EXHIBIT 10.24
FIRST AMENDMENT
TO
PLEDGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT (this
"Amendment") is made and entered into as of the 9th day of March, 2001,
by and among XXXXX X. XXXXXXX ("Xxxxxxx") and PINNACLE RODEO, L.L.C.,
an Arizona limited liability company ("Rodeo"), as pledgor
(collectively, "Pledgor"), and GIANT INDUSTRIES, INC., a Delaware
corporation, as pledgee ("Giant").
RECITALS
A. Under the 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, Giant agreed
to make a loan to Acridge in the principal amount of $5,000,000.00 (the
"Loan").
B. 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 between Pledgor and Giant.
C. The following financing statements were executed in
connection with the Loan (collectively, the "Financing Statements"):
(i) Financing Statement on Form UCC-1, dated March 10,
2000, executed by Acridge, as debtor, in favor of Giant, as secured
party, filed on March 23, 2000, with the Office of the Secretary of
State of the State of Arizona, at File No. 01109454.
(ii) Financing Statement on Form UCC-1, dated March 10,
2000, executed by Rodeo, as debtor, in favor of Giant, as secured
party, filed on March 23, 2000, with the Office of the Secretary of
State of the State of Arizona, at File No. 01109455.
D. Giant and Acridge, 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. Concurrently with the execution of this Amendment, the
Acridge Trust and Giant are entering into a Third Amendment to Purchase
Agreement (the "Purchase Agreement Modification"), wherein, among other
things, Giant will increase the Deposit (as defined in the Purchase
Agreement) by an additional $450,000 (the "Additional Obligation").
F. Pledgor and Giant now wish to amend the Pledge Agreement
as hereinafter provided.
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. Acridge and Rodeo hereby acknowledge
that the Recitals set forth above are true, accurate and correct, and
are incorporated herein by this reference.
2. Security Documents. This Amendment, the Financing
Statements, all documents executed in connection with this Amendment,
and the Pledge Agreement are hereinafter collectively referred to as
the "Security Documents".
3. Additional Obligations. The parties hereby agree that the
Obligations, as defined in the Pledge Agreement, shall include the
Additional Obligation, which shall be secured by the Pledge Agreement.
Furthermore, Giant shall have all of the remedies available to it under
the Pledge Agreement, including without limitation Section 6 of the
Pledge Agreement, in the event (i) the transactions contemplated under
the Purchase Agreement are not consummated and the Additional
Obligation is not repaid to Giant, or (ii) the transactions
contemplated under the Purchase Agreement are consummated and (a) the
Deposit (as defined in the Purchase Agreement), along with the
indebtedness secured by the first deed of trust covering the Property,
exceeds the Sales Price (as defined in the Purchase Agreement) (the
"Surplus Payment"), and (b) the Surplus Payment is not immediately
repaid to Giant. For purposes of this Section, in the event there is a
Surplus Payment, the Additional Obligation shall be deemed to be a part
of the Surplus Payment.
4. Acknowledgments of Pledgor. Each Pledgor hereby
acknowledges and agrees that:
a. No Defenses. Pledgor reaffirms all of its
obligations under the Security Documents, and Pledgor has no claim,
defense, offset or counterclaim with respect to the performance of
Pledgor's obligations under the Security Documents.
b. No Breach By Giant. Giant has not breached any duty
to Pledgor in connection with the Security Documents, and Giant has
fully performed all obligations it may have had or now has to Pledgor.
c. No Waiver. Except as specifically provided herein,
by entering into this Amendment, 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
further modify the Security Documents.
e. No Third Parties Benefited. This Amendment is made
and entered into for the sole protection and benefit of Giant and
Pledgor and their permitted successors and assigns. No other persons
or entities shall have any right of action under this Amendment.
f. Informed Consent to Agreement. Pledgor acknowledges
that it has thoroughly read and reviewed the terms and provisions of
this Amendment 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 Pledgor's
execution of this Amendment is done freely, voluntarily, with full
knowledge and without duress, and that in executing this Amendment,
Pledgor is relying on no other representations either written or oral,
express or implied, made to Pledgor by any other party hereto, and that
the consideration received by Pledgor hereunder has been actual and
adequate. Pledgor 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 Amendment, and
Pledgor hereby represents to Giant that it has either sought and
obtained such independent legal advice or that it hereby waives such
advice.
5. Reaffirmation of Obligations. The Additional Obligations
are secured by the collateral described in the Pledge Agreement.
Pledgor believes that it is in its best interest for Pledgor to enter
into this Agreement with Giant. Pledgor hereby reaffirms the full
force and effectiveness of the Pledge Agreement. Pledgor agrees that
the Pledge Agreement continues to secure all of the Obligations,
including the Additional Obligations. Pledgor represents that this
Amendment and the other Security Documents are of substantial economic
benefit to Pledgor and that its reaffirmation and consent is an
essential part of the consideration to Giant to enter into this
Amendment and the Purchase Agreement Modification. Pledgor hereby
consents to the terms, conditions and provisions of this Amendment and
the other Security Documents.
6. Incorporation. This Amendment shall form a part of each
Security Document, and all references to a given Security Document
shall mean that document as hereby modified.
7. No Prejudice; Reservation of Rights. This Amendment shall
not prejudice any rights or remedies of Giant under the Security
Documents. Giant reserves, without limitation, all rights that it has
against any indemnitor, guarantor, or endorser of any of the Security
Documents.
8. No Impairment; Security. Except as specifically hereby
amended, the Security Documents shall each remain unaffected by this
Amendment and all such documents shall remain in full force and effect.
Nothing contained in this Amendment shall annul, release or affect the
lien, or priority of the lien of any of the Security Documents.
Nothing contained herein shall be deemed a waiver of or limit any of
the rights and remedies that Giant may have against Pledgor or of any
of Giant's rights and remedies arising out of the Security Documents,
and Giant specifically reserves, and shall have, all rights and
remedies available to Giant under the law or as provided in the
Security Documents, as modified by this Amendment.
9. Integration. The Security Documents, including this
Amendment: (a) integrate all the terms and conditions mentioned in or
incidental to the Security 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 Amendment and those of any
other agreement or instrument, including any of the other Security
Documents, the terms, conditions and provisions of this Amendment 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.
10. Severability. If any provision of this Amendment or the
other Security Documents is invalid or unenforceable, the other
provisions of this Amendment or the other Security 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
Amendment or the other Security Documents.
11. Governing Law. This Amendment and the other Security
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.
12. Time is of the Essence. Time is of the essence of this
Amendment and the other Security Documents.
13. Further Performance. Pledgor 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
Amendment and the other Security Documents.
14. Survival. All indemnities, warranties, representations,
and covenants made by Pledgor in this Amendment or the other Security
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 Amendment.
15. No Consent. Except as specifically provided in this
Amendment, no express or implied consent to any further modifications
involving any of the matters set forth in this Amendment or otherwise
shall be inferred or implied by Giant's execution of this Amendment or
any other action of Giant. Giant's execution of this Amendment shall
not constitute a waiver, either express or implied, of the requirement
that any further modification of the Security Documents shall require
the express written approval of Giant.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
PLEDGOR:
Pinnacle Rodeo, L.L.C., an Arizona
limited liability company
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: XXXXX X. XXXXXXX
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Its: MEMBER
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GIANT:
Giant Industries, Inc., a Delaware
corporation
By: /s/ XXXX X. XXX
--------------------------------
Name: XXXX X. XXX
------------------------------
Its: VP TREASURER
-------------------------------
/s/ XXXXX X. XXXXXXX
-----------------------------------
XXXXX X. XXXXXXX
This Amendment is consented to by:
Pinnacle Rawhide, L.L.C., an Arizona
limited liability company
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxx, sole member of
Pinnacle Rodeo, L.L.C., its manager
