EXHIBIT 10.3
Execution Copy
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SECOND AMENDMENT TO LOAN AGREEMENT
AND OMNIBUS AMENDMENT
Dated as of October 28, 2002
in respect of
GIANT YORKTOWN, INC.
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SECOND AMENDMENT
TO LOAN AGREEMENT
AND OMNIBUS AMENDMENT
This SECOND AMENDMENT TO LOAN AGREEMENT AND OMNIBUS AMENDMENT (this
"Amendment") dated as of October 28, 2002 is among GIANT YORKTOWN, INC.,
a Delaware corporation (the "Borrower"), GIANT INDUSTRIES, INC., a
Delaware corporation ("Giant Industries"), GIANT INDUSTRIES ARIZONA, INC.,
an Arizona corporation ("Giant Arizona", and together with Giant
Industries, the "Parent Guarantors"), WELLS FARGO BANK NEVADA, NATIONAL
ASSOCIATION, a national banking association, not in its individual
capacity (except as specifically set forth herein), but solely in its
capacity as collateral agent (the "Collateral Agent"), and each of the
Persons listed on the signature pages hereto as a Lender (each, a
"Lender").
RECITALS:
A. The Borrower, the Collateral Agent and the Lenders have
heretofore entered into that certain Loan Agreement (as amended by that
certain Amendment to Loan Agreement and Omnibus Amendment dated as of
May 22, 2002, and as further amended, supplemented or otherwise
modified from time to time, the "Loan Agreement") dated as of May 14,
2002. Giant Industries and Giant Arizona have heretofore entered into
that certain Parent Guaranty Agreement (as amended by that certain
Amendment to Loan Agreement and Omnibus Amendment dated as of May 22,
2002, and as further amended, supplemented or otherwise modified from
time to time, the "Parent Guaranty") dated as of May 14, 2002.
Capitalized terms used, but not otherwise defined in this Amendment,
shall have those meanings assigned to such terms in Section 1 to the
Loan Agreement, as amended hereby.
B. The parties hereto desire to amend the Loan Agreement and
certain of the other Operative Documents.
C. All requirements of law have been fully complied with and all
other acts and things necessary to make this Amendment a valid, legal
and binding instrument according to its terms for the purposes herein
expressed have been done or performed.
NOW, THEREFORE, in consideration of good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT.
Section 1.1. Section 1. (a) Section 1 of the Loan Agreement
shall be and is hereby amended by amending and restating in their
entirety the following definitions to read as follows:
""Applicable Lender Margin" shall mean, at any time of
determination of the LIBO Rate, 5.50% per annum."
""Base Rate" shall mean, on any day with respect to the
Loan Balance, the rate per annum equal to the higher of (a) the
Federal Funds Rate for such day plus 1.75% and (b) the Prime Rate
for such day plus 3.25%. Any change in the Base Rate due to a
change in the Federal Funds Rate or the Prime Rate shall be
effective on the effective date of such change in the Federal
Funds Rate or the Prime Rate, without notice to the Borrower or
any Guarantor."
""Consolidated Funded Indebtedness" means, for Giant
Industries 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 Giant Industries
or a Subsidiary, and (c) any guaranty obligations in respect of
any of the foregoing."
""Fixed Charge Coverage Ratio" means:
(x) as of any date of determination from the Closing 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 Giant
Industries 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 Giant Industries' and its Subsidiaries'
Indebtedness during such period, plus (iv) Margin Payments made
by Giant Industries 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 Giant Industries' 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."
(b) Section 1 of the Loan Agreement shall be and is hereby
further amended by inserting in alphabetical order the following new
defined terms:
""Additional Collateral" has the meaning assigned to it in
Section 6(u) of the Parent Guaranty."
""Additional Collateral Closing" has the meaning assigned
to it in Section 6(u) of the Parent Guaranty."
""Additional Collateral Closing Deadline" has the meaning
assigned to it in Section 6(u) of the Parent Guaranty."
""Additional Collateral Documents" has the meaning assigned
to it in Section 6(u) of the Parent Guaranty."
""Additional Due Diligence Materials" has the meaning
assigned to it in Section 6(u) of the Parent Guaranty."
""Amendment Effective Date" means October 28, 2002."
""Attorney Costs" means and includes all reasonable fees
and disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements
of internal counsel."
""Capital Expenditures" means, for any period, expenditures
(including, without limitation, the aggregate amount of Capital
Lease Obligations incurred during such period) made by Giant
Industries or any of its Consolidated Subsidiaries to acquire or
construct fixed assets, plant and equipment (including renewals,
improvements and replacements thereof) during such period
computed in accordance with GAAP."
""Capital Lease Obligations" means, for any Person, all
obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) Property
to the extent such obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such
Person under GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board),
and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined
in accordance with GAAP (including such Statement No. 13)."
""Collateral" means all property and interests in property
and proceeds thereof now owned or hereafter acquired by the
Borrower or any Parent Guarantor and their respective
Subsidiaries in or upon which a Lien now or hereafter exists in
favor of the Lenders, or the Collateral Agent on behalf of the
Lenders, whether under the Deed of Trust or under any other
document executed by any such Person and delivered to the
Collateral Agent or the Lenders."
""Collateral Documents" means, collectively, (a) the Deed
of Trust and all other security agreements, mortgages, deeds of
trust, patent and trademark assignments, lease assignments,
guarantees and other similar agreements executed by the Borrower
or any Parent Guarantor and their respective Subsidiaries for the
benefit of the Lenders now or hereafter delivered to the Lenders
or the Collateral Agent pursuant to or in connection with the
transactions contemplated hereby, and all financing statements
(or comparable documents now or hereafter filed in accordance
with the UCC or comparable law) against the Borrower or any
Parent Guarantor and their respective Subsidiaries as debtor in
favor of the Lenders or the Collateral Agent for the benefit of
the Lenders as secured party, and (b) any amendments,
supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the
foregoing."
""Insurance Subsidiary" has the meaning assigned to in
Section 6A(d) of the Parent Guaranty."
""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 Giant Industries 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, Giant
Industries 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."
""Revolving Credit Lenders" shall mean the "Lenders" under
the Giant Industries Credit Agreement."
""Revolving Loans" shall have the meaning assigned thereto
in the Giant Industries Credit Agreement."
""Scheduled Assets" means the assets listed on Schedule
6(t) to the Parent Guaranty, which Giant Industries has
represented are not subject to any Liens other than Liens in
favor of the Revolving Credit Lenders."
Section 1.2. Section 8.1 (a) Subparagraph (c) of Section 8.1 of
the Loan Agreement shall be and is hereby amended and restated in its
entirety to read as follows:
"(c) Specific Defaults. Giant Industries or Borrower, as
the case may be, (i) fails to perform or observe any term,
covenant or agreement contained in Section 6(b)(i), 6(c)(i),
6(f), 6(n), 6(r), 6(t), 6(u), 6A(l), 6A(m), 6A(n), 6A(o), 6A(s)
or 6A(t) of the Parent Guaranty or Section 3.2, 3.5, 3.7 or
Section 5 of this Loan Agreement; or (ii) fails to perform or
observe any term, covenant or agreement contained in Section 6A
of the Parent Guaranty (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"
(b) Section 8.1 of the Loan Agreement shall be and is hereby
amended by deleting the period at the end of Subparagraph (q) thereof
and substituting therefor a semicolon and the word "or", and adding
the following as a new Subparagraph (r) thereto:
"(r) Additional Collateral Closing. The Additional
Collateral Closing does not for any reason occur on or prior to
the Additional Collateral Closing Deadline or Giant Industries
does not perform its covenants and agreements set forth in clause
(ii) of the second paragraph of Section 6(u) of the Parent
Guaranty by the Title Report/Boundary Survey Delivery Deadline."
Section 1.3. Exhibit E-6. Exhibit E-6 to the Loan Agreement
shall be and is hereby amended and restated in its entirety to read as
Exhibit A attached hereto.
SECTION 2. AMENDMENTS TO PARENT GUARANTY.
Section 2.1. Section 5. (a) Subparagraph (q) of Section 5 of the
Parent Guaranty shall be and is hereby amended and restated in its
entirety to read as follows:
"(q) Insurance. (i) The properties and business of Giant
Industries 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 Giant Industries or such Subsidiary operates.
(ii) Either (1) the Insurers are financially sound and
reputable insurance companies that are not Affiliates of Giant
Industries, or (ii) the Insurer is a Subsidiary of Giant
Industries ("Subsidiary Insurer"), the Subsidiary Insurer has all
governmental approvals necessary to operate its business and to
comply with this Section 5(q) and Section 6(f)(i), the Subsidiary
Insurer has in place agreement(s) with financially sound and
reputable insurance companies that are not Affiliates of Giant
Industries ("Unaffiliated Insurers") providing insurance coverage
with such deductibles and covering such risks as required by
clause (i) of this Section 5(q), and such agreements provide to
the Collateral Agent and the Lenders substantially the same
rights as the Collateral Agent and the Lenders would have if the
Policies were issued directly by the Unaffiliated Insurers,
including without limitation (x) the right to receive notice of
cancellation from the Unaffiliated Insurers, (y) clauses or
endorsements stating that the interest of and the rights of the
Collateral 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, Giant Industries, the Subsidiary Insurer,
or any other Subsidiary of Giant Industries, and (z) the right to
enforce insurance coverage directly against the Unaffiliated
Insurer. Giant Industries has delivered to the Collateral Agent
and the Lenders evidence of compliance with the foregoing
requirements."
Section 2.2. Section 6. (a) Subparagraph (a) of Section 6 of
the Parent Guaranty shall be amended by deleting the period at the end
of existing clause (ii) thereof and substituting therefor a semicolon
and the word "and", and adding the following as a new clause (iii)
thereto:
"(iii) As soon as available, but not later than 30
days after the end of each month during the term hereof,
financial information concerning Giant Industries and its
Subsidiaries by business line and by region as of the end
of such month, substantially in the form of
Schedule 6(a)(iii) hereto, and otherwise in form and
substance satisfactory to the Collateral Agent and the
Required Lenders."
(b) Subparagraph (b) of Section 6 of the Parent Guaranty shall be
amended by amending and restating clause (i) thereof as follows:
"(i) As soon as available, but not later than 12:00
noon (Dallas, Texas time) on the last Business Day of each
week, the Borrowing Base Report delivered to the
"Administrative Agent" and the "Lenders" under the Giant
Industries Credit Agreement;"
(c) Subparagraph (c) of Section 6 of the Parent Guaranty shall
be amended by adding a new clause (xi) thereto to read as follows:
"(xi) of the Disposition of any Scheduled Assets and
the Net Cash Proceeds received therefrom."
(d) Subparagraph (f) of Section 6 of the Parent Guaranty shall
be amended by amending and restating clause (i) thereof as follows:
"(i) Giant Industries shall maintain insurance with
respect to its properties and business in accordance with
the requirements set forth in Section 5(q). Upon request
by the Collateral Agent, Giant Industries shall deliver to
the Collateral 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 5(q)), together with such evidence as the
Collateral Agent may require demonstrating that the
Policies and agreements with Unaffiliated Insurers satisfy
the requirements of Section 5(q) and this Section 6(f)(i)."
(e) Subparagraph (l) of Section 6 of the Parent Guaranty shall be
amended by amending and restating clause (iii) thereof as follows:
"(iii) Notwithstanding subsection (i) of this
Section 6(l), as long as (A) 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; (B) 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;
(C) 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; and (D) 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."
(f) Subparagraph (l) of Section 6 of the Parent Guaranty shall be
amended by adding a new clause (iv) thereof to read as follows:
"(iv) Promptly after formation or acquisition of any
new Subsidiary, Giant Industries shall, and shall cause
each Subsidiary owning shares, membership interests or
other equity interests in such Subsidiary to, (A) execute
and deliver to the Collateral Agent a security agreement in
form and substance satisfactory to the Required Lenders
creating Liens in all such shares, membership interests or
other equity interests in such Subsidiary, in favor of the
Collateral Agent and the Lenders, 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 Collateral Agent or
the Required Lenders may require, (B) take all other
actions necessary or, in the opinion of the Collateral
Agent or the Required Lenders, desirable to perfect and
protect the first priority Liens created by such security
agreement, and to enhance the Collateral Agent's ability to
preserve and protect its interests in and access to such
shares, membership interests or other equity interests, and
(C) furnish the Collateral Agent with a written opinion of
counsel in form and substance satisfactory to the Required
Lenders."
(g) The following shall be added as new Subparagraphs (t) and (u)
of Section 6 of the Parent Guaranty:
"(t) Dispositions Generating Net Cash Proceeds. Giant
Industries has presented its business plan to the Lenders whereby
Giant Industries 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. Giant Industries
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.
(u) Additional Security. As additional security for payment
of the Obligations, Giant Industries and its Subsidiaries shall
grant first priority, perfected Liens in favor of the Collateral
Agent or an independent collateral agent or trustee acceptable to
the Required Lenders as secured party and/or mortgagee, as
applicable, for the benefit of the Lenders and the Revolving
Credit Lenders 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 Giant Industries and its Subsidiaries located in the State of
New Mexico listed on Schedule 6(u)(iii), (iv) all capital stock,
membership interests and other equity interests owned by Giant
Industries 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 the
Operative Documents. Giant Industries and its Subsidiaries shall
(x) execute and deliver or cause to be executed and delivered to
the Collateral Agent and the Lenders, 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
Required Lenders shall request, all such Additional Collateral
Documents to be in form and substance satisfactory to the
Required Lenders, (y) deliver or cause to be delivered, at Giant
Industries' sole expense, to the Collateral Agent and the Lenders
such U.C.C. lien searches, title searches/title reports ("Title
Searches/Title Reports"), boundary surveys (the "Boundary
Surveys") and opinions of counsel with respect to the Additional
Collateral as the Required Lenders may request, in form and
substance satisfactory to the Required Lenders, and (z) take all
other actions necessary or desirable in the opinion of the
Required Lenders 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 the Operative Documents. The Required Lenders
reserve the right to require at any time that Giant Industries
furnish, at Giant Industries' sole expense, such environmental
assessments and title insurance policies (with such endorsements
and coverage as the Required Lenders shall request), and
additional surveys and other due diligence materials
(collectively, the "Additional Due Diligence Materials"), each in
form and substance satisfactory to the Required Lenders, with
respect to any or all of the Additional Collateral as the
Required Lenders may determine in their sole discretion;
provided, that it shall not be a condition to the Additional
Collateral Closing that Giant Industries furnish any Additional
Due Diligence Materials prior to the Additional Collateral
Closing Date. Giant Industries 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 (u), including without limitation
recording and filing fees, stamp and recording taxes, title
insurance premiums, and Attorney Costs of the Collateral Agent
and the Lenders. The Revolving Credit Lenders shall be permitted
to share in or otherwise take Liens on the Additional Collateral
(but not Liens on the Mortgaged Property), provided that the
Collateral Agent and the Administrative Agent for the Revolving
Credit Lenders 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 Revolving Credit
Lenders 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 Revolving Credit
Lenders as follows: (aa) as to the Revolving Credit Lenders as a
group, by dividing the total outstanding Obligations (as defined
in the Giant Industries Credit Agreement as in effect on the
Amendment Effective Date and as the same may be increased as
hereinafter provided and including, for the sake of clarity,
contingent reimbursement obligations under issued but undrawn
letters of credit) of all Revolving Credit Lenders by the sum of
the total outstanding Obligations (as defined in the Giant
Industries Credit Agreement as in effect on the Amendment
Effective Date and as the same may be increased as hereinafter
provided and including, for the sake of clarity, contingent
reimbursement obligations under issued but undrawn letters of
credit) of all Revolving Credit Lenders plus the entire
outstanding amount of the Obligations (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 Lenders as a group, by dividing the entire
outstanding amount of the Obligations (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 defined in the Giant Industries Credit Agreement
as in effect on the Amendment Effective Date and as the same may
be increased as hereinafter provided and including, for the sake
of clarity, contingent reimbursement obligations under issued but
undrawn letters of credit) of all Revolving Credit Lenders plus
the entire outstanding amount of the Obligations (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 Revolving Credit
Lenders shall not (aa) increase the total commitments under the
Giant Industries Credit Agreement by more than $25,000,000 more
than the total commitments in effect on the Amendment Effective
Date and (bb) shall not increase the advance rates with respect
to Eligible Refinery Hydrocarbon Inventory, Eligible Lubricants
Inventory, or Eligible Accounts Receivable (as such terms are
defined in the Giant Credit Agreement) 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 (as such terms are defined in the Giant Industries
Credit Agreement). The intercreditor agreement shall otherwise
contain such other terms and provisions requested by the Required
Lenders and be in form and substance satisfactory to the
Collateral Agent and the Required Lenders.
Giant Industries shall, and shall cause its Subsidiaries
to, use its and their best efforts to consummate all transactions
contemplated by this subsection (u) including, without
limitation, execution and delivery by the Revolving Credit
Lenders or their agent of an intercreditor agreement in form and
substance satisfactory to the Collateral Agent and the Required
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) Giant Industries shall deliver, or cause
to be delivered, the Title Searches/Title Reports and the
Boundary Surveys to the Collateral Agent and the Lenders in form
and substance satisfactory to the Collateral Agent and the
Required Lenders, and shall execute and deliver or cause to be
executed and delivered to the Collateral Agent and the Lenders,
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
Required Lenders 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 Required Lenders may, in their sole
discretion, grant one extension of each of the Additional
Collateral Closing Deadline and the Title Report/Boundary Survey
Delivery Deadline of not more than 30 calendar days if the
Required Lenders are satisfied that Giant Industries 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 reasonable likely to be
met, within such extensions."
Section 2.3. Section 6A. (a) Clause (i) of Subparagraph (a) of
Section 6A of the Parent Guaranty shall be and is hereby amended and
restated in its entirety to read as follows:
"(i) (A) any Lien (other than a Lien on property
constituting Mortgaged Property) existing on property of
Giant Industries or any Subsidiary on the Closing Date and
set forth in Schedule 6A(a) securing Indebtedness
outstanding on such date, (B) Liens on the Yorktown Assets
described in Schedule 6A(a) securing Borrower's obligations
under the Loan Agreement and (C) Liens on the Additional
Collateral (but not on any other Mortgaged Property) in
favor of the holders of the loans under the Giant
Industries Credit Agreement, securing the "Obligations"
under the Giant Industries Credit Agreement, provided, that
such Liens shall be subject to the terms of an
intercreditor agreement between the Collateral Agent, the
Lenders and Administrative Agent for the holders of the
loans under the Giant Industries Credit Agreement, such
intercreditor agreement to be in form and substance
satisfactory to the Collateral Agent and the Required
Lenders."
(b) Clauses (iv) and (v) of Subparagraph (b) of Section 6A of the
Parent Guaranty shall be and are hereby amended and restated in their
entirety to read as follows:
"(iv) Dispositions of the Scheduled Assets by Giant
Industries 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; provided that Giant
Industries shall apply the Net Cash Proceeds in respect
thereof to the prepayment of the Revolving Loans in
accordance with Section 2.07(e) of the Giant Industries
Credit Agreement; and
(v) Dispositions of unencumbered assets not otherwise
permitted hereunder which are made for fair market value,
provided, that (i) at the time of any such Disposition, no
Event of Default shall exist or shall result from such
Disposition, and (ii) the aggregate book value of
unencumbered assets disposed of by Giant Industries and its
Subsidiaries in any fiscal year, beginning with fiscal year
2002, shall not exceed $5,000,000."
(c) Subparagraph (d) of Section 6A of the Parent Guaranty shall
be and is hereby amended by amending and restating existing clauses
(iii), (iv) and (v) as new clauses (iii) through (vi) below::
"(iii) investments by Giant Industries or any of its
Subsidiaries in any Subsidiary that, prior to such
investment, is a Wholly-Owned Subsidiary;
(iv) extensions of credit described in
Schedule 6(A)(d) through and including the maturity date
thereof, but not any increases or renewals;
(v) loans and investments by Giant Industries 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 Giant Industries for the
purpose of acquiring property insurance solely for Giant
Industries and its Subsidiaries. The Insurance Subsidiary
shall take such action as necessary to qualify as a
Subsidiary Insurer; and
(vi) investments by Giant Industries and its
Subsidiaries not otherwise permitted in Section 6A(d)(i)
through Section 6A(d)(v), which do not exceed $1,000,000 in
the aggregate at any time outstanding."
(d) Clause (vii) of Subparagraph (e) of Section 6A of the Parent
Guaranty shall be and is hereby amended and restated in its entirety
to read as follows:
"(vii) 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 Giant Industries or
any of its Subsidiaries in the ordinary course of business
not to exceed $15,000,000 in the aggregate at any time
outstanding;"
(e) Subparagraphs (l), (m) and (n) of Section 6A of the Parent
Guaranty shall be and are hereby amended and restated in their
entirety to read as follows:
"(l) Minimum Consolidated Tangible Net Worth. From and
after October 1, 2002, Giant Industries 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 Giant Industries from the issuance of any
class of capital stock after October 1, 2002.
(m) Minimum Fixed Charge Coverage Ratio. Giant Industries
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:
Minimum Fixed
Period Charge Coverage
Ratio
From October 1, 2002 through June 30, 2003 1.00 to 1.00
From July 1, 2003 and thereafter 1.10 to 1.00
(n) Total Leverage Ratio. Giant Industries 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:
Maximum Total
Period Leverage Ratio
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"
(f) The following shall be added as new Subparagraphs (s) and
(t) of Section 6A of the Parent Guaranty:
"(s) Minimum Quarterly Consolidated EBITDA. Giant Industries
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:
Minimum
Period Consolidated
EBITDA
From October 1, 2002 through March 31, 2003 $ 8,500,000
From April 1, 2003 and thereafter $15,000,000
For purposes of this Section 6A(s) 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 6(s), to delete the
last sentence thereof).
(t) Limitation on Capital Expenditures. Giant Industries
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 Giant Industries and
its Subsidiaries during each period set forth below, the amount
set forth opposite such period:
Maximum
Period Capital
Expenditures
From October 1, 2002 to December 31, 2002 $ 6,000,000
From January 1, 2003 to March 31, 2003 $ 6,000,000
From April 1, 2003 to June 30, 2003 $ 8,000,000
From July 1, 2003 to September 30, 2003 $ 18,000,000
From October 1, 2003 to 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."
Section 2.4. Schedule 6(a)(iii). Exhibit B attached hereto shall
be and is hereby inserted as Schedule 6(a)(iii) to the Parent
Guaranty.
Section 2.5. Schedule 6(u)(iii). Exhibit C attached hereto shall
be and is hereby inserted as Schedule 6(u)(iii) to the Parent
Guaranty.
Section 2.6. Schedule 6A(b). Exhibit D attached hereto shall be
and is hereby inserted as Schedule 6A(b) to the Parent Guaranty.
Section 2.7. Schedule 6A(e). Schedule 6A(e) to the Parent
Guaranty shall be and is hereby amended and restated as Exhibit E
attached hereto.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Collateral Agent and the Lenders to enter
into this Amendment, the Borrower and the Parent Guarantors each
represent and warrant to the Collateral Agent and to each Lender that:
(a) This Amendment, the Loan Agreement and the Parent
Guaranty (each as amended hereby) and each other Operative
Document have been duly authorized, executed and delivered by the
Borrower and the Parent Guarantors 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 Section
2 of the Loan Agreement and Section 5 of the Parent Guaranty 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, NM, 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 6(u) of the Parent Guaranty, 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 Borrower or either Parent Guarantor 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 Borrower's or either Parent
Guarantor'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 Borrower or
either Parent Guarantor is a party or any order, injunction, writ
or decree of any Governmental Authority to which the Borrower or
either Parent Guarantor is subject; or (c) violate any
Requirement of Law.
SECTION 4. WAIVER OF SPECIFIED DEFAULTS.
(a) Giant Industries acknowledges that (i) it is or may be in
default of its obligations under Section 6A(l) of the Parent Guaranty
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 6A(n) of the Parent Guaranty
regarding Total Leverage Ratio for the fiscal quarter ended September
30, 2002 (the "Specified Defaults").
(b) The Lenders hereby waive (i) the Specified Default resulting
from non-compliance by Giant Industries with Section 6A(l) of the
Parent Guaranty 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
Giant Industries with Section 6A(n) of the Parent Guaranty 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. No waiver with respect to any other Default or
Event of Default, whether presently existing or hereafter arising, is
agreed to hereby.
SECTION 5. EFFECTIVENESS.
This Amendment shall become effective on October 28, 2002 (the
"Effective Date") upon the satisfaction of the following conditions
precedent not later than October 30, 2002 or such later date as may be
agreed by the Required Lenders:
(a) Amendment. The Collateral Agent and the Lenders shall
have received counterparts of this Amendment duly executed by
Giant Industries, Giant Arizona, the Borrower, the Constituent
Company Guarantors, the Collateral Agent, and the Required
Lenders.
(b) Amendment Fee. Giant Industries shall have paid the
amendment fee described in Section 6 of this Amendment, and all
accrued, unpaid fees, costs and expenses owed pursuant to this
Amendment, the Operative Documents or any other agreement related
thereto, to the extent then due and payable, together with
Attorney Costs of the Collateral Agent and the Lenders to the
extent then invoiced prior to or on the closing date of this
Amendment.
(c) No Default under, and Amendment of, Giant Industries
Credit Agreement. Giant Industries shall have provided evidence
satisfactory to the Collateral Agent and the Lenders that (i) the
Giant Industries Credit Agreement has been amended to contain
representations, warranties, covenants and conditions no more
restrictive than those contained in the Operative Documents, as
amended by this Amendment; and shall not be in conflict with the
Operative Documents, as amended by this Amendment; and (ii) no
default or event of default shall exist under the Giant
Industries Credit Agreement.
(d) Resolutions. The Collateral Agent and the Lenders shall
have received (i) resolutions of the board of directors of the
Parent Guarantors and the Borrower authorizing the execution and
delivery of this Amendment, certified by the Secretary or an
Assistant Secretary of each such entity; (ii) if not previously
delivered to the Collateral Agent and the Lenders, a certificate
of the Secretary or Assistant Secretary of the Parent Guarantors
and the Borrower certifying the names and true signatures of the
officers of each such entity authorized to execute and deliver
this Amendment.
(e) Opinions. The Collateral Agent and the Lenders shall
have received opinions of counsel to the Parent Guarantors and
the Borrower in form and substance satisfactory to the Collateral
Agent, the Lenders and their counsel.
(f) No Material Adverse Effect. Except as disclosed in
writing to the Collateral 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.
(g) 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.
(h) Payment of Fees. Giant Industries shall have paid all
accrued, unpaid fees, costs and expenses owed pursuant to this
Amendment, the Operative Documents or any other agreement between
the Parent Guarantors and the Borrower and the Collateral Agent
or any Lender, to the extent then due and payable, together with
Attorney Costs of the Collateral Agent to the extent then
invoiced prior to or on the closing date of this Amendment.
(i) Other. The Lenders shall have received such other
approvals, opinions and documents as the Lenders deem
appropriate.
Upon satisfaction of the foregoing conditions precedent set forth in
this Section 5, the Collateral Agent shall notify Giant Industries and
the Lenders in writing, and the date set forth in such notice shall be
the effective date of this Amendment.
SECTION 6. AMENDMENT FEE.
Giant Industries agrees to pay to the Collateral Agent for the
account of each Lender which timely executes a counterpart of this
Amendment, an amendment fee equal to 0.25% of such Lender's
Commitment. Such amendment fee shall be due and payable in full on
the date of execution of this Amendment by Giant Industries 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
Operative Documents.
SECTION 7. COSTS, EXPENSES AND TAXES.
Giant Industries agrees to pay on demand reasonable Attorney
Costs of the Lenders and the Collateral Agent and all other costs and
expenses of the Lenders and the Collateral Agent 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,
Giant Industries 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 Collateral Agent 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. ACKNOWLEDGEMENT OF DEFAULT INTEREST RATE.
The Borrower and the Parent Guarantor each hereby acknowledge and
agree that, in accordance with the definition of the term "Interest
Rate" as set forth in the Loan Agreement, from and after
September 30, 2002 through and including the Effective Date, Interest
with respect to the Loans shall be payable at the Interest Rate in
effect immediately prior to the occurrence of the Specified Defaults
plus 2.00%.
SECTION 9. MISCELLANEOUS.
Section 9.1. Guarantor Obligations. Each Guarantor hereby
ratifies and affirms in all respects it obligations under its guaranty
and acknowledges that such guaranty shall remain in full force and
effect.
Section 9.2. Construction. This Amendment shall be construed in
connection with and as part of the Loan Agreement and the other
Operative Documents, and except as modified and expressly amended by
this Amendment, all terms, conditions and covenants contained in the
Loan Agreement and the other Operative Documents are hereby ratified
and shall be and remain in full force and effect.
Section 9.3. Headings and Table of Contents. The headings of the
Sections of this Amendment are inserted for purposes of convenience
only and shall not be construed to affect the meaning or construction
of any of the provisions hereof and any reference to numbered
Sections, unless otherwise indicated, are to Sections of this
Amendment.
Section 9.4. References. Any and all notices, requests,
certificates and other instruments executed and delivered after the
execution and delivery of this Amendment may refer to the Loan
Agreement and the other Operative Documents without making specific
reference to this Amendment but nevertheless all such references shall
be deemed to include this Amendment unless the context otherwise
requires.
Section 9.5. Counterparts. This Amendment may be executed in any
number of counterparts, each executed counterpart constituting an
original but all together only one Amendment.
Section 9.6. Governing Law. This Amendment shall be governed by
and construed in accordance under the laws of the State of New York
without regard to conflict of law principles (other than Title 14 of
Article V of the New York General Obligation Law).
[Signature Pages begin on Next Page]
Executed and delivered as of this 28th day of October, 2002.
GIANT YORKTOWN, INC., as Borrower
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Its: CAO
GIANT INDUSTRIES, INC., as a Guarantor
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Its: CAO
GIANT INDUSTRIES ARIZONA, INC. , as a
Guarantor
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Its: CAO
BLACK DIAMOND INTERNATIONAL FUNDING,
LTD., as a Lender
By: /S/ ALAN CORKISH
-------------------------------
Name: ALAN CORKISH
Title: DIRECTOR
TRS1 LLC, as a Lender
By: /S/ ROSEMARY F. DUNNE
-------------------------------
Name: ROSEMARY F. DUNNE
Title: ATTORNEY-IN-FACT
GMAC BUSINESS CREDIT LLC, as a Lender
By: /S/ L. M. STEVENS
-------------------------------
Name: L. M. STEVENS
Title: DIVISION CHIEF CREDIT OFFICER
ORIX FINANCIAL SERVICES, INC. , as a Lender
By: /S/ MARK A. KASSIS
-------------------------------
Name: MARK A. KASSIS
Title: SENIOR VICE PRESIDENT
TRANSAMERICA EQUIPMENT FINANCIAL SERVICES
CORPORATION, as a Lender
By: /S/ JAMES R. BATES
-------------------------------
Name: JAMES R. BATES
Title: VICE PRESIDENT
WELLS FARGO BANK NEVADA, NATIONAL
ASSOCIATION, as Collateral Agent
By: /S/ VAL T. ORTON
-------------------------------
Name: VAL T. ORTON
Title: TRUST OFFICER
Each of the undersigned hereby further confirms its continued
guaranty of the obligations of the Borrower under the Loan Agreement,
as amended hereby, pursuant to the terms of its guaranty on this
28th day of October, 2002.
GIANT FOUR CORNERS, INC.
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Title: CAO
Address: c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona
85255-3465
Attention: President
SAN JUAN REFINING COMPANY
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Title: CAO
Address: c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona
85255-3465
Attention: President
PHOENIX FUEL CO., INC.
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Title: CAO
Address: c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona
85255-3465
Attention: President
GIANT MID-CONTINENT, INC.
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Title: CAO
Address: c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona
85255-3465
Attention: President
GIANT STOP-N-GO OF NEW MEXICO, INC.
By: /S/ GARY R. DALKE
--------------------------------
Name: GARY DALKE
Title: CAO
Address: c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona
85255-3465
Attention: President
EXHIBIT E-6
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
FORM OF COMPLIANCE CERTIFICATE
The undersigned authorized Responsible Officer of GIANT INDUSTRIES,
INC. (the "Company"), delivers this Certificate pursuant to the Parent
Guaranty Agreement, dated as of May 14, 2002 (as the same may be
amended, modified or restated from time to time, the "Parent
Guaranty"), from the Company and Giant Industries Arizona, Inc.). The
undersigned hereby certifies to the Collateral Agent (as defined
below) and the Lenders (as defined below) as follows:
1. A review of the activities of the Company and its
Subsidiaries during the period from ___________, 200__ to
____________, 200__, has been made to obtain the information
necessary to execute and deliver this Certificate.
2. To the best of the undersigned's knowledge, information
and belief, except as described in Attachment 2 attached hereto,
as of the date hereof: (a) no Default or Event of Default exists
under the Loan Agreement (as defined below); (b) the Company and
its Subsidiaries are in compliance with the financial covenants
contained in the Parent Guaranty as set forth in Attachment 1
attached hereto; (c) the representations and warranties contained
in Section 5 of the Parent Guaranty are true and correct (except
such representations and warranties which expressly refer to an
earlier date, which are true and correct in all material respects
as of such earlier date; (d) [no material change in terms (as
documented in a written amendment) has occurred with respect to
the Giant Industries Credit Agreement (or similar replacement
facility)] / [a material change in terms (as documented in a
written amendment) has occurred with respect to the Giant
Industries Credit Agreement (or similar replacement facility) and
the amendment documenting such change in terms is attached
hereto]; (e) Bank of America, as agent under the Giant Industries
Credit Agreement, has not been terminated or resigned its
position as agent under the Giant Industries Credit Agreement and
(f) [a "Deposit Account Triggering Event" (as defined in the
Giant Industries Credit Agreement) has not occurred] / [a
"Deposit Account Triggering Event" (as defined in the Giant
Industries Credit Agreement) has occurred, and the Company hereby
provides written notice thereof to the Collateral Agent and the
Lenders, or has previously provided written notice thereof to the
Collateral Agent and the Lenders within five (5) Business Days
thereof]).
3. The Company and each of its Subsidiaries are in
compliance with their notice and reporting obligations under
Section 6 of the Parent Guaranty executed by the Company and
Section 16 of the Constituent Companies Guaranty executed by a
Subsidiary.
EXHIBIT A
(to Second Amendment)
Capitalized terms used herein without definition have the
meanings assigned to them in that certain Loan Agreement, dated as of
May 14, 2002 ("Loan Agreement"), by and among Giant Yorktown, Inc., as
borrower, Wells Fargo Bank Nevada, National Association, as collateral
agent ("Collateral Agent") and the Persons listed on Schedule IA
thereto, as lenders (the "Lenders").
EXECUTED AND DELIVERED as of _________________, ____.
GIANT INDUSTRIES, INC.
________________________
Responsible Officer
ATTACHMENT 1
GIANT INDUSTRIES, INC. & SUBSIDIARIES
CALCULATION OF FINANCIAL COVENANTS AND RATIOS
AS OF ________________, 200_ (THE "DETERMINATION DATE")
1. Minimum Consolidated Tangible Net Worth
(Section 6A(l) of the Parent Guaranty)
(a) Consolidated Net Income, computed on a
cumulative basis for the period beginning
October 1, 2002, and ending on the Determination
Date (provided no negative adjustment will be
made in the event Consolidated Net Income is a
deficit for such period): $________
(b) 50% of the amount in 1(a): $________
(c) 75% of the net assets received from the
issuance of any capital stock by the Company
after October 1, 2002: $________
(d) Plus $80,000 $________
(e) Minimum Consolidated Tangible Net Worth (the
sum of 1(b) plus 1(c) plus 1(d)): $________
(f) Consolidated Tangible Net Worth:
(i) Consolidated Net Worth: $________
(ii) Net book value of intangible assets: $________
(iii) Consolidated Tangible Net Worth (1(f)(i)
minus 1(f)(ii)): $________
2. Minimum Fixed Charge Coverage Ratio (Section 6A(m) of
the Parent Guaranty)
A. For any date of determination from October 1, 2002
through December 31, 2003:
(a) Consolidated EBITDA for the four fiscal
quarters ending on the Determination Date:
(i) Consolidated Net Income: $________
(ii) Consolidated Interest Expense: $________
(iii) Taxes measured by income included
in the determination of Consolidated
Net Income: $________
(iv) Expenses for depreciation and
amortization of intangibles deducted
from the determination of
Consolidated Net Income: $________
(v) Non-cash losses associated with
asset dispositions deducted from the
determination of Consolidated Net
Income: $________
(vi) Adjustment on pro forma basis to
account for Yorktown Acquisition
[Applicable for four fiscal quarters
ended on June 30, 2002, September 30,
2002, December 31, 2002, and March
31, 2003]: $________
(vii) Non-cash gains associated with
asset dispositions included in the
determination of Consolidated Net
Income: $________
(viii)Consolidated EBITDA (the sum of
2(a)(i) through 2(a)(vi) minus
2(a)(vii)): $________
(b) Consolidated Rents for the four fiscal
quarters ending on the Determination Date: $________
(c) Subtotal (the sum of 2(a)(viii) plus 2(b)): $________
(d) Consolidated Interest Expense during the
four fiscal quarters ending on the
Determination Date:
(i) Interest in respect of Indebtedness
and imputed interest with respect to
Capital Leases accrued or capitalized
(whether or not paid and including
fees payable in respect of letters of
credit and bankers' acceptances): $________
(ii) Net amounts payable (or minus net
amounts receivable) under Swap
Contracts (other than Commodity Swaps): $________
(iii) Dividends paid, declared or
accrued in respect of preferred stock: $________
(iv) Subtotal (the sum of 2(d)(i)
through 2(d)(iii): $________
(v) Non-amortized fees and financing
costs related to the incurrence of
the Indebtedness: $________
(vi) Consolidated Interest Expense (the
sum of item 2(d)(iv) minus 2(d)(v)): $________
(e) Consolidated Rents during the four fiscal
quarters ending on the Determination Date: $________
(f) Scheduled amortization of Company's and
Subsidiaries' Indebtedness during the four
fiscal quarters ending on the
Determination Date: $________
(g) Cash income taxes during the four fiscal
quarters ending on the Determination Date: $________
(h) Subtotal (the sum of 2(d)(vi) plus 2(e)
plus 2(f) plus 2(g)): $________
(i) Interest Coverage Ratio (the ratio of 2(c) to 2(h)): ____:1.00
(j) Minimum Fixed Charge Coverage Ratio
required by Section 6A(m) of the Parent Guaranty:
From October 1, 2002 to June 30, 2003 1.00:1.00
From July 1, 2003 and thereafter 1.10:1.00
B. For any date of determination from the Closing
Date through September 30, 2002, and after January 1, 2004:
(a) Consolidated EBITDA for the four fiscal
quarters ending on the Determination Date:
(i) Consolidated Net Income: $________
(ii) Consolidated Interest Expense: $________
(iii) Taxes measured by income included
in the determination of Consolidated
Net Income: $________
(iv) Expenses for depreciation and
amortization of intangibles deducted
from the determination of
Consolidated Net Income: $________
(v) Non-cash losses associated with
asset dispositions deducted from the
determination of Consolidated Net Income: $________
(vi) Adjustment on pro forma basis to
account for Yorktown Acquisition
[Applicable for four fiscal quarters
ended on June 30, 2002, September 30,
2002, December 31, 2002, and March
31, 2003]: $________
(vii) Non-cash gains associated with
asset dispositions included in the
determination of Consolidated Net Income: $________
(viii)Consolidated EBITDA (the sum of 2(a)(i)
through 2(a)(vi) minus 2(a)(vii)): $________
(b) Consolidated Rents for the four fiscal
quarters ending on the Determination Date: $________
(c) To the extent excluded from calculation of
Consolidated EBITDA in 2(a), Margin
Payments under Yorktown Asset Purchase
Agreement during the four fiscal quarters
ending on the Determination Date (excluding
Margin Payments treated as Capital Expenditures). $________
(d) Capital expenditures during the four fiscal
quarters ending on the Determination Date: $________
(e) Cash income taxes during the four fiscal
quarters ending on the Determination Date: $________
(f) Subtotal (the sum of 2(a)(viii) plus 2(b)
plus 2(c) minus 2(d) minus 2(e)): $________
(g) Consolidated Interest Expense during the
four fiscal quarters ending on the
Determination Date:
(i) Interest in respect of Indebtedness
and imputed interest with respect to
Capital Leases accrued or capitalized
(whether or not paid and including
fees payable in respect of letters of
credit and bankers' acceptances): $________
(ii) Net amounts payable (or minus net
amounts receivable) under Swap
Contracts (other than Commodity Swaps): $________
(iii) Dividends paid, declared or
accrued in respect of preferred stock: $________
(iv) Subtotal (the sum of 2(g)(i)
through 2(g)(iii): $________
(v) Non-amortized fees and financing
costs related to the incurrence of
the Indebtedness: $________
(vi) Consolidated Interest Expense (the
sum of item 2(g)(iv) minus 2(g)(v)): $________
(h) Consolidated Rents during the four fiscal
quarters ending on the Determination Date: $________
(i) Scheduled amortization of Company's and
Subsidiaries' Indebtedness during the four
fiscal quarters ending on the
Determination Date: $________
(j) Margin Payments under Yorktown Asset
Purchase Agreement during the four fiscal
quarters ending on the Determination Date: $________
(k) Subtotal (the sum of 2(g)(vi) plus 2(h)
plus 2(i) plus 3(j)): $________
(l) Interest Coverage Ratio (the ratio of 2(f) to 2(k)): ____:1.00
(m) Minimum Fixed Charge Coverage Ratio
required by Section 6A(m) of the Parent
Guaranty:
From October 1, 2002 to June 30, 2003 1.00:1.00
From July 1, 2003 and thereafter 1.10:1.00
3. Total Leverage Ratio (Section 6A(n) of the Parent Guaranty)
(a) Consolidated Funded Indebtedness:
(i) Liabilities for borrowed money: $________
(ii) Liabilities for deferred purchase price
of property or services (other than trade
payables incurred in ordinary course on
ordinary terms): $________
(iii) Obligations with respect to Surety Instruments: $________
(iv) Other obligations evidenced by Notes: $________
(v) Indebtedness of the type described in clause
(e) of the definition of Indebtedness: $________
(vi) Capital Leases: $________
(vii) Off-Balance Sheet obligations: $________
(viii)Net obligations under Swap Contracts: $________
(ix) Indebtedness of the type described in
clause (h) of the definition Indebtedness: $________
(x) Obligations to redeem or purchase stock or
other equity interests: $________
(xi) Guaranty obligations in respect of the foregoing: $________
(xii) Consolidated Funded Indebtedness (the
sum of items 3(a)(i) through 3(a)(xi)): $________
(b) Consolidated EBITDA for the four fiscal
quarters ending on the Determination Date
(3(a)(viii)): $________
(c) Total Leverage Ratio (the ratio of 3(a)(xii) to 3(b)): ____:1.0
(d) Maximum Total Leverage Ratio permitted under
Section 6A(n) of the Parent Guaranty:
From October 1, 2002 to December 31, 2002 6.50:1.00
From January 1, 2003 to March 31, 2003 7.50:1.00
From April 1, 2003 to June 30, 2003 7.00:1.00
From July 1, 2003 to September 30, 2003 5.50:1.00
From October 1, 2003 to December 31, 2003 4.50:1.00
From January 1, 2004 to March 31, 2004 4.00:1.00
April 1, 2004 and thereafter 3.75:1.00
4. Senior Leverage Ratio (Section 6A(o) of the Parent Guaranty)
(a) Consolidated Funded Indebtedness (4(a)(xii)): $________
(b) Indebtedness evidenced by Subordinated Notes: $________
(c) Consolidated Senior Indebtedness (4(a) minus 4(b)): $________
(d) Consolidated EBITDA for the four fiscal
quarters ending on the Determination Date: $________
(e) Senior Leverage Ratio (ratio of 4(c) to 4(d)): ____:1.0
Maximum Senior Leverage Ratio permitted under
Section 6A(o) of the Parent Guaranty: 1.50:1.00
5. Minimum Quarterly Consolidated EBITDA (Section 6A(s)
of the Parent Guaranty)
(a) Consolidated EBITDA for fiscal quarters ending
on the Determination Date: $________
(i) Consolidated Net Income: $________
(ii) Consolidated Interest Expense: $________
(iii) Taxes measured by income included in the
determination of Consolidated Net Income: $________
(iv) Expenses for depreciation and amortization
of intangibles deducted from the determination
of Consolidated Net Income: $________
(v) Non-cash losses associated with asset
dispositions deducted from the
determination of Consolidated Net Income: $________
(vi) Non-cash gains associated with asset
dispositions included in the determination
of Consolidated Net Income: $________
(vii) Consolidated EBITDA (the sum of 5(a)(i)
through 5(a)(v) minus 5(a)(vi)): $________
(b) Minimum Quarterly Consolidated EBITDA required
under 6A(s) of the Parent Guaranty:
From October 1, 2002 through March 31, 2003 $8,500,000
From April 1, 2003 and thereafter $15,000,000
6. Maximum Capital Expenditures (Section 6A(t) of the
Parent Guaranty)
(a) Capital Expenditures (other than Margin
Payments treated as Capital Expenditures) for
fiscal quarter ending on the Determination Date: $________
(b) Maximum Capital Expenditures required under
6A(t) of the Parent Guaranty:
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
Capitalized terms used herein without definition have the
meanings assigned to them in the Loan Agreement.
EXECUTED AND DELIVERED as of _________________, _____.
GIANT INDUSTRIES, INC.
_________________________
Responsible Officer
ATTACHMENT 2
EXCEPTIONS TO
COMPLIANCE CERTIFICATE
SCHEDULE 6(a)(iii)
FINANCIAL INFORMATION
See the following pages
EXHIBIT B
(to Second Amendment)
GIANT INDUSTRIES, INC.
Consolidated Balance Sheets
June 30, 2002
6/30/2002 12/31/2001
Assets --------- ----------
Current Assets
Cash and cash equivalents
Accounts receivable, net
Inventories, at cost
Prepaid expenses and other current assets
Deferred income taxes
Total current assets
--------- ----------
--------- ----------
Property, plant and equipment, at cost
less accumulated depreciation
--------- ----------
--------- ----------
Other assets
--------- ----------
========= ==========
Liabilities and Stockholders' Equity
Current liabilities:
Current portion of long-term debt
Accounts payable
Accrued liabilities
--------- ----------
Total current liabilities
--------- ----------
Long-term debt, net of current portion
Long-term pension obligations
Other liabilities
Deferred income taxes
Stockholders' equity
--------- ----------
========= ==========
GIANT INDUSTRIES, INC.
Consolidated Income Statements
June 30, 2002
Current Quarter Year to Date
------------------- -------------------
Actual Last Year Actual Last Year
------ --------- ------ ---------
Net revenues
Cost of products sold
------ --------- ------ ---------
Gross margin
Operating expenses
Selling, general and administrative
(Gain)/Loss on disposal/
sale of assets
Depreciation and amortization
------ --------- ------ ---------
Operating income
Interest expense
Amortization of Financing Fees
Interest and Investment Income
------ --------- ------ ---------
Interest expense, net
------ --------- ------ ---------
Earnings from operations
Provision (benefit) for taxes
------ --------- ------ ---------
Net earnings (loss)
====== ========= ====== =========
Earnings per common share:
Weighted average shares outstanding
GIANT INDUSTRIES, INC.
Consolidating Income Statements
June 30, 2002
Current Month
----------------------------------------------------------------------------
Refining Retail Phoenix Reclass and
Group Group Fuel Corporate Total eliminations Consolidated
Revenues
Cost of products sold
----------------------------------------------------------------------------
Gross margin
----------------------------------------------------------------------------
Operating expenses
SGA
(Gain)/Loss on
disposal/sale of assets
Deprecation &
Amortization
Interest expense, net
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Earnings before taxes
============================================================================
Year to Date
----------------------------------------------------------------------------
Refining Retail Phoenix Reclass and
Group Group Fuel Corporate Total eliminations Consolidated
Revenues
Cost of products sold
----------------------------------------------------------------------------
Gross margin
----------------------------------------------------------------------------
Operating expenses
SGA
(Gain)/Loss on
disposal/sale of assets
Deprecation &
Amortization
Interest expense, net
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Earnings before taxes
============================================================================
GIANT INDUSTRIES, INC.
Consolidating Income Statements
June 30, 2002
Current Quarter
----------------------------------------------------------------------------
Refining Retail Phoenix Reclass and
Group Group Fuel Corporate Total eliminations Consolidated
Revenues
Cost of products sold
----------------------------------------------------------------------------
Gross margin
----------------------------------------------------------------------------
Operating expenses
SGA
(Gain)/Loss on
disposal/sale of assets
Deprecation &
Amortization
Interest expense, net
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Earnings before taxes
============================================================================
GIANT INDUSTRIES, INC.
Consolidated Cash Flow Statements
June 30, 2002
Month Quarter Year to Date
----- ------- ------------
Cash flows from operating activities:
Net earnings (loss)
Adjustments to reconcile net earnings
(loss) to net cash provided by (used in)
operating activities:
Depreciation and amortization
Deferred income taxes
(Gain) Loss on disposal or write-down of assets
Changes in operating assets and liabilities:
Decrease (increase) in accounts receivable
Decrease (increase) in inventories
Decrease (increase) in prepaid expense
Increase (decrease) in accounts payable
Increase (decrease) in accrued liabilities
Increase (decrease) in income taxes payable
Decrease (increase) in other non-current assets
----- ------- ------------
Net cash provided by (used in) operations
----- ------- ------------
Cash flows from investing activities:
Purchase of property, plant and equipment
Yorktown Refinery acquisition, incl. Inventory
& other costs
Decrease (increase) of other assets
Proceeds from sale of assets
----- ------- ------------
Net cash provided by (used in) investing activities
----- ------- ------------
Cash flows from financing activities:
Payments of long-term debt
(Increase) Decrease to Financing costs
Proceeds from long-term debt
Proceeds from exercise of stock options
----- ------- ------------
Net cash provided by (used in) financing activities
----- ------- ------------
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents:
Beginning of period
----- ------- ------------
End of period
===== ======= ============
GIANT INDUSTRIES, INC.
Operating Statistics
June 30, 2002
Current Month 2002 2001
- ------------------------------------------ ---- ----
Refinery sourced sales bbls (bbls/day)
Average crude oil costs ($/bbl)
Refinery margin ($/bbl)
Retail Stores - Fuel volume
Retail Stores - Fuel margin (per gal)
Retail Stores - Total merchandise sales
Retail Stores Merchandise margin
GTC Division - Fuel volume
GTC Division - Fuel margin (per gal)
GTC Division - Total merchandise sales
GTC Merchandise margin
Current Quarter 2002 2001
- ------------------------------------------ ---- ----
Refinery sourced sales bbls (bbls/day)
Average crude oil costs ($/bbl)
Refinery margin ($/bbl)
Retail Stores - Fuel volume
Retail Stores - Fuel margin (per gal)
Retail Stores - Total merchandise sales
Retail Stores Merchandise margin
GTC Division - Fuel volume
GTC Division - Fuel margin (per gal)
GTC Division - Total merchandise sales
GTC Merchandise margin
GIANT INDUSTRIES, INC.
Operating Statistics
June 30, 2002
Year to Date 2002 2001
- ------------------------------------------ ---- ----
Refinery sourced sales bbls (bbls/day)
Average crude oil costs ($/bbl)
Refinery margin ($/bbl)
Retail Stores - Fuel volume
Retail Stores - Fuel margin (per gal)
Retail Stores - Total merchandise sales
Retail Stores Merchandise margin
GTC Division - Fuel volume
GTC Division - Fuel margin (per gal)
GTC Division - Total merchandise sales
GTC Merchandise margin
GIANT INDUSTRIES, INC.
Cash Flow Statement by Operating Division
June 30, 2002
Current Month
---------------------------------------------------------
Earnings (Loss) Add Less capital Cash flow
From Operations depreciation expenditures by division
Division
- --------
Ciniza Refinery
Bloomfield Refinery
Yorktown Refinery
Refinery Other
Transportation (Incl Pipeline)
Giant Division
Thriftway Division
Travel Center
Phoenix Fuel Companies
Yorktown Refinery Acquisition
Corporate
-------- -------- -------- ---------
Totals
-------- -------- -------- ---------
Year to Date
---------------------------------------------------------
Earnings (Loss) Add Less capital Cash flow
From Operations depreciation expenditures by division
Division
- --------
Ciniza Refinery
Bloomfield Refinery
Yorktown Refinery
Refinery Other
Transportation (Incl Pipeline)
Giant Division
Thriftway Division
Travel Center
Phoenix Fuel Companies
Yorktown Refinery Acquisition
Corporate
-------- -------- -------- ---------
Totals
-------- -------- -------- ---------
GIANT INDUSTRIES, INC.
Cash Flow Statement by Operating Division
June 30, 2002
Current Quarter
---------------------------------------------------------
Earnings (Loss) Add Less capital Cash flow
From Operations depreciation expenditures by division
Division
- --------
Ciniza Refinery
Bloomfield Refinery
Yorktown Refinery
Refinery Other
Transportation (Incl Pipeline)
Giant Division
Thriftway Division
Travel Center
Phoenix Fuel Companies
Yorktown Refinery Acquisition
Corporate
-------- -------- -------- ---------
Totals
-------- -------- -------- ---------
GIANT REFINING COMPANY
Yorktown Refinery
Quarter Ended June 2002
Actual Last Year
------ ---------
Refinery Sourced Revenues
- -------------------------
Gasoline
Diesel
Other product, misc.
Differentials
------ ---------
Total refinery revenues
------ ---------
Cost of Revenues
- ----------------
Cost of revenues
Own consumed fuel
LIFO/LCM inventory adjustment
------ ---------
Total cost of revenues
------ ---------
Refinery Margin
Miscellaneous
------ ---------
Gross Margin
Operating Expenses
- ------------------
Refinery operations
(Gain) loss on disposal of assets
------ ---------
Earnings (Loss) Before Taxes
------ ---------
Refinery Sourced Sales Barrels
Refinery Production Barrels
Statement of Income per Barrel:
- ------------------------------
Revenues
Cost of revenues
------ ---------
Refinery margin-LIFO
------ ---------
Refinery margin-FIFO
------ ---------
Oper. exp. per production barrel
------ ---------
Average crude oil costs
------ ---------
Average natural gas costs
------ ---------
GIANT REFINING COMPANY
Ciniza Refinery
Quarter Ended June 2002
Actual Last Year
------ ---------
Refinery Sourced Revenues
- -------------------------
Gasoline
Diesel
Jet A/kerosene
Other product, misc.
Differentials
------ ---------
Total refinery revenues
------ ---------
Cost of Revenues
- ----------------
Cost of revenues
Own consumed fuel
LIFO/LCM inventory adjustment
------ ---------
Total cost of revenues
------ ---------
Refinery Margin
------ ---------
Gross Margin
Operating Expenses
- ------------------
Refinery operations
(Gain) loss on disposal of assets
------ ---------
Earnings (Loss) Before Taxes
------ ---------
Refinery Sourced Sales Barrels
Refinery Production Barrels
Statement of Income per Barrel:
- ------------------------------
Revenues
Cost of revenues
------ ---------
Refinery margin-LIFO
------ ---------
Refinery margin-FIFO
------ ---------
Oper. exp. per production barrel
------ ---------
Average crude oil costs
------ ---------
Average natural gas costs
------ ---------
GIANT REFINING COMPANY
Bloomfield Refinery
Quarter Ended June 2002
Actual Last Year
------ ---------
Refinery Sourced Revenues
- -------------------------
Gasoline
Diesel
Other product, misc.
Differentials
------ ---------
Total refinery revenues
------ ---------
Cost of Revenues
- ----------------
Cost of revenues
Own consumed fuel
LIFO/LCM inventory adjustment
------ ---------
Total cost of revenues
------ ---------
Refinery Margin
------ ---------
Gross Margin
Operating Expenses
- ------------------
Refinery operations
(Gain) loss on disposal of assets
------ ---------
Earnings (Loss) Before Taxes
------ ---------
Refinery Sourced Sales Barrels
Refinery Production Barrels
Statement of Income per Barrel:
- ------------------------------
Revenues
Cost of revenues
------ ---------
Refinery margin-LIFO
------ ---------
Refinery margin-FIFO
------ ---------
Oper. exp. per production barrel
------ ---------
Average crude oil costs
------ ---------
Average natural gas costs
------ ---------
GIANT INDUSTRIES, INC.
Retail Group By Market Area
Analysis Of Net Income/Investment
Year to Date June 2002
12 Month Rolling
Cash Flow Based
Store Operating on Store Store Operating Cash Flow Gross
Market Areas Profit Operating Profit Profit Annualized Annualized Investment ROI
- ------------ -------------------------------------------------------------------------------------
<c>
Albuquerque:
#5-Albq. San_Mateo
#10-Albq. Menaul
#11-Albq. Rio_Bravo
#15-Albq. Rio_Rancho
#20-Albq. Coors/Central
#24-Albq. Tramway
#25-Albq. Coors/Quail
#26-Albq. Coors/Arenal
#27-Albq. Academy
#31-Albq. Southern
#33-Los_Lunas
#34-Albq. Candalaria
#35-Albq. Eubank
#36-Bernalillo
#37-Rio_Rancho SR_528
#38-Albq. 4th/Vineyard
#39-Belen
#41-Golf_Course
#43-Los_Lunas Main
#48-Cuba, NM
#168, FFCA-Bernalillo, NM
#278, FFCA-Estancia, NM
#283, FFCA-Belen, NM
#293, FFCA-Bernalillo, NM
#445, Albuquerque, NM
Giant #549 Bosque Farms, NM
-------------------------------------------------------------------------------------
Santa Fe:
#023, Cerrillos Rd, Santa Fe, NM
#46-Santa_Fe Sawmill
#55-Santa_Fe St.
#56-Santa Fe/St. Michaels
#163, FFCA-Espancia, NM
#200, Cuba, NM
#232, San Ysidro, NM
#294, Arroyo Seco, NM
#297, FFCA-Rancho de Taos, NM
#554, FFCA-Santa Fe, NM
-------------------------------------------------------------------------------------
Bloomfield:
#101-Farmington
Cash Flow Based
Store Operating on Store Store Operating Cash Flow Gross
Market Areas Profit Operating Profit Profit Annualized Annualized Investment ROI
- ------------ -------------------------------------------------------------------------------------
<c>
#103-Kirtland
#4-Farmington Broadway
#14-Farmington Main_St
#44-Aztec, NM
#47-Bloomfield, NM
#49-662 E. Main, Farmington
#118 FFCA-Aztec, NM
#159, Farmington, NM
#197, FFCA-Aztec, NM
#210, FFCA-Bloomfield, NM
#211, FFCA-Farmington, NM
#214, FFCA-Bloomfield, NM
#218, FFCA-Farmington, NM
#220, Farmington, NM
#227, Aztec, NM
#239, FFCA-Bloomfield, NM
#240, FFCA-Farmington, NM
#262, Kirtland, NM
#265 and #270
#292, Farmington, NM
#310, FFCA-Waterflow, NM
#556, FFCA-Farmington, NM
-------------------------------------------------------------------------------------
Gallup:
#24-Hwy. 66, Gallup
#9-Gallup 2nd_Street
#12-Gallup Hwy_666
#196, Vanderwagen, NM
#203, FFCA-Sanders, AZ
#204, FFCA-Gallup, NM
#207, Church Rock, NM
#208, Gallup, NM
#245, Crownpoint NM
#256, Zuni, NM
#257, FFCA - Thoreau, NM
#295, FFCA - Milan, NM
#408, FFCA - Gallup, NM
#409, FFCA - Gallup, NM
#557, FFCA - Gallup, NM
-------------------------------------------------------------------------------------
Northeast Arizona:
#202, LLC - Shiprock, NM
#245, LLC - Teec Nos Pos, AZ
#254, LLC - Winslow, AZ
#233, Kayenta, AZ
#251, Tohatchi, NM
#252, Ganado, AZ
#253, Lukachukai, AZ
Cash Flow Based
Store Operating on Store Store Operating Cash Flow Gross
Market Areas Profit Operating Profit Profit Annualized Annualized Investment ROI
- ------------ -------------------------------------------------------------------------------------
<c>
-------------------------------------------------------------------------------------
#255, Chinle, AZ
#263, Cameron, AZ
#268, Newcomb-Burnham, NM
#267, Chinle, AZ
#268, A&W, Chinle, AZ
#106-Rock Point
#107-Many Farms
#108-Ft Definance
Station #109-Tse Bonito
#320, FFCA - Window Rock, AZ
#601, Window Rock, AZ
-------------------------------------------------------------------------------------
North Central Arizona:
#03-Sedona
#8-Flagstaff
#16-Cottonwood
#042-Payson, AZ
#45-Flagstaff Butler
#193, FFCA-Holbrook, AZ
#219, FFCA-Springerville, AZ
#222, FFCA-Lakeside, AZ
#223, FFCA-Show Low, AZ
#224, FFCA-Taylor, AZ
Phoenix/Scottsdale:
#01-Phx. 35th Glendale
#13-Phx. Bell Road
#17-Phx. Cave Creek
#28-Phx. Greenway
#30-Phx. Fl Wright
#32-Scott Pinn Peak
#801-Power and Broadway, Mesa, AZ
#802-Brown & Ellsworth, Mesa, AZ
#820-McDowell Mountain Ranch
#829-Tatum & Dynamite, Phoenix, AZ
#908 FFCA-Chandler, AZ
#909 FFCA-Scottsdale, AZ
#915 FFCA-Mesa, AZ
#901 FFCA-Buckeye, AZ
#917 FFCA-Mesa, AZ
#918 FFCA-Mesa, AZ
#912 Glendale, AZ
-------------------------------------------------------------------------------------
Tucson & Southern Arizona:
#511-Silverbell & Cortaro, Marana, AZ
#812-Push View & Oracle, Oro Valley, AZ
#813-Rancho Visi/Oracle, Oro Valley, AZ
#900-Wilcox, AZ
Cash Flow Based
Store Operating on Store Store Operating Cash Flow Gross
Market Areas Profit Operating Profit Profit Annualized Annualized Investment ROI
- ------------ -------------------------------------------------------------------------------------
<c>
#902 FFCA-Thatcher, AZ
#903 FFCA-Safford, AZ
#911 Douglas, AZ
#919 Tucson, AZ
#921 FFCA-Tucson, AZ
#922 FFCA-Tucson, AZ
#923 FFCA-Tucson, AZ
#924 FFCA-Tucson, AZ
#925 FFCA-Tucson, AZ
#926 FFCA-Tucson, AZ
#929 FFCA-Tucson, AZ
#930 FFCA-Tucson, AZ
#931 FFCA-Tucson, AZ
-------------------------------------------------------------------------------------
Colorado
#7-Durango
#60-FFCA-Conoco, Main Ave. Durango, CO
#61-FFCa-Conoco, Camino Del Rio, Durango
#83-conoco Express-Bayfield CO
#64-FFCA - Conoco Express - Cortez, CO
#65-Conoco Express-Heromsa, CO
#111 FFCA - Durango CO
#184, Cortez, CO
#229, FFCA - Dolores, CO
#280, FFCA - Cortez, CO
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
Subtotal
Giant Travel Center Division
-------------------------------------------------------------------------------------
Subtotal
Other:
Discontinued Operations
Rel Op Org Future Stores
Retail Divisional Admin
Thriftway Consignment Units
-------------------------------------------------------------------------------------
TOTALS
-------------------------------------------------------------------------------------
SCHEDULE 6(u)(iii) - SERVICE STATIONS AND CONVENIENCE STORES
See the following pages
EXHIBIT C
(to Second Amendment)
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-Store U/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-Store U/C 827,096
6025 Fee 2930 Coors Rd. NW Albuquerque NM 87120 Bernalillo Conoco/Giant 1600 C-Store U/C 893,396
6026 Fee 1897 Coors Rd. 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 Giant Express 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. F 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-Store U/C 90,713
7183 Fee 902 N. Riverside Dr. Espanola NM 87532 Rio Arriba Mustang 1430 C-Store U/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 Bisti Hwy. 371 Farmington NM 87401 San Juan Mustang 3690 C-Store 788,810
7293 Fee 401 W. Hwy. 44 Bernalillo NM 87004 Sandoval Conoco/Giant 870 C-Store 1,325,742
7294 Fee Rte 3 Box 151
Hwy. 285 (Arroyo Seco, NM 87514) Espanola NM 87532 Santa Fe Mustang 1176 C-Store 120,597
7295 Fee P.O. Box 3047 610 W. Hwy. 66 Milan NM 87021 Cibola Mustang 432 U/Canopy 66,799
7297 Fee PO Box 1858 5180 Hwy. 68 RanchodeTaosNM 87557 Taos Mustang 1525 C-Store 547,452
7310 Fee PO Box 1443
3890 US Hwy. 64, Fruitland, NM 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 38,297,287
*WIC
SCHEDULE 6A(b) - 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
EXHIBIT D
(to Second Amendment)
STORE ADDRESS CITY STATE
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 Kingman AZ
Safford - Raw Land Safford AZ
91st and Bell - Raw Land Phoenix AZ
Headquarters Scottsdale AZ
Jomax - Raw Land Scottsdale AZ
Tamarron Condos Durango CO
SCHEDULE 6(A)(e)
OTHER INDEBTEDNESS AND CONTINGENT OBLIGATIONS
1. Giant Industries 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. Giant Industries is issuer of, and the Subsidiaries that are
guarantors under the Operative Documents are guarantors of, the
$150,000,000 9% Senior Subordinated Notes Due 2007, pursuant to
the Indenture dated as of August 26,1997.
5. Giant Industries is issuer of, and the Subsidiaries that are
guarantors under the Operative Documents are guarantors of, the
$200,000,000 11% Senior Subordinated Notes Due 2012, pursuant to
the Indenture dated as of May 14, 2002.
EXHIBIT E
(to Second Amendment)
6. Surety Bonds up to a maximum of $15,000,000.
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 $600,00
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