EXHIBIT 10.1
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "First Amendment") is entered into effective as of
October 28, 2002 (the "Amendment Effective Date"), among GIANT
INDUSTRIES, INC., a Delaware corporation (the "Company"), the
financial institutions from time to time parties to the Credit
Agreement (collectively, the "Lenders"), and BANK OF AMERICA, N.A.
as administrative agent (the "Administrative Agent") for the
Lenders and as a Lender and as Letter of Credit Issuing Bank.
Capitalized terms which are used herein without definition and
which are defined in the Credit Agreement referred to below shall
have the meanings ascribed to them in the Credit Agreement.
WHEREAS, the Company, the Administrative Agent and the Lenders
are parties to that certain Second Amended and Restated Credit
Agreement dated as of May 14, 2002 (the "Credit Agreement"); and
WHEREAS, the Company desires to (i) modify certain financial
covenants of the Credit Agreement, (ii) dispose of certain assets
pursuant to its business plan, and (iii) modify other provisions
of the Credit Agreement. In order to permit such modifications
and dispositions, the Company has requested certain amendments to
the Credit Agreement as herein set forth, and subject to the terms
hereof the Administrative Agent and the Lenders are willing to
agree to the Company's requested amendments;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement Regarding
Letters of Credit. Subject to satisfaction of the conditions
precedent set forth in Section 5(a) of this First Amendment:
(a) Amendment to Section 1.01 (Certain Defined Terms).
Section 1.01 of the Credit Agreement is amended by amending the
definition of L/C Commitment by substituting "$50,000,000" for
"$25,000,000."
(b) Amendment to Section 3.01 (Letter of Credit Facility).
The Credit Agreement is amended by amending Section 3.01 thereof
by deleting the words "360 days" in subsection (b)(iii)(A) thereof
and substituting "365 days" therefor.
SECTION 2. Other Amendments to the Credit Agreement. Subject
to satisfaction of the conditions precedent set forth in Section
5(b) of this First Amendment:
(a) Amendment to Section 1.01 (Certain Defined Terms).
Section 1.01 of the Credit Agreement is amended by amending the
definition of Applicable Margin in its entirety as follows.
"Applicable Margin" means with respect to Base Rate
Loans and Offshore Rate Loans, respectively, (a) from the
Execution Date through and including September 30, 2002, the
specified percent per annum therefor set forth in Schedule
2.02A corresponding to the applicable pricing level
determined in accordance therewith; and (b) at all times on
and after October 1, 2002, the specified percent per annum
therefor set forth in Schedule 2.02B corresponding to the
applicable pricing level determined in accordance therewith."
(b) Amendment to Section 1.01 (Certain Defined Terms).
Section 1.01 of the Credit Agreement is amended by amending the
definition of Consolidated Funded Indebtedness in its entirety as
follows.
"Consolidated Funded Indebtedness" means, for the
Company and its Consolidated Subsidiaries, at any time,
without duplication, the sum of: (a) all Indebtedness (other
than undrawn or unfunded amounts under outstanding Surety
Instruments and Indebtedness of the type described in clause
(h)(ii) of the definition of Indebtedness), (b) obligations
to redeem or purchase any stock or other equity security of
the Company or a Subsidiary, and (c) any guaranty obligations
in respect of any of the foregoing."
(c) Amendment to Section 1.01 (Certain Defined Terms).
Section 1.01 of the Credit Agreement is amended by amending the
definition of Fixed Charge Coverage Ratio in its entirety as
follows:
"Fixed Charge Coverage Ratio" means:
(x) as of any date of determination from the Execution
Date through September 30, 2002, and as of any date of
determination after January 1, 2004, the ratio of (A) the
sum, without duplication, of (i) Consolidated EBITDA for the
period of four fiscal quarters ending on such date, plus (ii)
Consolidated Rents for such period, plus (iii) to the extent
excluded in the calculation of Consolidated EBITDA, Margin
Payments made by the Company under the Yorktown Asset
Purchase Agreement during such period, minus (iv) Capital
Expenditures during such period (excluding Margin Payments
treated as Capital Expenditures), minus (v) all taxes
measured by income and paid in cash during such period, to
(B) the sum, without duplication, of (i) Consolidated
Interest Expense during such period, plus (ii) Consolidated
Rents during such period, plus (iii) scheduled amortization
of the Company's and its Subsidiaries' Indebtedness during
such period, plus (iv) Margin Payments made by the Company
under the Yorktown Asset Purchase Agreement during such
period; and
(y) as of any date of determination from October 1, 2002
through December 31, 2003, the ratio of (A) the sum, without
duplication, of (i) Consolidated EBITDA for the period of
four fiscal quarters ending on such date, plus (ii)
Consolidated Rents for such period, to (B) the sum, without
duplication, of (i) Consolidated Interest Expense during such
period, plus (ii) Consolidated Rents during such period, plus
(iii) scheduled amortization of the Company's and its
Subsidiaries' Indebtedness during such period, plus (iv) all
taxes measured by income and paid in cash during such period.
With respect to Indebtedness incurred in connection with the
Yorktown Acquisition (including Loans hereunder),
Consolidated Interest Expense shall be calculated on a pro
forma basis for the four fiscal quarters most recently ended
as if such Indebtedness had been incurred on the first day of
such period."
(d) Amendment to Section 1.01 (Certain Defined Terms).
Section 1.01 of the Credit Agreement is amended by adding the
following definitions in the appropriate order.
"Additional Collateral" has the meaning assigned to it
in Section 2.14(c) hereof.
"Additional Collateral Closing" has the meaning assigned
to it in Section 2.14(c) hereof.
"Additional Collateral Closing Deadline" has the meaning
assigned to it in Section 2.14(c) hereof.
"Additional Collateral Documents" has the meaning
assigned to it in Section 2.14(c) hereof.
"Additional Due Diligence Materials" has the meaning
assigned to it in Section 2.14(c) hereof.
"Disposition" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of
any property (including stock, partnership and other equity
interests) by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims
associated therewith.
"Insurance Subsidiary" has the meaning assigned to in
Section 8.04(e) hereof.
"Net Cash Proceeds" means, with respect to any
Disposition, cash (including any cash received by way of
deferred payment pursuant to a promissory note or otherwise,
as and when received) received by the Company or any of its
Subsidiaries in connection with and as consideration
therefor, on or after the date of consummation of such
transaction, after (i) deduction of Taxes payable in
connection with or as a result of such transaction, and (ii)
payment of all usual and customary brokerage commissions and
all other reasonable fees and expenses related to such
transaction (including, without limitation, reasonable
attorneys' fees and closing costs incurred in connection with
such transaction); provided, however, in the case of Taxes
that are deductible under clause (i) above, but which Taxes
have not actually been paid or are not yet payable, the
Company or any of its Subsidiaries selling such assets may
deduct from the cash proceeds an amount (the 'Reserved
Amount') equal to the amount reserved in accordance with GAAP
as a reasonable estimate for such Taxes so long as, at the
time such Taxes are actually paid, the amount, if any, by
which the Reserved Amount exceeds the Taxes actually paid
shall constitute additional Net Cash Proceeds of such
Disposition."
"Scheduled Assets" means the assets listed on Schedule
8.02 hereto, which the Company has represented are not
subject to any Liens other than Liens in favor of the
Lenders.
(e) Amendment to Section 2.07 (Borrowing Base
Determinations; Deposit Account Triggering Event; Mandatory
Prepayments of Loans). The Credit Agreement is amended by
amending Section 2.07 thereof by adding new subsection (e) thereof
as follows:
"(e) The Company shall, without notice or demand,
prepay the outstanding principal amount of the Revolving
Loans by an amount equal to the Net Cash Proceeds received
from any Disposition of Scheduled Assets within 5 Business
Days after receipt of such Net Cash Proceeds, and the
provisions of Section 4.04 shall be applicable; provided,
that the amount required to be prepaid hereunder shall not
exceed $15,000,000 in the aggregate if Net Cash Proceeds from
Dispositions of Scheduled Assets exceed such amount; and
provided further, that such Mandatory Prepayments shall not
reduce the Commitments."
(f) Amendment to Section 2.14 (Security and Guaranty). The
Credit Agreement is amended by adding the following new subsection
(c) to Section 2.14:
"(c) As additional security for payment of the Obligations,
the Company and its Subsidiaries shall grant first priority,
perfected Liens in favor of the Administrative Agent or an
independent collateral agent or trustee acceptable to the
Administrative Agent, as secured party and/or mortgagee, as
applicable, for the benefit of the Lenders and the holders of
the Yorktown Term Loan on the following property and assets
(the "Additional Collateral"): (i) the Bloomfield Refinery
including land, improvements and all equipment and fixtures,
(ii) the Ciniza Refinery including land, improvements and all
equipment and fixtures, (iii) the service stations and
convenience stores of the Company and its Subsidiaries
located in the State of New Mexico listed on Schedule
2.14(c)(iii), (iv) all capital stock, membership interests
and other equity interests owned by the Company or any
Subsidiary in all domestic Subsidiaries, and (v) all proceeds
and products thereof. The Additional Collateral shall
constitute part of the Collateral for all purposes of this
Agreement. The Company and its Subsidiaries shall (x)
execute and deliver or cause to be executed and delivered to
the Administrative Agent, and record or cause to be recorded
in all applicable recording offices, such mortgages, security
agreements, related collateral assignments and financing
statements, and such other documents, amendments, consents
and instruments (the "Additional Collateral Documents") as
the Administrative Agent shall request, all such Additional
Collateral Documents to be in form and substance satisfactory
to the Administrative Agent, (y) deliver or cause to be
delivered, at the Company's sole expense, to the
Administrative Agent such UCC lien searches, title
searches/title reports ("Title Searches/Title Reports"),
boundary surveys ("Boundary Surveys"), and opinions of
counsel with respect to the Additional Collateral as the
Administrative Agent may request, in form and substance
satisfactory to the Administrative Agent and the Majority
Lenders, and (z) take all other actions necessary or
desirable in the opinion of the Administrative Agent to
create valid and enforceable, first priority, perfected Liens
on the Additional Collateral. The Additional Collateral
Documents shall constitute Collateral Documents for all
purposes of this Agreement. The Administrative Agent
reserves the right to require at any time that the Company
furnish, at the Company's sole expense, such environmental
assessments and title insurance policies (with such
endorsements and coverage as the Administrative Agent shall
request), and additional surveys and other due diligence
materials (collectively, the "Additional Due Diligence
Materials"), each in form and substance satisfactory to the
Administrative Agent, with respect to any or all of the
Additional Collateral as the Administrative Agent may
determine in its sole discretion; provided, that it shall not
be a condition to the Additional Collateral Closing that the
Company furnish any Additional Due Diligence Materials prior
to the Additional Collateral Closing Date. The Company shall
promptly pay, or reimburse the Lenders for payment of, all
reasonable costs and expenses incurred in connection with
consummation of the transaction contemplated by this
subsection (c), including without limitation recording and
filing fees, stamp and recording taxes, title insurance
premiums, and Attorney Costs of the Administrative Agent.
The holders of the Yorktown Term Loan shall be permitted to
share in or otherwise take Liens on the Additional Collateral
(but not Liens on any other Collateral), provided that the
Agent for the holders of the Yorktown Term Loan and the
Administrative Agent shall have entered into an intercreditor
agreement providing, inter alia, that (1) all proceeds of
Additional Collateral (but not any other Collateral) shall be
shared pari passu and pro rata among the Lenders and the
holders of the Yorktown Term Loan in proportion determined,
in each case, after giving effect to the application of the
proceeds of all other collateral held by or for the benefit
of the Lenders or the holders of the Yorktown Term Loan, as
follows: (aa) as to the Lenders as a group, by dividing the
total outstanding Obligations (as the same may be increased
as hereinafter provided and including, for sake of clarity,
contingent reimbursement obligations under issued but undrawn
Letters of Credit) of all Lenders by the sum of the total
outstanding Obligations (as the same may be increased as
hereinafter provided and including, for sake of clarity,
contingent reimbursement obligations under issued but undrawn
Letters of Credit) of all Lenders plus the entire outstanding
amount of the Yorktown Term Loan (such principal amount
thereof not to exceed the unpaid principal amount thereof on
the Amendment Effective Date), as of any date of
determination, and (bb) as to the holders of the Yorktown
Term Loan as a group, by dividing the entire outstanding
amount of the Yorktown Term Loan (such principal amount
thereof not to exceed the unpaid principal amount thereof on
the Amendment Effective Date) by the sum of the total
outstanding Obligations (as the same may increased as
hereinafter provided and including, for sake of clarity,
contingent reimbursement obligations under issued but undrawn
Letters of Credit) of all Lenders plus the entire outstanding
amount of the Yorktown Term Loan (such principal amount
thereof not to exceed the unpaid principal amount thereof on
the Amendment Effective Date), as of any date of
determination, regardless of the time or order of creation or
perfection of such Liens, and (2) for so long as the
intercreditor agreement is in effect, the Lenders shall not
(aa) increase the total Commitments under this Agreement by
more than $25,000,000 more than the total Commitments in
effect on the Amendment Effective Date (nothing herein shall
constitute a commitment by any Lender to increase its
Commitment), and (yy) increase the advance rates with respect
to Eligible Refinery Hydrocarbon Inventory, Eligible
Lubricants Inventory, or Eligible Accounts Receivable from
the levels in effect on the Amendment Effective Date or amend
the Borrowing Base to include any components other than
Eligible Refinery Hydrocarbon Inventory, Eligible Lubricants
Inventory, or Eligible Accounts Receivable. The
intercreditor agreement shall contain such other terms and
provisions requested by the Administrative Agent and be in
form and substance satisfactory to the Administrative Agent
and the Majority Lenders.
The Company shall, and shall cause its Subsidiaries to,
use its and their best efforts to consummate all transactions
contemplated by this subsection (c) including, without
limitation, execution and delivery by the holders of the
Yorktown Term Loan of an intercreditor agreement in form and
substance satisfactory to the Administrative Agent and the
Majority Lenders, in a closing (the "Additional Collateral
Closing") as promptly as practicable after the Amendment
Effective Date; provided, that (i) the Additional Collateral
Closing shall occur not later than the date (such date,
including any extension thereof as hereinafter provided, the
"Additional Collateral Closing Deadline") which is 45
calendar days after the Amendment Effective Date and (ii) the
Company shall deliver, or cause to be delivered, the Title
Searches/Title Reports and the Boundary Surveys to the
Administrative Agent, in form and substance satisfactory to
the Administrative Agent, and shall execute and deliver or
cause to be executed and delivered to the Administrative
Agent, and record or cause to be recorded in all applicable
recording offices, such amendments or supplements to the
Additional Collateral Documents and such other documents,
consents, instruments and opinions as may be required or
requested by the Administrative Agent as a result of the
information set forth in the Title Searches/Title Reports and
the Boundary Surveys not later than the date (such date,
including any extension thereof as hereinafter provided, the
"Title Report/Boundary Survey Delivery Deadline") which is 90
calendar days after the Amendment Effective Date. The
Administrative Agent may, in its sole discretion, grant one
extension of the Additional Collateral Closing Deadline and
the Title Report/Boundary Survey Delivery Deadline of not
more than thirty (30) calendar days if the Administrative
Agent is satisfied that the Company and its Subsidiaries have
previously used their best efforts to consummate the
Additional Collateral Closing and meet the requirements of
clause (ii) above within such 45 or 90 calendar days,
respectively, as the case may be, and that the Additional
Collateral Closing is reasonably likely to be consummated,
and the requirements of clause (ii) above are reasonably
likely to be met, within such extensions."
(g) Amendment to Section 6.17 (Insurance). The Credit
Agreement is amended by amending Section 6.17 thereof in its
entirety as follows.
"6.17 Insurance. (a) The properties and business of
the Company and its Subsidiaries are insured under insurance
policies (the "Policies") with insurance companies ("Insurer"
or "Insurers"), in such amounts, with such deductibles and
covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
(b) Either (i) the Insurers are financially sound and
reputable insurance companies that are not Affiliates of the
Company, or (ii) the Insurer is a Subsidiary of the Company
("Subsidiary Insurer"), the Subsidiary Insurer has all
governmental approvals necessary to operate its business and
to comply with this Section 6.17 and Section 7.06(a), the
Subsidiary Insurer has in place agreement(s) with financially
sound and reputable insurance companies that are not
Affiliates of the Company ("Unaffiliated Insurers") providing
insurance coverage with such deductibles and covering such
risks as required by clause (a) of this Section 6.17, and
such agreements provide to the Administrative Agent and the
Lenders substantially the same rights as the Administrative
Agent and the Lenders would have if the Policies were issued
directly by the Unaffiliated Insurers, including without
limitation (w) the right to receive notice of cancellation
from the Unaffiliated Insurers, (x) clauses or endorsements
stating that the interest of and the rights of the
Administrative Agent and the Lenders vis-...-vis the
Unaffiliated Insurers shall not be impaired or invalidated by
any act or neglect of, or any bankruptcy, insolvency,
dissolution or other event with respect to, the Company, the
Subsidiary Insurer, or any other Subsidiary of the Company,
and (z) the right to enforce insurance coverage directly
against the Unaffiliated Insurer. The Company has delivered
to the Administrative Agent evidence of compliance with the
foregoing requirements."
(h) Amendment to Section 7.01 (Financial Statements). The
Credit Agreement is amended by amending Section 7.01 thereof by
changing the period at the end of existing subsection (b) thereof
to a colon, adding the word "and" at the end of existing
subsection (b), and adding the following as new subsection (c)
thereto:
"(c) As soon as available, but not later than 30 days
after the end of each month during the term hereof, financial
information concerning the Company and its Subsidiaries as of
the end of such month, by business line and by region, in
form and substance satisfactory to the Administrative Agent
and the Majority Lenders."
(i) Amendment to Section 7.03 (Notices). The Credit
Agreement is amended by amending Section 7.03 thereof by changing
the period at the end of existing subsection (i) thereof to a
colon, adding the word "and" at the end of existing subsection
(i), and adding the following as new subsection (j) thereto:
"(j) of the Disposition of any Scheduled Assets and the
Net Cash Proceeds received therefrom."
(j) Amendment to Section 7.06 (Insurance). The Credit
Agreement is amended by amending subsection (a) of Section 7.06 in
its entirety as follows:
"(a) The Company shall maintain insurance with respect
to its properties and business in accordance with the
requirements set forth in Section 6.17. Upon request by the
Administrative Agent, the Company shall deliver to the
Administrative Agent a copy of all Policies and all
agreements between any Subsidiary Insurer and any
Unaffiliated Insurer(s) (as such terms are defined in Section
6.17), together with such evidence as the Administrative
Agent may require demonstrating that the Policies and
agreements with Unaffiliated Insurers satisfy the
requirements of Section 6.17 and this Section 7.06."
(k) Amendment to Section 7.12 (New Subsidiary Guarantors;
New Subsidiary Security Agreements). The Credit Agreement is
amended by amending subsection (c) of Section 7.12 in its entirety
as follows:
"(c) Notwithstanding subsections (a) and (b) of this
Section 7.12, as long as (i) Navajo Convenient Stores Co.,
LLC has total assets with a book value of less than
$5,000,000 and has not guaranteed any Indebtedness, Navajo
Convenient Stores Co., LLC shall not be required to execute a
Supplemental Guaranty or a Security Agreement; (ii) Giant
Yorktown Holding Company has no assets and has not guaranteed
any Indebtedness other than the Subordinated Notes, Giant
Yorktown Holding Company shall not be required to execute a
Supplemental Guaranty or a Security Agreement; (iii) Giant
Southwest Refining has no assets and has not guaranteed any
Indebtedness, Giant Southwest Refining Company shall not be
required to execute a Supplemental Guaranty or a Security
Agreement; and (iv) Insurance Subsidiary has total assets
with a book value of less than $250,000 and has not
guaranteed any Indebtedness, Insurance Subsidiary shall not
be required to execute a Supplemental Guaranty or a Security
Agreement."
(l) Amendment to Section 7.12 (New Subsidiary Guarantors;
New Subsidiary Security Agreements). The Credit Agreement is
amended by amending Section 7.12 to add new subsection (d) as
follows:
"(d) Promptly after formation or acquisition of any new
Subsidiary, the Company shall, and shall cause each
Subsidiary owning shares, membership interests or other
equity interests in such Subsidiary to, (i)execute and
deliver to the Administrative Agent a Security Agreement in
form and substance satisfactory to the Administrative Agent,
creating Liens in all such shares, membership interests or
other equity interests in such Subsidiary in favor of the
Administrative Agent, the Lenders and the other Swap
Providers, together with any certificates evidencing such
shares of stock, membership interests or other equity
interests, stock powers executed in blank, and such financing
statements and other documents and instruments related
thereto as the Administrative Agent or the Majority Lender
may require, (ii) take all other actions necessary or, in the
opinion of the Administrative Agent or the Majority Lenders,
desirable to perfect and protect the first priority Liens
created by the Collateral Documents, and to enhance the
Administrative Agent's ability to preserve and protect its
interests in and access to the Collateral; and (iii) furnish
the Administrative Agent with a written opinion of counsel in
form and substance satisfactory to the Administrative Agent
or the Majority Lenders."
(m) Amendment (Dispositions Generating Net Cash Proceeds).
The Credit Agreement is amended by adding new Section 7.16 thereto
as follows:
"7.16 Dispositions Generating Net Cash Proceeds. The
Company has presented its business plan to the Lenders
whereby the Company proposes to Dispose of, for cash, the
Scheduled Assets in one or more transactions for not less
than an amount that is equal to their fair market value,
including Dispositions which are anticipated to generate not
less than $15,000,000 in Net Cash Proceeds on or prior to
June 30, 2003. The Company covenants and agrees to, and
shall cause its Subsidiaries to, consummate a sufficient
number of Dispositions of Scheduled Assets after October 1,
2002 and on or prior to June 30, 2003 to generate Net Cash
Proceeds of not less than $15,000,000 in the aggregate during
such period. If a Deposit Account Triggering Event has
occurred, all Net Cash Proceeds of Dispositions shall be
deposited in the Concentration Account."
(n) Amendment to Section 8.01 (Limitation on Liens). The
Credit Agreement is amended by amending subsection (a) of Section
8.01 in its entirety as follows:
"(a) (i) any Lien (other than a Lien on property
constituting Collateral) existing on the property of the
Company or any Subsidiary on the Execution Date and set forth
in Schedule 8.01 securing Indebtedness outstanding on such
date, (ii) Liens on the Yorktown Assets described in Schedule
8.01 owned by Giant Yorktown securing Giant Yorktown's
obligations under the Yorktown Term Loan Agreement, and (iii)
Liens on the Additional Collateral (but not on any other
Collateral) in favor of the holders of the Yorktown Term
Loan, securing Giant Yorktown's obligations under the
Yorktown Term Loan Agreement, provided, that such Liens shall
be subject to the terms of an intercreditor agreement between
the agent for the holders of Yorktown Term Loan and the
Administrative Agent, such intercreditor agreement to be in
form and substance satisfactory to the Administrative Agent
and the Majority Lenders."
(o) Amendment to Section 8.02 (Disposition of Assets).
Section 8.02 of the Credit Agreement is amended by deleting the
word "and" after existing subsection (c), adding the word
"unencumbered" before "assets" in each instance where the latter
appears in existing subsection (d), renumbering existing
subsection (d) as subsection (e), and by adding the following as
new subsection (d):
"(d) Dispositions of the Scheduled Assets by the Company
and of its Subsidiaries, in one or more transactions for
cash, for not less than an amount that is equal to their fair
market value; and"
(p) Amendment to Section 8.04 (Loans and Investments). The
Credit Agreement is amended by amending subsection (c) of Section
8.04 in its entirety as follows:
"(c) investments by the Company or any of its
Subsidiaries in any Subsidiary that, prior to such
investment, is a Wholly-Owned Subsidiary;"
(q) Amendment to Section 8.04 (Loans and Investments).
Section 8.04 of the Credit Agreement is amended by renumbering
existing subsection (e) as subsection (f), by changing the
reference in renumbered subsection (f) to subsection "(d)" to
subsection "(e)," and by adding the following as new subsection
(e):
"(e) loans and investments by the Company and its
Wholly-Owned Subsidiaries not to exceed $250,000 in the
aggregate from and after the Amendment Effective Date in the
capital stock, equity interests, and other obligations or
securities of a Wholly-Owned Subsidiary (the "Insurance
Subsidiary") formed de novo by the Company for the purpose of
acquiring property insurance solely for the Company and its
Subsidiaries. The Insurance Subsidiary shall take such
action as necessary to qualify as a Subsidiary Insurer; and"
(r) Amendment to Section 8.05 (Limitations on Indebtedness
and Contingent Obligations). Section 8.05 of the Credit Agreement
is amended by restating subsection (f) thereof in its entirety as
follows:
"(f) Contingent Obligations consisting of endorsements
for collections or deposit in the ordinary course of
business, and Surety Instruments consisting of surety bonds
issued for the account of the Company or any of its
Subsidiaries in the ordinary course of business not to exceed
$15,000,000 in the aggregate at any time outstanding;"
(s) Amendment to Section 8.12 (Minimum Consolidated Tangible
Net Worth). Section 8.12 of the Credit Agreement is amended in
its entirety as follows:
"Section 8.12. Minimum Consolidated Tangible Net
Worth. From and after October 1, 2002, the Company will
maintain at all times Consolidated Tangible Net Worth in an
amount not less than the sum of (i) $80,000,000, plus (ii)
50% of Consolidated Net Income computed on a cumulative basis
for the period beginning October 1, 2002 and ending on the
date of determination (provided that no negative adjustment
will be made in the event that Consolidated Net Income is a
deficit figure for such period), plus (iii) 75% of the
aggregate amount of the net assets (cash or otherwise)
received by the Company from the issuance of any class of
capital stock after October 1, 2002."
(t) Amendment to Section 8.13 (Minimum Fixed Charge Coverage
Ratio). Section 8.13 of the Credit Agreement is amended in its
entirety as follows:
"8.13. Minimum Fixed Charge Coverage Ratio. The
Company shall not permit the Fixed Charge Coverage Ratio as
of the end of any fiscal quarter during each period set forth
below to be less than the ratio set forth below opposite such
period:
From October 1, 2002 through June 30, 2003 1.00 to 1.00
From July 1, 2003 and thereafter 1.10 to 1.00"
(u) Amendment to Section 8.14 (Total Leverage Ratio).
Section 8.14 of the Credit Agreement is amended in its entirety as
follows:
"8.14. Total Leverage Ratio. The Company shall not
permit the Total Leverage Ratio at any time during each
period set forth below to be greater than the ratio set forth
below opposite such period:
From October 1, 2002 to December 31, 2002 6.50 to 1.00
From January 1, 2003 to March 31, 2003 7.50 to 1.00
From April 1, 2003 to June 30, 2003 7.00 to 1.00
From July 1, 2003 to September 30, 2003 5.50 to 1.00
From October 1, 2003 to December 31, 2003 4.50 to 1.00
From January 1, 2004 to March 31, 2004 4.00 to 1.00
April 1, 2004 and thereafter 3.75 to 1.00"
(v) Amendment (Minimum Quarterly Consolidated EBITDA). The
Credit Agreement is amended by adding new Section 8.19 thereto as
follows:
"8.19. Minimum Quarterly Consolidated EBITDA. The
Company shall not permit Consolidated EBITDA for any fiscal
quarter during each period set forth below at any time to be
less than the amount set forth below opposite such period:
From October 1, 2002 through March 31, 2003 $ 8,500,000
From March 31, 2003 and thereafter $15,000,000
For purposes of this Section 8.19 only, Consolidated EBITDA
shall be calculated without adjustments for the Yorktown
Acquisition (and the definition of Consolidated EBITDA is
amended, solely for purposes of this Section 8.19, to delete
the last sentence thereof)."
(w) Amendment (Limitation on Capital Expenditures). The
Credit Agreement is amended by adding new Section 8.20 thereto as
follows:
"8.20. Limitation on Capital Expenditures. The
Company shall not, and shall not permit any of its
Subsidiaries to, make or become contractually obligated to
make any Capital Expenditure (other than Margin Payments
treated as Capital Expenditures), except for Capital
Expenditures (other than Margin Payments treated as Capital
Expenditures) in the ordinary course of business not
exceeding, in the aggregate for the Company and its
Subsidiaries during each period set forth below, the amount
set forth opposite such period:
From October 1, 2002 through December 31, 2002 $ 6,000,000
From January 1, 2003 through March 31, 2003 $ 6,000,000
From April 1, 2003 through June 30, 2003 $ 8,000,000
From July 1, 2003 through September 30, 2003 $ 18,000,000
From October 1, 2003 through December 31, 2003 $ 12,000,000;
provided, that so long as no Default has occurred and is
continuing or would result from such expenditure, any portion
of any amount set forth above, if not expended in the quarter
for which it is permitted above, may be carried over for
expenditures in successive quarters.
(x) Amendment to Section 9.01(c) (Specific Defaults).
Section 9.01(c) of the Credit Agreement is amended in its entirety
as follows:
"(c) Specific Defaults. The Company (i) fails to
perform or observe any term, covenant or agreement contained
in Section 2.14(c), 7.02(a), 7.02(f), 7.03(a), 7.06, 7.14,
7.16, 8.12, 8.13, 8.14, 8.15, 8.19 or 8.20; or (ii) fails to
perform or observe any term, covenant or agreement contained
in Article VIII (which is not specified in the foregoing
clause (c)(i)), and such default shall continue unremedied
for a period of 15 days after the occurrence thereof; or"
(y) Amendment to Section 9.01 (Additional Collateral
Closing). Section 9.01 of the Credit Agreement is further amended
by changing the period at the end of existing subsection (p)
thereof to a colon, adding the word "or" at the end of subsection
(p), and adding new subsection (q) thereto as follows:
"(q) Additional Collateral Closing. The Additional
Collateral Closing does not for any reason occur on or prior
to the Additional Collateral Closing Deadline or the Company
does not perform its covenants and agreements set forth in
clause (ii) of the second paragraph of Section 2.14(c) hereof
by the TitleReport/Boundary Survey Delivery Deadline."
(z) Amendment - Schedule 2.02. The Credit Agreement is
amended by amending Schedule 2.02 as follows: Schedule 2.02 shall
be consist of two parts: Schedule 2.02A and Schedule 2.02B;
existing Schedule 2.02 shall be renumbered as Schedule 2.02A and
Schedule 2.02B hereto shall be added to the Credit Agreement as
Schedule 2.02B thereto. The pricing terms set forth in Schedule
2.02A shall be in effect from the Execution Date through and
including September 30, 2002 for purposes of determining
Applicable Margins, Risk Participation Fees and Commitment Fees;
and the pricing terms set forth in Schedule 2.02B shall be in
effect at all times on and after October 1, 2002 for purposes of
determining Applicable Margins, Risk Participation Fees and
Commitment Fees. All references in the Credit Agreement to
"Schedule 2.02" are amended to read "Schedule 2.02A or Schedule
2.02B, as applicable."
(aa) Amendment - Schedule 2.14(c)(iii). The Credit Agreement
is amended by adding Schedule 2.14(c)(iii) hereto as Schedule
2.14(c)(iii) thereto.
(bb) Amendment - Schedule 8.02. The Credit Agreement is
further amended by adding Schedule 8.02 hereto as Schedule 8.02
thereto.
(cc) Amendment - Schedule 8.05. The Credit Agreement is
further amended by deleting existing Schedule 8.05 and
substituting therefor Schedule 8.05 hereto.
SECTION 3. Representations and Warranties. In order to induce
the Administrative Agent and the Lenders to enter into this
Amendment, the Company represents and warrants to the
Administrative Agent and to each Lender that:
(a) This Amendment, the Credit Agreement as amended hereby
and each Loan Document have been duly authorized, executed and
delivered by the Company and the applicable Loan Parties and
constitute their legal, valid and binding obligations enforceable
in accordance with their respective terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors'
rights generally and to general principles of equity).
(b) The representations and warranties set forth in Article
VI of the Credit Agreement are true and correct in all material
respects on and as of the Amendment Effective Date, after giving
effect to, as if made on and as of the Amendment Effective Date.
(c) As of the date hereof, at the time of and after giving
effect to this Amendment, no Default or Event of Default (other
than the Specified Defaults (as hereinafter defined)) has occurred
and is continuing.
(d) Except as related to the Leay Acres landfill site
located in San Juan County, New Mexico, as described in Giant
Industries' most recently filed Annual Report on Form 10-Q, no
event or circumstance has occurred that has resulted or would
reasonably be expected to result in a Material Adverse Effect.
(e) No approval, consent, exemption, authorization or other
action by, or notice to, or filing (other than filings required
under Section 2.14(c) of the Agreement as amended hereby) with,
any Governmental Authority is necessary or required in connection
with the execution and delivery of this Amendment or the
performance by the Company or any Loan Party of its obligations
hereunder. This Amendment has been duly authorized by all
necessary corporate action, and the execution, delivery and
performance of this Amendment and the documents and transactions
contemplated hereby does not and will not (a) contravene the terms
of the Company's or any Loan Party's Organization Documents; (b)
conflict with or result in any breach or contravention of, or
result in or require the imposition or creation of any Lien under,
any document evidencing any material Contractual Obligation to
which the Company or any Loan Party is a party or any order,
injunction, writ or decree of any Governmental Authority to which
the Company or any Loan Party is subject; or (c) violate any
Requirement of Law.
SECTION 4. Specified Defaults; Limited Forbearance; Waiver
upon Satisfaction of Conditions; Payment of Default Interest.
(a) The Company acknowledges that (i) it is or may be in
default of its obligations under Section 8.12 of the Credit Agreement
regarding Minimum Consolidated Tangible Net Worth for the fiscal
quarter ended September 30, 2002, and from September 30, 2002 up
to and including the Amendment Effective Date, and (ii) it is in
default of its obligations under Section 8.14 of the Credit
Agreement regarding Total Leverage Ratio for the fiscal quarter
ended September 30, 2002 (the "Specified Defaults").
(b) Unless the written waiver as provided in subsection (c)
below has been delivered to the Company by the Administrative
Agent, neither the Administrative Agent, the Issuing Bank nor any
Lender shall be deemed to have waived the Specified Defaults or
its or their right to decline Requests for Borrowing, Notices of
Conversion/Continuation, or L/C Applications or L/C Amendment
Applications, as a result of entering into this Amendment.
Subject to the foregoing, the Administrative Agent, the Issuing
Bank and the Lenders agree to forbear from exercising its or their
rights and remedies (excluding, however, the right to give a
Control Notice, such right being expressly reserved by the
Administrative Agent, the Issuing Bank and the Lenders) arising as
a result of the occurrence of the Specified Defaults for (but
solely for) the period (the "Forbearance Period") commencing on
the Amendment Effective Date and ending on the earlier to occur
of: (i) 5:00 p.m. (Houston time) on October 30, 2002 or such later
date as may be agreed by the Majority Lenders, (ii) the occurrence
of any Default or Event of Default other than the Specified
Defaults, (iii) the occurrence of a Material Adverse Effect, (iv)
one or more holders of the Yorktown Term Loan states that it will
not amend the Yorktown Term Loan Documents to contain
representations, warranties, covenants and conditions no more
restrictive than those contained in the Agreement, as amended or
proposed to be amended by this Amendment, with the result that
such amendment of the Yorktown Term Loan Documents fails to
receive approval of the requisite holders of the Yorktown Term
Loan to effect such amendment, or (v) any holder of the Yorktown
Term Loan accelerates maturity of the Yorktown Term Loan, or takes
any other action to enforce its or their rights and remedies under
the Yorktown Term Loan Documents. Such agreement to forbear shall
automatically, and without action, notice, demand or any other
occurrence, expire on and as of the end of the Forbearance Period.
The Administrative Agent, the Issuing Bank and the Lenders
expressly reserve their rights, at any time after the Forbearance
Period, to proceed to enforce any or all of their rights and
remedies under or in respect of the Credit Agreement or the Loan
Documents and applicable law which are available as a result of
the occurrence of the Specified Defaults. This agreement to
forbear shall apply only to the Specified Defaults; no forbearance
with respect to any other Default or Event of Default, whether
presently existing or hereafter arising, is agreed to hereby.
This agreement to forbear is not a commitment by the
Administrative Agent, the Issuing Bank or any Lender to honor any
Requests for Borrowing, Notices of Conversion/Continuation, or L/C
Applications or L/C Amendment Applications during the Forbearance
Period, it being expressly acknowledged by the Company that
neither the Issuing Bank nor any Lender is under any obligation to
do so. Any Loans which the Lenders choose to make, any
continuations or conversions of Interest Rate Types or Interest
Periods, and any Letters of Credit which Issuing Bank chooses to
issue, renew or extend, during the Forbearance Period are being
made, issued, continued, converted, renewed or extended without
waiver and without prejudice to the rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders under the
Credit Agreement and the Loan Documents.
(c) If all of the conditions set forth in Section 5(b) of
this Amendment have been satisfied prior to the expiration of the
Forbearance Period, as determined by the Administrative Agent in
its sole discretion, the Lenders shall waive (i) the Specified
Default resulting from non-compliance by the Company with Section
8.12 of the Credit Agreement regarding Minimum Consolidated
Tangible Net Worth during the fiscal quarter ended September 30,
2002 and the period from September 30, 2002 up to and including
the Amendment Effective Date only, and (ii) the Specified Default
resulting from non-compliance by the Company with Section 8.14 of
the Credit Agreement regarding Total Leverage Ratio for the fiscal
quarter ended September 30, 2002. Such waiver shall apply only to
the Specified Defaults for the periods set forth herein. The
Lenders hereby authorize the Administrative Agent to deliver the
waiver pursuant this Section 3(b) on their behalf without further
action or consent by such Lenders. No waiver with respect to any
other Default or Event of Default, whether presently existing or
hereafter arising, is agreed to thereby.
(d) The Company agrees to pay interest on the principal
amount of all outstanding Revolving Loans at the rate set forth in
Section 2.08(b)(iii) of the Credit Agreement from and after
September 30, 2002 through and including the date on which all of
the conditions precedent set forth in Section 5(b) of this First
Amendment are satisfied in full. If all of the conditions
precedent set forth in Section 5(b) of this First Amendment are
satisfied in full prior to expiration of the Forbearance Period,
then interest on Revolving Loans shall accrue from and after such
date at the applicable rate with respect to such Revolving Loans
set forth in Section 2.08(b)(i) of the Credit Agreement. The
Administrative Agent, the Issuing Bank and the Lenders expressly
reserve all rights with respect to interest after an Event of
Default in the event all of the conditions precedent set forth in
Section 5(b) of this First Amendment are not satisfied in full
prior to expiration of the Forbearance Period.
SECTION 5. (a) Conditions of Effectiveness. The amendments
to the Credit Agreement set forth in Section 1 of this First
Amendment shall be effective upon satisfaction of the following
conditions precedent:
(i) Amendment. The Administrative Agent shall have
received counterparts of this Amendment duly executed by the
Company, the Loan Parties, the Administrative Agent, and the
Majority Lenders.
(ii) Amendment Fee. The Company shall have paid the
amendment fee described in Section 6 of this First Amendment,
and all accrued, unpaid fees, costs and expenses owed
pursuant to this First Amendment, the Credit Agreement or any
other agreement related thereto, to the extent then due and
payable, together with Attorney Costs of the Administrative
Agent to the extent then invoiced prior to or on the closing
date of this Amendment.
(b) Conditions to Effectiveness of Other Amendments.
Notwithstanding any other provision of this First Amendment, the
amendments to the Credit Agreement set forth in Section 2 of this
First Amendment shall not be effective until satisfaction of the
conditions precedent set forth in Section 5(a) of this First
Amendment and satisfaction of the following additional conditions
precedent not later than expiration of the Forbearance Period or
such later date as may be agree by the Majority Lenders:
(i) No Default under, and Amendment of, Yorktown Term
Loan. Evidence satisfactory to the Administrative Agent that
(i) the Yorktown Term Loan Documents have been amended to
contain representations, warranties, covenants and conditions
no more restrictive than those contained in the Agreement, as
amended by this Amendment; and shall not be in conflict with
the Agreement, as amended by this Amendment; and (ii) no
default or event of default shall exist under the Yorktown
Term Loan or Yorktown Term Loan Documents.
(ii) Resolutions. (i) Resolutions of the board of
directors of the Company authorizing the execution and
delivery of this Amendment, certified by the Secretary or an
Assistant Secretary of the Company; (ii) if not previously
delivered to the Administrative Agent, a certificate of the
Secretary or Assistant Secretary of the Company/applicable
Guarantor certifying the names and true signatures of the
officers of the Company and the Guarantors authorized to
execute and deliver this Amendment.
(iii) Opinions. The Administrative Agent shall have
received opinions of counsel to the Loan Parties in form and
substance satisfactory to the Administrative Agent and its
counsel.
(iv) No Material Adverse Effect. Except as disclosed
in writing to the Administrative Agent and the Lenders prior
to the Amendment Effective Date, no event or circumstance has
occurred that has resulted or would reasonably be expected to
result in a Material Adverse Effect.
(v) No Default. As of such effective date, at the
time of and after giving effect to the waiver pursuant to
this Amendment, no Default or Event of Default has occurred
and is continuing.
(vi) Payment of Fees. The Company shall have paid all
accrued, unpaid fees, costs and expenses owed pursuant to
this Amendment, the Credit Agreement or any other agreement
between the Company and the Administrative Agent or any
Lender, to the extent then due and payable, together with
Attorney Costs of the Administrative Agent to the extent then
invoiced prior to or on the closing date of this Amendment.
(vii) Other. The Administrative Agent shall have
received such other approvals, opinions and documents as the
Administrative Agent deems appropriate.
Upon satisfaction of the foregoing conditions precedent set
forth in this Section 5(b), the Administrative Agent shall notify
the Company and the Lenders in writing, and the date set forth in
such notice shall be the effective date of the amendments to the
Credit Agreement set forth in Section 2 of this First Amendment.
SECTION 6. Amendment Fee. The Company agrees to pay to the
Administrative Agent for the account of each Lender which timely
executes a counterpart of this Amendment, in accordance with its
Pro Rata Share, an amendment fee equal to 0.25% of the total
Commitments. Such amendment fee shall be due and payable in full
on the date of execution of this Amendment by the Company and such
Lender, shall be fully earned when due and payable, and shall be
in addition to any other fee, cost or expense payable pursuant to
the Credit Agreement.
SECTION 7. Costs, Expenses and Taxes. The Company agrees to
pay on demand reasonable Attorney Costs of the Administrative
Agent and all other costs and expenses of the Administrative
Agent, the Issuing Bank and the Lenders in connection with the
preparation, execution and delivery of this Amendment and the
mortgages, assignments, security agreements, financing statements
and other documents and instruments contemplated hereby. In
addition, the Company shall pay any and all stamp and other taxes
and fees payable or determined to be payable in connection with
the execution and delivery, filing or recording of this Amendment
and the other documents and instruments to be executed and
delivered hereunder, and agrees to save the Administrative Agent,
the Issuing Bank and the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
SECTION 8. Effect of Amendment. This Amendment (i) except as
expressly provided herein, shall not be deemed to be a consent to
the modification or waiver of any other term or condition of the
Credit Agreement or of any of the instruments or agreements
referred to therein and (ii) shall not prejudice any right or
rights which the Administrative Agent, the Issuing Bank or the
Lenders may now have under or in connection with the Credit
Agreement, as amended by this Amendment. Except as otherwise
expressly provided by this Amendment, all of the terms, conditions
and provisions of the Credit Agreement shall remain the same. It
is declared and agreed by each of the parties hereto that the
Credit Agreement, as amended hereby, shall continue in full force
and effect, and that this Amendment and such Credit Agreement
shall be read and construed as one instrument. The Company and
each of the other Loan Parties hereby confirm and agree that all
Liens and other security now or hereafter held by the
Administrative Agent for the benefit of the Lenders as security
for payment of the Obligations are the legal, valid and binding
obligations of the Company and the Loan Parties, remain in full
force and effect, are unimpaired by this Amendment, and are hereby
ratified and confirmed as security for payment of the Obligation.
SECTION 9. RELEASE. EACH OF THE COMPANY AND THE LOAN PARTIES,
AND EACH OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, SUCCESSORS,
AND ASSIGNS (COLLECTIVELY, THE "RELEASORS") HEREBY RELEASES AND
FOREVER DISCHARGES EACH OF THE ADMINISTRATIVE AGENT, THE ISSUING
BANK AND EACH LENDER, AND EACH OF THEIR RESPECTIVE SHAREHOLDERS,
SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ATTORNEYS, PREDECESSORS, SUCCESSORS AND ASSIGNS, BOTH PRESENT AND
FORMER (COLLECTIVELY, TOGETHER WITH THE ADMINISTRATIVE AGENT, THE
ISSUING BANK AND THE LENDERS, THE "LENDER AFFILIATES"), OF AND
FROM ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, DEBTS,
CONTROVERSIES, DAMAGES, JUDGMENTS, EXECUTIONS, CLAIMS AND DEMANDS
WHATSOEVER, ASSERTED OR UNASSERTED, AT LAW OR IN EQUITY, AGAINST
ANY OF THE LENDER AFFILIATES WHICH ANY RELEASOR EVER HAD OR NOW
HAS ON THE DATE HEREOF UPON OR BY REASON OF ANY MANNER, CAUSE,
CAUSES OR THING WHATSOEVER, WHETHER PRESENTLY EXISTING, SUSPECTED
OR UNSUSPECTED, KNOWN OR UNKNOWN, FIXED OR CONTINGENT, DIRECT OR
INDIRECT, CONTEMPLATED OR ANTICIPATED, ARISING OUT OF OR IN
CONNECTION WITH THE CREDIT AGREEMENT OR THE LOAN DOCUMENTS.
SECTION 10. Authorization to Administrative Agent. By
execution of a counterpart of this Amendment, each of the Lenders
does hereby authorize the Administrative Agent to execute and
deliver with respect to the Additional Collateral an intercreditor
agreement in form and substance satisfactory to the Administrative
Agent and the Majority Lenders.
SECTION 11. Miscellaneous. This Amendment shall for all
purposes be construed in accordance with and governed by the laws
of the State of New York and applicable federal law. The captions
in this Amendment are for convenience of reference only and shall
not define or limit the provisions hereof. This Amendment may be
executed in separate counterparts, each of which when so executed
and delivered shall be an original, but all of which together
shall constitute one instrument. In proving this Amendment, it
shall not be necessary to produce or account for more than one
such counterpart. This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
[SIGNATURES BEGIN ON NEXT PAGE]
THE CREDIT AGREEMENT (AS AMENDED BY THIS AMENDMENT) AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the date and year first above
written.
GIANT INDUSTRIES, INC.
By: /S/ GARY R. DALKE
----------------------
Name: Gary Dalke
Title: C.A.O.
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A., as
Administrative Agent, as Letter of
Credit Issuing Bank and as a Lender
By: /s/ CLAIRE LIU
--------------------------------
Claire M. Liu
Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF SCOTLAND
By: /S/ JOSEPH FRATUS
---------------------------
Name: Joseph Fratus
Title: First Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BNP PARIBAS
By: /S/ MARK A. COX
--------------------------
Name: Mark A. Cox
Title: Director
By: /S/ GREG SMOTHERS
--------------------------
Name: Greg Smothers
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
COMERICA BANK-CALIFORNIA
By: /S/ PETER F. FITZPATRICK
----------------------------
Name: Peter F. Fitzpatrick
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FLEET NATIONAL BANK
By: /S/ CHRISTOPHER C. HOLMGREN
------------------------------
Name: Christopher C. Holmgren
Title: Managing Director
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
HIBERNIA NATIONAL BANK
By: /S/ NANCY G. MORAGAS
---------------------------
Name: Nancy G. Moragas
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
RZB FINANCE LLC
By: /S/ P. GEFFERS
----------------------------
Name: Pearl Geffers
Title: First Vice President
By: /S/ JOHN A. VALISKA
----------------------------
Name: John A. Valiska
Title: Group Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
WELLS FARGO BANK, N.A.
By: /S/ ART KRASNY
----------------------------
Name: Art Krasny
Title: Relationship Manager
THIS IS A SIGNATURE PAGE TO THE GIANT INDUSTRIES, INC. FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
RATIFICATION AND AGREEMENT
Each of the undersigned Loan Parties hereby consents to and
accepts the terms and conditions of the foregoing Amendment and
the transactions contemplated thereby, agrees to be bound by the
terms and conditions thereof, including without limitation the
Release of the Lender Affiliates provided for in Section 9
thereof, and ratifies and confirms that each of the Loan Documents
to which it is a party is, and shall remain, in full force and
effect after giving effect to the foregoing Amendment.
GIANT INDUSTRIES ARIZONA, INC.,
GIANT FOUR CORNERS, INC.,
DEGUELLE OIL COMPANY,
GIANT MID-CONTINENT, INC.,
GIANT STOP-N-GO OF NEW MEXICO, INC.,
SAN JUAN REFINING COMPANY,
CINIZA PRODUCTION COMPANY,
PHOENIX FUEL CO., INC.,
GIANT PIPELINE COMPANY, and
GIANT YORKTOWN, INC.
as Loan Parties
By: /S/ GARY R. DALKE
------------------------------
Name: Gary R. Dalke
in each case, as Controller
SCHEDULE 2.02B
PRICING CHART
(Expressed in percent per annum)
Letter of
Base Credit Risk
Total LIBOR Rate Participation Commitment
Level Leverage Ratio Margin Margin Fee Fee
I Less than or equal
to 2.50 3.25% 2.25% 3.25% 0.50%
II Greater than 2.50, 3.50% 2.50% 3.50% 0.50%
but less than or
equal to 3.50
III Greater than 3.50 3.75% 2.75% 3.75% 0.50%
Each adjustment of the Applicable Margins, the Risk Participation Fee and
the Commitment Fee shall be made by the Administrative Agent and shall be
effective as of the earlier of (a) the date upon which the Company delivers
a Compliance Certificate to the Administrative Agent pursuant to Section
7.02(b) reflecting a changed pricing level (accompanied and supported by the
financial statements with respect to which such Compliance Certificate is
required to be delivered) and (b) the date upon which the Company is
required by Section 7.02(b) to deliver such Compliance Certificate;
provided, however, that, if a Compliance Certificate is not delivered by the
date required in Section 7.02(b), then, subject to the other provisions of
this Agreement, commencing on the date such Compliance Certificate was
required until such Compliance Certificate is delivered, the Applicable
Margins, the Risk Participation Fee and the Commitment Fee shall be those
indicated for Level III, and from and after the date such Compliance
Certificate is thereafter received, the Applicable Margins, the Risk
Participation Fee and the Commitment Fee shall be as determined from such
Compliance Certificate.
Notwithstanding any provision of the foregoing to the contrary, the Applicable
Margins, the Risk Participation Fee and the Commitment Fee shall be those
indicated for Level III for the period commencing on the Amendment Effective
Date and continuing through the date upon which the Company delivers a
Compliance Certificate to the Administrative Agent pursuant to Section
7.02(b) reflecting a changed pricing level (accompanied and supported by the
financial statements with respect to which such Compliance Certificate is
required to be delivered), but in any event not earlier than the date upon
which the Company delivers the Compliance Certificate for the fiscal quarter
ended September 30, 2002.
SCHEDULE 2.14(c)(iii)
SERVICE STATIONS AND CONVENIENCE STORES
[See the following pages]
SCHEDULE 2.14(c)(iii)
Retail Store Directory
Intersection Store Bldg. NBV
Store# Title Mailing/Physical Address Vicinity City ST Zip County Brand Size Type 08/31/02
3101 Fee 517 W. Broadway Farmington NM 87401 San Juan Conoco/Mustang 515 C-Store 371,138
3103 Fee PO Box 295; 4151 US Hwy. 64 Kirtland NM 87417 San Juan Giant 2400 C-Store 912,707
6002 Fee 2654 E. Hwy 66 Gallup NM 87301 McKinley Conoco/Giant 1800 U/Canopy 652,265
6004 Fee 531 E. Broadway Farmington NM 87401 San Juan Giant 1800 C-Store 453,762
6005 Fee 6100 San Mateo NE Albuquerque NM 87109 Bernalillo Conoco/Giant 3324 C-Store 494,899
6011 Fee 201 Rio Bravo SW Albuquerque NM 87105 Bernalillo Giant 4028 C-Store 1,350,736
6014 Fee 3341 E. Main St. Farmington NM 87401 San Juan Giant 1400 U/Canopy 583,592
6015 Fee 3603 Hwy 528 Albuquerque NM 87114 Bernalillo Conoco/Giant 1320 C-StoreU/C 778,750
6020 Fee 201 Coors Rd. NW Albuquerque NM 87105 Bernalillo Giant 2048 C-Store 801,256
6023 Fee 3730 Cerrillos Rd. Santa Fe NM 87505 Santa Fe Giant 1,486,561
6024 Fee 4720 Tramway NE Albuquerque NM 87111 Bernalillo Conoco 1838 C-StoreU/C 827,096
6025 Fee 2930 Coors Rd. NW Albuquerque NM 87120 Bernalillo Conoco/Giant 1600 C-StoreU/C 893,396
6026 Fee 1897 Coors Rd. SW Albuquerque NM 87105 Bernalillo Conoco/Giant 2178 C-Store 708,229
6027 Fee 6104 Academy NE Albuquerque NM 87109 Bernalillo Conoco/Giant 2178 C-Store 999,972
6033 Fee 3524 Hwy 47 Los Lunas NM 87031 Valencia Conoco/Giant 3700 C-Store 642,238
6034 Fee 135 Candelaria Rd. NW Albuquerque NM 87107 Bernalillo Conoco/Giant 2178 C-Store 667,520
6035 Fee 10400 Central SE Albuquerque NM 87123 Bernalillo Conoco/Giant 2178 C-Store 757,680
6036 Fee 224 Hwy 44 Bernalillo NM 87004 Sandoval Conoco/Giant 2633 C-Store 771,036
6037 Fee 1050 Hwy 528 Rio Rancho NM 87124 Sandoval Conoco/Giant 3250 C-Store 1,007,143
6038 Fee 6242 4th St. NW Rancho de
Albuquerque NM 87107 Bernalillo Conoco/Giant 2178 C-Store 783,835
6041 Fee 9690 Golf Course Rd. NW Albuquerque NM 87114 Bernalillo Conoco/Giant 3203 C-Store 853,220
6043 Fee 233 Main St. SE Los Lunas NM 87031 Valencia Conoco/Giant 2720 C-Store 661,933
6044 Fee 122 Aztec Blvd. Aztec NM 87410 San Juan Express/Giant 9.5 U/Canopy 612,455
6046 Fee 2691 Sawmill Rd. Santa Fe NM 87505 Santa Fe Giant 4325 C-Store 1,362,500
6047 Fee 220 Bloomfield Blvd. Bloomfield NM 87413 San Juan Shamrock 421,157
6048 Fee PO Box 116; 6385 Hwy. 44 Cuba NM 87013 Sandoval Mustang 820 C-Store 322,946
6049 Fee 862 E. Main Farmington NM 87401 San Juan Mustang 765 C-Store 490,388
7118 Fee 17401 US 550 Aztec NM 87410 San Juan Mustang 1504 C-Store 738,035
7168 Fee 118 Hwy. 44 West Bernalillo NM 87004 Sandoval Mustang 2100 C-StoreU/C 90,713
7183 Fee 902 N. Riverside Dr. Espanola NM 87532 Rio Arriba Mustang 1430 C-StoreU/C 252,031
7197 Fee 321 Main Ave. Aztec NM 87410 San Juan Mustang 1104 C-Store 414,878
7200 Fee PO Box 741; 6475 Main Cuba NM 87013 Sandoval Conoco/Mustang 3300 C-Store 721,956
7204 Fee HCR 4, Box 20; Hwy. 666 Gallup NM 87301 McKinley Mustang 6450 C-Store 1,695,049
7210 Fee 204 S. Bloomfield Blvd. Bloomfield NM 87413 San Juan Mustang 3990 C-Store 1,162,472
7211 Fee 2700 W. Main Farmington NM 87401 San Juan Mustang 2950 C-Store 1,282,241
7214 Fee 602 W. Broadway Bloomfield NM 87413 San Juan Mustang 1932 C-Store 235,167
7218 Fee 5702 Hwy. 64 Farmington NM 87401 San Juan Conoco/Mustang 2650 C-Store 744,228
7227 Fee 416 N. Main Aztec NM 87410 San Juan Mustang 4355 C-Store 728,291
7239 Fee State Rte 4, Box 3000 Bloomfield NM 87413 San Juan Mustang 1830 C-Store 316,444
7240 Fee 3001 Bloomfield Hwy. Farmington NM 87401 San Juan Mustang 2650 C-Store 289,141
7257 Fee PO Box 609; Hwy. 371 Thoreau NM 87323 McKinley Mustang 11025 C-Store 582,958
7270 Fee 3215 Hwy. 64 Waterflow NM 87421 San Juan Mustang 1,506,040
7278 Fee Box 28; 5th & Joseph Estancia NM 87016 Torrance Mustang 2180 C-Store 428,981
7283 Fee 1224 S. Main St. Belen NM 87002 Valencia Mustang 730 C-Store 241,875
7292 Fee PO Box 15186; 1020 Farmington NM 87401 San Juan Mustang 3690 C-Store 788,810
7293 Fee 401 W. Hwy. Bernalillo NM 87004 Sandoval Conoco/Giant 870 C-Store 1,325,742
7294 Fee Rte 3 Box 151; Hwy. 285 Espanola NM 87532 Santa Fe Mustang 1176 C-Store 120,597
7295 Fee PO Box 3047; 610 W Hwy 66 Milan NM 87021 Cibola Mustang 432 U/Canopy 66,799
7297 Fee PO Box 1858; 5180 Hwy. 68 Rancho
de Taos NM 87557 Taos Mustang 1525 C-Store 547,452
7310 Fee PO Box 1443 Waterflow NM 87421 San Juan Mustang 2996 C-Store 1,266,669
7408 Fee 3340 E. Hwy. 66 Gallup NM 87301 McKinley Mustang 1377 C-Store 362,357
7409 Fee 3302 W. Hwy. 66 Gallup NM 87301 McKinley Conoco/Mustang 1537 C-Store 432,818
7445 Fee 1312 Bridge SW Albuquerque NM 87105 Bernalillo Gasman Kiosk 104,991
7549 Fee 650 Bosque Farms Blvd. BosqueFarms NM 87068 Valencia Conoco/Giant 759,955
7554 Fee 822 Camino Sierra Vista Santa Fe NM 87501 Santa Fe Mustang Kiosk 286,675
7556 Fee 1500 San Juan Blvd. Farmington NM 87401 San Juan Mustang 700 119,454
7557 Fee 800 E. Coal Gallup NM 87301 McKinley Mustang 1720 16,060
Total 38,297,289
SCHEDULE 8.02
SCHEDULED ASSETS
Store Address City State
6906 945 N. Arizona Ave. Chandler AZ
6911 1807 10th Street Douglas AZ
6801 344 S. Power Rd. Mesa AZ
6915 6807 E. Baseline Rd. Mesa AZ
6918 2743 S. Alma School Rd. Mesa AZ
6908 300 Hwy. 70 Safford AZ
6902 2946 W. Hwy. 70 Thatcher AZ
6921 7366 N. Oracle Road Tucson AZ
6922 2100 W. Ruthrauff Rd. Tucson AZ
6923 1530 W. St. Mary's Road Tucson AZ
6924 761 W. Ajo Tucson AZ
6925 1202 W. Ajo Tucson AZ
6929 9491 E. 22nd St. Tucson AZ
6931 3780 W. Magee Rd. Tucson AZ
6900 201 N. Haskell Wilcox AZ
6917 3559 E. University Mesa AZ
6904 7630 E. McDowell Rd. Scottsdale AZ
6909 3301 N. Hayden Rd. Scottsdale AZ
6916 1951 E. Baseline Gilbert AZ
6910 7450 W. Thomas Rd. Phoenix AZ
7553 2504 Broadway SE Albuquerque NM
6907 1405 E. Ash Globe AZ
6903 2120 Hwy. 60/70 Miami AZ
6927 4479 W. Ina Rd. Tucson AZ
7442 3501 Isleta Blvd., SW Albuquerque NM
7291 Hwy. 371 Thoreau NM
7111 20329 Hwy 160 West Durango CO
7219 138 W. Main, Hwy. 60 Springerville AZ
6829 4740 E. Dynamite Blvd. Cave Creek AZ
6001 7035 North 35th Avenue Phoenix AZ
6802 1143 North Ellsworth Road Mesa AZ
6811 7810 North Silverbell Road Marana AZ
6812 10505 North Oracle Road Oro Valley AZ
6813 12885 North Oracle Road Oro Valley AZ
6901 825 Monroe Buckeye AZ
6912 5103 West Peoria Glendale AZ
6919 4180 West Ina Road Tucson AZ
6926 6500 South 12th Avenue Tucson AZ
6930 2750 South Kolb Road Tucson AZ
6051 4335 Highway 64 Kirtland NM
6928 6608 E. Main Mesa AZ
7150 2401 Main Ave. Durango CO
7559 435 Bosque Farms Blvd. Bosque Farms NM
7185 510 N. 666 Gallup NM
933 Greenfield @ Warner Gilbert AZ
803 I-10 @ Palo Verde - Raw Land Phoenix AZ
31-X Southern - Raw Land Albuquerque NM
19 Tanque Verde@Houghton-Raw Land Tucson AZ
806/22 22nd Street & Prudence-Raw Land Tucson AZ
841 Elmore Property - Hwy 160 East Durango CO
27-X 6104 Academy NE Albuquerque NM
800 Behind #48, NM SR 147 Cuba NM
T.C.X. Jamestown Excess Property Gallup NM
6052 Hwy 66 Milan NM
Travel Center Jamestown NM
Kingman - Raw Land
Safford - Raw Land
91st and Bell - Raw land
Headquarters Scottsdale AZ
Jomax - Raw Land Scottsdale AZ
Tamarron Condos Durango CO
SCHEDULE 8.05
CERTAIN PERMITTED INDEBTEDNESS
1. The Company and Giant Arizona:
DESCRIPTION BALANCE
Miscellaneous $ 500,000 (estimate)
TOTAL $ 500,000
==========
2. Phoenix:
DESCRIPTION BALANCE
David G. & Judith G. Scott $ 63,740.77
Chrysler Credit Corporation $ 6,869.29
Capital Lease
Naumann Hobbs $ 8,225.82
Capital Lease -------------
$ 78,835.88
=============
3. Obligations of Giant Four Corners, Inc. under the Master
Lease and Option Agreement executed pursuant to, and in the
form attached as Exhibit B to, the Definitive Agreement dated
April 18, 1997 by and between Giant Four Corners, Inc. as
"Buyer" and Thriftway Marketing Corp. and Clayton Investment
Company, collectively as "Seller", and the Associated
Purchase and Sale Agreements to such Definitive Agreement,
not to exceed $6,702,831.72 in the aggregate, such
obligations to be guaranteed by Giant Arizona.
4. The Company is Issuer of, and the Subsidiaries that are
Guarantors hereunder are Guarantors of, the $150,000,000 9%
Senior Subordinated Notes Due 2007, pursuant to the Indenture
dated as of August 26,1997.
5. The Company is Issuer of, and the Subsidiaries that are
Guarantors hereunder are Guarantors of, the $200,000,000 11%
Senior Subordinated Notes Due 2012, pursuant to Indenture
dated as of May 14, 2002.
6. Surety Bonds up to a maximum of $15,000,000. (See attached
Listing)
Date Type of Bond Number Limit
1-1 Nevada License - Special Fuel Supplier 400SP7743 $383,600
1-1 Nevada Excise Tax - Fuel Tax 400SP7744 $502,900
1-1 Aviation, Liquid use and Motor Vehicle Fuel Bond SK1590 $100,000
1-1 Aviation, Liquid use and Motor Vehicle Fuel Bond - PF SK1591 $100,000
1-8 Nevada - Motor Fuel Bond 400SP7745 $1,000
1-12 Reservation Business Bond #756 SK1576 $10,000
1-12 Performance Bond #756 SK1577 $8,400
1-12 Reservation Business Bond #7233 SK1578 $10,000
1-12 Reservation Business Bond #7251 SK1579 $10,000
1-12 Reservation Business Bond #7252 SK1580 $10,000
1-12 Reservation Business Bond #7255 SK1586 $10,000
1-12 Reservation Business Bond #7263 SK1587 $10,000
1-12 Reservation Business Bond #7266 SK1588 $10,000
1-12 Reservation Business Bond #7267 SK1589 $10,000
1-25 Contract Postal Unit Bond #3106 SK1582 $4,000
1-26 Reservation Business Bond #3106 SK1584 $10,000
1-26 Reservation Business Bond #3107 400KA2115 $10,000
1-26 Reservation Business Bond #3108 SK1583 $10,000
1-26 Reservation Business Bond #3105 SK1585 $10,000
1-30 Reservation Bond #7225 KA2110 $10,000
1-30 Performance Bond #7225 KA2111 $10,000
1-30 Reservation Bond #3603 KA2112 $10,000
1-30 Performance Bond #3603 KA2113 $10,000
2-1 Performance Bond #3105 400KA2116 $16,500
2-1 Performance Bond #3106 400KA2117 $15,000
2-3 Performance Bond #7233 SK1575 $10,000
2-3 Performance Bond #7252 SK1595 $10,000
2-3 Performance Bond #7251 SK1596 $10,000
2-3 Performance Bond #7255 SK1597 $10,000
2-3 Performance Bond #7266 SK1598 $10,000
2-3 Performance Bond #7263 400KA2121 $10,000
2-3 Performance Bond #7267 400KA2122 $24,000
2-7 Fuel Distributor's License Bond SK1581 $600,000
2-7 Fuel Distributor's License Bond 400KA2120 $1,000
2-10 Performance Bond #3107 400KA2118 $17,000
2-10 Performance Bond #3108 400KA2119 $19,500
2-28 Performance Bond #245 SK1592 $10,000
2-28 Performance Bond #254 SK1593 $10,000
2-28 Reservation Business Bond #7202 SK1599 $10,000
2-28 Reservation Business Bond #7245 SK1600 $10,000
2-28 Reservation Business Bond #7254 SK1601 $10,000
2-28 Performance Bond #7202 SK1602 $10,000
3-3 Fuel Distributor's License Bond - PF SK1594 $5,000
3-8 Performance Bond, City of Chandler - PF SK1604 $5,000
3-16 Contract Postal Unit Bond #266 SK1605 $3,000
3-16 Contract Postal Unit Bond #263 SK1606 $2,500
3-17 Petroleum Weights and Measures SK1608 $1,000
3-28 US Dept. of Treasury Fuel Bond - PF SK1607 $200,000
4-10 Continuous Customs Bond - Yorktown I01127 $100,000
4-19 Foreign Trade Zone Bond - Yorktown I01128 $260,000
5-10 Virginia Natural Gas - Yorktown ST1623 $90,000
5-12 Wildlife Bond #7229 SK1611 $75,000
5-14 Fuel Tax Bond - Yorktown SK1603 $2,000,000
5-27 Purchase Livestock Bond #7265 SK1614 $10,000
5-30 Performance Bond #7253 SK1613 $10,000
5-30 Dealers & Packers Bond #7265 SK1612 $10,000
5-31 Motor Fuel Dealers/User/Seller - Yorktown SK1624 $210,000
Beginning Date 4-1
6-3 SRP Utility Bond ST1624 $29,345
6-11 Utah-Motor Fuel Tax Bond SK1621 $35,000
6-16 Fish & Wildlife Bond SK1619 $2,500
6-24 Tucson Electric Power Co. SK1616 $47,000
7-1 Utah, Fuel Tax Bond SK1622 $35,000
7-10 New Mexico Weighmaster Bond SK1618 $1,000
7-10 Reservation Business Bond #7253 SK1620 $10,000
7-19 City of Phoenix Surety Bond SK1615 $1,000
7-31 City of Mesa, Performance Bond - PF $100,000
8-1 Motor Fuels Tax Bond - Yorktown ST1637 $2,000,000
8-9 Performance Bond #6812 $5,210
8-9 Landscaping Performance Bond #6812 $30,552
8-9 Performance Bond #6802 $16,600
8-13 Fish & Wildlife Bond #5109 ST1627 $2,500
8-13 Fish & Wildlife Bond #7601 ST1630 $2,500
8-13 Fish & Wildlife Bond #7266 ST1628 $2,500
8-13 Fish & Wildlife Bond #3108 ST1625 $2,500
8-13 Fish & Wildlife Bond #7204 ST1626 $2,500
8-13 Fish & Wildlife Bond #7251 ST1629 $2,500
8-27 Contract Postal Unit Bond - T.C. ST1613 $11,000
9-4 New Mexico Alcohol Server Training Bond ST1634 $5,000
9-26 Texas Gasoline/Diesel Fuel Bond - PF ST1631 $490,000
9-26 City of Mesa/Unified School Dist. Fuel Bond - PF $100,000
9-26 Texas Gasoline/Diesel Fuel Bond - PF ST1632 $330,000
9-27 New Mexico Damage Bond for Right of Way ST1633 $2,500
10-3 One-Well Plugging Bond- New Mexico $30,000
10-17 Gasoline/Diesel Fuel Excess Tax - Oklahoma $100,000
11-15 Administrative Appeal Bond $93,889.23
11-21 Surety Bond for Waste Mgt. - New Mexico $25,000
12-2 Navajo Reservation Business Bond #7601 $10,000
12-2 Navajo Reservation Business Bond #7249 $10,000
12-2 Navajo Reservation Business Bond #7269 $10,000
12-31 Landscaping Bond - Oro Valley $27,516
12-31 Restoration Bond - Oro Valley $55,238
12-31 Newmont Realty Bond - Guarantee Lease Agreement 400KA2114 $10,000
Total $8,692,750.23