo and Giant, as modified by the First Amendment to Pledge
and Security Agreement, dated as of March 9, 2001, by and among Acridge,
Rodeo and Giant, and a separate Pledge and Security Agreement, dated
effective the date hereof, by Acridge in favor of Giant (the "New Pledge
Agreement") whereby, among other things, for additional consideration,
Acridge pledged to Giant all of his membership interests in Rodeo
(collectively, the "Pledge Agreements").
X. Xxxxxxx and Giant desire to further amend the Loan
Agreement and the Note to memorialize certain agreements made between them in
connection with the Loan and with the entering into of the New Pledge
Agreement of even date herewith.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. AMENDMENT OF NOTE. The Note is amended to include the following as
events of default:
(i) Either Rodeo or Rawhide fails to comply with or
perform when due, any term, obligation, covenant or
condition contained in any agreement with any third
parties, including any promissory notes due by Rodeo
or Rawhide to Western Town, L.L.C., an Arizona
limited liability company, Xxxxxx Investment Co.,
LLC, an Arizona limited liability company, or any
other creditor of Rodeo or Rawhide.
(ii) Acridge fails to comply with or perform when
due any term, obligation, covenant or condition
contained in the New Pledge Agreement.
(iii) The sale or transfer to a third party of any
portion of the real property owned by Rawhide, which
real property is described as:
The Northwest Quarter of Section 14, Township
4 North, Range 4 East of the Gila and Salt
River Base and Meridian, Maricopa County, Arizona;
EXCEPT therefrom the North 55 feet; and,
EXCEPT the East 40 feet; and,
EXCEPT the West 55 feet; and
EXCEPT the South 40 feet.
2. CONDITIONS PRECEDENT TO EXTENSION. The parties anticipate entering into
further amendments to the Note, Loan Agreement and Pledge Agreements on or
before March 28, 2001 to extend the maturity date of the Loan from March 28,
2001 to March 28, 2003 (the "Extension"). The parties have agreed to a
number of conditions precedent to effecting the Extension. These conditions
include the following:
2.1 Acridge shall have paid, or otherwise satisfied in full, all
accrued but unpaid interest under the Loan from January 1, 1999 through March
28, 2001;
2.2 Acridge and Giant shall have executed the New Pledge Agreement;
2.3 Giant and Acridge shall have consummated the real property
transaction whereby a trust controlled by Acridge shall have sold to Giant a
parcel of land containing approximately 40 acres, located at 0000 Xxxx Xxxxx
Xxxx in Scottsdale, Arizona; and
2.4 Giant shall have released to the public Giant's earnings for the
2000 fiscal year.
3. ACKNOWLEDGEMENT OF CONSIDERATION. Acridge acknowledges that he has
benefited from the extension of the maturity date of the Loan from February
28, 2001 to March 28, 2001, and will further benefit from the further
Extension of the maturity date of the Loan. Accordingly, Acridge
acknowledges that he has received valuable consideration in the form of the
aforesaid. Acridge acknowledges the receipt and sufficiency of adequate
consideration for the entering into of this Amendment and agrees that all of
the terms and conditions of this Amendment are fully binding upon him as set
forth herein.
4. PRESERVATION CLAUSE. Except as herein provided, all terms and conditions
of the Note, the Loan Agreement and the Pledge Agreements shall remain in
full force and effect, and the parties hereby ratify and confirm the
enforceability of the Note, the Loan Agreement and the Pledge Agreements.
Nothing contained in this Amendment shall be deemed a waiver of or limit any
of the rights or remedies that Giant may have against Acridge or of any of
Giant's rights and remedies arising out of the Note, the Loan Agreement and
the Pledge Agreements, and Giant specifically reserves, and shall have, all
rights and remedies available to Giant under the law or as provided in such
documents, as modified by this Amendment.
5. COUNSEL; INTERPRETATION. Each party acknowledges that it was represented
by legal counsel (or had the opportunity to be represented by independent
legal counsel) in connection with this Agreement and that each of them and
their counsel have reviewed and revised this Agreement, or have had an
opportunity to do so, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or any
exhibits hereto or thereto. Acridge further acknowledges that he has been
advised, and has had the opportunity, to seek the advice of independent
counsel.
[The parties' signatures appear on the following page.]
IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed and delivered as of the date first above written.
ACRIDGE:
/s/ XXXXX X. XXXXXXX
-----------------------------
Xxxxx X. Xxxxxxx
Address:
00000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile:___________________
Attn: _______________________
GIANT:
GIANT INDUSTRIES, INC., a Delaware
corporation
By: /s/ XXXX X. XXX
Name: XXXX X. XXX
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Title: VP TREASURER
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Address:
00000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile:
_____________________________
Attn:
_____________________________
