EXHIBIT 10.28
FIRST AMENDMENT TO
PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (the "Amendment"), is made
this 12th day of February, 2001 by and between Xxxxx Xxxxxxx, as Trustee
of The Acridge Family Trust ("Seller"), and Giant Industries, Inc., a
Delaware corporation ("Buyer").
RECITALS
A. Buyer and Seller entered into that certain Purchase Agreement
dated January 26, 2001 (the "Agreement") with respect to that certain real
property described therein (the "Property").
B. Buyer and Seller now wish to amend the Agreement as hereinafter
provided.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Deposit. The Deposit is increased from $740,000 to $990,000.
Seller acknowledges the receipt of the initial $740,000 of the Deposit.
Immediately following the execution of this Amendment, Buyer shall pay the
remaining $250,000 of the Deposit to Seller, by wire transfer of immediately
available funds, direct and outside of Escrow. The cash payable at the
Closing shall be reduced by the increase in the Deposit.
2. Right of First Refusal. From and after the Closing Date and
until the second anniversary of the Closing Date, Buyer grants Seller a right
of first refusal to purchase the Property (the "Right") on the terms and
conditions set forth in this Amendment. If Buyer receives a bona fide offer
to purchase all or any portion of the Property from a bona fide purchaser or
if Buyer intends to submit an offer to sell all or any portion of the
Property to a bona fide purchaser (the "Offer"), Buyer shall promptly give
written notice of the Offer to Seller with a copy of the Offer attached (the
"Offer Notice"). Seller shall have three (3) business days from receipt of
the Offer Notice in which to elect to accept the Offer and purchase the
Property described in the Offer Notice (the "Offer Property") on the same
terms and conditions set forth in the Offer (except as to the time of
closing, which shall be the longer of (i) the date which is ninety (90) days
from the date Seller elects to purchase the Offer Property or (ii) the date
for closing specified in the Offer). Seller's election shall be exercised by
giving written notice to Buyer prior to 5:00 p.m., M.S.T. on the third (3rd)
business day after receipt of the Offer Notice. If Seller does not accept
the Offer within such three (3) day period, Buyer may thereafter sell the
Offer Property on substantially the same terms as set forth in the Offer;
provided, however, that if the price offered to another party is less than
ninety-five percent (95%) of the amount set forth in the Offer, Buyer shall
again offer the Offer Property to Seller as set forth above before
consummating a sale of the Offer Property. If the Offer Property is sold to
another party pursuant to the terms of this Section, the Right and the Option
(as defined below) shall automatically terminate and be of no further force
and effect with respect to the Offer Property on the closing date of such
sale.
3. Option. Buyer grants to Seller the option (the "Option") to
purchase the Property (excluding any portion thereof sold pursuant to Section
2 above) on the terms and conditions set forth in this Amendment. The Option
may be exercised by Seller giving written notice of Seller's election at any
time on or before 5:00 p.m., M.S.T., on the second anniversary of the Closing
Date (the "Option Deadline"). The date of such notice shall be referred to
as the "Option Exercise Date". The purchase price for the Property shall be
the greater of the Appraised Value determined as of the Option Exercise Date
(without taking into consideration the existence of the Right or the Option)
or the Sales Price paid by Buyer to Seller (or if a portion of the Property
has been sold pursuant to Section 2 above, the portion of the Sales Price
allocable to the portion of the Property to be purchased by Seller) (the
"Option Price"), and shall be paid to Buyer by wire transfer of immediately
available funds to the Escrow Agent on or before the date which is ninety
(90) days after the Option Exercise Date (the "Option Closing Date"). If
Buyer exercises the Option an escrow shall be established with Escrow Agent.
On or before the Option Closing Date, Buyer shall deliver to Escrow Agent a
special warranty deed fully executed and acknowledged by Buyer, conveying the
Property (or applicable portion thereof) to Seller, subject to the Approved
Title Exceptions (but excluding the Deed of Trust), and to any matters
arising from and after the Closing Date (but excluding any monetary liens and
encumbrances created by Buyer, which shall be removed by Buyer prior to the
Option Closing Date). The Option Property shall be conveyed to Seller as is,
without representation or warranty except as set forth in the deed. On the
Option Closing Date, closing costs and prorations shall be apportioned as
between Buyer and Seller and prorated in accordance with Section 7.2 of the
Agreement, except that the Seller under this Amendment shall be responsible
for all closing costs, including, without limitation, all premiums associated
with obtaining any policy of title insurance for the Property (or portion
thereof purchased by Seller), all recording fees and all escrow fees.
Notwithstanding the foregoing, following Seller's receipt of an Offer Notice,
Seller may not exercise the Option with respect to the Offer Property
described in such Offer Notice unless (i) Buyer fails to enter into a
purchase agreement to sell the Property within 180 days following Seller's
receipt of such Offer Notice or (ii) if Buyer executes a purchase agreement
pursuant to such Offer Notice, the purchase agreement is subsequently
terminated without purchase of the Offer Property by the buyer thereunder.
The Option shall automatically terminate if Buyer has not exercised the
Option on or before the Option Deadline, and the Option Deadline shall not be
extended by any period during which Seller's right to exercise the Option is
suspended under the preceding sentence.
4. Right and Option Closing Conditions. Buyer's obligation to sell
the Property to Seller upon Seller's exercise of the Right or the Option is
conditioned upon Buyer's determination, in its sole judgement, that the sale
of the Property, in whole or in part, would not (a) 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
Buyer's certificate of incorporation or bylaws or any indenture, mortgage,
lease, agreement, or other instrument to which Buyer is or becomes a party or
by which any of its assets are or becomes bound (each of the foregoing, a
"Buyer Agreement"), (b) require any payment in respect of any Buyer
Agreement, or (c) violate any law, rule, regulation or ordinance applicable
to Buyer or any of its assets ("Applicable Law"). If Buyer determines that
any of the conditions in the immediately preceding sentence cannot be met,
Buyer will not be obligated to sell the Property to Seller and the Right and
Option shall terminate. If Buyer determines that it would be appropriate or
necessary for Buyer to obtain a fairness opinion or a similar third-party
opinion or report as a condition to selling the Property to Seller upon
Seller's exercise of the Right or the Option, Seller will be responsible for
all costs of obtaining any such fairness opinion or report.
5. Termination. If the Offer or the Right terminate in accordance
with this Amendment, Seller shall, if requested by Buyer, execute a document
evidencing such termination, but such document shall not be a prerequisite to
the effectiveness of such termination.
6. Loan Agreement. Section 5.1(d) and Section 5.2(a) of the
Agreement are deleted in their entirety.
7. Appraisal. The reference to February 2, 2001 in Section 5.1(e)
and Section 5.2(b) is hereby changed to February 16, 2001.
8. Legal Counsel and Advisors. Seller acknowledges that it has
been given an opportunity to consult with legal counsel and other advisors
prior to the execution of the Agreement and this Amendment.
9. Definitions. Except as otherwise provided herein, the defined
terms shall have the meanings set forth in the Agreement.
10. Full Force and Effect. Except as amended hereby the Agreement
shall remain in full force and effect.
11. Counterparts. This Amendment may be executed via facsimile in
any number of counterparts, each of which shall be an original, but all which
shall constitute one and the same Amendment.
IN WITNESS WHEREOF this Amendment has been executed the first day in
year written above.
SELLER:
/s/ XXXXX X. XXXXXXX
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XXXXX XXXXXXX, AS TRUSTEE OF THE
ACRIDGE FAMILY TRUST
BUYER:
GIANT INDUSTRIES, INC.
By /s/ XXXX X. XXXXX
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Its VICE PRESIDENT
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