EXHIBIT 10.38
Execution Copy
LOAN AGREEMENT
by and among
GIANT YORKTOWN, INC., AS BORROWER,
WELLS FARGO BANK NEVADA, NATIONAL ASSOCIATION, AS COLLATERAL AGENT,
and
THE PERSONS LISTED ON SCHEDULE IA HERETO, AS LENDERS
dated as of May 14, 2002
BANC OF AMERICA FACILITIES LEASING, LLC, AS ARRANGER
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. DEFINITIONS...................................................................... 1
SECTION 2. REPRESENTATION AND WARRANTIES.................................................... 26
Section 2.1. Representation of Borrower....................................................... 26
Section 2.2. Representations and Warranties of Lenders........................................ 26
Section 2.3. Representations and Warranties of Collateral Agent............................... 27
SECTION 3. COVENANTS........................................................................ 28
Section 3.1. Possession and Use of Mortgaged Property; Compliance with Laws................... 28
Section 3.2. Leases and Assignments........................................................... 28
Section 3.3. Maintenance...................................................................... 29
Section 3.4. Alterations, Modifications, etc.................................................. 30
Section 3.5. Liens............................................................................ 31
Section 3.6. Casualty......................................................................... 31
Section 3.7. Insurance Coverages.............................................................. 34
Section 3.8. General Requirements............................................................. 35
Section 3.9. Insurance Certificates........................................................... 36
Section 3.10. No Duty to Verify or Review...................................................... 36
SECTION 4. COMMITMENTS; INTEREST; PREPAYMENTS; FEES......................................... 37
Section 4.1. Loans............................................................................ 37
Section 4.2. Notes............................................................................ 37
Section 4.3. Scheduled Payments of Principal; Mandatory Prepayments........................... 37
Section 4.4. Interest Rates and Payment Dates................................................. 37
Section 4.5. Pro Rata Treatment and Payment................................................... 38
Section 4.6. Mutilated, Destroyed, Lost or Stolen Notes....................................... 38
Section 4.7. Computations; Interest Rate Determination; Conclusive Determinations............. 39
Section 4.8. Highest Lawful Rate.............................................................. 39
Section 4.9. Fees............................................................................. 40
Section 4.10. Adjustment....................................................................... 41
Section 4.11. Payments and Distributions....................................................... 41
SECTION 5. PAYMENTS......................................................................... 41
Section 5.1. End of Term...................................................................... 41
Section 5.2. Prepayment Option................................................................ 41
SECTION 6. INTENTIONALLY OMITTED............................................................ 41
1
SECTION PAGE
SECTION 7. CONDITIONS PRECEDENT TO THE LOAN................................................. 41
Section 7.1. Closing Notice................................................................... 42
Section 7.2. [Reserved]....................................................................... 42
Section 7.3. Operative Documents.............................................................. 42
Section 7.4. Notes............................................................................ 42
Section 7.5. Representations and Warranties True; Absence of Defaults......................... 42
Section 7.6. Consents and Approvals........................................................... 42
Section 7.7. Filings and Recordings........................................................... 42
Section 7.8. Payment of Impositions........................................................... 43
Section 7.9. Transaction Costs; Fees.......................................................... 43
Section 7.10. Opinions of Counsel.............................................................. 43
Section 7.11. Corporate Status and Proceedings................................................. 43
Section 7.12. Financial Statements............................................................. 44
Section 7.13. Material Adverse Effect.......................................................... 44
Section 7.14. Litigation....................................................................... 44
Section 7.15. Bill of Sale..................................................................... 44
Section 7.16. [Reserved]....................................................................... 44
Section 7.17. Deed............................................................................. 44
Section 7.18. Search Reports................................................................... 44
Section 7.19. Appraisal........................................................................ 45
Section 7.20. Insurance........................................................................ 45
Section 7.21. No Casualty...................................................................... 45
Section 7.22. Environmental Report............................................................. 45
Section 7.23. Survey........................................................................... 45
Section 7.24. Title and Title Insurance........................................................ 45
Section 7.25. Mortgaged Property Acquisition/Operation......................................... 45
Section 7.26. Giant Industries Credit Agreement................................................ 46
Section 7.27. Subordinated Debt................................................................ 46
Section 7.28. Lender Approval.................................................................. 46
Section 7.29. Deposit of Funds for Payment of NBD Subordinated Notes........................... 47
Section 7.30. Proceedings Satisfactory, Etc.................................................... 47
SECTION 8. EVENTS OF DEFAULT AND REMEDIES................................................... 47
Section 8.1. Defaults......................................................................... 47
Section 8.2. Non-Bankruptcy Defaults.......................................................... 51
Section 8.3. Bankruptcy Defaults.............................................................. 51
Section 8.4. Remedies on Default.............................................................. 51
SECTION 9. ASSIGNMENT BY LENDERS; PARTICIPATIONS............................................ 52
Section 9.1. Assignments...................................................................... 52
Section 9.2. Participations................................................................... 53
Section 9.3. Pledges.......................................................................... 53
SECTION 10. THE COLLATERAL AGENT............................................................. 53
-ii-
SECTION PAGE
Section 10.1. Appointment...................................................................... 53
Section 10.2. Delegation of Duties............................................................. 54
Section 10.3. Exculpatory Provisions........................................................... 54
Section 10.4. Reliance by Collateral Agent; Indemnity.......................................... 54
Section 10.5. Notice of Default................................................................ 55
Section 10.6. Non-Reliance on Collateral Agent and Other Lenders............................... 55
Section 10.7. Indemnification.................................................................. 56
Section 10.8. Collateral Agent in Its Individual Capacity...................................... 56
Section 10.9. Successor Collateral Agent....................................................... 56
Section 10.10. Action upon Instructions......................................................... 57
Section 10.11. Substitution of Deed of Trust Trustee............................................ 57
SECTION 11. INDEMNITY........................................................................ 57
Section 11.1. General Indemnification.......................................................... 57
Section 11.2. General Tax Indemnity............................................................ 59
Section 11.3. Gross Up......................................................................... 62
Section 11.4. Increased Capital Costs.......................................................... 62
Section 11.5. Environmental Indemnity.......................................................... 62
Section 11.6. LIBO Rate Illegal, Unavailable or Impracticable.................................. 63
Section 11.7. Funding Losses................................................................... 64
Section 11.8. Actions of Lenders............................................................... 64
SECTION 12. GENERAL CONDITIONS............................................................... 64
Section 12.1. Payment of Transaction Costs and Other Costs..................................... 64
Section 12.2. Effect of Waiver................................................................. 65
Section 12.3. Survival of Covenant............................................................. 65
Section 12.4. Applicable Law................................................................... 65
Section 12.5. Effect and Modification.......................................................... 65
Section 12.6. Notices.......................................................................... 66
Section 12.7. Consideration for Consents to Waivers and Amendments............................. 67
Section 12.8. Severability..................................................................... 67
Section 12.9. Successors and Assigns........................................................... 68
Section 12.10. No Third-Party Beneficiaries..................................................... 68
Section 12.11. Brokers.......................................................................... 68
Section 12.12. Captions; Table of Contents...................................................... 68
Section 12.13. Schedules and Exhibits........................................................... 68
Section 12.14. Submission to Jurisdiction....................................................... 68
Section 12.15. Jury Trial....................................................................... 69
Section 12.16. Role of Banc of America Facilities Leasing, LLC.................................. 69
Section 12.17. Syndication...................................................................... 69
Signature Page.......................................................................................... 70
-iii-
SCHEDULES
SCHEDULE IA -- Lenders' Commitments
SCHEDULE IB -- Addresses for Notice and Payment
SCHEDULE IIA -- Description of Mortgaged Property
SCHEDULE IIB -- Principal Payment Schedule
SCHEDULE III -- Constituent Company Guarantors
SCHEDULE IV -- Scheduled Adjustments to Consolidated EBITDA
EXHIBITS
EXHIBIT A -- Form of Promissory Note
EXHIBIT B -- [Reserved]
EXHIBIT C-1 -- Form of Opinion of Special Counsel to Borrower and each
Guarantor
EXHIBIT C-2 -- Form of Opinion of General Counsel to Borrower and each
Guarantor
EXHIBIT C-3 -- Form of Opinion of New York and Virginia Counsel to
Borrower and each Guarantor
EXHIBIT C-4 -- [Reserved]
EXHIBIT D -- Form of Closing Notice
EXHIBIT E-1 -- Form of Officer's Certificate of Borrower
EXHIBIT E-2 -- Form of Secretary's Certificate of Borrower
EXHIBIT E-3 -- Form of Officer's Certificate of each Guarantor
EXHIBIT E-4 -- Form of Secretary's Certificate of each Guarantor
EXHIBIT E-5 -- [Reserved]
EXHIBIT E-6 -- Form of Compliance Certificate
EXHIBIT F -- Form of Assignment and Assumption Agreement
EXHIBIT G -- [Reserved]
EXHIBIT H -- Form of Supplemental Guaranty
EXHIBIT I -- Form of Constituent Companies Guaranty
EXHIBIT J -- [Reserved]
EXHIBIT K -- Form of Parent Guaranty
-iv-
GIANT YORKTOWN, INC.
LOAN AGREEMENT
This Loan Agreement dated as of May 14, 2002 (as amended, supplemented
or otherwise modified from time to time, this "Loan Agreement"), is among GIANT
YORKTOWN, INC., a Delaware corporation (the "Borrower"), 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 SCHEDULE IA hereto as a Lender (each individually, together with any
permitted successors and assigns, a "Lender" and collectively, the "Lenders").
WITNESSETH:
WHEREAS, the Lenders shall, on the terms and subject to the conditions
hereinafter set forth, make loans to the Borrower on the Closing Date; and
WHEREAS, the Borrower will use the proceeds of such Loans to purchase
the Mortgaged Property and pay Transaction Costs hereunder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
Unless the context otherwise requires, the following terms shall for
all purposes of this Loan Agreement have the meanings herein specified and the
following definitions shall be equally applicable to both the singular and
plural forms of any of the terms herein defined.
"Acquisition" shall mean any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50% of the
capital stock of a corporation (or similar entity), which stock has ordinary
voting power for the election of the members of the acquiree's board of
directors or persons exercising similar functions (other than stock having such
power only by reason of the happening of a contingency), or the acquisition of
in excess of 50% of the partnership interests or equity of any Person not a
corporation which acquisition gives the acquirer the power to direct or cause
the direction of the management and policies of the acquiree, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary), provided that Giant Industries or a Subsidiary of Giant
Industries is the surviving entity.
"Adjusted LIBO Rate" shall mean the LIBO Rate plus the Applicable
Lender Margin.
Giant Yorktown, Inc. Loan Agreement
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any losses (including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or funds acquired by such Lender to fund its
obligations under the Operative Documents) it may incur as a result of (i)
Borrower's payment of principal or interest on the Notes on any date other than
on a Payment Date, (ii) Borrower's payment of the Loan Balance on any date other
than a Payment Date, or (iii) any condition described in SECTION 11 hereof.
"Affiliate" shall mean, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Agent" shall mean, individually, any of the Collateral Agent or the
Deed of Trust Trustee and "Agents" shall mean collectively, both of them.
"Aggregate Commitment Amount" shall mean $40,000,000.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean, at any time of determination of
the LIBO Rate, 4.25% per annum.
"Appraisal" shall mean any appraisal of the Mortgaged Property from an
Appraiser received pursuant to the terms of this Loan Agreement.
"Appraised Value" shall mean, with respect to the Mortgaged Property as
of any date of determination, the Fair Market Value of the Mortgaged Property as
set forth in the Appraisal therefor.
"Appraiser" shall mean Purvin & Gertz, Inc., or such other Person as
may be selected by the Collateral Agent.
"Arrangement Fee" shall mean the percentage referred to in the
Arrangement Fee Letter multiplied by the Underwriting Amount.
"Arrangement Fee Letter" shall mean that certain letter agreement
between Arranger and Giant Industries dated February 5, 2002.
"Arranger" shall mean Banc of America Facilities Leasing, LLC, a
Delaware limited liability company, and its successors.
-2-
Giant Yorktown, Inc. Loan Agreement
"Assignment and Assumption" shall mean an Assignment and Assumption
Agreement substantially in the form of EXHIBIT F attached hereto or otherwise
acceptable to the Collateral Agent entered into pursuant to SECTION 9.1.
"Bank of America" shall mean Bank of America, National Association, a
national banking association, and its successors.
"Bankruptcy Code" shall mean the Federal Bankruptcy Reform Act of 1978
(11 U.S.C.Section 101, et seq.).
"Bankruptcy Event" shall mean, with respect to any Person, the
occurrence of any of the following with respect to such Person: (a) a court or
governmental agency having jurisdiction in the premises shall enter a decree or
order for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its property or ordering the winding up or liquidation of its affairs; or (b)
there shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (c) such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its property or make any general assignment for the benefit of creditors; or (d)
such Person shall admit in writing its inability to pay its debts generally as
they become due.
"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 one-half of one percent (0.5%) and (b) the Prime Rate for such day plus
2.00%. 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.
"Benefited Lender" shall have the meaning assigned to such term in
SECTION 4.10.
"Bill of Sale" shall have the meaning assigned to such term in SECTION
7.15.
"BNY $150,000,000 Indenture" shall mean that certain Indenture dated
August 26, 1997, between Giant Industries, as issuer, The Bank of New York, as
trustee, and others evidenced by the BNY $150,000,000 Subordinated Notes.
-3-
Giant Yorktown, Inc. Loan Agreement
"BNY $200,000,000 Indenture" shall mean that certain Indenture dated
[May 13], 2002, between Giant Industries, as issuer, the Bank of New York, as
trustee, and others evidenced by the BNY $200,000,000 Subordinated Notes.
"BNY $150,000,000 Subordinated Notes" shall mean the $150,000,000 9%
Senior Subordinated Notes due 2007 issued by Giant Industries under the BNY
$150,000,000 Indenture.
"BNY $200,000,000 Subordinated Notes" shall mean the $200,000,000 11%
Senior Subordinated Notes due 2012 issued by Giant Industries under the BNY
$200,000,000 Indenture.
"BNY $200,000,000 Subordinated Notes Offering" shall mean the issuance
and sale of the BNY $200,000,000 Subordinated Notes pursuant to the BNY
$200,000,000 Indenture.
"Board of Directors" shall mean, with respect to a corporation, either
the board of directors or any duly authorized committee of that board of
directors which, pursuant to the by-laws of such corporation, has the same
authority as that board of directors as to the matter at issue.
"Borrower" shall mean Giant Yorktown, Inc., a Delaware corporation and
a Wholly-Owned Subsidiary of Giant Arizona, or any successor thereto.
"Borrower Part" shall have the meaning assigned to such term in SECTION
3.4.
"Business Day" shall mean a day (other than a Saturday, Sunday or other
day on which commercial banks in Scottsdale, Arizona, New York, New York, or
Yorktown, Virginia are authorized or required by law to close), except that,
with respect to any determination of LIBO Rate such day shall also be a day on
which dealings between banks are carried on in U.S. dollar deposits in London,
England.
"Capital Lease" shall mean a capital lease as determined in accordance
with GAAP.
"Capital Stock" shall mean (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests, (e) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and (f) all rights to purchase, warrants, options
and other securities exercisable for, exchangeable for or convertible into any
of the foregoing.
"Cash Equivalents" shall mean: (a) securities issued or fully
guaranteed or insured by the United States Government or any agency thereof and
backed by the full faith and credit of the United States having maturities of
not more than twelve (12) months from the date of acquisition; (b) certificates
of deposit, time deposits, Eurodollar time deposits, or bankers' acceptances
having in each case a tenor of not more than twelve (12) months from the date of
acquisition issued by any U.S. commercial bank or any branch or agency of a
non-U.S.
-4-
Giant Yorktown, Inc. Loan Agreement
commercial bank licensed to conduct business in the U.S. having combined capital
and surplus of not less than Five Hundred Million Dollars ($500,000,000) whose
long term securities are rated at least A (or then equivalent grade) by S&P and
A2 (or then equivalent grade) by Moody's at the time of acquisition; (c)
commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody's at the
time of acquisition, and in either case having a tenor of not more than twelve
(12) months; (d) repurchase agreements with a term of not more than seven days
for underlying securities of the types described in clauses (a) and (b) above;
and (e) money market mutual or similar funds having assets in excess of
$100,000,000, at least 95% of the assets of which are comprised of assets
specified in clauses (a) through (c) above.
"Casualty" shall mean either a Total Casualty or a Partial Casualty.
"Casualty Notice" shall have the meaning assigned to such term in
SECTION 3.6.
"Casualty Proceeds" shall have the meaning assigned to such term in
SECTION 3.6(F).
"Casualty Recoveries" shall have the meaning assigned to such term in
SECTION 3.6(E).
"Change of Control" shall mean (a) a purchase or acquisition, directly
or indirectly, by any "person" or "group" within the meaning of Section 13(d)(3)
and 9(d)(2) of the Exchange Act (a "Group"), of "beneficial ownership" (as such
term is defined in Rule 13d-3 under the Exchange Act) of securities of Giant
Industries which, together with any securities owned beneficially by any
"affiliates" or "associates" of such Group (as such terms are defined in Rule
12b-2 under the Exchange Act), represent more than fifty percent (50%) of the
combined voting power of Giant Industries' securities which are entitled to vote
generally in the election of directors and which are outstanding on the date
immediately prior to the date of such purchase or acquisition; (b) a sale of all
or substantially all of the assets of Giant Industries and its Subsidiaries
taken as a whole to any Person or Group; (c) the liquidation or dissolution of
Giant Industries; (d) the first day on which Borrower is no longer, either
directly or indirectly, a Wholly-Owned Subsidiary of Giant Industries; or (e)
the first day on which a majority of the Board of Directors of Giant Industries
are not Continuing Directors (as herein defined). As herein defined, "Continuing
Director" shall mean any member of the Board of Directors of Giant Industries
who (x) is a member of such Board of Directors as of the date of this Loan
Agreement or (y) was nominated for election or elected to such Board of
Directors with the affirmative vote of two-thirds of the Continuing Directors
who were members of such Board of Directors at the time of such nomination or
election.
"Claims" shall mean liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, settlements, utility
charges, costs, fees, expenses and disbursements (including, without limitation,
legal fees and expenses and costs of investigation which, in the case of counsel
or investigators retained by an Indemnitee, shall be reasonable) of any kind and
nature whatsoever.
"Closing Date" shall mean May 14, 2002.
"Closing Notice" shall have the meaning assigned to such term in
SECTION 7.1.
-5-
Giant Yorktown, Inc. Loan Agreement
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor sections.
"Collateral Agent" shall mean Wells Fargo Bank Nevada, National
Association, not in its individual capacity, but solely as Collateral Agent, and
any successor or replacement Collateral Agent expressly permitted hereunder.
"Collateral Agent Fee Letter" shall mean the fee letter dated as of the
date hereof between Borrower and Trust Company.
"Commitment" shall mean, with respect to each Lender, the amount set
forth opposite such Lender's name on SCHEDULE IA under the column designated as
"Commitment."
"Commitment Fees" shall have the meaning assigned to such term in
SECTION 4.9.
"Commitment Percentage" shall mean, as to any Lender, the percentage
set forth opposite such Lender's name under the heading "Commitment Percentage"
on SCHEDULE IA.
"Commodity Swap" shall mean any commodity swap, commodity option or
commodity forward contract (including any option to enter into any of the
foregoing).
"Compliance Certificate" shall mean a certificate substantially in the
form of EXHIBIT E-6 hereto.
"Consolidated EBITDA" shall mean, for the relevant period, (a) the sum
of (i) the Consolidated Net Income for such period, (ii) Consolidated Interest
Expense, (iii) all taxes measured by income to the extent included in the
determination of such Consolidated Net Income, (iv) all amounts treated as
expenses for depreciation and the amortization of intangibles of any kind for
such period to the extent deducted in the determination of such Consolidated Net
Income for the relevant period, and (v) non-cash losses associated with asset
dispositions to the extent deducted in the determination of Consolidated Net
Income for the relevant period, minus (b) non-cash gains associated with asset
dispositions to the extent included in the determination of Consolidated Net
Income for the relevant period. Consolidated EBITDA for the fiscal quarters
ended on March 31, 2002, June 30, 2002, September 30, 2002, December 31, 2002
and March 31, 2003 shall be adjusted on a pro forma basis to take into account
the Yorktown Acquisition, as set forth on SCHEDULE IV hereto.
"Consolidated Funded Indebtedness" shall mean, for Giant Industries and
its Consolidated Subsidiaries, at any time, without duplication, the sum of: (a)
all Indebtedness (other than 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.
-6-
Giant Yorktown, Inc. Loan Agreement
"Consolidated Interest Expense" shall mean for the relevant period, for
Giant Industries and its Consolidated Subsidiaries, without duplication, (a) the
sum of (i) all interest in respect of Indebtedness and all imputed interest with
respect to Capital Leases accrued or capitalized during such period (whether or
not actually paid during such period and including fees payable in respect of
letters of credit and bankers' acceptances), (ii) the net amount payable (or
minus the net amount receivable) under all Swap Contracts (other than Commodity
Swaps) during such period (whether or not actually paid or received during such
period), and (iii) all dividends paid, declared or otherwise accrued in respect
of preferred stock, minus (b) all fees and financing cost amortized during such
period related to the incurrence of Indebtedness, to the extent included in the
calculation of interest expense.
"Consolidated Net Income" shall mean, for any period, the net income
(or net loss) of Giant Industries and its Consolidated Subsidiaries for such
period determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any date, an amount equal to
the consolidated stockholders' equity of Giant Industries and its Consolidated
Subsidiaries determined in accordance with GAAP determined as of such date.
"Consolidated Rents" shall mean, with respect to any period, the sum of
the rental and other obligations required to be paid during such period by Giant
Industries and its Consolidated Subsidiaries as lessee under all leases of real
or personal property (other than Capital Leases).
"Consolidated Senior Indebtedness" shall mean Consolidated Funded
Indebtedness, other than Indebtedness evidenced by the Subordinated Notes.
"Consolidated Subsidiaries" shall mean, at any date, any Subsidiary the
accounts of which, in accordance with GAAP, would be consolidated with those of
Giant Industries in its consolidated financial statements if such statements
were prepared as of such date.
"Consolidated Tangible Net Worth" shall mean Consolidated Net Worth,
minus the net book value of all assets of Giant Industries and its Consolidated
Subsidiaries (after deducting any reserves applicable thereto) which would be
shown as intangible assets on a consolidated balance sheet of Giant Industries
and its Consolidated Subsidiaries prepared as of such time in accordance with
GAAP.
"Constituent Company Guarantors" shall mean (a) as of the Closing Date,
each of Giant Four Corners, Inc., an Arizona corporation, San Juan, Giant
Mid-Continent, Giant Stop-N-Go of New Mexico, Inc., a New Mexico corporation,
and Phoenix, and (b) any other Subsidiary of Giant Industries which is required
to execute a Supplemental Guaranty under Section 6(l) of the Parent Guaranty.
"Constituent Companies Guaranty" shall mean the Constituent Companies
Guaranty Agreement substantially in the form of EXHIBIT I to be executed in the
favor of the Deed of Trust Trustee, Collateral Agent and Lenders by the
Constituent Company Guarantors in accordance with the provisions of Section 6(l)
of the Parent Guaranty.
-7-
Giant Yorktown, Inc. Loan Agreement
"Contingent Obligation" shall mean, as to any Person without
duplication, any direct or indirect liability of that Person with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other similar obligation (the "primary obligations") of another Person
(the "primary obligor"), including any obligation of that Person (i) to
purchase, repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or discharge
of any such primary obligation, or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each, a "Guaranty Obligation"); or (b) to
purchase any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered. The amount of any Contingent Obligation
shall, in the case of Guaranty Obligations, be deemed equal to the maximum
stated or determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and in the case of other
Contingent Obligations, shall be equal to the maximum reasonably anticipated
liability in respect thereof.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conveyance Document" shall have the meaning assigned to such term in
SECTION 3.4.
"Deed" shall mean that certain Deed from the Yorktown Seller to the
Borrower with respect to the Mortgaged Property.
"Deed of Trust" shall mean the Deed of Trust, Assignment of Leases,
Security Agreement and Fixture Filing Statement dated as of the date hereof from
the Borrower, as grantor, to the Deed of Trust Trustee for the benefit of the
Collateral Agent, as secured party, for the benefit of the Lenders.
"Deed of Trust Trustee" shall mean James W. DeBoer and any successor or
replacement Deed of Trust Trustee expressly permitted by the Deed of Trust.
"Default" shall mean any event, act, or condition which with notice or
lapse of time or both, would constitute an Event of Default.
"Deposit Account" shall have the meaning assigned to such term in
SECTION 3.6(f).
-8-
Giant Yorktown, Inc. Loan Agreement
"Deposit Account Control Agreement" shall have the meaning assigned to
such term in the Giant Industries Credit Agreement.
"Dispositions" is defined in Section 6A(b) of the Parent Guaranty.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Eligible Assignee" shall mean (i) a commercial bank organized under
the laws of the United States, or any State thereof; (ii) a commercial bank
organized under the laws of any other country that is a member of the OECD or
has concluded special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow, or a political subdivision
of any such country, provided that such bank is acting through a branch or
agency located in the United States; (iii) a finance company, leasing company,
insurance company or other financial institution or fund (whether a corporation,
partnership or other entity) engaged generally in making, purchasing or
otherwise investing in commercial loans or leasing property or equipment in the
ordinary course of its business; (iv) the central bank of any country that is a
member of the OECD; or (v) any Lender; provided, however, that (A) any such
Person shall also have combined capital and surplus (as established in its most
recent report of condition to its primary regulator) of not less than
$50,000,000 (or its equivalent in foreign currency), or if such Person does not
meet the foregoing requirements in this proviso, such Person furnishes a
guaranty of an Affiliate, which Affiliate meets the requirements of this
proviso, of such Person's obligations under the Operative Documents and (B) any
Person described in clause (ii), (iii), (iv) or (v) above shall, on the date on
which it is to become a Lender hereunder, be entitled to receive payments
hereunder without deduction or withholding of any United States Federal income
taxes.
"Engagement Letter" shall mean the engagement letter dated February 5,
2002 between Giant Industries and Arranger.
"Environmental Audit" shall mean a Phase I Environmental Assessment of
the Site, in form and substance satisfactory to the Lenders.
"Environmental Claims" shall have the meaning assigned to such term in
SECTION 11.5.
"Environmental Law" shall mean all applicable federal, state, and local
laws, statutes, rules, regulations, codes, ordinances, legally binding guidance
documents, rules of common law, legally binding directives or orders ("Laws") of
any Governmental Authority having jurisdiction over Giant Industries or any of
its Subsidiaries, any of their respective properties, or any user or occupant of
property of Giant Industries or any Subsidiary, relating to the protection of
human health, safety, public welfare, or the environment, now existing or
hereafter adopted, including without limitation, Laws relating to the
generation, processing, treatment, investigation, remediation, storage,
transport, disposal, management, handling, and use of Hazardous Substances, and
those relating to the protection of environmentally sensitive areas.
"Environmental Matters" shall mean any and all actions, suits, demands,
demand letters, claims, complaints, notices of non-compliance or violation,
enforcement actions, investigations,
-9-
Giant Yorktown, Inc. Loan Agreement
or proceedings, relating in any way to (a) the presence, alleged presence, or
use of any Hazardous Substance on, under, or about any property or assets of
Giant Industries or any of its Subsidiaries or the migration or alleged
migration of Hazardous Substances to or from such property regardless of the
source of such migration or when such migration occurred or when such presence
is discovered; (b) the Release or threatened Release of any Hazardous Substance
on, under, to or from any property or assets of Giant Industries or any of its
Subsidiaries regardless of the source of such Release or when such Release
occurred; or (c) the violation of any Environmental Law, regardless of whether
the existence or alleged existence of such Hazardous Substance or the violation
of Environmental Law arose prior to Giant Industries' or its Subsidiary's
ownership or operation of the subject property. "Environmental Matters"
includes, without limitation, any and all claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief or any other form of recovery arising in connection with any
Hazardous Substance or arising from alleged injury or threat of injury to
property, human health or the environment or from any nuisance condition.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and regulations promulgated thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) under common control with Giant Industries within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" shall mean (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by Giant Industries or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by Giant Industries or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under Section
4041(c) or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
might reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a Borrower to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any material
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon Giant Industries or any ERISA
Affiliate.
"Escrow Arrangement" shall mean an escrow or similar arrangement,
pursuant to which funds are irrevocably deposited in an amount sufficient to
redeem the NBD Subordinated Notes in full.
"Event of Default" shall have the meaning assigned to such term in
SECTION 8.1.
"Fair Market Value" shall mean, with respect to the Mortgaged Property
or a portion thereof as of any date, the price which a purchaser would pay to
purchase such Mortgaged
-10-
Giant Yorktown, Inc. Loan Agreement
Property in an arm's-length transaction between a willing buyer and a willing
seller, neither of them being under any compulsion to buy or sell. In making any
determination of Fair Market Value, Appraiser shall assume such Mortgaged
Property has been maintained in accordance with the requirements of this Loan
Agreement and that such Mortgaged Property is in the condition in which it is
required to be hereunder as of the date for which such determination is made.
Appraiser shall use such reasonable methods of appraisal as are satisfactory to
the Lenders.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Collateral Agent on such day on such transactions as determined by the
Collateral Agent.
"Fee Letters" shall mean the Arrangement Fee Letter and the Collateral
Agent Fee Letter.
"Fees" shall have the meaning assigned to such term in SECTION 4.9.
"Fixed Charge Coverage Ratio" shall mean, as of any date of
determination, 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. With respect to Indebtedness incurred in connection with the Yorktown
Acquisition (including Loans under the Giant Industries Credit Agreement),
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.
"FRB" shall mean the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal functions.
"GAAP" shall mean generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and
-11-
Giant Yorktown, Inc. Loan Agreement
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Giant Arizona" shall mean Giant Industries Arizona, Inc., an Arizona
corporation, and its successors.
"Giant Industries" shall mean Giant Industries, Inc., a Delaware
corporation, and its successors.
"Giant Industries Credit Agreement" shall mean the Second Amended and
Restated Credit Agreement dated as of May 14, 2002, among Giant Industries, as
borrower, the several financial institutions from time to time parties thereto,
as lenders, and Bank of America, as administrative agent for the lenders and as
letter of credit issuing bank.
"Giant Industries Credit Agreement Documents" shall mean the Giant
Industries Credit Agreement and each other agreement, document and instrument
executed and delivered by Giant Industries or any other Subsidiary of Giant
Industries in connection therewith.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Requirement of Law, and shall
include, without limitation, all environmental and operating permits and
licenses that are required for the full use and operation of the Mortgaged
Property.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantor" shall mean any Parent Guarantor or any Constituent Company
Guarantor.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Substance" shall mean any substance that poses a threat to,
or is regulated to protect, human health, safety, public welfare, or the
environment, including without limitation: (a) any "hazardous substance,"
"pollutant" or "contaminant," and any "petroleum" or "natural gas liquids" as
those terms are defined or used under Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601 et seq.) ("CERCLA"), (b) "solid waste" as defined by
the federal Solid Waste Disposal Act (42 U.S.C. Sections 6901 et seq.),
(c) asbestos or a material containing asbestos, (d) any material that contains
lead or lead-based paint, (e) any item or equipment that contains or is
contaminated by polychlorinated biphenyls, (f) any radioactive material, (g)
urea formaldehyde, (h) putrescible materials, (i) infectious materials, (j)
toxic microorganisms,
-12-
Giant Yorktown, Inc. Loan Agreement
including mold, or (k) any substance the presence or Release of which requires
reporting, investigation or remediation under any Environmental Law.
"Highest Lawful Rate" shall have the meaning assigned to such term in
SECTION 4.8.
"Indebtedness" of any Person shall mean, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all direct or contingent reimbursement or payment obligations with respect to
Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such property); (f) all obligations with respect to Capital Leases; (g)
all obligations with respect to "off-balance sheet" obligations (but not
including any operating lease under which aggregate rentals during the term
thereof is less than $500,000); (h) all net obligations under any Swap Contract
in an amount equal to (i) if such Swap Contract has been closed out the
termination value thereof, or (ii) if such Swap Contract has not been closed
out, the mark-to-market value thereof determined on the basis of readily
available quotations provided by any recognized dealer in such Swap Contract;
(i) all indebtedness referred to in clauses (a) through (h) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (j) all
Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (h) above.
"Indemnitee" shall mean the Arranger, any Lender, the Collateral Agent,
the Deed of Trust Trustee, the Trust Company and their respective Affiliates,
successors, permitted assigns, permitted transferees, invitees, contractors,
servants, employees, officers, directors, shareholders, partners, participants,
representatives agents and their respective designees or nominees; provided,
however, that in no event shall any other Person (other than the Arranger, any
Lender, the Collateral Agent, the Deed of Trust Trustee, the Trust Company and
their respective Affiliates, successors, permitted assigns, permitted
transferees, invitees, contractors, servants, employees, officers, directors,
shareholders, partners, participants, representatives, agents and their
respective designees or nominees) who purchases the Mortgaged Property for value
following a foreclosure or other remedy be an Indemnitee.
"Indentures" shall mean the BNY $150,000,000 Indenture and the BNY
$200,000,000 Indenture, and any other Indentures pursuant to which other
Subordinated Notes are issued.
"Insolvency Proceeding" shall mean (a) any case, action or proceeding
relating to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general assignment for
the benefit of creditors, composition, marshalling of assets for creditors, or
other, similar arrangement in respect of its creditors
-13-
Giant Yorktown, Inc. Loan Agreement
generally or any substantial portion of its creditors; undertaken under U.S.
federal, state or foreign law, including the Bankruptcy Code.
"Insurance Requirements" shall mean all terms and conditions of any
insurance policy required by this Loan Agreement to be maintained or caused to
be maintained by Borrower, and all requirements of the issuer of any such
policy.
"Interest" shall mean, with respect to each Interest Period, an amount
equal to interest accrued on the Loan Balance outstanding during such period at
the Interest Rate.
"Interest Period" shall mean initially the period commencing on (and
including) the Closing Date and ending on (but excluding) the next succeeding
Payment Date thereafter, and thereafter, each period commencing on (and
including) a Payment Date and ending on (but excluding) the next succeeding
Payment Date.
"Interest Rate" shall mean for each day during each Interest Period
with respect thereto, (a) if no Default or Event of Default shall then exist,
(i) if the Base Rate is in effect pursuant to SECTION 11.6 or SECTION 4.7
hereof, a rate per annum equal to the Base Rate, or (ii) if the Adjusted LIBO
Rate is in effect pursuant to SECTION 4.7, a rate per annum equal to the
Adjusted LIBO Rate or (b) if at any time a Default or Event of Default shall
occur during such Interest Period then for so as long as such Default or Event
of Default shall exist or until a new Interest Rate is selected, or deemed to
have been selected, pursuant to SECTION 4.7 hereof, a rate per annum equal to
the Interest Rate in effect immediately prior to the occurrence of such Default
or Event of Default plus 2.00%.
"IRS" shall mean the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lease" shall have the meaning assigned to such term in SECTION 3.2.
"Lender Liens" shall mean Liens on or against the Mortgaged Property
(a) which result from any act of, or any Claim against, any Lender or any Agent
unrelated to the transactions contemplated by the Operative Documents or (b)
which result from any Tax owed by any such Person, except any Tax for which
Borrower is obligated to indemnify.
"Lenders" shall mean the Persons set forth on SCHEDULE IA hereto,
together with any permitted successors and assigns.
"Liabilities" shall have the meaning assigned to such term in the
Parent Guaranty.
"LIBO Rate" shall mean with respect to any Interest Period at any time,
the applicable London interbank offered rate per annum for deposits in Dollars
appearing on Telerate Page 3750 as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period; or if no London interbank
offered rate of such maturity then appears on Telerate Page 3750, then the rate
equal to the London interbank offered rate per annum for deposits in Dollars
maturing immediately before or immediately after such maturity, whichever is
higher, as
-14-
Giant Yorktown, Inc. Loan Agreement
determined by the Collateral Agent from Telerate Page 3750; or if Telerate Page
3750 is not available, the applicable LIBO Rate for the relevant Interest Period
shall be the rate per annum determined by the Collateral Agent to be the
arithmetic average of the rates at which Bank of America offers to place
deposits in Dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of the aggregate
outstanding principal amount of the Notes and having a maturity approximately
equal to such Interest Period.
"Lien" shall mean any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessee under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the UCC or any comparable law) and any contingent or other
agreement to provide any of the foregoing, but not including the interest of a
lessee under an Operating Lease.
"Loan" shall mean the loan from the Lenders to the Borrower pursuant to
the terms of this Loan Agreement.
"Loan Agreement" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Loan Balance" shall mean, as of any time, the aggregate principal
amount outstanding on the Notes at such time.
"Loan Term" shall mean the period from the Closing Date to, and
including, the Maturity Date.
"Majority Lenders" shall mean Lenders who hold Notes representing more
than 50% of the aggregate Loan Balance outstanding at such time.
"Margin Payments" shall mean the amounts payable by Giant Industries to
the Yorktown Seller under Section 3(e) of the Yorktown Asset Purchase Agreement
(as in effect on the effective date thereof).
"Margin Stock" shall mean "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Material Adverse Effect" shall mean (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), capitalization or condition (financial or
otherwise) of Giant Industries and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of Borrower, Giant Industries or any
Significant Subsidiary to perform under any Operative Document and to avoid any
Event of Default; or (c) a material adverse effect upon (i) the legality,
validity, binding effect or
-15-
Giant Yorktown, Inc. Loan Agreement
enforceability against Borrower, Giant Industries or any Significant Subsidiary
of any Operative Document or any rights or remedies under any thereof, (ii) the
perfection or priority of any Lien granted under any of the Operative Documents,
(iii) the rights or interests of the Collateral Agent or any Lender in the
Mortgaged Property or (iv) the Fair Market Value, use, utility, useful life or
condition of the Mortgaged Property, other than any Partial Casualty pursuant to
which the Borrower has paid the Partial Casualty Amount or is rebuilding the
affected portion of the Mortgaged Property pursuant to SECTION 3.6.
"Material Contracts" shall have the meaning assigned to such term in
Section 5(ff) of the Parent Guaranty.
"Material Subsidiary" shall mean, at any time, a Subsidiary with total
assets with a book value of $2,000,000 or more.
"Maturity Date" shall mean May 14, 2005, or such earlier date on which:
(i) the Borrower is required to pay the Total Casualty Amount pursuant to
SECTION 3.6 or the Payoff Amount pursuant to SECTION 5.2 or (ii) the principal
and interest on the Notes have become due and payable pursuant to SECTION 8.2 or
8.3.
"Moody's" shall mean Moody's Investor Service, Inc.
"Mortgaged Property" shall have the meaning assigned to such term in
the Deed of Trust.
"Mortgaged Property Purchase Price" shall mean the sum of (a) Appraised
Value as of the Closing Date of the Mortgaged Property, and (b) Transaction
Costs.
"Mortgaged Property Records" shall mean those maintenance and other
records, books, manuals, logs, writings, data bases, and other information
relating to the maintenance, operation, ownership and use of the Mortgaged
Property.
"Mortgaged Property Value" shall mean, with respect to any Partial
Casualty, the lowest Fair Market Value during the remaining Loan Term after such
Partial Casualty, determined by an Appraisal acceptable to Collateral Agent for
the Mortgaged Property after such Partial Casualty.
"Multiemployer Plan" shall mean a "multiemployer plan," within the
meaning of Section 4001(a)(3) of ERISA, to which Giant Industries or any ERISA
Affiliate makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"NBD Indenture" shall mean that certain Indenture dated November 29,
1993, between Giant Industries, as issuer, NBD Bank, National Association (now
known as Bank One Trust Company, N.A.) ("NBD Bank"), as borrower, and others
evidenced by the NBD Subordinated Notes.
-16-
Giant Yorktown, Inc. Loan Agreement
"NBD Subordinated Notes" shall mean the $100,000,000 9-3/4% Senior
Subordinated Notes due 2003 issued by Giant Industries under the NBD Indenture,
to be refinanced, pursuant to the Escrow Agreement established on the Closing
Date with the proceeds of the BNY $200,000,000 Subordinated Notes.
"Notes" shall have the meaning assigned to such term in SECTION 4.2.
"Obligation" shall mean any obligation or liability of Borrower or any
Guarantor to any Agent or any Lender, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due, under or in connection with this Loan Agreement or any
other Operative Document.
"Officer's Certificate" of a Person shall mean a certificate signed by
a Responsible Officer of such Person.
"Operating Lease" shall mean an operating lease determined in
accordance with GAAP.
"Operative Documents" shall mean this Loan Agreement (including all
Annexes, Exhibits and Schedules hereto), the Deed, the Parent Guaranty, the
Constituent Companies Guaranty, the Deed of Trust, the Bill of Sale, the Notes,
the Fee Letters, the Engagement Letter, the Closing Notice, and any Assignment
and Assumption and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto (in each case as
the same may be amended, modified, restated, supplemented, extended, renewed or
replaced from time to time), and "Operative Document" shall mean any one of
them.
"Organization Documents" shall mean, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation.
"Original Part" shall have the meaning assigned to such term in SECTION
3.4.
"Overdue Rate" shall have the meaning assigned to such term in SECTION
4.4(b).
"Parent Guarantors" shall mean each of Giant Industries and Giant
Arizona and each Person that becomes a Parent Guarantor by execution of a
Supplemental Guaranty in accordance with Section 6(l) of the Parent Guaranty,
together with their successor and permitted assigns, and "Parent Guarantor"
shall mean anyone of them.
"Parent Guaranty" shall mean that certain Parent Guaranty Agreement
dated as of the date hereof by Giant Industries and Giant Arizona for the
benefit of the Arranger, the Deed of Trust Trustee, Collateral Agent and Lenders
in substantially the form of EXHIBIT K.
"Part" shall have the meaning assigned to such term in SECTION 3.4.
-17-
Giant Yorktown, Inc. Loan Agreement
"Partial Casualty" shall mean any event listed in the definition of
Total Casualty that does not result in a Total Casualty and results in damage
for which the cost to repair would exceed $5,000,000 (all other such events to
be remedied under SECTION 3.3 or 3.4).
"Partial Casualty Amount" shall mean, with respect to the Mortgaged
Property as of any date specified for payment thereof, a portion of the Loan
Balance equal to the difference, if positive, between the Loan Balance and 50%
of the Mortgaged Property Value, plus all Interest accrued on such portion of
the Loan Balance to the date of payment, plus the Applicable Administrative
Charge on such portion of the Loan Balance.
"Partial Casualty Settlement Date" shall have the meaning assigned to
such term in SECTION 3.6(b)(i).
"Payment Date" shall mean (i) the fourteenth (14th) day of each month
or if such fourteenth (14th) day is not a Business Day, the next succeeding
Business Day, and (ii) in any case, the Maturity Date.
"Payoff Amount" shall mean as of any date of determination, the sum of
(a) the Loan Balance as of the date of payment, plus (b) all accrued but unpaid
Interest, plus (c) the Applicable Administrative Charge, if any, plus (d) all
other sums then due and payable under the Operative Documents by Borrower, a
Guarantor or any of their Affiliates.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Pension Plan" shall mean any "employee pension benefit plan" (as
defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than a
Multiemployer Plan, which Giant Industries or any of its Subsidiaries or any of
their respective ERISA Affiliates sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five (5) plan years.
"Permitted Contest" shall mean actions taken by a Person to contest in
good faith, by appropriate proceedings initiated timely and diligently
prosecuted, the legality, validity or applicability to the Mortgaged Property or
any interest therein of any Person of: (a) any law, regulation, rule, judgment,
order, or other legal provision or judicial or administrative requirements; (b)
any term or condition of, or any revocation or amendment of, or other proceeding
relating to, any authorization or other consent, approval or other action by any
Governmental Authority; or (c) any Lien or Tax; provided that the initiation and
prosecution of such contest would not: (i) result in, or materially increase the
risk of, the imposition of any criminal liability on any Indemnitee; (ii)
materially and adversely affect the Liens created by the Operative Documents or
the right, title or interest of Deed of Trust Trustee, Collateral Agent or any
Lender in or to any of the Mortgaged Property or the right of Deed of Trust
Trustee, Collateral Agent or any Lender to receive payment of all or any portion
of any payment of Interest, principal, Loan Balance, Administrative Charge or
any other amount payable under the Operative Documents; (iii) permit, or pose a
material risk of, the sale or forfeiture of, or
-18-
Giant Yorktown, Inc. Loan Agreement
foreclosure on, the Mortgaged Property or (iv) materially and adversely affect
the Fair Market Value, utility or remaining useful life of the Mortgaged
Property or any interest therein or the continued economic operation thereof;
and provided further that in any event adequate reserves in accordance with GAAP
are maintained against any adverse determination of such contest.
"Permitted Encumbrances" shall mean (i) any rights in favor of Deed of
Trust Trustee, Collateral Agent and the Lenders pursuant to this Loan Agreement
or any other Operative Documents; (ii) materialmen's, mechanics', workers',
artisan's, repairmen's, employees' or other like Liens securing payment of the
price of goods or services rendered in the ordinary course of business for
amounts the payment of which is not overdue or is being contested pursuant to a
Permitted Contest; (iii) any Lender Lien; (iv) Liens for current Taxes which are
not delinquent or the validity of which is being contested pursuant to a
Permitted Contest; (v) easements, rights-of-way, restrictions, defects or other
exceptions to title and other similar encumbrances with respect to the Site
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of Borrower; and (vi) the rights provided under those certain
Installment Sale Agreements by and between the Industrial Development Authority
of York County, Virginia and Amoco Oil Company, recorded February 11, 1997, at
the Clerk's Office of the Circuit Court of York County, Virginia in Deed Book
296, Page 781 and in Deed Book 297, Page 1.
"Permitted Liens" has the meaning set forth in Section 6A(a) of the
Parent Guaranty.
"Permitted Modification" shall have the meaning assigned to such term
in SECTION 3.4.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Phoenix" shall mean Phoenix Fuel Co., Inc., an Arizona corporation.
"Plan" shall mean an employee benefit plan (as defined in Section 3(3)
of ERISA) established by Giant Industries or any ERISA Affiliate.
"Preferred Stock," as applied to the Capital Stock of any person, shall
mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over the Capital Stock of any other class of
such person.
"Prepayment Option" shall have the meaning assigned to such term in
SECTION 5.2.
"Prime Rate" shall mean the per annum rate of interest established from
time to time by Bank of America as its prime rate, which rate may not be the
lowest rate of interest charged by Bank of America to its customers.
-19-
Giant Yorktown, Inc. Loan Agreement
"Principal Business" shall mean (i) the business of the exploration
for, and development, acquisition, production, processing, marketing, refining,
storage and transportation of, hydrocarbons, (ii) any related energy and natural
resource business, (iii) any business currently engaged in by Giant Industries
or its Subsidiaries, (iv) convenience stores, retail service stations, truck
stops and other public accommodations in connection therewith and (v) any
activity or business that is a reasonable extension, development or expansion of
any of the foregoing.
"Prohibited Transaction" shall mean a transaction that is prohibited
under Code Section 4975 or ERISA Section 406 and not exempt under Code Section
4975 or ERISA Section 408.
"Rating Agency" shall mean each of the following credit rating
agencies:
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 40th Floor
New York, New York 10041-0003
Attn: Structured Finance Ratings
Telephone No.: (212) 438-2000
Telecopier No.: (212) 438-7321
and
Moody's Investors Service
99 Church Street
New York, New York 10007
Attn: Asset Backed CP Monitoring Department
Telephone No.: (212) 553-0300
Telecopier No.: (212) 553-3850/0881
Except as otherwise indicated, any reference herein to "the Rating Agency" shall
be deemed to include each such credit rating agency.
"Regulation T, U or X" shall mean Regulation T, U or X, respectively,
of the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Release" shall mean any depositing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, migration, or disposing.
"Removable Part" shall have the meaning assigned to such term in
SECTION 3.4.
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event for
which the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
"Replacement Parts" shall have the meaning assigned to such term in
SECTION 3.4.
-20-
Giant Yorktown, Inc. Loan Agreement
"Required Alteration" shall have the meaning assigned to such term in
SECTION 3.4.
"Required Lenders" shall mean Lenders who hold Notes representing at
least 66-2/3% of the aggregate Loan Balance outstanding at such time.
"Required Prepayment" shall mean, for any Interest Period, a portion of
the Loan Balance in the amount set forth on SCHEDULE IIB for such Interest
Period.
"Requirement of Law" shall mean, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject,
including without limitation Environmental Laws.
"Responsible Officer" shall mean the officers of Giant Industries with
the following titles: (i) president; (ii) executive vice president; (iii) vice
president and chief financial officer; and (iv) vice president and chief
accounting officer.
"Responsible Officer's Certificate" shall mean a certificate signed by
an applicable Responsible Officer, which certificate shall certify as true and
correct the subject matter being certified to in such certificate.
"Restricted Payments" is defined in Section 6A(i) of the Parent
Guaranty.
"San Juan" shall mean San Juan Refining Company, a New Mexico
corporation.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Consolidated Senior Indebtedness as of the determination date to (b)
Consolidated EBITDA for the four fiscal quarters ending on such date, or if such
date is not the last day of a fiscal quarter, ending on the last day of the
fiscal quarter most recently ended.
"Significant Subsidiary" shall mean (a) Giant Arizona, (b) San Juan,
(c) Phoenix and (d) any other subsidiary of Giant Industries having total assets
at or immediately prior to the time in question with a book value of $10,000,000
or more.
"Site" shall mean the land and the other rights described in Exhibit A
to the Deed of Trust.
"Solvent" shall mean, as to any Person at any time, that (a) the fair
value of all of the property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value
of all of the property of such Person is not less than the amount that will be
required to pay
-21-
Giant Yorktown, Inc. Loan Agreement
the probable liability of such Person on its debts as they become absolute and
matured; (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital.
"S&P" shall mean Standard & Poor's Ratings Group, a Division of
McGraw-Hill, Inc., a New York corporation.
"Specified Swap Contracts" shall mean all Swap Contracts made or
entered into at any time, or in effect at any time, whether directly or
indirectly, and whether as a result of assignment or transfer or otherwise,
between Giant Industries or any Subsidiary and any Swap Provider, which Swap
Contract is or was intended by Giant Industries or such Subsidiary to have been
entered into, in part or entirely, for purposes of mitigating interest rate or
currency exchange risk relating to any liabilities owed or credit facilities in
effect and not for the purposes of financing, speculation or taking a "market
view" (which intent shall conclusively be deemed to exist if Giant Industries or
such Subsidiary so represents to the Swap Provider in writing) and as to which
the final scheduled payment by Giant Industries or its Subsidiary is not later
than the Maturity Date.
"Subordinated Documents" shall mean (i) the NBD Subordinated Notes and
(ii) the BNY Subordinated Notes and, in each case, each other agreement,
document and instrument executed and delivered in connection therewith.
"Subordinated Notes" shall mean (i) the BNY $150,000,000 Subordinated
Notes issued under the BNY $150,000,000, (ii) the BNY $200,000,000 Subordinated
Notes issued under the BNY $200,000,000 Indenture and (iii) such other notes as
may be issued from time to time by Giant Industries after the Closing Date
containing terms, and issued pursuant to an Indenture containing terms,
satisfactory to the Collateral Agent and the Required Lenders, and which are
subordinated on terms and conditions satisfactory to the Collateral Agent and
the Required Lenders, in their sole discretion, to all Obligations, whether now
existing or hereafter incurred. Notes shall not be considered "Subordinated
Notes" unless and until the Collateral Agent shall have received copies of the
documentation evidencing or relating to such notes evidencing the terms and
conditions of subordination required by the Collateral Agent and the Required
Lenders.
"Subsidiary" of a Person shall mean any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than 50% of the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations) is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of Giant Industries.
"Supplemental Guaranty" shall mean an agreement, in substantially the
form of EXHIBIT H, pursuant to which the Person executing the same elects to
become a Constituent Company Guarantor or a Parent Guarantor, as the case may
be, for purposes of this Loan
-22-
Giant Yorktown, Inc. Loan Agreement
Agreement and the other Operative Documents and agrees to perform all of the
obligations of a Constituent Company Guarantor or a Parent Guarantor, as the
case may be, under, and to be bound in all respects by the terms of, the
Constituent Company Guaranty or the Parent Guaranty, as the case may be, as if
said Person were a signatory thereto.
"Supplemental Payment" shall mean any and all amounts, liabilities and
obligations other than Interest and Required Prepayments which Borrower assumes
or agrees or is otherwise obligated to pay under this Loan Agreement or any
other Operative Document (whether or not designated as Supplemental Payment) to
any Agent, any Lender or any other Person, including, without limitation, any
Administrative Charge, indemnities and damages for breach of any covenants,
representations, warranties or agreements.
"Supplemental Underwriting Fee" shall mean the Supplemental
Underwriting Fee as described in the Arrangement Fee Letter.
"Surety Instruments" shall mean all letters of credit (including
standby), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" shall mean any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, commodity forward contracts, equity
or equity index swap or option, bond option, interest rate option, forward
foreign exchange agreement, rate cap, collar or floor agreement, currency swap
agreement, cross-currency rate swap agreement, swap option, currency option or
any other, similar agreement (including any option to enter into any of the
foregoing).
"Swap Provider" shall mean any lender under the Giant Industries Credit
Agreement or any Affiliate thereof that is at the time of determination party to
a Swap Contract with Giant Industries or any Subsidiary.
"Swap Termination Value" shall mean, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
"Synthetic Lease" shall mean a financing arrangement that is treated as
a lease for financial accounting purposes and as a loan for tax purposes.
"Taxes" and "Tax" shall mean any and all fees (including, without
limitation, documentation, recording, license and registration fees), taxes
(including, without limitation, income (whether net, gross or adjusted gross)
taxes; gross and net receipts taxes; taxes that are or are in the nature of
franchise, value added, privilege or doing business taxes, license and
-23-
Giant Yorktown, Inc. Loan Agreement
registration fees; real and personal property (including intangibles) taxes;
sales, use and similar taxes (including rent taxes); any excise taxes; real
estate transfer taxes, mortgage taxes, conveyance taxes, turnover taxes,
value-added taxes; stamp taxes and documentary recording taxes and fees),
levies, imposts, duties, charges, assessments or withholdings of any nature
whatsoever, together with any penalties, fines or interest thereon or additions
thereto.
"Title Insurance Company" shall mean a title insurance company selected
by Borrower and satisfactory to the Collateral Agent.
"Title Policy" is defined in SECTION 7.24.
"Total Casualty" shall mean any of the following events in respect of
all of the Mortgaged Property: (a) the total loss of the Mortgaged Property, or
the total loss of use thereof, due to theft, disappearance, destruction, damage
beyond repair or the rendering of the Mortgaged Property permanently unfit for
normal use for any reason whatsoever; (b) any damage to the Mortgaged Property
which results in an insurance settlement with respect to the Mortgaged Property
on the basis of a total loss or a constructive total loss; (c) the permanent
condemnation, confiscation or seizure of, or requisition of title to or use of,
the Mortgaged Property; or (d) as a result of any Requirements of Law or other
action by any Governmental Authority, the use of the Mortgaged Property in the
normal course of Borrower's business shall have been prohibited, directly or
indirectly, for a period equal to the lesser of 60 consecutive days and the
remaining Loan Term.
"Total Casualty Amount" shall mean the Payoff Amount as of the date
specified for payment thereof.
"Total Casualty Settlement Date" shall have the meaning assigned to
such term in SECTION 3.6(a).
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a)
Consolidated Funded Indebtedness as of the determination date to (b)
Consolidated EBITDA for the four fiscal quarters ending on such date, or if such
date is not the last day of a fiscal quarter, ending on the last day of the
fiscal quarter most recently then ended.
"Transaction Costs" shall mean
(i) the reasonable fees and expenses of Chapman and Cutler
incurred in connection with the negotiation, execution and delivery of
the term sheet, the commitment letters, the Operative Documents, the
syndication of the Notes and any amendments to the Operative Documents
in connection therewith and the transactions contemplated thereby;
(ii) the reasonable fees and expenses of the Arranger
including, without limitation, the fees and expenses of any insurance
consultant hired by the Arranger and any fees and expenses incurred in
connection with the syndication of the Notes;
-24-
Giant Yorktown, Inc. Loan Agreement
(iii) the actual and ongoing fees and expenses of the
Deed of Trust Trustee and Collateral Agent;
(iv) the reasonable counsel fees of the Collateral
Agent;
(v) the fees and expenses of the Appraiser;
(vi) all costs of searching and perfecting a first
priority Lien and security interest in the Mortgaged Property
(as defined in the Deed of Trust) (subject to Permitted
Encumbrances);
(vii) costs and expenses for the survey of the Site;
(viii) costs and expenses for any environmental
review or assessment of the Site;
(ix) costs and expenses for all title insurance and
policies relating to the Site;
(x) the Arrangement Fee and the Supplemental
Underwriting Fee; and
(xi) all other fees and expenses incurred by
Collateral Agent or any Lender in connection with the
Operative Documents and the transactions contemplated hereby.
"Trust Company" shall mean Wells Fargo Bank Nevada, National
Association, or any successor financial institution acting as Collateral Agent
under the Operative Documents, in each case, in its individual capacity.
"UCC" shall mean the Uniform Commercial Code of Virginia or any other
applicable jurisdiction.
"Underwriting Amount" shall mean $75,000,000.
"Unfunded Pension Liability" shall mean the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"Wholly-Owned Subsidiary" shall mean any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power at the time as of which any
determination is being made, is owned, beneficially and of record, by Giant
Industries, or by one or more of the other Wholly-Owned Subsidiaries, or both.
"Yorktown Acquisition" shall mean the acquisition of the Mortgaged
Property from the Yorktown Seller.
-25-
Giant Yorktown, Inc. Loan Agreement
"Yorktown Acquisition" shall mean the acquisition of the Mortgaged
Property from the Yorktown Seller.
"Yorktown Acquisition Documents" shall mean the Yorktown Asset Purchase
Agreement and each other agreement, document and instrument executed and
delivered by Giant Industries, Borrower or any other Subsidiary of Giant
Industries, and the Yorktown Seller in connection with Borrower's purchase of
the Yorktown Assets.
"Yorktown Assets" shall mean the "Purchased Assets" defined in the
Yorktown Asset Purchase Agreement, including without limitation the Mortgaged
Property.
"Yorktown Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated as of February 8, 2002, between Giant Industries and the
Yorktown Seller with such amendments as may be satisfactory to the Collateral
Agent and the Required Lenders.
"Yorktown Seller" shall mean BP Corporation North America Inc., an
Indiana corporation, and BP Products North America Inc., a Maryland corporation,
collectively the "Seller" under the Yorktown Asset Purchase Agreement.
"Yorktown Subsidiaries" shall mean the Borrower.
SECTION 2. REPRESENTATION AND WARRANTIES.
Section 2.1. Representation of Borrower. As to the date hereof and the
Closing Date, the Borrower makes the representations and warranties applicable
to it set forth in Section 5 of the Parent Guaranty (and such Section 5 of the
Parent Guaranty is hereby incorporated by reference) to each of the other
parties hereto.
Section 2.2. Representations and Warranties of Lenders. Each Lender
represents and warrants, severally and only as to itself, to each of the other
parties hereto as follows:
(a) ERISA. Either (i) it is not and will not be purchasing any
of its interest in the Notes with the assets of an "employee benefit
plan" (as defined in Section 3(3) of ERISA) which is subject to Title I
of ERISA, or a "plan" (as defined in Section 4975(e)(1) of the Code or
(ii) the acquisition and holding of any Note will not result in a
Prohibited Transaction.
(b) Investment. The Note being acquired by such Lender is
being acquired by such Lender for investment for its own account and
not with a view to the resale or distribution of such interest or any
part thereof in any manner that would require registration under the
Securities Act, but without prejudice, however, to the right of such
Lender at all times to sell or otherwise dispose of all or any part of
such interest under a registration available under the Securities Act
or under an exemption from such registration available under the
Securities Act, it being understood that the disposition by the
undersigned of the Note to be purchased by such Lender shall, at all
times, remain entirely within its control.
(c) Offer of Securities, etc. Neither such Lender nor any
Person authorized to act on its behalf has, directly or indirectly,
offered to sell the Notes or any other similar
-26-
Giant Yorktown, Inc. Loan Agreement
securities (the sale or offer of which would be integrated with the
sale or offer of the Notes), for sale to, or solicited any offer to
acquire any of the same from, any Person.
(d) No Registration. Such Lender understands and acknowledges
that the Notes have not been and will not be registered under the
Securities Act in reliance upon the exemption provided in Section 4(2)
of the Securities Act or any other applicable exemption, that the Notes
have not and will not be registered or qualified under the securities
or "blue sky" laws of any jurisdiction, that the Notes may be resold or
otherwise transferred only if so registered or qualified or if an
exemption from registration or qualification is available, that the
Borrower is not required to register the Notes and that any transfer
must comply with the provisions of the Operative Documents relating
thereto. Such Lender will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Notes
held by it.
(e) Institutional Investor. Such Lender is a sophisticated
institutional investor and an "accredited investor" as defined in
paragraph (1), (2), (3) or (7) of Rule 501(a) of the Securities Act,
and has knowledge and experience in financial and business matters and
is capable of evaluating the merits and risks of its investment in the
Notes and is able to bear the economic risk of such investment. Such
Lender has been given such information concerning the Notes, the other
Operative Documents, the Mortgaged Property and the Borrower as it has
requested.
(f) Legend. Such Lender understands and acknowledges that the
Note which it is acquiring will bear a legend as set forth in the form
of Note included as EXHIBIT A.
The making of any Loan on the Closing Date, and any assignment of any
Loan or this Loan Agreement shall constitute an affirmation by the subject
assignee or acquiring Lender of the preceding representations and warranties.
Section 2.3. Representations and Warranties of Collateral Agent. Trust
Company, in its individual capacity and not in its capacity as Collateral Agent
(with the exception of CLAUSE (c) below, which representation and warranty is
made by Wells Fargo Bank Nevada, National Association, solely in its capacity as
Collateral Agent), hereby represents and warrants to each of the other parties
hereto that:
(a) Due Organization, etc. Trust Company is a national banking
association duly organized, validly existing and in good standing under
the laws of the United States of America; Trust Company has full
banking and trust power and authority to enter into and perform its
obligations under the Operative Documents to which it is or is to be a
party and each other agreement, instrument and document to be executed
and delivered by it on or before the Closing Date in connection with or
as contemplated by each such Operative Document to which it is or is to
be a party; and the Operative Documents to which Trust Company is a
party, have been or will be duly executed and delivered by Trust
Company.
-27-
Giant Yorktown, Inc. Loan Agreement
(b) Authorization; No Conflict. The execution and delivery by
Trust Company of the Operative Documents to which it is or is to be a
party, and the performance by Trust Company of its obligations under
such Operative Documents, have been duly authorized by all necessary
action on its part, and do not and will not: (i) contravene any Federal
laws governing the banking powers of Trust Company; (ii) violate any
provision of its articles of association or by-laws; (iii) result in a
breach of or constitute a default under any indenture, loan or credit
agreement, or any other agreement or instrument to which Trust Company
is a party or by which it or its properties may be bound or affected,
which breaches or defaults would be reasonably likely to materially and
adversely affect the ability of Trust Company to perform its
obligations under any Operative Documents to which it is or will be a
party; or (iv) require any authorizations, consents, approvals,
licenses or formal exemptions from, or any filings, declarations or
registrations with, any Governmental Authority governing the banking
powers of Trust Company or any consent or approval of any
non-governmental Person.
(c) Enforceability, etc. Each Operative Document to which
Trust Company is a party constitutes the legal, valid and binding
obligation of Trust Company enforceable against it in accordance with
the terms thereof, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(d) Litigation. There is no action, proceeding or
investigation known to Trust Company pending or threatened which
questions the validity of the Operative Documents to which Trust
Company is a party or any action taken or to be taken pursuant to the
Operative Documents to which Trust Company is a party.
SECTION 3. COVENANTS.
The Borrower covenants and agrees to perform the obligations applicable
to the Borrower set forth in Sections 6 and 6A of the Parent Guaranty and such
Sections 6 and 6A of the Parent Guaranty are hereby incorporated by reference.
The Borrower further covenants and agrees as follows:
Section 3.1. Possession and Use of Mortgaged Property; Compliance with
Laws. Borrower agrees that the Mortgaged Property will be used and operated in
compliance with any and all Requirements of Law. Borrower shall procure and
maintain in effect all material licenses, registrations, certificates, permits,
approvals and consents required by any Requirement of Law or by any Governmental
Authority in connection with the ownership, delivery, installation, maintenance,
repair, use and operation of the Mortgaged Property. Borrower shall not (a) use,
operate, or maintain the Mortgaged Property or any portion thereof in violation
of SECTION 3.3 or any Insurance Requirement; (b) lease, assign or otherwise
permit the use of any of the Mortgaged Property except as may be permitted by
SECTION 3.2; or (c) except as set forth in SECTION 3.2, sell, assign or transfer
any of its rights or in any of the Mortgaged Property, or directly or indirectly
-28-
Giant Yorktown, Inc. Loan Agreement
create, incur or suffer to exist any Lien on any of its rights hereunder or in
any of the Mortgaged Property, except for Permitted Encumbrances.
Section 3.2. Leases and Assignments. Except for leases permitted by
this SECTION 3.2, Borrower may not assign, lease, mortgage, pledge or otherwise
transfer to any Person, at any time, in whole or in part, any of its rights,
title or interest in, or obligations to or under this Loan Agreement, any other
Operative Document or to any portion of the Mortgaged Property. Each lease
entered into in accordance with this SECTION 3.2 shall be referred to as a
"Lease." Borrower may, so long as no Event of Default exists, lease all or any
portion of the Mortgaged Property to one or more of its Affiliates. With respect
to any Lease permitted under this SECTION 3.2, Borrower shall not lease any
portion of the Mortgaged Property to any Person who shall then be engaged in any
proceedings for relief under any bankruptcy or insolvency law or laws relating
to the relief of debtors.
No Lease hereunder will (a) discharge or diminish any of Borrower's
obligations to Collateral Agent, Deed of Trust Trustee or any Lender hereunder
or Borrower's or any Guarantor's obligations to any other Person under any other
Operative Document, and Borrower shall remain directly and primarily liable
under this Loan Agreement with respect to all of the Mortgaged Property or (b)
extend beyond the last day of the Loan Term. Each Lease permitted hereby shall
be made and shall expressly provide that it is subject and subordinate to Deed
of Trust and the rights of Collateral Agent or Deed of Trust Trustee thereunder,
and shall expressly provide for the surrender of the Mortgaged Property leased
by the applicable lessee at the election of Collateral Agent or Deed of Trust
Trustee after an Event of Default.
Borrower shall give the Collateral Agent prompt, and in any event
within 5 Business Days thereof, written notice of any Lease permitted under this
SECTION 3.2, and shall promptly provide the Collateral Agent with a fully
executed copy of each document evidencing such Lease, together with a
Certificate of a Responsible Officer of Borrower that such Lease complies with
this SECTION 3.2.
Section 3.3. Maintenance. At all times during the term of this Loan
Agreement, Borrower shall, at its own cost and expense:
(a) keep, repair, maintain and preserve the Mortgaged Property
in good order and operating condition and repair as existing on the
Closing Date, ordinary wear and tear excepted, and in conformance with
(i) prudent industry maintenance and repair standards, (ii) such
maintenance and repair standards used by Giant Industries or any of its
Affiliates for similar property owned or leased by it, and (iii) all
material Requirements of Law and Insurance Requirements, and in the
event that any Requirement of Law requires any alteration, replacement
or addition of or to any Part of the Mortgaged Property, Borrower will
conform therewith at its own expense;
(b) (i) conduct all scheduled maintenance of the Mortgaged
Property in conformity with Giant Industries' and its Affiliates' past
practices, and prudent industry maintenance and repair standards,
(including, without limitation, Giant Industries' and its Affiliates'
maintenance program for such equipment) and (ii) maintain such
Mortgaged
-29-
Giant Yorktown, Inc. Loan Agreement
Property so as to preserve its remaining economic useful life, utility
and residual value; and
(c) cause the Mortgaged Property to continue to have at all
times the capacity and functional ability to perform, on a continuing
basis (subject to normal interruption in the ordinary course of
business for maintenance, inspection, service, repair and testing) and
in commercial operation, the functions for which it was specifically
designed, other than any Partial Casualty pursuant to which the
Borrower has paid the Partial Casualty Amount or is rebuilding the
affected portion of the Mortgaged Property pursuant to SECTION 3.6.
Borrower shall prepare and deliver to Collateral Agent and the Lenders
within 15 Business Days prior to the required date of filing (or, to the extent
permissible, file on behalf of Collateral Agent and the Lenders) any and all
material reports to be filed by Collateral Agent or any Lender with any
Governmental Authority by reason of the security interest of the Collateral
Agent or any Lender in the Mortgaged Property. Each Lender agrees to inform
Borrower of any request for such reports received by it. Borrower shall maintain
or cause to be maintained, all records, logs and other materials required by any
Governmental Authority having jurisdiction over the Mortgaged Property. Borrower
shall permit Collateral Agent and each Lender to inspect, during normal business
hours and upon notice within 5 Business Days, the Mortgaged Property and any and
all records, logs and other materials maintained by Borrower or any of its
Affiliates in respect of the Mortgaged Property; provided that from and after
the occurrence of an Event of Default, all costs and expenses of Collateral
Agent or any Lender in connection with such inspection shall be borne by
Borrower. Borrower hereby waives any right now or hereafter conferred by law to
make repairs on the Mortgaged Property at the expense of Collateral Agent or any
Lender.
Section 3.4. Alterations, Modifications, etc. In case the Mortgaged
Property, or any item of equipment, part or appliance therein (each, a "Part")
is required to be altered, added to, replaced or modified in order to comply
with any Requirements of Law (a "Required Alteration") pursuant to SECTIONS 3.1
or 3.3 hereof, Borrower agrees to make such Required Alteration at its own
expense. Borrower shall have the right to make any modification, alteration or
improvement to the Mortgaged Property (herein referred to as a "Permitted
Modification"), or to remove any Part which has become worn out, broken or
obsolete, provided in each case that Borrower continues to be in compliance with
SECTIONS 3.1 and 3.3 hereof and that such action will not, in Borrower's
reasonable judgment, materially decrease the economic value of the Mortgaged
Property or impair its originally intended use or function or decrease its
economic useful life and in any event, will not decrease the Fair Market Value
of the Mortgaged Property throughout the Loan Term and at the end of the Loan
Term to less than 2 times the Loan Balance. In the event any Permitted
Modification (i) is readily removable without impairing the value or use which
the Mortgaged Property would have had at such time had such Part not been
affixed or placed to or on such Mortgaged Property (a "Removable Part"), (ii) is
not a Required Alteration and (iii) is not a Part which replaces any Part
originally incorporated or installed in or attached to such Mortgaged Property
on the date on which such Mortgaged Property became subject to the Deed of
Trust, or any Part in replacement of or substitution for any such original Part
(each an "Original Part"), any such Permitted Modification, if no Event of
Default is
-30-
Giant Yorktown, Inc. Loan Agreement
continuing, shall be and remain the property of Borrower that is not subject to
the Lien of the Deed of Trust and may be removed by Borrower (a "Borrower
Part"). To the extent such Permitted Modification is not a Removable Part, or is
a Required Alteration or an Original Part, and, to the extent a Removable Part
is not the property of Borrower that is not subject to the Lien of the Deed of
Trust because of the continuance of an Event of Default, the same shall
immediately and automatically be and become subject to the Lien of the Deed of
Trust. Any Required Alterations, and any Parts installed or replacements made by
Borrower upon any Mortgaged Property pursuant to its obligation to maintain and
keep the Mortgaged Property in good order, operating condition and repair under
SECTION 3.3 (collectively, "Replacement Parts") and all other Parts which become
the property of Borrower shall be considered, in each case, accessions to such
Mortgaged Property and a security interest therein shall be immediately and
automatically vested in Collateral Agent for the benefit of the Lenders. All
Replacement Parts shall be free and clear of all Liens (other than Permitted
Encumbrances) and shall be in as good an operating condition as, and shall have
a value and utility at least equal to, the Parts replaced, assuming such
replaced Parts and the Mortgaged Property were immediately prior to such
replacement or the event or events necessitating such replacement in the
condition and repair required to be maintained by the terms hereof. Any Part at
any time removed from any of the Mortgaged Property shall remain subject to the
interests of Collateral Agent and the Lenders under the Operative Documents, no
matter where located, until such time as such Part shall be replaced by a Part
which has been incorporated or installed in or attached to such Mortgaged
Property and which meets the requirements for a Replacement Part specified
above. No later than 45 days after the end of each fiscal quarter of Borrower,
Borrower shall deliver to Collateral Agent for the benefit of the Lenders, a
document evidencing the grant by Borrower of a security interest in such
Replacement Part to Collateral Agent for the benefit of the Lenders (a
"Conveyance Document"), of each Replacement Part not previously evidenced by a
Conveyance Document and such other documents in respect of such Part or Parts
and to the extent, as Collateral Agent may reasonably request in order to
confirm that a security interest to such Part or Parts has passed to Collateral
Agent for the benefit of the Lenders, as hereinabove provided. Any such
Replacement Part, regardless of whether evidenced by a Conveyance Document,
shall become subject to Deed of Trust and shall be deemed part of the Mortgaged
Property, for all purposes thereof to the same extent as the Parts originally
incorporated or installed in the Mortgaged Property, and a security interest to
such Replacement Part shall thereupon vest in the Collateral Agent. All
replacements pursuant to this SECTION 3.4 shall be purchased by Borrower with
its own funds. There shall be no obligation on the part of any Lender to pay for
or otherwise finance any such replacement.
Section 3.5. Liens. Borrower will not directly or indirectly create,
incur, assume or suffer to exist any Lien (other than Permitted Encumbrances) on
or with respect to the Mortgaged Property or any Part thereof. Borrower, at its
own expense, will promptly pay, satisfy and otherwise take such actions as may
be necessary to keep the Mortgaged Property free and clear of, and to duly
discharge or eliminate or bond in a manner satisfactory to Collateral Agent, any
such Lien not excepted above if the same shall arise at any time. Borrower will
notify Collateral Agent and each Lender in writing within 5 Business Days upon
becoming aware of any Tax or other Lien (other than any Lien excepted above)
that shall attach to the Mortgaged Property, and of the full particulars
thereof. Without limiting the foregoing, Borrower shall not
-31-
Giant Yorktown, Inc. Loan Agreement
assign or pledge any of its rights under any Lease to any Person other than
Collateral Agent and the Deed of Trust Trustee for the benefit of the Lenders.
Section 3.6. Casualty. Upon the occurrence of a Casualty prior to or
during the term of this Loan Agreement, Borrower shall give the Lenders and
Collateral Agent prompt, and in any event within 5 Business Days thereof,
written notice thereof (a "Casualty Notice") and in no event shall such notice
be more than 5 Business Days from the occurrence of such Casualty.
(a) In the event of a Total Casualty, Borrower will pay to Collateral
Agent for the benefit of the Lenders, the Total Casualty Amount, which payment
shall be made no later than 90 days after such Total Casualty (the "Total
Casualty Settlement Date"), provided that in any event the Total Casualty
Settlement Date shall be no later than the last day of the Loan Term. Upon the
payment in full of the Total Casualty Amount, this Loan Agreement shall
terminate.
(b) In the event of a Partial Casualty, the Casualty Notice shall
specify the Borrower's election of the option in clause (i) or clause (ii) below
(provided that upon the occurrence and during the continuance of a Default or an
Event of Default, Borrower shall be obligated, at the option of Collateral
Agent, to exercise the option in clause (i)) and Borrower shall on the date
specified in the relevant clause below, take such actions required thereby.
(i) Borrower will pay to the Lenders (such payment to be made
directly to the Collateral Agent for the benefit of the Lenders), the
Partial Casualty Amount to be applied to the Loan Balance, which
payment shall be made no later than 90 days after such Partial Casualty
(the "Partial Casualty Settlement Date"), provided that in any event
the Partial Casualty Settlement Date shall be no later than the last
day of the Loan Term; or
(ii) Borrower will replace the Mortgaged Property subject to
the Partial Casualty pursuant to the provisions of SECTION 3.6(d).
(c) If Borrower has elected, or is required, to pay the Total Casualty
Amount or the Partial Casualty Amount, Borrower shall continue to make all
payments of Required Prepayments and Interest due under this Loan Agreement
until and including the Total Casualty Settlement Date or the Partial Casualty
Settlement Date, as the case may be. If Borrower has elected to pay the Partial
Casualty Amount, then on the Partial Casualty Settlement Date, after payment of
the Partial Casualty Amount, the Loan Balance will be reduced by the amount of
such Partial Casualty Amount and Interest will continue to accrue on the Loan
Balance as so reduced. Such Partial Casualty Amount to be applied to the Loan
Balance shall be applied first, to the Final Payment Amount set forth on
SCHEDULE IIB and second, to, in inverse order of amounts to be paid as Required
Prepayments, Required Participants as set forth on SCHEDULE IIB.
(d) If Borrower has given notice that Borrower intends to replace the
portion of the Mortgaged Property suffering a Partial Casualty, and such
replacement is permitted under the foregoing CLAUSE (b)(ii), Borrower may make
subject to the Deed of Trust, not later than the earlier of (i) 365 days after
the date of such Casualty Notice and (ii) the Maturity Date, a
-32-
Giant Yorktown, Inc. Loan Agreement
replacement for such portion of the Mortgaged Property meeting the suitability
standards hereinafter set forth. To be suitable as replacement Mortgaged
Property, an item must be of the same general type, year of construction (or a
later year of construction), useful life, function, utility, state of repair and
operating condition (immediately preceding the Partial Casualty assuming that
such portion of the Mortgaged Property had been maintained in accordance with
the terms of SECTION 3.3) as the portion of the Mortgaged Property suffering the
Partial Casualty, must have a Fair Market Value of not less than the Fair Market
Value (immediately preceding the Partial Casualty assuming that such portion of
the Mortgaged Property had been maintained in accordance with the terms of
SECTION 3.3) of the portion of the Mortgaged Property suffering the Partial
Casualty and be free and clear of any Liens other than Permitted Encumbrances.
Borrower shall cause a Conveyance Document (and such other instruments, if any,
necessary to grant a security interest to such replacement item to Collateral
Agent) in order to subject such replacement item to the Deed of Trust, and upon
such execution and delivery and the receipt by Collateral Agent and the Lenders
of (i) evidence reasonably satisfactory to the Collateral Agent of Borrower's
compliance with the insurance provisions of with respect to such replacement
item, and (ii) an opinion of counsel to Borrower in form and substance
reasonably satisfactory to the Collateral Agent opining, among other things, to
the effect that all appropriate filings, recordings and other acts have been
taken to protect the right, title and interest of the Collateral Agent and the
Lenders, in such replacement item and that no other filing, recording, deposit,
or giving of notice with or to any Governmental Authority is necessary to
protect such right, title and interest in such replacement item, such
replacement item shall be deemed part of the Mortgaged Property for all purposes
hereof.
(e) Subject to the provisions of SECTION 3.6(f), if the Collateral
Agent has received the amount payable with respect to the Casualty and all other
amounts due hereunder, the Borrower has complied with the requirements of
SECTION 3.6(a) or of CLAUSE (i) or CLAUSE (ii), as applicable, of SECTION 3.6(b)
or SECTION 3.3 and no Event of Default or Default exists, Borrower shall be
entitled to receive from the Collateral Agent, within 30 days after receipt of
such amounts by the Collateral Agent, all other proceeds of any recovery in
respect of the Mortgaged Property from insurance or otherwise ("Casualty
Recoveries"), and Collateral Agent, subject to the rights of any insurer
insuring the Mortgaged Property as provided herein, shall execute and deliver to
Borrower, or to its assignee or nominee, a release of its security interest
(without representations or warranties except that the Mortgaged Property or
part of the Mortgaged Property, as the case may be, is free and clear of Liens
attributable to it) in the Mortgaged Property subject to a Total Casualty or
part of the Mortgaged Property replaced pursuant to SECTION 3.6(d), as the case
may be, and such other documents as may be required to release such Mortgaged
Property or such part of the Mortgaged Property, as the case may be, from the
terms of the Deed of Trust, in such form as may reasonably be requested by
Borrower. All fees, costs and expenses relating to a substitution as described
herein shall be borne by Borrower. Except as otherwise provided in this SECTION
3.6, Borrower shall not be released from its obligations hereunder in the event
of, and shall bear the risk of, any Casualty to the Mortgaged Property or part
of the Mortgaged Property, as the case may be, prior to or during the term of
this Loan Agreement and thereafter until all Borrower's obligations hereunder
are fully performed.
(f) All Casualty Recoveries (or other payments (including, without
limitation, insurance proceeds) received at any time by Borrower from any
Governmental Authority or other
-33-
Giant Yorktown, Inc. Loan Agreement
party with respect to any loss or damage to any part of the Mortgaged Property
not constituting a Total Casualty) (collectively, "Casualty Proceeds") shall be
deposited into a deposit account established by Collateral Agent for the benefit
of the Lenders (the "Deposit Account"). So long as no Default or Event of
Default shall exist, any Casualty Proceeds in the Deposit Account shall be
remitted promptly to Borrower for reimbursement to the Borrower from time to
time during the course of the Borrower's restoration of the Mortgaged Property
and compliance with the provisions of SECTION 3.6(d) and SECTION 3.3 and to fund
the payment of Interest accruing on the Loan Balance, Required Prepayments and
the payment of Fees accruing during such period. The Borrower and the Collateral
Agent shall, prior to any deposit contemplated by this SECTION 3.6 in the
Deposit Account, and thereafter from time to time as reasonably be requested by
the Collateral Agent, take any and all actions (including, without limitation,
the execution of such security and other agreements and UCC financing statements
as the Collateral Agent shall reasonably request) reasonably requested by the
Collateral Agent in order to grant to the Collateral Agent (on behalf of the
Lenders) a first priority perfected Lien on and security interest in the Deposit
Account and any and all amounts and other property from time to time on deposit
therein.
Section 3.7. Insurance Coverages. Borrower shall at all times during
the Loan Term, at its expense, cause to be carried and maintained with
financially sound and reputable insurers, insurance against loss or damage to or
arising from the Mortgaged Property, of the kinds and in the amounts customarily
maintained (i) by Giant Industries and its Subsidiaries under Giant Industries'
and its Subsidiaries' risk management program, in effect as of the Closing Date
for equipment owned or leased by Giant Industries and its Subsidiaries similar
to the Mortgaged Property and (ii) by prudent corporations in similar
circumstances carrying on similar businesses, provided that in any event
Borrower will maintain:
(a) "All Risk" Property Insurance -- providing coverage
against all risks of physical loss or damage to the Mortgaged Property
including, without limitation, earthquake, flood, windstorm and boiler
and machinery coverages. Such policy shall be on a replacement cost
basis with a limit of not less than $250,000,000 each occurrence,
including without limitation stock and finished product, provide
coverage on a replacement cost basis, and contain deductibles
customarily maintained by prudent corporations in similar circumstances
subject to a maximum deductible of $2,000,000, except for windstorm
which shall be 2% of the total insured values. At no time shall the
amount of coverage be less than the sum of (x) the outstanding Loan
Balance and (y) an amount equal to the aggregate amount of Interest to
be accrued under this Loan Agreement for 90 days following the date of
determination; Terrorism shall be procured in such amount and scope as
is commercially available on reasonable terms. Said policy shall
include (i) off-site storage and inland transit coverage with a limit
of $1,000,000 or such higher amount as is to cover the values at risk,
(ii) demolition and debris removal with a sublimit of $5,000,000, (iii)
Pollution Clean-up and Removal with a sublimit of $500,000, (v)
building ordinance with a sublimit of $10,000,000, (vi) expediting
expenses with a sublimit of $1,000,000 and (iv) valuable records,
papers and media coverage with a sublimit of $5,000,000.
-34-
Giant Yorktown, Inc. Loan Agreement
(b) Business Interruption Insurance -- (as a separate policy
or as an extension of the "All Risk" Property Insurance policy) with
limits sufficient to cover 12 months of fixed and continuing expenses
including without limit Required Prepayments and Interest. Such
insurance shall include extensions of coverage for (i) ingress and
egress, (ii) interruption by civil or military authority and (iii)
customers/suppliers. Waiting period deductibles shall not exceed 60
days each occurrence.
(c) Commercial General Liability Insurance -- written on an
occurrence basis for claims arising from the Borrower's operations with
a combined single limit of liability for bodily injury, including
death, property damage and personal injury in an amount at least equal
to $3,000,000 per occurrence and in the aggregate. Said coverage shall
include premises/operations, explosion, collapse and underground
hazards, products/completed operations, broad form property damage,
blanket contractual liability and sudden and accidental pollution.
Severability of insureds and cross liability endorsements. Deductibles
shall be consistent with industry practice and Borrower's risk
management practice subject to a maximum deductible of $500,000.
(d) Automobile Liability Insurance -- including coverage for
all owned, hired, non-owned, leased and rented vehicles with combined
single limit of liability for bodily injury and property damage of
$1,000,000 per accident.
(e) Workers' Compensation Insurance -- if the Borrower has any
employees, workers' compensation insurance providing coverage as
required by law including coverage under the United States
Longshoreman's & Harbor Workers' Act and the Jones Act (including
transportation, maintenance and cure).
(f) Employer's Liability Insurance -- if the Borrower has any
employees, employer's liability insurance for the Borrower's liability
arising out of injury to or death of employees of the Borrower in the
amount of $1,000,000 per accident.
(g) Umbrella/Excess Liability Insurance -- with limits not
less than $100,000,000 per occurrence and in the aggregate. Such
coverage shall be on an occurrence basis and provide (i) follow form
coverage excess of the insurance required in (c), (d) and (f) above,
(ii) drop down to provide primary coverage in the event the underlying
coverage is reduced/exhausted and (iii) provide that if such limits are
reduced below the Loan Balance by claims not related to the operations
of the Mortgaged Property, the Borrower shall, if available on
commercially reasonable terms, repurchase limits necessary to comply
with this SECTION 3.7(g).
(h) Marine Liability Insurance (as applicable) -- including
without limit, watercraft liability, protection and indemnity,
wharfinger's liability/landing dock bailee's liability and charter's
legal liability with limits not less than $50,000,000. Coverage may be
provided on a stand-alone basis or as a part of the coverages required
in (c) and (g) above.
-35-
Giant Yorktown, Inc. Loan Agreement
(i) Pollution Legal Liability Insurance -- in an amount of
$50,000,000 inclusive of defense costs. Such coverage shall apply to
cleanup or remediation costs off site for conditions or releases of
pollutants occurring from the Mortgaged Property as well as contingent
liability arising from the from the transportation of pollutants.
Deductibles shall not exceed $1,000,000 each loss.
(j) Other Insurance -- such other insurance in such amounts
and against such risks as are customarily maintained by prudent
corporations in similar circumstances carrying on similar businesses,
including, self-insurance to the extent customarily maintained by
prudent corporations in similar circumstances carrying on similar
businesses.
Section 3.8. General Requirements. All insurance required by Borrower
shall comply with the following general requirements:
(a) All insurance shall be written by reputable insurance
companies that are financially sound and solvent, rated in Best's
Insurance Guide or any successor thereto (or if there be none, an
organization having a similar national reputation) with a general
policyholder rating of "A" and a financial rating of at least "X" or
otherwise reasonably acceptable to Borrower and Collateral Agent.
(b) With the exception of the coverage required in (e) and (f)
above, all such insurance shall name the Collateral Agent and the
Lenders as additional insureds or as lender loss-payees, as their
respective interests may appear.
(c) Each policy referred to in SECTION 3.7 shall provide that
(i) it will not be cancelled, or allowed to lapse without renewal,
except after not less than 45 days' prior written notice to the
Collateral Agent and the Lenders; (ii) the interests of the Collateral
Agent and the Lenders shall not be invalidated or otherwise compromised
by any act or negligence of, or breach of representation or warranty
by, Borrower or any Person having an interest in the Mortgaged Property
and (iii) such insurance is primary with respect to any other insurance
carried by or available to the Collateral Agent and/or any Lender.
(d) All insurers shall waive their rights of subrogation,
setoff, counterclaim, or other deduction, whether by attachment or
otherwise, against the Collateral Agent and the Lenders and further the
insurer shall waive any right to claim any premiums due or commission
payable against the Collateral Agent or any Lender.
(e) All policies shall contain a cross-liability clause
providing for coverage of each Lender as if separate policies had been
issued to each of them.
(f) Borrower will notify the Collateral Agent and the Lenders
promptly of any policy cancellation, reduction in policy limits, or of
any modification or amendment which could adversely affect the
Collateral Agent or the Lenders.
-36-
Giant Yorktown, Inc. Loan Agreement
Section 3.9. Insurance Certificates. Prior to the Closing Date, and
thereafter not less than 15 days prior to the termination dates of the expiring
policies theretofore delivered pursuant to SECTION 3.7, Borrower shall deliver
to Collateral Agent and the Lenders certificates issued by the insurer(s) or
their authorized representatives for the insurance maintained pursuant to
SECTION 3.7. Upon the request of Collateral Agent or the Required Lenders,
Borrower will furnish to Collateral Agent and the Lenders a certificate of an
independent insurance broker of recognized standing evidencing the maintenance
of all insurance required hereunder.
Section 3.10. No Duty to Verify or Review. No provision of this SECTION
3 shall impose on Collateral Agent or Lenders any duty or obligation to verify
the existence or adequacy of the insurance coverage maintained by the Borrower,
nor shall Collateral Agent or Lenders be responsible for any representations or
warranties made by or on behalf of the Borrower to any insurance company or
underwriter. Any failure on the part of Collateral Agent or Lenders to pursue or
obtain the evidence of insurance required by this Section from the Borrower
and/or failure of Collateral Agent or Lenders to point out any non-compliance of
such evidence of insurance shall not constitute a waiver of any of the insurance
requirements in this Section.
Section 3.11. Commercial Unavailability. In the event, should any of
the coverages required in this SECTION 3 become commercially unavailable on
reasonable terms, the Borrower will notify the Collateral Agent of the coverages
affected and request a waiver of the same and provide the Collateral Agent with
a proposed remedy, such waiver shall not be unreasonably denied by the
Collateral Agent and the Lenders.
SECTION 4. COMMITMENTS; INTEREST; PREPAYMENTS; FEES.
Section 4.1. Loans. Subject to the terms and conditions hereof, each
Lender severally agrees, on the Closing Date, to make a loan (individually a
"Loan" and collectively the "Loans") to Borrower in an amount equal to such
Lender's Commitment Percentage of the aggregate Loans requested by Borrower in
the Closing Notice; provided, however, that the Loan made by each Lender under
this Loan Agreement shall not exceed such Lender's Commitment.
Section 4.2. Notes. The Loans made by each Lender shall be evidenced by
a promissory note or notes of Borrower substantially in the form of EXHIBIT A
(each as it may be amended or replaced from time to time, each a "Note" and,
collectively, the "Notes"), with appropriate insertions as to date and principal
amount, payable to the order of such Lender. Each Lender is hereby authorized to
record the date and amount of the Loan made by such Lender, each continuation
thereof and the date and amount of each payment or prepayment of principal
thereof, on the schedule annexed thereto, which schedule shall constitute a part
of any such Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded absent manifest error; provided,
that the failure to make any such recordation or any error in such recordation
shall not affect Borrower's obligations hereunder or under such Note. The Notes
shall (i) be dated the Closing Date, (ii) be stated to mature on the Maturity
Date and (iii) provide for the payment of principal and interest in accordance
with this Loan Agreement.
Section 4.3. Scheduled Payments of Principal; Mandatory Prepayments.
(a) Borrower shall pay to the Collateral Agent for the pro rata benefit of the
Lenders the Required
-37-
Giant Yorktown, Inc. Loan Agreement
Prepayments, such payments to be due on each Payment Date in the amounts set
forth on SCHEDULE IIB hereto.
(b) Borrower shall pay the unpaid principal amount of the Loans, in
full, together with (i) Interest accrued thereon to the date of payment, and
(ii) all other amounts then due and payable by Borrower hereunder or under the
other Operative Documents to the Lenders, including, without limitation, any
Applicable Administrative Charge, on the Maturity Date.
(c) Upon the occurrence of a Partial Casualty with respect to a portion
of the Mortgaged Property that is not replaced pursuant to SECTION 3.6 hereof,
Borrower shall pay to each Lender its pro rata portion of the Partial Casualty
Amount of such Mortgaged Property, such payment to be due on the date specified
for payment with respect to such Partial Casualty in SECTION 3.6 hereof.
(d) Upon the occurrence of a Total Casualty, Borrower shall pay to each
Lender its pro rata portion of the Total Casualty Amount, such return to be due
on the date specified for payment with respect to such termination in SECTION
3.6(a) hereof.
Section 4.4. Interest Rates and Payment Dates. (a) Each Loan shall bear
Interest on the Loan Balance thereof.
(b) If all or a portion of the principal amount of, or accrued Interest
on, any Loan, or any other amount payable hereunder, shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall, without limiting the rights of the Lenders under any Operative
Document, bear interest at the rate per annum which is 2% above the applicable
Interest Rate in effect from time to time (the "Overdue Rate"), in each case
from the date due until payment is made. Such overdue interest shall be payable
on demand. Notwithstanding anything to the contrary set forth herein, including,
without limitation, in the definition of the term Interest Rate or in SECTION
4.7, at no time shall interest accrue on the Loans at a per annum rate which
exceeds the Adjusted LIBO Rate or the Base Rate, as the case may be, plus 2.00%.
(c) Interest on each Loan shall be payable in arrears on each Payment
Date, the Maturity Date and on any other day on which the Loan Balance, or a
portion thereof, is to be reduced pursuant to the terms and conditions of this
Loan Agreement and the other Operative Documents.
Section 4.5. Pro Rata Treatment and Payments. Each payment (including
each prepayment) by Borrower on account of principal of and Interest on the
Loans shall be made pro rata among the Lenders according to the respective
outstanding principal amounts of the Loans then held by each such Lender.
Subject to SECTIONS 4.10 and 4.11, all payments (including prepayments) to be
made by Borrower hereunder and under the Notes, whether on account of principal,
Interest or otherwise, shall be made without setoff or counterclaim and shall be
made by Borrower to Collateral Agent, for the benefit of the Lenders, prior to
12:00 noon, New York City time, to Collateral Agent's Payment Office (or to such
other office as may be designated by Collateral Agent from time to time in a
written notice pursuant to SECTION 12.6) in funds
-38-
Giant Yorktown, Inc. Loan Agreement
consisting of lawful currency of the United States of America which shall be
immediately available on the scheduled date when such payment is due. Payments
received after 12:00 noon, New York City time, on the date due shall be deemed
received on the next succeeding Business Day and shall be subject to interest at
the Overdue Rate as provided in SECTION 4.4(b).
Section 4.6. Mutilated, Destroyed, Lost or Stolen Notes. (a) If any
Note shall become mutilated, destroyed, lost or stolen, then upon the written
request of the affected Lender, Borrower shall execute and deliver to the
affected Lender a new Note. Such new Note shall be: (i) recorded in the name in
which such mutilated, destroyed, lost or stolen Note was recorded; (ii) in the
same original face amount as such mutilated, destroyed, lost or stolen Note; and
(iii) dated the date of such mutilated, destroyed, lost or stolen Note. If the
Note being replaced has become mutilated, it shall be surrendered to Borrower.
If the Note being replaced has been destroyed, lost or stolen, the affected
Lender shall furnish to Borrower such security or indemnity as reasonably may be
required by it to save Borrower harmless from any loss and evidence satisfactory
to Borrower of the destruction, loss or theft of such Note and the ownership
thereof. Upon request, the Collateral Agent shall advise the affected Lender of:
(i) the aggregate principal amount of, and the aggregate accrued Interest on,
such mutilated, destroyed, lost or stolen Note that were paid to any Lender
thereof at any time prior to the delivery of such new Note; and (ii) the date to
which Interest on such mutilated, destroyed, lost or stolen Note had been paid
to any Lender thereof at the time of such delivery.
(b) Any duplicate Note issued pursuant to this SECTION 4.6 shall
constitute complete and indefeasible evidence of ownership of such Note, as if
originally issued, whether or not the lost, stolen or destroyed Note shall be
found at any time.
Section 4.7. Computations; Interest Rate Determination; Conclusive
Determinations.
(a) Computations. All computations of interest at the Base Rate shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of accrued amounts pursuant to the
Operative Documents shall be made on the basis of actual number of days elapsed
in a 360-day year with respect to any determination. Borrower shall, as soon as
practicable, but in no event later than 12:00 noon New York time, one Business
Day prior to the effectiveness of each Interest Rate, calculate such Interest
Rate and notify Collateral Agent and each Lender thereof; provided that the
failure to give or receive any such notice shall not limit Borrower's
obligations under this Loan Agreement or any other Operative Document.
(b) Interest Rate Determination. So long as no Default or Event of
Default shall have occurred and be continuing, the Borrower may, by irrevocable
written notice delivered to the Collateral Agent and each of the Lenders at
least five Business Days prior to the initial day of an Interest Period, specify
whether the Interest Rate to be applied during such Interest Period shall be the
Adjusted LIBO Rate or the Base Rate. If the Collateral Agent and each of the
Lenders shall not have received such written notice, the Borrower shall be
deemed to have selected a rate per annum equal to the Base Rate. Notwithstanding
the foregoing, if a Default or Event of Default shall exist at time such
selection is to be made, the applicable Interest Rate specified by the Borrower
for such Interest Period shall be deemed to be the Base Rate plus 2.00%.
-39-
Giant Yorktown, Inc. Loan Agreement
(c) Conclusive Determinations. Each determination of the Interest Rate
pursuant to any provisions of this Loan Agreement or any of the other Operative
Documents shall be conclusive and binding on Borrower and the Lenders in the
absence of manifest error.
Section 4.8. Highest Lawful Rate. It is the intention of the parties
hereto to conform strictly to applicable usury laws and, anything herein to the
contrary notwithstanding, the obligations of Borrower to the Lenders under this
Loan Agreement and the Notes shall be subject to the limitation that payments of
interest or of other amounts constituting interest under any Requirement of Law
shall not be required to the extent that receipt thereof would be in excess of
the Highest Lawful Rate, or otherwise contrary to provisions of law applicable
to the recipient limiting rates of interest which may be charged or collected by
the recipient. Accordingly, if the transactions or the amount paid or otherwise
agreed to be paid for the use, forbearance or detention of money under this Loan
Agreement, the Notes or any other Operative Document would exceed the Highest
Lawful Rate or otherwise be usurious under any Requirement of Law (including
without limitation the federal and state laws of the United States of America,
or of any other jurisdiction whose laws may be mandatorily applicable) with
respect to the recipient of any such amount, then, in that event,
notwithstanding anything to the contrary in this Loan Agreement, the Notes or
any other Operative Document, it is agreed as follows as to the recipient of any
such amount:
(i) the provisions of this SECTION 4.8 shall govern and
control over any other provision in this Loan Agreement, the Notes and
any other Operative Document, and each provision set forth therein is
hereby so limited;
(ii) the aggregate of all consideration which constitutes
interest under any Requirement of Law that is contracted for, charged
or received under this Loan Agreement, the Notes or any other Operative
Document shall under no circumstances exceed the maximum amount of
interest allowed by such Requirement of Law (such maximum lawful
interest rate, if any, with respect to such recipient herein called the
"Highest Lawful Rate"), and all amounts owed under this Loan Agreement,
the Notes and any other Operative Document shall be held subject to
reduction and: (A) the amount of interest which would otherwise be
payable to the recipient hereunder and under the Notes and any other
Operative Document shall be automatically reduced to the amount allowed
under such Requirement of Law, and (B) any unearned interest paid in
excess of the Highest Lawful Rate shall be credited to the payor by the
recipient (or, if such consideration shall have been paid in full,
refunded to the payor);
(iii) all sums paid, or agreed to be paid for the use,
forbearance and detention of the money under this Loan Agreement, the
Notes or any other Operative Document shall, to the extent permitted by
any Requirement of Law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so
that the actual rate of interest is uniform throughout the full term
thereof; and
(iv) if at any time the interest, together with any other
fees, late charges and other sums payable pursuant to or in connection
with this Loan Agreement, the Notes and any other Operative Document
executed in connection herewith or therewith and deemed
-40-
Giant Yorktown, Inc. Loan Agreement
interest under any Requirement of Law, exceeds that amount which would
have accrued at the Highest Lawful Rate, the amount of interest and any
such fees, charges and sums to accrue to the recipient of such
interest, fees, charges and sums pursuant to the Operative Documents
shall be limited, notwithstanding anything to the contrary in the
Operative Documents, to that amount which would have accrued at the
Highest Lawful Rate for the recipient, but any subsequent reductions,
as applicable, shall not reduce the interest to accrue pursuant to the
Operative Documents below the recipient's Highest Lawful Rate until the
total amount of interest payable to the recipient (including all
consideration which constitutes interest) equals the amount of interest
which would have been payable to the recipient (including all
consideration which constitutes interest), plus the amount of fees
which would have been received but for the effect of this SECTION 4.8.
Section 4.9. Fees. (a) Borrower agrees to pay the fees set forth below
(collectively, the "Fees") on or prior to the Closing Date:
(i) to each Lender, for its own account, a fee in an amount
equal to 0.75% times its Commitment (a "Commitment Fee");
(ii) to Trust Company, for its own account, the fees set forth
in the Collateral Agent Fee Letter, payable in the amounts and on the
dates set forth therein; and
(iii) to Arranger, the Arrangement Fee.
(b) Borrower agrees to pay to the Arranger the Supplemental
Underwriting Fee in the amount and on the dates set forth in the Arrangement Fee
Letter.
Section 4.10. Adjustments. If any Lender (a "Benefited Lender") shall
at any time receive any payment of all or part of its Loan Balance, or Interest
thereon, or receive any of the collateral in respect thereof (whether
voluntarily or involuntarily, by setoff, or otherwise), in an amount greater
than the amount to which such Lender was entitled pursuant to this Loan
Agreement, such benefitted Lender shall return such amount or collateral to the
Collateral Agent for distribution to the Person(s) entitled thereto in
accordance with this Loan Agreement; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender so that the excess payment or benefits returned by such
Benefited Lender exceed the remaining excess payment or benefits held by such
Benefited Lender, the excess payment or benefits, as applicable, returned by
such Benefited Lender shall be restored to the Benefited Lender, to the extent
of such recovery, but without interest.
Section 4.11. Payments and Distributions. All payments to be made by
Borrower hereunder, and all payments due and payable to the Lenders pursuant to
any other Operative Document, shall be distributed by Collateral Agent as
follows: pro rata, and in case moneys are insufficient to pay in full the whole
amount due, owing or unpaid to the Lenders, then application shall be made first
to any unpaid accrued Interest, second to any Supplemental Payments and third to
the Loan Balances. Any Supplemental Payments received by Collateral Agent shall
be paid by Collateral Agent to the Person to whom such Supplemental Payments are
payable under the provisions of the Operative Documents.
-41-
Giant Yorktown, Inc. Loan Agreement
SECTION 5. OPTIONAL PREPAYMENTS BY BORROWER.
On any Payment Date occurring after the one year anniversary of the
Closing Date, upon at least 90 days' advance written notice from Borrower to
Collateral Agent and the Lenders, Borrower may prepay (the "Prepayment Option")
all but not less than all of the Loans for a purchase price equal to the Payoff
Amount.
SECTION 6. [INTENTIONALLY OMITTED].
SECTION 7. CONDITIONS PRECEDENT TO THE LOAN.
Subject to the SECTION 12.18, the obligation of each Lender to make its
Loan hereunder on the Closing Date shall be subject to the fulfillment to the
satisfaction of (including, with respect to writings, such writings being in
form and substance reasonably satisfactory to Collateral Agent and each Lender),
or the waiver in writing by Collateral Agent and each Lender, of the conditions
precedent set forth in this SECTION 7 on or prior to the Closing Date:
Section 7.1. Closing Notice. Borrower shall have delivered to Collateral
Agent and each Lender, not later than 12:00 noon, New York time, not earlier
than the tenth (10th) and not later than one Business Day prior to the Closing
Date, an irrevocable notice substantially in the form of EXHIBIT D (a "Closing
Notice"), setting forth (i) the amount of the Loans being requested, (ii) a
description of the Mortgaged Property to be purchased on the Closing Date, (iii)
the Mortgaged Property Purchase Price and (iv) wire transfer instructions for
the disbursement of funds.
Section 7.2. [Reserved].
Section 7.3. Operative Documents. On or prior to the Closing Date, the
Lenders and Collateral Agent shall have received a fully executed counterpart of
this Loan Agreement, the Deed of Trust, the Parent Guaranty, the Constituent
Companies Guaranty and each of the other Operative Documents, each of which
shall have been duly authorized, executed and delivered by each of the parties
thereto.
Section 7.4. Notes. Each Lender shall have received from Borrower a Note
duly executed by Borrower and registered in such Lender's name evidencing such
Lender's Loan.
Section 7.5. Representations and Warranties True; Absence of Defaults. Each
of the representations and warranties made by or on behalf of Borrower or any
Guarantor under the Operative Documents shall be true in all material respects
on and as of the Closing Date, and no Default, Event of Default hereunder or
event of default under the Giant Industries Credit Agreement shall have occurred
and be continuing.
Section 7.6. Consents and Approvals. Borrower and each Guarantor shall have
obtained all material governmental, shareholder and third party consents and
approvals necessary in connection with the transactions contemplated by the
execution, delivery and performance of this
-42-
Giant Yorktown, Inc. Loan Agreement
Loan Agreement and the other Operative Documents, the other transactions
contemplated hereby and the continuing operations of Giant Industries and its
Subsidiaries and each Guarantor following the Closing Date.
Section 7.7. Filings and Recordings. (a) Collateral Agent shall have
received from Borrower UCC financing statements, including fixture filings,
identifying the Borrower as debtor and Deed of Trust Trustee for the benefit of
the Collateral Agent as secured party for the benefit of the Lenders, and
describing the Mortgaged Property and Personal Property (as defined in the Deed
of Trust) as the collateral and such financing statements shall have been filed
or shall be filed in each applicable jurisdiction.
(b) All filings of the Operative Documents, including, without
limitation, this Loan Agreement, the Deed of Trust, and the Deed, reasonably
deemed necessary by Collateral Agent, to perfect the rights, titles and
interests of the Lenders, the Deed of Trust Trustee and the Collateral Agent
intended to be created by the Operative Documents shall have been made in the
appropriate places or offices, including any recordings and filings necessary to
create, perfect, preserve and protect the first priority liens for the benefit
of Collateral Agent, the Deed of Trust Trustee and the Lenders on the Mortgaged
Property.
Section 7.8. Payment of Impositions. All Taxes payable on or prior to the
Closing Date in connection with the execution, delivery, recording or filing of
any of the Operative Documents, in connection with the filing of any of the
financing statements and any other documents, in connection with the
consummation of any other transactions contemplated hereby or by any of the
other Operative Documents, shall have been paid in full by Borrower.
Section 7.9. Transaction Costs; Fees. Borrower shall have paid to
Collateral Agent, for the benefit of the Collateral Agent and the Lenders, any
Transaction Costs due, invoiced and not previously paid (other than those
directed to be paid pursuant to the Closing Notice). Such payment shall be made
by wire transfer of immediately available funds to the account specified for the
person to whom payment is due. On or prior to the Closing Date, Borrower shall
also have paid to the applicable parties all Fees due and payable on or prior to
the Closing Date pursuant to SECTION 4.9 hereof.
Section 7.10. Opinions of Counsel. (a) Collateral Agent, Lenders and their
respective counsel shall have received,
(i) a legal opinion of Fennemore Craig, special
counsel to Borrower and each Guarantor, in substantially the
form of EXHIBIT C-1,
(ii) a legal opinion of Kim Bullerdick, Esq.,
General Counsel to Borrower and each Guarantor, in
substantially the form of EXHIBIT C-2, and
(iii) a legal opinion of McGuireWoods LLP, New
York and Virginia special counsel to Borrower and each
Guarantor, in substantially the form of EXHIBIT C-3.
-43-
Giant Yorktown, Inc. Loan Agreement
(b) By its execution hereof, Borrower expressly instructs
each such counsel to execute and deliver such opinions to the Persons
designated in the preceding sentences.
Section 7.11. Corporate Status and Proceedings. Collateral Agent shall have
received:
(a) certificates of existence and good standing with
respect to Borrower and each Guarantor from the Secretary of State of
the State of its incorporation or formation, as the case may be, and
with respect to Borrower, from the Secretary of State in which the
Mortgaged Property is located, in each case, dated no earlier than the
15th day prior to the Closing Date;
(b) an Officer's Certificate of Borrower substantially in
the form of EXHIBIT E-1, dated the Closing Date, with respect to
representations and warranties and absence of defaults;
(c) a Certificate of the Secretary or Assistant Secretary
of Borrower substantially in the form of EXHIBIT E-2, dated the Closing
Date, with respect to Borrower's governing documents, resolutions and
incumbent officers;
(d) an Officer's Certificate of each Guarantor
substantially in the form of EXHIBIT E-3, dated the Closing Date, with
respect to representations and warranties and absence of defaults;
(e) a Certificate of the Secretary or Assistant Secretary
of each Guarantor substantially in the form of EXHIBIT E-4, dated the
Closing Date, with respect to such Guarantor's governing documents,
resolutions and incumbent officers; and
(f) a Certificate of the Trust Company with respect to
the Trust Company's governing documents, resolutions and incumbent
officers.
Section 7.12. Financial Statements. The Collateral Agent and Lenders shall
have received (1) pro forma consolidated and consolidating financial statements
for Giant Industries and its subsidiaries, including a pro forma balance sheet
of Giant Industries and its subsidiaries after giving effect to the Yorktown
Acquisition and (2) audited consolidated financial statements of Giant
Industries and the Yorktown Refinery of BP Corporation North America, in each
case, for the fiscal year ended December 31, 2001, which statements shall not be
materially different from the unaudited financial statements previously
delivered to the Collateral Agent and the Lenders by Giant Industries.
Section 7.13. Material Adverse Effect. Since December 31, 2001, nothing
shall have occurred which has, or could reasonably be expected to have, a
Material Adverse Effect.
Section 7.14. Litigation. No action or proceeding shall have been
instituted or threatened, nor shall any Governmental Action be instituted or
threatened before any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any Governmental Authority,
to set aside, restrain, enjoin or prevent the
-44-
Giant Yorktown, Inc. Loan Agreement
performance of this Loan Agreement or any transaction contemplated hereby or by
any other Operative Document, which could be reasonably expected to have a
Material Adverse Effect.
Section 7.15. Bill of Sale. Yorktown Seller shall have executed and
delivered to the Borrower a bill of sale (the "Bill of Sale") with respect to
the Mortgaged Property to be sold by it to the Borrower on the Closing Date.
Section 7.16. [Reserved].
Section 7.17. Deed. Collateral Agent and each Lender shall have received a
copy of the Deed which shall have been duly authorized, executed and delivered
by each of the parties thereto.
Section 7.18. Search Reports. Collateral Agent shall have received reports
acceptable to Collateral Agent and counsel to the Lenders as to Borrower and the
Mortgaged Property from each appropriate state and county filing or recording
office, each dated as close to the Closing Date as practicable, in respect of a
search of the applicable files and any indices of Liens maintained by such
offices (including, if applicable, indices of judgment, revenue and tax liens),
which search reports shall evidence Yorktown Seller's ownership of the Mortgaged
Property to be delivered on the Closing Date free and clear of all Liens (other
than Permitted Encumbrances), including, but not limited to any Lien as a result
of any right, claim or interest in favor of any party owning or holding any
interest in the real estate on which such Mortgaged Property is located.
Section 7.19. Appraisal. At least five (5) Business Days prior to the
Closing Date, Collateral Agent and each Lender shall have received an Appraisal
(using appraisal methods satisfactory to Lenders), which Appraisal shall have
established a Fair Market Value for the Mortgaged Property in an amount such
that the Aggregate Commitment Amount is not more than 50% of the Fair Market
Value of the Mortgaged Property.
Section 7.20. Insurance. Collateral Agent shall have received a current
certificate to the effect that insurance complying with SECTION 3.7 of this Loan
Agreement is in full force and effect, and there shall be no past due premiums
in respect of any such insurance.
Section 7.21. No Casualty. No Casualty shall have occurred with respect to
any material portion of the Mortgaged Property.
Section 7.22. Environmental Report. The Collateral Agent shall have
received:
(a) an Environmental Audit of the Site satisfactory to
the Lenders, and
(b) either (i) a certification from a registered engineer
or surveyor that the portion of the Site on which any improvements are
or will be situated is not in a flood plain or designated as flood
prone by any governmental body or (ii) evidence reasonably satisfactory
to the Collateral Agent and the Lenders of appropriate flood insurance.
-45-
Giant Yorktown, Inc. Loan Agreement
Section 7.23. Survey. Collateral Agent shall have received a survey of the
Mortgaged Property in a form satisfactory to the Lenders and the Title Insurance
Company.
Section 7.24. Title and Title Insurance. Collateral Agent shall have
received from the Title Insurance Company an ALTA 1970 loan policy of title
insurance (the "Title Policy"), insuring the Lien of the Deed of Trust as a
valid first priority Lien against the Mortgaged Property, subject only to
Permitted Encumbrances and other matters acceptable to the Lenders. The Title
Policy shall: (i) be accompanied by complete, legible copies of all encumbrances
and plats of record, (ii) be dated as of the Closing Date, (iii) be in form and
substance acceptable to Lenders, and (iv) to the extent permitted under
Requirements of Laws, contain affirmative endorsements as to doing business,
usury, comprehensive coverage, access, survey and such other endorsements
reasonably requested by Lenders.
Section 7.25. Mortgaged Property Acquisition/Operation. Collateral Agent
shall have received:
(a) a true and complete copy of the Yorktown Acquisition
Documents evidencing the purchase of the Mortgaged Property by the
Borrower for a purchase price of not more than $127,500,000 plus
inventories plus earn-out consideration payable in the future based
upon the Mortgaged Property's operations in form and substance
satisfactory to Collateral Agent and the Lenders, including without
limitation, environmental indemnification provisions covering the
Borrower and its Subsidiaries satisfactory to the Collateral Agent and
the Lenders,
(b) a true and complete copy of all governmental,
shareholder and third party consents and approvals necessary or
desirable in connection with the Yorktown Acquisition which consents
and approvals shall be in force and effect and for which all applicable
waiting periods shall have expired without any action being taken by
any Governmental Authority that could reasonably be expected to
restrain, prevent or otherwise impose any material adverse conditions
on the Yorktown Acquisition or that could seek to threaten it, and no
law or regulation shall be applicable which in the judgment of the
Lenders or the Collateral Agent could have such effect,
(c) a copy, certified as true and complete, of Material
Contracts relating to the development, management, leasing or operation
of the Mortgaged Property, and
(d) a copy, certified as true and complete, of all
material building and other permits, licenses, leases, franchises,
agreements and authorizations currently required in connection with the
use of the Mortgaged Property.
Section 7.26. Giant Industries Credit Agreement. Collateral Agent shall
have received:
(a) a true and complete copy of the Giant Industries
Credit Agreement which shall be in full force and effect,
-46-
Giant Yorktown, Inc. Loan Agreement
(b) a Responsible Officer's Certificate of Giant
Industries evidencing that the minimum excess "Availability" under the
Giant Industries Credit Agreement after giving pro forma effect to the
transactions on the Closing Date is not less than $20,000,000, and
(c) a true and complete copy of a written agreement by
the lenders under the Giant Industries Credit Agreement in favor of the
Collateral Agent confirming that no lien or security interest granted
in connection with the Giant Industries Credit Agreement attaches to or
affects the Mortgaged Property.
Section 7.27. Subordinated Debt. Collateral Agent shall have received a
Responsible Officer's Certificate of Giant Industries evidencing compliance with
each covenant which limits the ability of Giant Industries to incur indebtedness
under Subordinated Documents after giving pro forma effect to the transactions
on the Closing Date.
Section 7.28. Lender Approval. (a) The transactions contemplated by the
execution, delivery and performance of this Loan Agreement and the other
Operative Documents and the other transactions contemplated hereby shall have
been approved by the Lenders and the Collateral Agent, and
(b) the Lenders' due diligence relating to the Mortgaged Property
(including, without limitation, review of environmental matters) shall have been
completed, with results satisfactory to the Lenders.
Section 7.29. Deposit of Funds for Payment of NBD Subordinated Notes. The
Escrow Arrangement shall be in place, and funds shall have been irrevocably
deposited pursuant thereto in an amount sufficient to redeem the NBD
Subordinated Notes in full.
Section 7.30. Proceedings Satisfactory, Etc. All proceedings taken in
connection with the Closing Date and all documents relating thereto shall be
reasonably satisfactory to Collateral Agent, each Lender and their respective
counsel, and each such Person shall have received copies of such documents as
they may reasonably request in connection therewith, all in form and substance
reasonably satisfactory to each such Person.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
Section 8.1. Defaults. Any one or more of the following shall constitute an
"Event of Default":
(a) Non-Payment. Borrower fails to pay (i) when and as
required to be paid herein, any payment of Loan Balance, or (ii) within
two (2) Business Days after the same becomes due, any Interest (other
than payments of Loan Balance) or any other payment payable by Borrower
hereunder to a party to this Loan Agreement or under any other
Operative Document to a party to such other Operative Document
(including without limitation, any amount payable pursuant to SECTION
11); or
-47-
Giant Yorktown, Inc. Loan Agreement
(b) Representation or Warranty. Any representation or
warranty by Borrower or Giant Industries or any Subsidiary of Giant
Industries made or deemed made herein, in any other Operative Document,
or which is contained in any certificate, document or financial or
other statement by Borrower, Giant Industries, any Subsidiary of Giant
Industries, or any Responsible Officer, furnished at any time under
this Loan Agreement, or in or under any other Operative Document, is
incorrect in any material respect on or as of the date made or deemed
made; or
(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(c)(i), 6(n), 6(r), 6A(l), 6A(m), 6A(n)
or 6A(o) 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
(d) Other Defaults. Borrower or Giant Industries or any
Subsidiary fails to perform or observe any other term or covenant
contained in this Loan Agreement or any other Operative Document, and
such default shall continue unremedied for a period of 30 days after
the earlier of (i) the date upon which a Responsible Officer knew or
reasonably should have known of such default or (ii) the date upon
which written notice thereof is given to Giant Industries by the
Collateral Agent or any Lender; or
(e) Cross-Default.
(i) Borrower or Giant Industries or any
Subsidiary (A) fails to make any payment in respect of any
Indebtedness or Contingent Obligation having an aggregate
principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than
$5,000,000, or any Specified Swap Contract (whatever the
amount), when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such
failure continues after the applicable grace or notice period,
if any, specified in the relevant document on the date of such
failure; or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to
any such Indebtedness or Contingent Obligation having an
aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more
than $5,000,000, or any Specified Swap Contract (whatever the
amount), if the effect of such failure, event or condition is
to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a Borrower or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause such
Indebtedness, Specified Swap Contract or Contingent Obligation
to be declared to be due and payable prior to its stated
maturity, or cash collateral in respect thereof to be
demanded; or (C) any Indebtedness or Contingent Obligation of
Giant Industries
-48-
Giant Yorktown, Inc. Loan Agreement
or any Subsidiary in excess of $5,000,000, or any Specified
Swap Contract (whatever the amount), shall be declared due and
payable prior to its stated maturity or cash collateral is
demanded in respect of such Contingent Obligations or
Specified Swap Contracts; or
(ii) An "Event of Default" shall occur under and
as defined in the Giant Industries Credit Agreement or any
other event shall occur or condition shall exist under any
agreement relating to the Giant Industries Credit Agreement
and the transactions contemplated thereby if the effect of
such event or condition is to cause, or to permit the holders
of obligations under any of the Giant Industries Credit
Agreement or any agreement relating thereto to cause, any
Indebtedness or other obligations of Giant Industries or any
of its Subsidiaries under any of the Giant Industries Credit
Agreement or any agreement relating thereto to become due
prior to the stated maturity or stated due date thereof; or
(iii) Giant Industries (A) fails to make any
Margin Payment under and as defined in the Yorktown Asset
Purchase Agreement when due and such failure continues after
the applicable grace or notice period, if any, specified in
the Yorktown Asset Purchase Agreement; or (B) fails to perform
or observe any other condition or covenant, or any other event
shall occur or condition exist under the Yorktown Asset
Purchase Agreement, if the effect of such failure, event or
condition is to cause the Margin Payment, or any portion
thereof, to be immediately due and payable prior to any
scheduled payment date therefore or prior to its stated
maturity (whether pursuant to Section 7(e)(iv) therein or
otherwise; or
(f) Insolvency; Voluntary Proceedings. Borrower or Giant
Industries or any Subsidiary (i) generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) commences any Insolvency Proceeding with respect to
itself; or (iii) takes any action to effectuate or authorize any of the
foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against Borrower or Giant
Industries or any Material Subsidiary, or any writ, judgment, warrant
of attachment, execution or similar process, is issued or levied
against all or a substantial part of Giant Industries' or any Material
Subsidiary's properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution
or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (ii) Borrower or
Giant Industries or any Material Subsidiary admits the material
allegations of a petition against it in any Insolvency Proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency Proceeding; or (iii) Borrower or Giant Industries or any
Material Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar Person for itself or a
substantial portion of its property or business; or
-49-
Giant Yorktown, Inc. Loan Agreement
(h) ERISA. (i) An ERISA Event shall occur with respect to
a Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of Giant Industries or a
Subsidiary under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC in an aggregate amount in excess of $3,000,000 and
such amount is not paid when due; or (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans is in an aggregate
amount and could reasonably be expected to cause a Material Adverse
Effect; or (iii) Giant Industries or any ERISA Affiliate fails to pay
when due any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a multi-employer Plan in an
aggregate amount in excess of $3,000,000; or
(i) Monetary Judgments. One or more final judgments,
final orders, decrees or arbitration awards is entered against Borrower
or Giant Industries or any Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any
single or related series of transactions, incidents or conditions, of
$3,000,000 or more, and the same shall remain unsatisfied, unvacated
and unstayed pending appeal for a period of 30 days after the entry
thereof; or
(j) Change of Control. There occurs any Change of
Control; or
(k) Loss of Permit. Any Governmental Authority revokes or
fails to renew any material license, permit or franchise of Borrower or
Giant Industries or any Material Subsidiary, or Giant Industries or any
Material Subsidiary for any reason loses any material license, permit
or franchise, or Giant Industries or any Material Subsidiary suffers
the imposition of any restraining order, escrow, suspension or impound
of funds in connection with any proceeding (judicial or administrative)
with respect to any material license, permit or franchise; or
(l) Adverse Change. There occurs a Material Adverse
Effect; or
(m) Guaranty Default. The Parent Guaranty or Constituent
Companies Guaranty is for any reason partially or wholly revoked or
invalidated, or otherwise ceases to be in full force and effect, or any
Guarantor or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at subsections (f) or (g)
of this SECTION 8.1 occurs with respect to such Guarantor; or
(n) Invalidity of Subordination Provisions. The
subordination provisions of any of the Indentures or Subordinated Notes
are for any reason revoked or invalidated, the Borrower under either of
the Indentures, any successor Borrower thereto or any other Person
contests in any material respect the validity or enforceability
thereof, or the Indebtedness hereunder does not have the priority
contemplated by this Loan Agreement and the other Operative Documents
or the Indenture or such subordination provisions; or
-50-
Giant Yorktown, Inc. Loan Agreement
(o) Prepayment of Subordinated Notes. If Borrower or
Giant Industries or any Subsidiary is required for any reason to
prepay, redeem or purchase in whole or in part any of the Subordinated
Notes prior to the scheduled maturity thereof, other than pursuant to
the Escrow Agreement; or
(p) Mortgaged Property.
(i) any provision of any Operative Document
granting a lien and security interest shall for any reason
cease to be valid and binding on or enforceable against
Borrower or Giant Industries or any Subsidiary party thereto
or Borrower or Giant Industries or any Subsidiary shall so
state in writing or bring an action to limit its obligations
or liabilities thereunder; or
(ii) the Operative Documents shall for any reason
(other than pursuant to the terms thereof) cease to create a
valid security interest in the Mortgaged Property purported to
be covered thereby or such security interest shall for any
reason cease to be a perfected and first priority security
interest; or
(q) Environmental Matters. Either (i) Borrower, Giant
Industries or any of its Subsidiaries shall be liable, whether
directly, indirectly through required indemnification of any Person or
otherwise, for the costs of investigation and/or remediation of any
Hazardous Substance originating from or affecting any property or
properties, whether or not owned, leased or operated by Borrower, Giant
Industries or any of its Subsidiaries, which liability, together with
all other such liabilities of Borrower or any of its Subsidiaries,
could reasonably be expected to exceed $9,000,000 in the aggregate or
require payments by Borrower or any of its Subsidiaries exceeding
$3,000,000 in any fiscal year of Borrower (excluding for purposes of
such determination (i) such amount of any insurance proceeds paid to or
for the benefit of the Borrower, Giant Industries or any of its
Subsidiaries in respect of such liability or unconditionally
acknowledged in writing to be payable by the insurance carrier that
issued the related insurance policy, (ii) such amount of any indemnity
payments made to the Borrower, Giant Industries or any of its
Subsidiaries in respect of such liability or unconditionally
acknowledged in writing to be payable by the party that indemnified
such amounts, or (iii) an amount not to exceed $7,500,000 in the
aggregate paid by the Borrower, Giant Industries or any of its
Subsidiaries in respect of such liability pursuant to the Yorktown
Asset Purchase Agreement) or (ii) any federal, state, regional, local
or other environmental regulatory agency or authority shall commence an
investigation or take any other action that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
Section 8.2. Non-Bankruptcy Defaults. If any Event of Default has occurred
and is continuing:
(a) The Collateral Agent at the direction of the Required
Lenders may, by notice in writing to the Borrower, declare the
principal of and interest on the Notes to be forthwith due and payable
and thereupon the Notes, including both principal and interest,
-51-
Giant Yorktown, Inc. Loan Agreement
and all fees, charges and other amounts payable hereunder, including,
without limitation, any Applicable Administrative Charge, under the
Notes, the Deed of Trust and the Guaranties, shall be and become
immediately due and payable without presentment, demand or further
notice of any kind.
(b) The Collateral Agent may offset any indebtedness,
obligations or liabilities owed to the Borrower against any
indebtedness, obligations or liabilities of the Borrower to the
Lenders.
(c) The Collateral Agent for the benefit of the Lenders
may enforce any and all rights and remedies available to it under the
Notes, the Deed of Trust and the Guaranties or under any Requirement of
Law.
Section 8.3. Bankruptcy Defaults. If any Event of Default described in
subsection (f) or (g) of SECTION 8.1 has occurred and is continuing, then the
entire Loan Balance and all accrued and unpaid Interest thereon, and all fees,
charges and other amounts payable hereunder, including, without limitation, any
Applicable Administrative Charge, under the Note, the Deed of Trust and the
Guaranties, shall immediately become due and payable without presentment,
demand, protest or notice of any kind. In addition, the Collateral Agent at the
direction of the Required Lenders may exercise any and all remedies available to
it hereunder, under the Note, the Deed of Trust and the Guaranties or under any
Requirement of Law.
Section 8.4. Remedies on Default. In case any one or more Defaults or
Events of Default shall occur and be continuing, (i) any Lender may proceed to
protect and enforce the rights of such Lender by an action at law, suit in
equity or other appropriate proceeding, whether for the specific performance of
any agreement contained herein or in any Operative Document, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise,
and (ii) the Collateral Agent and any Lender may exercise any rights or remedies
in their respective capacities under the Operative Documents in accordance with
the provisions thereof. No course of dealing and no delay on the part of any
Lender in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such Lender's rights, powers or remedies. No
right, power or remedy conferred by this Loan Agreement or by any Note upon any
holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise.
SECTION 9. ASSIGNMENT BY LENDERS; PARTICIPATIONS.
Section 9.1. Assignments. (a) Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Loan Agreement, the other Operative Documents, the Mortgaged Property or
the Notes; provided that (i) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Loan Agreement and the other Operative Documents; and
(ii) the parties to each assignment shall execute and deliver to the Collateral
Agent an Assumption in the form attached hereto as EXHIBIT F, together with a
processing and recordation fee of $500.00. Subject to acceptance and recording
thereof by the Collateral Agent pursuant to
-52-
Giant Yorktown, Inc. Loan Agreement
PARAGRAPH (b) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Loan Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Loan Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its
obligations under this Loan Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Loan Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of SECTION 11 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Loan
Agreement that does not comply with this paragraph shall be treated for purposes
of this Loan Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with SECTION 9.2.
(b) The Collateral Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at its office listed in SCHEDULE IB a copy
of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the principal amounts
of the Loans owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Collateral Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Loan Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
Section 9.2. Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Collateral Agent, sell
participations to any Person (other than a natural person or the Borrower or any
of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or
a portion of such Lender's rights and/or obligations under this Loan Agreement,
the other Operative Documents, the Mortgaged Property or the Notes; (including
all or a portion of the Loans owing to it); provided that (i) such Lender's
obligations under this Loan Agreement and the other Operative Documents shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Collateral Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Loan Agreement and the other Operative Documents. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Loan
Agreement and the other Operative Documents and to approve any amendment,
modification or waiver of any provision of this Loan Agreement and the other
Operative Documents. Subject to PARAGRAPH (b) of this Section, the Company
agrees that each Participant shall be entitled to the benefits of SECTION 11 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to SECTION 9.1.
(b) A Participant shall not be entitled to receive any greater
payment under SECTION 11 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the
-53-
Giant Yorktown, Inc. Loan Agreement
Borrower's prior written consent. A Participant that would be a foreign Lender
if it were a Lender shall not be entitled to the benefits of SECTION 11.2 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower to comply with SECTION 11.2
as though it were a Lender.
Section 9.3. Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Loan Agreement
or the other Operative Documents to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 10. THE COLLATERAL AGENT.
Section 10.1. Appointment. Each Lender hereby irrevocably designates and
appoints the Trust Company as the Collateral Agent under this Loan Agreement and
the other Operative Documents, and each such Lender irrevocably authorizes the
Collateral Agent, in such capacity, to take such action on its behalf under the
provisions of this Loan Agreement and the other Operative Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Collateral Agent by the terms of this Loan Agreement and the other Operative
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Loan Agreement,
the Trust Company shall not have any duties or responsibilities, except those
expressly set forth herein and in the other Operative Documents, or any
fiduciary relationship with any Lender or any other party to the Operative
Documents, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or any other
Operative Document or otherwise exist against the Trust Company.
Section 10.2. Delegation of Duties. The Collateral Agent may execute any of
its duties under this Loan Agreement and the other Operative Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Collateral Agent shall not
be responsible for the acts or omissions including, specifically the negligence
or willful misconduct of agents or attorneys-in-fact selected by it with
reasonable care.
Section 10.3. Exculpatory Provisions. Neither the Trust Company nor the
Collateral Agent (in its capacity as such) nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by the Collateral Agent or such
Person under or in connection with this Loan Agreement or any other Operative
Document, except for the Collateral Agent's or such Person's own willful
misconduct or gross negligence (or negligence in the handling of funds by the
Collateral Agent in such capacity) or (b) responsible in any manner to any of
the Lenders or any other party to the Operative Documents for any recitals,
statements, representations or warranties made by the Borrower or any other
party or any officer thereof contained in this Loan Agreement or any other
Operative Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Collateral Agent under or in
connection with, this Loan
-54-
Giant Yorktown, Inc. Loan Agreement
Agreement or any other Operative Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Loan Agreement
or any other Operative Document or for any failure of Borrower to perform its
obligations hereunder or thereunder. The Collateral Agent shall not be under any
obligation to any Lender or any other party to the Operative Documents to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Loan Agreement or any other
Operative Document, or to inspect the properties, books or records of Borrower.
Section 10.4. Reliance by Collateral Agent; Indemnity. The Collateral Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
facsimile message, statement, order or other document or other written
communication believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to Borrower), independent
accountants and other experts selected by the Collateral Agent. The Collateral
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Collateral Agent, in accordance with this Loan
Agreement. The Collateral Agent shall be fully justified in failing or refusing
to take any action under this Loan Agreement or any other Operative Document
unless it shall first receive the advice or concurrence of the Required Lenders
or it shall first be indemnified to its satisfaction by the applicable Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Collateral Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Loan Agreement and the other Operative Documents in accordance with a request of
the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the applicable Notes. Wherever in the Operative Documents the consent or
approval of the Collateral Agent is required, in giving any such consent or
approval the Collateral Agent may rely upon, or make its approval subject to,
the directions of or consent or approval from the Required Lenders. The Lenders
agree to indemnify the Collateral Agent (to the extent not reimbursed under
SECTION 11 hereof, the Parent Guaranty and the Constituent Companies Guaranty,
but without limiting the obligations of the Borrower under SECTION 11 or of the
Guarantors) ratably in accordance with their respective Commitments, for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including reasonable attorneys' fees) or disbursements
of any kind and nature whatsoever that may at any time (including at any time
following the final payment of all of the obligations of the Borrower hereunder
and under the other Operative Documents) be imposed on, incurred by or asserted
against the Collateral Agent (including by any Lender) in any way relating to or
arising out of this Loan Agreement or any Operative Document or the transactions
contemplated thereby or any action taken or omitted by the Collateral Agent
under this Loan Agreement or any Operative Document; provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Collateral
Agent promptly upon demand for its ratable share of any costs or expenses
payable by Borrower under SECTION 11, to the extent that the Collateral Agent is
not promptly reimbursed for such costs and expenses by Borrower or a Guarantor.
-55-
Giant Yorktown, Inc. Loan Agreement
Section 10.5. Notice of Default. The Collateral Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
unless the Collateral Agent has received notice from a Lender referring to this
Loan Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Collateral Agent
receives such a notice, the Collateral Agent shall promptly give notice thereof
to the Lenders and Borrower. The Collateral Agent shall take such action with
respect to such Default or Event of Default as shall be directed by the Required
Lenders; provided, however, that unless and until the Collateral Agent shall
have received such directions, the Collateral Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
Section 10.6. Non-Reliance on Collateral Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Collateral Agent, the Arranger
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates, has made any representations or warranties to
it and that no act by the Collateral Agent, or the Arranger hereinafter taken,
including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Collateral Agent or the
Arranger to any Lender. Each Lender represents to the Collateral Agent that it
has, independently and without reliance upon the Collateral Agent or the
Arranger or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to enter into this
Loan Agreement. Each Lender also represents that it will, independently and
without reliance upon the Collateral Agent, the Arranger or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Loan Agreement and the other Operative
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Collateral
Agent hereunder, neither the Collateral Agent nor the Arranger shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Collateral Agent, the Arranger or any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Section 10.7. Indemnification. Other than with respect to indemnification
provided to the Collateral Agent in accordance with SECTION 10.4, the Collateral
Agent agrees to look solely to Borrower under SECTION 11, and not to any other
party hereto, for any claim for indemnification which may arise hereunder or
under any other Operative Document.
Section 10.8. Collateral Agent in Its Individual Capacity. Each Lender
acknowledges that Wells Fargo Bank Nevada, National Association, is acting as
Collateral Agent hereunder. Wells Fargo Bank Nevada, National Association, and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
-56-
Giant Yorktown, Inc. Loan Agreement
Borrower and their Affiliates as though it was not the Collateral Agent
hereunder and under the other Operative Documents and without notice to or
consent of the Lenders. Each Lender acknowledges that, pursuant to such
activities, Wells Fargo Bank Nevada, National Association, or its Affiliates may
receive information regarding Borrower or its Affiliates (including information
that may be subject to confidentiality obligations in favor of Borrower or its
Affiliates) and acknowledges that such Persons shall be under no obligation to
provide such information to them.
Section 10.9. Successor Collateral Agent. The Collateral Agent may resign
at any time by giving written notice thereof to the Lenders and Borrower and may
be removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders, with the consent of the
Borrower and the Giant Industries, such consent not to be unreasonably withheld,
shall have the right to appoint a successor Collateral Agent. If no successor
Collateral Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within sixty (60) days after the retiring
Collateral Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Collateral Agent, then the retiring Collateral Agent
may, on behalf of the Lenders, appoint a successor Collateral Agent, which shall
be a commercial bank described in clause (i) or (ii) of the definition of
"Eligible Assignee" and having a combined capital and surplus of at least
$150,000,000. Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Collateral Agent, and the retiring Collateral Agent
shall be discharged from its duties and obligations under this Loan Agreement.
After any retiring Collateral Agent's resignation or removal hereunder as
Collateral Agent, the provisions of this SECTION 10 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Collateral
Agent under this Loan Agreement. Notwithstanding the foregoing if no Event of
Default and no Default, shall have occurred and be continuing, then no successor
Collateral Agent shall be appointed under this SECTION 10.9 without the prior
written consent of Borrower, which consent shall not be unreasonably withheld or
delayed.
Section 10.10. Action upon Instructions. Subject to the terms of SECTIONS
10.3, 10.4 and 10.7 and the Operative Documents, upon the written instructions
at any time and from time to time of the Required Lenders (for any action not
requiring the consent of all of the Lenders), Collateral Agent shall take such
of the following actions as may be specific in such instructions:
(a) give such notice or direction or exercise such right
or power under this Loan Agreement or any other Operative Document as
shall be specified in such instructions;
(b) approve as satisfactory to it all matters required by
the terms of any Operative Document to be satisfactory to Collateral
Agent; and
(c) any other action as specified by the Required
Lenders.
Section 10.11. Substitution of Deed of Trust Trustee. The Deed of Trust
Trustee hereunder may act at any time upon designation by the Collateral Agent.
If the Collateral Agent, in its sole
-57-
Giant Yorktown, Inc. Loan Agreement
and absolute discretion, shall desire for any reason whatsoever to have a
substitute trustee or substitute trustees appointed, then the Collateral Agent
is hereby authorized and empowered to appoint, at any time and from time to
time, by an instrument duly executed and acknowledged and filed for recordation
wherever this Loan Agreement is recorded, a substitute trustee or substitute
trustees, in the place and stead of one or more of those initially named herein
or subsequently appointed by the Collateral Agent, which trustee or trustees
shall have all the rights, powers and authority and be charged with all the
duties and responsibilities that are conferred to charged upon the Deed of Trust
Trustee initially named herein. Such substitute trustee shall comply with all
Requirements of Law and with Section 23 of the Deed of Trust.
SECTION 11. INDEMNITY.
Section 11.1. General Indemnification. Whether or not the transactions
contemplated hereby are consummated, to the fullest extent permitted by
Requirements of Law, Borrower hereby:
(x) waives and releases any Claims now or hereafter
existing against any Indemnitee on account of, and
(y) assumes liability for and agrees to indemnify,
protect, defend, save and keep harmless each Indemnitee on an after-tax
basis (in accordance with SECTION 11.3) from and against, any and all
Claims of every kind and nature whatsoever that may be imposed on,
incurred by, or asserted against any Indemnitee, which are not caused
by the gross negligence or willful misconduct (or negligence in the
handling of funds by the Collateral Agent in such capacity) of the
Indemnitee (provided that the indemnification provided under this
SECTION 11.1 shall specifically include matters based on or arising
from the negligence of any Indemnitee), whether or not such Indemnitee
shall also be indemnified as to any such Claim by any other Person and
whether or not such Claim arises or accrues prior to the Closing Date
or after the Maturity Date, and which relates in any way to or arises
in any way out of:
(a) any of the Operative Documents or any of the
transactions contemplated thereby, or any investigation,
litigation or proceeding in connection therewith, and any
amendment, modification or waiver in respect thereof;
(b) the Mortgaged Property or any Part thereof
or interest therein;
(c) with respect to the Mortgaged Property or
Part thereof, the acquisition, mortgaging, design,
manufacture, re-manufacture, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, purchase, ownership, possession, rental, lease,
sublease, repossession, maintenance, repair, alteration,
modification, addition or substitution, storage, titling or
retitling, transfer of title, registration or re-registration,
redelivery, use, operation, condition, financing, refinancing,
sale, return or other application or disposition or the
imposition of any Lien (or incurring of any liability to
refund or pay over any amount as a result of any Lien) on any
of the Mortgaged Property,
-58-
Giant Yorktown, Inc. Loan Agreement
including, without limitation, (i) Claims or penalties arising
from any violation of any Requirements of Law or in tort
(strict liability or otherwise), (ii) loss of or damage to the
environment (including, without limitation, investigation
costs, cleanup costs, response costs, remediation and removal
costs, costs of corrective action, costs of financial
assurance, and all other damages, costs, fees and expenses,
fines and penalties, including natural resource damages), or
death or injury to any Person, and any mitigative action
required by or under Environmental Laws, (iii) latent or other
defects, whether or not discoverable, and (iv) any Claim for
patent, trademark or copyright infringement;
(d) the sale or other disposition of the
Mortgaged Property, including, without limitation, any
disposition pursuant to the Prepayment Option or as a result
of the exercise of remedies; provided, however, that in no
event shall any other Person (other than any Lender, Deed of
Trust Trustee, Trust Company, Collateral Agent and their
respective Affiliates, successors, permitted assigns,
permitted transferees, invitees, contractors, servants,
employees, officers, directors, shareholders, partners,
participants, representatives, agents and their respective
designees or nominees) who purchases the Mortgaged Property
for value following a foreclosure or other remedy be an
Indemnitee;
(e) the offer, issuance, sale or delivery of the
Notes in accordance with the Operative Documents;
(f) the breach by Borrower or a Guarantor of any
representation or warranty made by it or deemed made by it in
any Operative Document;
(g) the transactions contemplated hereby or by
any other Operative Document in respect of the application of
Parts 4 and 5 of Subtitle B of Title I of ERISA and any
Prohibited Transaction described in Section 49115(c) of the
Code;
(h) any Claims related to the release from the
Mortgaged Property of any substance into the environment,
including (without limitation) Claims arising out of the use
of the Mortgaged Property for the transportation or storage of
any Hazardous Substance;
(i) any Claims related to any Indemnitee being
alleged to be an owner or operator of the Mortgaged Property
or the land on which the Mortgaged Property is situated, in
each case prior to taking possession thereof, under any
Environmental Law;
(j) any failure on the part of Borrower or any
Guarantor to perform or comply with any of the terms of any
Operative Document to which it is a party; or
(k) any other agreement entered into or assumed
by Borrower in connection with the Mortgaged Property.
-59-
Giant Yorktown, Inc. Loan Agreement
It is expressly understood and agreed that this SECTION 11.1
shall not apply to Claims in respect of:
(A) Taxes (such Claims being subject to
SECTION 11.2), except with respect to (1) taxes or
penalties included in Claims described in clause (g)
above, and (2) any payment necessary to make payments
under this SECTION 11.1 in accordance with SECTION
11.3;
(B) as to an Indemnitee, Lender Liens
which such Indemnitee is responsible for discharging
under the Operative Documents;
(C) the gross negligence or willful
misconduct of such Indemnitee or any Affiliate,
agents, officers directors, servants or employees
thereof; and
(D) the breach by an Indemnitee of any
representation, warranty or covenant under any
Operative Document.
Section 11.2. General Tax Indemnity. (a) Borrower shall pay, defend and
indemnify and hold each Indemnitee harmless on an after-tax basis (in accordance
with SECTION 11.3) from any and all Federal, state, local and foreign Taxes
imposed on or with respect to or in connection with any Indemnitee, the
Mortgaged Property or any portion thereof, any Operative Document, Borrower or
any sublessee or user of the Mortgaged Property, howsoever imposed, whether
levied or imposed upon or asserted against any Indemnitee, the Mortgaged
Property, or any Part thereof, by any taxing Governmental Authority (including
any Federal, state or local government or taxing Governmental Authority in the
United States and any taxing Governmental Authority or governmental subdivision
of a foreign country), upon or with respect to:
(i) with respect to the Mortgaged Property or Part
thereof, the acquisition, mortgaging, design, manufacture,
re-manufacture, construction, preparation, installation, inspection,
delivery, non-delivery, acceptance, rejection, purchase, ownership,
possession, rental, lease, sublease agreement, repossession,
maintenance, repair, alteration, modification, addition or
substitution, storage, titling or retitling, transfer of title,
registration or re-registration, redelivery, use, operation, condition,
financing, refinancing, sale, return or other application or
disposition or the imposition of any Lien (or incurrence of any
liability to refund or pay over any amount as a result of any Lien)
thereon,
(ii) Interest or Supplemental Payments or the receipts or
earnings arising from or received with respect to the Mortgaged
Property or any Part thereof, or any interest therein or any
applications or dispositions thereof,
(iii) any other amount paid or payable pursuant to this
Loan Agreement, the Notes or any other Operative Document,
(iv) the Mortgaged Property or any Part thereof or any
interest therein,
-60-
Giant Yorktown, Inc. Loan Agreement
(v) all or any of the Operative Documents, any other
documents contemplated thereby and any amendments and supplements
thereto, and
(vi) otherwise with respect to or in connection with the
transactions contemplated by the Operative Documents;
provided, however, that subject to SECTION 11.6, the indemnification obligation
of this SECTION 11.2(a) shall not apply to (1) Taxes which are based upon or
measured by the Indemnitee's net income or Taxes (other than Taxes that are, on
in the nature of, sales, use, transfer, value-added, license or property taxes)
or which are expressly in substitution for, or relieve Indemnitee from, any
actual Tax based upon or measured by Indemnitee's net income (other than any
State or local Taxes imposed by means of withholding, Taxes incurred solely as a
result of the location of the Mortgaged Property, the operations, state of
formation, or place of payment of the Borrower, and Taxes necessary to pay the
obligations under this paragraph on an after-tax basis); (2) Taxes characterized
under local law as franchise, net worth, or shareholder's capital (excluding,
however, any value-added, license, property or similar Taxes); and (3) United
States withholding taxes under Code Section 1442 with respect to any payment to
an Indemnitee not incorporated under the laws of the United States or a state
thereof. Notwithstanding the proviso of the preceding sentence of this SECTION
11.2(a), Borrower shall pay or reimburse, and indemnify and hold harmless, on an
after-tax basis, any Indemnitee that is not incorporated under the laws of the
United States or a state thereof (i) from any deduction or withholding of any
United States federal income tax, if such Indemnitee, in compliance with SECTION
11.2(c), has certified that it is entitled to receive payments pursuant to the
Operative Documents without any such deduction or withholding, or (ii) if such
Indemnitee, in compliance with SECTION 11.2(c), has certified that it is
entitled to receive payments pursuant to the Operative Documents at a reduced
rate of withholding, from any deduction or withholding of any United States
federal income tax in excess of such reduced rate, or (iii) if such Indemnitee
has complied with SECTION 11.2(c) or otherwise validly established that it is a
foreign person thereby entitled to an exemption from United States backup
withholding taxes, from such backup withholding taxes. The Indemnitee will use
reasonable efforts to cooperate with the Borrower to recover from the
appropriate Governmental Authority any such excess withholding and will repay
any such amount recovered less reasonable costs of recovery to the Borrower to
the extent that the Borrower has previously indemnified Indemnitee.
All of the indemnities contained in this SECTION 11.2 shall continue in
full force and effect notwithstanding the expiration or earlier termination of
this Loan Agreement in whole or in part, including the termination of this Loan
Agreement with respect to the Mortgaged Property, and are expressly made for the
benefit of, and shall be enforceable by, each Indemnitee.
(b) Borrower will promptly notify Collateral Agent and the Lenders
of all reports or returns required to be made with respect to any Tax with
respect to which Borrower is required to indemnify hereunder, and will, if
permitted by Requirement of Law, file the same. If Borrower is not permitted to
so file, Borrower shall prepare such reports or returns for signature by
Collateral Agent or the applicable Lender and shall forward the same, together
with immediately available funds for payment of any Tax due, to Collateral Agent
or such Lender, at least ten (10) days in advance of the date such payment is to
be made. Borrower shall furnish Collateral Agent
-61-
Giant Yorktown, Inc. Loan Agreement
or such Lender with copies of all paid receipts or other appropriate evidence of
payment for all Taxes paid by Borrower pursuant to this SECTION 11.2.
(c) At least five (5) Business Days prior to the first date on
which any payment is due under this Loan Agreement for the account of any Lender
not incorporated under the laws of the United States or a state thereof, such
Lender agrees that it will have delivered to Borrower and Collateral Agent two
valid, duly completed, original copies of Internal Revenue Service Form W-8BEN
or W-8ECI or successor applicable form or forms, properly and duly executed,
certifying in either case that such Lender is entitled to receive payments
pursuant to the Operative Documents without deduction or withholding of any
United States federal income taxes (or at a reduced rate, if applicable) and is
a foreign person thereby entitled to an exemption from United States backup
withholding taxes. Each such Lender covenants that (i) it will provide to
Borrower and Collateral Agent a new Internal Revenue Service Form W-8BEN or
W8-ECI and any such additional forms (or any successor form or forms) upon the
expiration or obsolescence of any previously delivered forms or after the
occurrence of any event requiring a change in the most recent forms delivered by
it in either case within 30 days of receipt from the Borrower and Collateral
Agreement of (1) written notice that the existing forms are to expire or become
obsolete and (2) the appropriate new forms, in accordance with applicable United
States laws and regulations and amendments, duly executed and completed by such
Lender to the extent Lender is eligible under law to complete and execute such
forms, and (ii) it will otherwise comply from time to time with all applicable
United States laws and regulations with regard to such withholding tax exemption
or entitlement to reduced rate withholding.
Section 11.3. Gross Up. If an Indemnitee shall not be entitled to a
corresponding and equal deduction with respect to any payment or Tax which
Borrower is required to pay or reimburse under any other provision of this
SECTION 11 (each such payment or reimbursement under this SECTION 11, an
"original payment") and which original payment constitutes income to such
Indemnitee, then Borrower shall pay to such Indemnitee on demand the amount of
such original payment on a grossed-up basis such that, after subtracting all
Taxes imposed on such Indemnitee with respect to such original payment by
Borrower (including any Taxes otherwise excluded from the indemnification
provided under SECTION 11.2 and assuming for this purpose that such Indemnitee
were subject to taxation at the highest Federal, state or local marginal rates
applicable to widely held corporations for the year in which such income is
taxable), such payments shall be equal to the original payment to be received
(net of any credits, deductions or other Tax benefits then actually recognized
that arise from the payment by such Indemnitee of any amount, including Taxes,
for which the payment to be received is made).
Section 11.4. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank regulator or
other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Lender directly or by its parent
company (including, without limitation, any reserve requirements specified under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System and then applicable to assets or liabilities consisting of and
including "Eurocurrency Liabilities" as defined in Regulation D of such Board of
Governors) as determined by such Lender (in its sole and absolute discretion),
then, in any
-62-
Giant Yorktown, Inc. Loan Agreement
such case, upon written notification from time to time by such Lender to
Borrower, Borrower shall, within five (5) Business Days following receipt of the
statement referred to in the next sentence, pay directly to such Lender, as
Supplemental Payment, additional amounts sufficient to compensate such Lender or
its parent for such increased cost to such Lender (subject to SECTION 11.3). A
statement of a Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on Borrower. In determining such amount, each
Lender shall use any method of averaging or attribution that it (in its
reasonable discretion) shall deem applicable. Notwithstanding any provision of
this SECTION 11.4 to the contrary, no amount shall be payable by the Borrower
with respect to any such increased costs or reduced returns incurred more than
180 days before the date such Lender first notifies the Borrower of its
intention to demand compensation under this SECTION 11.4.
Section 11.5. Environmental Indemnity. Without limitation of the other
provisions of this SECTION 11, the Borrower hereby agrees to indemnify, hold
harmless and defend each Indemnitee from and against any and all claims, losses,
damages, liabilities, fines, penalties, charges, administrative and judicial
proceedings (including informal proceedings) and orders, judgments, remedial
action, requirements, enforcement actions of any kind, and all reasonable and
documented costs and expenses incurred in connection therewith (including
reasonable and documented attorneys', expert consultants', expert witnesses',
and/or paralegals' fees and expenses), including all costs incurred in
connection with any investigation or monitoring of the condition of the
Mortgaged Property or any clean-up, remedial, removal or restoration work by any
Governmental Authority (collectively, "Environmental Claims"), arising in whole
or in part, out of:
(a) the presence on, under or around the Mortgaged
Property or any portion thereof of any Hazardous Material, or any
releases or discharges of any Hazardous Material on, under, from, onto
or around the Mortgaged Property or any portion thereof,
(b) any activity, including, without limitation,
construction carried on or undertaken on or off the Mortgaged Property
or any portion thereof, and whether by Borrower or any of its
Affiliates or any predecessor in title or any employees, agents,
sublessees, contractors or subcontractors of the Borrower, any of its
Affiliates or any predecessor in title, or any other Persons (including
such Indemnitee), in connection with the handling, treatment, removal,
storage, decontamination, clean-up, transport or disposal of any
Hazardous Substance that at any time are located or present on, under
or around, or that at any time migrate, flow, percolate, diffuse or in
any way move onto or under the Mortgaged Property or any portion
thereof,
(c) loss of or damage to any property or the environment
arising from, or in any way related to, the Mortgaged Property or
Borrower or any of its Affiliates (including, without limitation,
clean-up costs, response costs, remediation and removal costs, cost of
corrective action, costs of financial assurance, fines and penalties
and natural resource damages), or death or injury to any Person, and
all expenses associated with the protection of wildlife, aquatic
species, vegetation, flora and fauna, and any mitigative action
required by or under Environmental Laws, in each case arising from, or
-63-
Giant Yorktown, Inc. Loan Agreement
in any way related to, the Mortgaged Property, Borrower or the
transactions contemplated by the Operative Documents or any portion
thereof,
(d) any claim concerning lack of compliance with
Environmental Laws in connection with the Mortgaged Property
(including, without limitation, any claim arising from the failure or
alleged failure to obtain or comply with any permit required by any
Environmental Laws for the construction or operation of the Mortgaged
Property), or any act or omission causing an environmental condition
that requires remediation or would allow any Governmental Authority to
record a Lien against the Mortgaged Property or any portion thereof, or
(e) any residual contamination on or under any of the
Mortgaged Property, or adversely affecting any natural resources, and
any contamination of any property or natural resources arising in
connection with the generation, use, handling, storage, transport or
disposal of any such Hazardous Substance, in each case arising from, or
in any way related to, the Mortgaged Property, Borrower or the
transactions contemplated by the Operative Documents or any portion
thereof, and irrespective of whether any of such activities were or
will be undertaken in accordance with all Requirements of Law.
Section 11.6. LIBO Rate Illegal, Unavailable or Impracticable. If any
Lender shall determine in good faith (which determination shall, upon notice
thereof to Collateral Agent and Borrower, be conclusive and binding on Borrower)
that:
(a) a change in law makes it unlawful, or the central
bank or other Governmental Authority asserts that it is unlawful, for
such Lender to make, continue or maintain any amount of such Lender's
investment hereunder on a LIBO Rate basis,
(b) deposits in Dollars (in the applicable amounts) are
not being offered to such Lender in the relevant market for the
applicable Interest Period, or that by reason of circumstances
affecting the interbank eurodollar market adequate and reasonable means
do not exist for ascertaining the applicable LIBO Rate, or
(c) the LIBO Rate, as determined by such Lender, will not
adequately and fairly reflect the cost to such Lender of maintaining or
funding its investments for the applicable Interest Period, or that the
making or funding of such Lender's investment hereunder on a LIBO Rate
basis has become impracticable as a result of an event occurring after
the date of this Loan Agreement which in the opinion of such Lender
materially changes such investment,
then the obligations of such Lender to make, continue or maintain any such
investment shall, upon such determination, forthwith be suspended until such
Lender shall notify Collateral Agent and Borrower that such circumstances no
longer exist, and all Interest allocable to such Lender shall automatically be
determined on a Base Rate basis beginning on the next immediately succeeding
Payment Date with respect thereto or sooner, if required by such law, assertion
or determination.
-64-
Giant Yorktown, Inc. Loan Agreement
Section 11.7. Funding Losses. Borrower agrees to reimburse any Lender for
any loss or expense incurred as a result of (i) the failure of the transaction
contemplated hereby to occur on the Closing Date specified in the Closing Notice
or (ii) any payment of all or any portion of the Loan Balance for any reason on
a date other than a Payment Date. Any affected Lender shall promptly notify
Borrower in writing of the amount of any claim under this SECTION 11.7, the
reason or reasons therefor and the additional amount required fully to
compensate such Lender for such loss or expense. Such written notice (which
shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on Borrower.
Section 11.8. Actions of Lenders. Each Lender shall use reasonable efforts
(including reasonable efforts to change the booking office for this transaction)
to avoid or minimize any amounts which might otherwise be payable pursuant to
SECTIONS 11.4 and 11.5; provided, however, that such efforts shall not be deemed
by such Lender, in its sole discretion, to be disadvantageous to it.
SECTION 12. GENERAL CONDITIONS.
Section 12.1. Payment of Transaction Costs and Other Costs. If the
transactions contemplated hereby are consummated, Borrower shall pay all
Transaction Costs and all Fees in accordance with SECTION 4.9 and 7.9 (or upon
such later date as agreed to by the Lenders), and in the event the transactions
contemplated hereby do not close, Borrower shall pay such Transaction Costs
promptly upon receipt of invoices therefor. In addition, Borrower shall pay or
reimburse Collateral Agent, Deed of Trust Trustee, Trust Company, Arranger and
the Lenders for all other Transaction Costs and Fees and all other out-of-pocket
costs and expenses (including reasonable attorneys fees) reasonably incurred in
connection with: (a) entering into, or the giving or withholding of, any future
amendments, supplements, waivers or consents with respect to the Operative
Documents; (b) any Casualty or termination of this Loan Agreement or any other
Operative Document; (c) the negotiation and documentation of any restructuring
or "workout", whether or not consummated, of any Operative Document; (d) the
enforcement of the rights or remedies under the Operative Documents; (e) further
assurances requested pursuant to Section 6(o) of the Parent Guaranty or any
similar provision in other Operative Documents; (f) any transfer by Collateral
Agent or a Lender of any interest in the Operative Documents during the
continuance of an Event of Default or pursuant to the syndication of the Notes
by the Arranger; and (g) the ongoing fees and expenses of Collateral Agent, Deed
of Trust Trustee and Trust Company under the Operative Documents.
Section 12.2. Effect of Waiver. No delay or omission to exercise any right,
power or remedy accruing to Collateral Agent or any Lender upon any breach or
default of Borrower hereunder shall impair any such right, power or remedy nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein or of or in any similar breach or default thereafter
occurring, nor shall any single or partial exercise of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy, nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of the Lenders or Collateral Agent of any breach or default under this
-65-
Giant Yorktown, Inc. Loan Agreement
Loan Agreement must be specifically set forth in writing and must satisfy the
requirements set forth in SECTION 12.5 with respect to approval by the Lenders
and Collateral Agent.
Section 12.3. Survival of Covenant. All representations, warranties and
covenants of Borrower under SECTIONS 2.1, 3.1, 3.2, 3.3, 3.4, 3.5, 4 and 5 shall
survive the expiration or termination of this Loan Agreement to the extent
arising prior to any such expiration or termination.
SECTION 12.4. APPLICABLE LAW. THIS LOAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE LAWS OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES (OTHER THAN TITLE 14 OF ARTICLE V OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
Section 12.5. Effect and Modification. This Loan Agreement and the other
Operative Documents exclusively and completely states the rights of the Lenders
and Borrower with respect to the Loans and the Mortgaged Property and supersedes
all prior agreements, oral or written, with respect thereto. No Operative
Document nor any of the terms thereof may be terminated, amended, supplemented,
waived or modified without the written agreement or consent of Collateral Agent,
Borrower and the Required Lenders, and in the case of the Parent Guaranty, the
Constituent Company Guaranty or any definition used therein, the Guarantors
affected thereby; provided, however, that SECTIONS 12.1 and 12.16 hereof may not
be terminated, amended, supplemented, waived or modified without the written
agreement or consent of the Arranger; and provided, further, that such
termination, amendment, supplement, waiver or modification shall require the
written agreement or consent of each Lender if such termination, amendment,
supplement, waiver or modification would:
(a) modify any of the provisions of this SECTION 12.5,
change the definition of "Required Lenders" or modify or waive any
provision of an Operative Document requiring action by each Lender;
(b) amend, modify, waive or supplement any of the
provisions of SECTION 4.5 or 4.6 of this Loan Agreement;
(c) reduce, modify, amend or waive any fees or
indemnities in favor of any Lender, including without limitation
amounts payable pursuant to SECTION 11 (except that any Person may
consent to any reduction, modification, amendment or waiver of any
indemnity payable to it);
(d) modify, postpone, reduce or forgive, in whole or in
part, any payment of principal or Interest (other than pursuant to the
terms of the Operative Documents), or any Loan or Loan Balance (except
that any Person may consent to any modification, postponement,
reduction or forgiveness of any payment of any Fee payable to it) or,
subject to clause (c) above, any other amount payable to it under this
Loan Agreement, or modify the definition or method of calculation of
Interest (other than pursuant to the terms of the Operative Documents),
Loans or Loan Balances or any other definition
-66-
Giant Yorktown, Inc. Loan Agreement
which would affect the amounts to be advanced or which are payable
under the Operative Documents or extend, modify or amend the Loan Term;
or
(e) release of any Lien granted by Borrower under the
Operative Documents or release the Parent Guaranty or the Constituent
Companies Guaranty, except as provided in the Operative Documents.
Notwithstanding the foregoing, neither the Parent Guaranty or the
Constituent Companies Guaranty nor any of the terms thereof may be amended,
modified or waived, unless such amendment, modification or waiver is in writing
entered into by, or approved in writing by the Required Lenders, the Collateral
Agent and the Guarantors.
Notwithstanding the foregoing or anything contained in the Operative
Documents to the contrary, the Borrower and the Guarantors agree to enter into
any amendment or modification to the Operative Documents requested by the
Arranger in connection with the syndication of the Notes by the Arranger.
Section 12.6. Notices. All demands, notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
personally delivered or one Business Day after being sent by overnight delivery
service or three days after being deposited in the mail, certified mail postage
prepaid, or when sent by facsimile transmission, if confirmed by mechanical
confirmation and if a copy thereof is promptly thereafter personally delivered,
sent by overnight delivery service or so deposited in the mail, addressed to:
(A) Borrower, a Guarantor, Deed of Trust Trustee or Collateral Agent at the
address set forth below, or at such other address as may hereafter be furnished
in accordance with this SECTION 12.6 by either party to the other and (B) each
Lender at its address set forth in SCHEDULE IB:
(i) if to Borrower:
Giant Yorktown, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255-3410
Attention: Treasurer
Facsimile: (480) 585-8985
Telephone: (480) 585-8888
(ii) if to a Guarantor:
c/o Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255-3410
Attention: Treasurer
Facsimile: (480) 585-8985
Telephone: (480) 585-8888
-67-
Giant Yorktown, Inc. Loan Agreement
(iii) if to the Deed of Trust Trustee:
James W. DeBoer
c/o First American Title Insurance Company
1051 East Cary Street, Suite 1111
Richmond, Virginia 23219
(iv) if to the Collateral Agent:
Wells Fargo Bank Nevada,
National Association
79 South Main Street
Salt Lake City, Utah 84111
Section 12.7. Consideration for Consents to Waivers and Amendments.
Borrower hereby agrees that it will not, and that it will not permit any of its
Affiliates to, offer or give any consideration or benefit of any kind whatsoever
to Collateral Agent or any Lender in connection with, in exchange for, or as an
inducement to, Collateral Agent or such Lender's consent to any waiver in
respect of, any modification or amendment of, any supplement to, or any other
consent or approval under, any Operative Document unless such consideration or
benefit is offered ratably to all Lenders.
Section 12.8. Severability. Whenever possible, each provision of this Loan
Agreement shall be interpreted in such manner as to be effective and valid under
any Requirements of Law; but if any provision of this Loan Agreement shall be
prohibited by or invalid under any Requirements of Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Loan Agreement.
Section 12.9. Successors and Assigns. This Loan Agreement shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 12.10. No Third-Party Beneficiaries. Other than as set forth in
SECTION 12.16, nothing in this Loan Agreement or the other Operative Documents
shall be deemed to create any right in any Person not a party hereto or thereto
(other than the permitted successors and assigns of Lenders and Borrower), and
such agreements shall not be construed in any respect to be a contract in whole
or in part for the benefit of any third party except as aforesaid.
Section 12.11. Brokers. None of the parties has engaged or authorized any
broker, finder, investment banker or other third party to act on its behalf,
directly or indirectly, as a broker, finder, investment banker, agent or any
other like capacity in connection with this Loan Agreement or the transactions
contemplated hereby, except that Borrower has engaged Arranger pursuant to the
Arrangement Fee Letter.
-68-
Giant Yorktown, Inc. Loan Agreement
Section 12.12. Captions; Table of Contents. Section captions and the table
of contents used in this Loan Agreement (including the Schedules, Exhibits and
Annexes hereto) are for convenience of reference only and shall not affect the
construction of this Loan Agreement.
Section 12.13. Schedules and Exhibits. The Schedules, Annexes and Exhibits
hereto, along with all attachments referenced in any of such items are
incorporated herein by reference and made a part hereof.
Section 12.14. Submission to Jurisdiction. Any suit by Collateral Agent or
any Lender to enforce any claim arising out of the Operative Documents may be
brought in any state or Federal court located in New York having subject matter
jurisdiction, and with respect to any such claim, each party to this Loan
Agreement hereby irrevocably: (a) submits to the jurisdiction of such courts;
(b) consents to the service of process out of said courts in the manner provided
for notices in SECTION 12.6; and (c) Borrower hereby (i) irrevocably appoints CT
Corporation System, with an address on date hereof at 111 Eighth Avenue, 13th
Floor, New York, New York 10011 (the "New York Process Agent"), as process agent
in its name, place and stead to receive and forward service of any and all
writs, summonses and other legal process in any suit, action or proceeding
brought in the State of New York, (ii) agrees that such service in any such
suit, action or proceeding may be made upon the New York Process Agent and (iii)
agrees to take all such action as may be necessary to continue said appointment
in full force and effect or to appoint another agent so that Borrower will at
all times have an agent in the State of New York for service of process for the
above purposes. Borrower irrevocably waives, to the fullest extent permitted by
law: (A) any claim, or any objection, that it now or hereafter may have, that
venue is not proper with respect to any such suit, action or proceeding brought
in such a court located in New York including, without limitation, any claim
that any such suit, action or proceeding brought in such court has been brought
in an inconvenient forum; and (B) any claim that Borrower is not subject to
personal jurisdiction or service of process in such forum. Borrower agrees that
any suit to enforce any claim arising out of the Operative Documents or any
course of conduct or dealing of Collateral Agent or any Lender shall be brought
and maintained exclusively in any state or Federal court located in New York.
Nothing in this SECTION 12.14 shall affect the right of Collateral Agent or any
Lender to bring any action or proceeding against Borrower or the Mortgaged
Property in the courts of any other jurisdiction. Borrower agrees that a final
judgment in any action or proceeding in a state or Federal court within the
United States may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law.
Section 12.15. Jury Trial. Borrower, each Lender and Collateral Agent
waives any right to a trial by jury in any action or proceeding to enforce or
defend any rights under this Loan Agreement or any other Operative Document or
under any amendment, instrument, document or agreement delivered or which may in
the future be delivered in connection herewith or therewith or arising from any
relationship existing in connection with this Loan Agreement or any other
Operative Document and agrees that any such action or proceeding shall be tried
before a court and not before a jury.
Section 12.16. Role of Banc of America Facilities Leasing, LLC. Each party
hereto acknowledges hereby that it is aware of the fact that Banc of America
Facilities Leasing, LLC
-69-
Giant Yorktown, Inc. Loan Agreement
has acted and is acting as an "arranger" with respect to the overall
transaction. The parties hereto acknowledge and agree that Arranger and its
Affiliates, including Bank of America, have not made any representations or
warranties concerning, and that they have not relied upon Arranger as to, the
tax, accounting or legal characterization or validity of (i) the Operative
Documents or (ii) any aspect of the overall transaction. The parties hereto
acknowledge and agree that Arranger has no duties, express or implied, under the
Operative Documents in its capacity as Arranger. The parties hereto further
agree that SECTION 12.1, SECTION 12.11 and this SECTION 12.16 are for the
express benefit of Arranger, and Arranger shall be entitled to rely thereon as
if it were a party hereto.
Section 12.17. Amendment to Engagement Letter. The parties hereto agree
that the date "May 15, 2002" which appears in the second line of the seventh
paragraph of the Engagement Letter is changed to "June 30, 2002".
Section 12.18. Survey. The Borrower agrees and covenants that it shall use
its best efforts to deliver a survey in compliance with SECTION 7.23 within
seven (7) days following the Closing Date, but in any event, no later than
fourteen (14) days following the Closing Date.
-70-
Giant Yorktown, Inc. Loan Agreement
Executed and delivered as of this 14 day of May, 2002.
GIANT YORKTOWN, INC., a Delaware
corporation, as Borrower
By: /s/ Mark B. Cox
----------------------------------
Name: Mark B. Cox
Its: Vice President and Chief Financial
Officer
-71-
Giant Yorktown, Inc. Loan Agreement
Accepted and agreed to as of the date last above written.
BANC OF AMERICA LEASING & CAPITAL, LLC,
as Lender
By: /s/ James E. Stano
----------------------------------
Name: James E. Stano
Title: Managing Director
-72-
Giant Yorktown, Inc. Loan Agreement
WELLS FARGO BANK NEVADA, NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Val T. Orton
----------------------------------
Name: Val T. Orton
Title: Trust Officer
-73-
SCHEDULE IA
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
LENDERS' COMMITMENTS
LENDER COMMITMENT COMMITMENT
PERCENTAGE
Banc of America Leasing & Capital, LLC 100% $40,000,000
SCHEDULE IB
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
1. Collateral Agent
------------------------
Address for all communications:
Wells Fargo Bank Nevada, National Association
c/o Wells Fargo Bank Northwest, National Association
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attn: Corporate Trust Department
ABA #: 121-000-248
Account No. 0510922115
Reference: Giant Yorktown
Contact: Eric Morgan
Phone: 801-246-5289
2. Banc of America Leasing & Capital, LLC
Address for all communications:
Banc of America Leasing & Capital, LLC
c/o Bank of America Leasing & Capital Group
555 California Street, 4th Floor
Mail Code CA5-705-04-01
San Francisco, CA 94104
Attn: Contract Administration
Tele 415.765.7391
Fax 415.765.7373
Address for wire transfers:
Bank of America SF
ABA# 121-000-358
Account: 12578-03258
Account Name: Banc of America Leasing & Capital, LLC
Reference 1: Giant Yorktown, Inc.
Reference 2: Identify the purpose of wire
SCHEDULE IIA
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
DESCRIPTION OF MORTGAGED PROPERTY
LEGAL DESCRIPTION
All that certain piece or parcel of land, together with any buildings and
improvements thereon and the appurtenances thereunto, situate lying and being in
the County of York, Virginia, and known and designated as Parcel A, containing
658.11+/- Acres, shown on plat entitled "Subdivision Plat of the Property of
BP-Amoco Corporation, Containing 736.57+/- Acres, Grafton District, County of
York, Virginia", dated March 25, 2002, prepared by Michael Surveying & Mapping,
P.C., which plat is recorded in the Clerk's Office of the Circuit Court of York
County, Virginia.
BEGINNING AT A POINT located on the northerly right of way line of Goodwin Neck
Road (State Route 173), said point being the corner of Parcel A and other
property now or formerly owned by BP-Amoco Corporation. Said point further being
described as being approximately 783 feet in a westerly direction along the
northerly right of way line of Goodwin Neck Road (State Route 173) from its
intersection with the westerly right of way line of Dandy Loop Road (State Route
629). Thence along the northerly right of way line of Goodwin Neck Road (State
Route 173), N 89(degree)30 [minutes] 22 [seconds] W a distance of 361.87 feet to
a point; Thence along a tangent curve to the left with a radius of 995.35 feet,
a arc distance of 99.46 feet, a central angle of 05(degree)43 [minutes] 31
[seconds], a chord bearing of S 87(degree)37 [minutes] 53 [seconds] W and a
chord distance of 99.42 feet to a point; Thence N 76(degree)08 [minutes] 58
[seconds] W a distance of 94.19 feet to a point; Thence S 62(degree)06 [minutes]
00 [seconds] W a distance of 145.97 feet to a point; Thence, along a non-tangent
curve to the left having a radius of 995.35 feet, an arc length of 34.91 feet, a
central angle of 02(degree)00 [minutes] 34 [seconds], a chord bearing of S
70(degree)46 [minutes] 32 [seconds] W and a chord distance of 34.91 feet to a
point at the corner of the property of Dandy Baptist Church;
Thence departing the northerly right of way line of Goodwin Neck Road (State
Route 173) and along the line of Dandy Baptist Church, N 27(degree)57 [minutes]
11 [seconds] W a distance of 39.75 feet to a point; Thence S 62(degree)02
[minutes] 49 [seconds] W a distance of 45.00 feet to a point; Thence N
27(degree)57 [minutes] 1 [seconds] W a distance of 75.08 feet to a point; Thence
S 62(degree)04 [minutes] 42 [seconds] W a distance of 120.01 feet to a point;
Thence S 27(degree)55 [minutes] 18 [seconds] E a distance of 103.23 feet to a
point on the northerly right of way line of Goodwin Neck Road (State Route 173);
Thence along the northerly right of way line of Goodwin Neck Road (State Route
173), S 64(degree)49 [minutes] 03 [seconds] W a distance of 382.83 feet to a
point; Thence, along a non-tangent curve to the left having a radius of 756.20
feet, an arc length of 148.37 feet, a central angle of 11(degree)14 [minutes] 30
[seconds], a chord bearing of S 59(degree)10 [minutes] 4 [seconds] W and a chord
distance of 148.13 feet to a point at the corner of the property of the
Commonwealth of Virginia;
Thence departing the northerly right of way line of Goodwin Neck Road (State
Route 173) and along the property of the Commonwealth of Virginia, S
80(degree)02 [minutes] 43 [seconds] W a distance of 389.01 feet to
a point; Thence N 84(degree)36 [minutes] 52 [seconds] W a distance of 14.70 feet
to a point; Thence S 11(degree)04 [minutes] 43 [seconds] E a distance of 486.73
feet to a point on the easterly right of way line of Goodwin Neck Road (State
Route 173);
Thence continuing along the right of way line of Goodwin Neck Road (State Route
173), along a non-tangent curve to the left having a radius of 756.20 feet, an
arc length of 101.84 feet, a central angle of 07(degree)42 [minutes] 58
[seconds], a chord bearing of S 01(degree)03 [minutes] 35 [seconds] W and a
chord distance of 101.76 feet to a point; Thence S 02(degree)49 [minutes] 10
[seconds] E a distance of 114.17 feet to a point; Thence along a non-tangent
curve to the right having a radius of 914.76 feet, an arc length of 1666.29
feet, a central angle of 104(degree)22 [minutes] 04 [seconds], a chord bearing
of S 49(degree)23 [minutes] 50 [seconds] W and a chord distance of 1445.29 feet
to a point; Thence N 78(degree)26 [minutes] 05 [seconds] W a distance of 2100.11
feet to a point; Thence along a non-tangent curve to the left having a radius of
1184.79 feet, an arc length of 1861.13 feet, a central angle of 90(degree)00
[minutes] 11 [seconds], a chord bearing of S 56(degree)36 [minutes] 36 [seconds]
W and a chord distance of 1675.59 feet to a point; Thence S 11(degree)38
[minutes] 30 [seconds] W a distance of 786.05 feet to a point at the corner of
the property of Virginia Electric and Power Company;
Thence departing the right of way line of Goodwin Neck Road (State Route 173)
and along the line of Virginia Electric and Power Company N 89(degree)59
[minutes] 27 [seconds] W a distance of 2259.89 feet to a point on the easterly
right of way line of Waterview Road;
Thence along the easterly right of way line of Waterview Road, N 06(degree)43
[minutes] 13 [seconds] E a distance of 196.54 feet to a point; Thence along a
tangent curve to the left with a radius of 975.37 feet, a arc distance of 280.67
feet, a central angle of 16(degree)29 [minutes] 15 [seconds], a chord bearing of
N 01(degree)31 [minutes] 25 [seconds] W and a chord distance of 279.70 feet to a
point at the corner of the property of Virginia Electric and Power Company;
Thence departing the easterly right of way line of Waterview Road and along the
line of the property of Virginia Electric and Power Company N 06(degree)43
[minutes] 13 [seconds] E a distance of 643.82 feet to a point; Thence N
72(degree)29 [minutes] 14 [seconds] E a distance of 43.86 feet to a point;
Thence N 06(degree)43 [minutes] 13 [seconds] E a distance of 643.48 feet to a
point; Thence N 89(degree)57 [minutes] 43 [seconds] E a distance of 488.04 feet
to a point; Thence N 57(degree)05 [minutes] 43 [seconds] E a distance of 363.10
feet to a point; Thence N 00(degree)01 [minutes] 44 [seconds] W a distance of
2299.17 feet to a point; Thence N 89(degree)58 [minutes] 47 [seconds] E a
distance of 1654.85 feet to a point; Thence N 00(degree)01 [minutes] 13
[seconds] W a distance of 845.90 feet to a point on the southerly right of way
line of Waterview Road;
Thence along the southerly right of way line of Waterview Road, N 84(degree)32
[minutes] 37 [seconds] E a distance of 1370.21 feet to a point; Thence S
06(degree)20 [minutes] 27 [seconds] E a distance of 9.91 feet to a point; Thence
N 84(degree)30 [minutes] 52 [seconds] E a distance of 644.89 feet to a point;
Thence, along a non-tangent curve to the right having a radius of 2025.57 feet,
an arc length of 295.86 feet, a central angle of 08(degree)22 [minutes] 08
[seconds], a chord bearing of N 88(degree)42 [minutes] 02 [seconds] E and a
chord distance of 295.60 feet to a point. Thence S 87(degree)06 [minutes] 54
[seconds] E a distance of 455.69 feet to a point; Thence S 02(degree)53
[minutes] 31 [seconds] W a distance of 39.93 feet to a point; Thence S
87(degree)06 [minutes] 38 [seconds] E a distance of 86.07 feet to a point;
Thence N 01(degree)55 [minutes] 08 [seconds] W a distance of 418+/- feet to a
point at the low water line of the York River;
-2-
Thence along the low water line of the York River in a generally easterly
direction, approximately 3,860+/- feet to the line of Parcel B and other
property now or formerly owned by BP-Amoco Corporation;
-3-
Thence departing the low water line of the York River and along Parcel B and
other property now or formerly owned by BP-Amoco Corporation, S 19(degree)12
[minutes] 39 [seconds] E a distance of 2681+/- feet to a point; Thence S
74(degree)17 [minutes] 53 [seconds] W a distance of 185.40 feet to a point;
Thence S 52(degree)20 [minutes] 27 [seconds] E a distance of 200.13 feet to the
POINT OF BEGINNING.
Being part of the same property conveyed to Giant Yorktown, Inc., a
Delaware corporation by BP Products North America Inc., formerly known as Amoco
Oil Company, by deed recorded in the Clerk's Office of the Circuit Court of the
County of York, Virginia.
The Property is located North of Goodwin Neck Road (State Route 173)
and South of the York River and East of Waterview Road.
-4-
SCHEDULE IIB
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
REQUIRED PREPAYMENTS
TO BE MADE ON THE PAYMENT DATE OF EACH MONTH
MONTHS 1-12 $1,111,111
MONTHS 13-24 $ 666,667
MONTHS 25-36 $1,111,111
FINAL PAYMENT AMOUNT $5,333,332
SCHEDULE III
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
CONSTITUENT COMPANY GUARANTORS
Giant Mid-Continent, Inc.
Giant Stop-N-Go of New Mexico, Inc.
Giant Four Corners, Inc.
San Juan Refining Company
Phoenix Fuel Co., Inc.
SCHEDULE IV
TO LOAN AGREEMENT
DATED AS OF MAY 14, 2002
SCHEDULED ADJUSTMENTS TO CONSOLIDATED EBITDA
Consolidated EBITDA for the five (5) fiscal quarters ended on the dates
set forth below shall be adjusted as follows on a pro forma basis to take into
account the Yorktown Acquisition.
FISCAL QUARTER ENDING: PROFORMA ADJUSTMENT TO CONSOLIDATED
EBITDA
March 31, 2002 $45,900,000
June 30, 2002 $37,900,000
September 30, 2002 $24,600,000
December 31, 2002 $15,800,000
March 31, 2003 $8,000,000
EXHIBIT A
TO LOAN AGREEMENT
FORM OF PROMISSORY NOTE
GIANT YORKTOWN, INC.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES OR "BLUE SKY"
LAW, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE
IN VIOLATION OF SUCH ACT OR LAWS.
$_____________ _______________,_____
FOR VALUE RECEIVED, the undersigned, GIANT YORKTOWN, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
___________________(the "Lender") on the Maturity Date for the Loans the
principal sum of _________________ DOLLARS ($ ________) or such lesser amount
thereof as shall be outstanding, as recorded either on the grid attached to this
Note or in the records of Lender (and such recordation shall constitute prima
facie evidence of the information as recorded; provided, however, that the
failure to make any such recordation shall not in any way affect the Borrower's
obligation to repay this Note). The principal amount of the Loan evidenced
hereby shall be payable on or prior to the Maturity Date as provided in that
certain Loan Agreement, dated as of May 14, 2002 (together with all amendments
and other modifications, if any, from time to time thereafter made thereto, the
"Loan Agreement"), among Borrower, Wells Fargo Bank Nevada, National
Association, as Collateral Agent, and the various financial institutions
(including the Lender) as are, or may from time to time become, parties thereto.
Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Loan Agreement.
Payments of both principal and interest are to be made without setoff
or counterclaim in lawful money of the United States of America in same day or
immediately available funds to the Payment Office of the Collateral Agent
specified in the Loan Agreement (or to such other account as the Collateral
Agent may from time to time designate in a written notice to Borrower).
This Note is one of the Notes referred to in, and evidences
indebtedness incurred under, the Loan Agreement, to which reference is made for
a statement of the terms and conditions on which Borrower is permitted and
required to make prepayments and repayments of principal of the indebtedness
evidenced by this Note and on which such indebtedness may be declared to be or
automatically become immediately due and payable. This Note is secured pursuant
to the Deed of Trust and reference is made to the Deed of Trust for a statement
of the terms and provisions of such security.
The transfer, assignment or pledge of this Note or any interest herein
is subject to the provisions of the Loan Agreement.
Capitalized terms used but not otherwise defined herein have the
respective meanings specified in the Loan Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
[END OF PAGE]
[SIGNATURE PAGES FOLLOW]
-2-
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (EXCEPT TITLE 14 OF
ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
GIANT YORKTOWN, INC., a Delaware
corporation
By: ____________________________________
Name:
Its:
GRID ATTACHED TO NOTE
DATED ___________ __, ____ OF
GIANT YORKTOWN, INC.
PAYABLE TO THE ORDER OF
[__________________________]
Loans made by the Lender to the Borrower, and payments of principal of such
Loans.
OUTSTANDING
PRINCIPAL BALANCE
DATE OF FUNDING OR AMOUNT OF FUNDING (AFTER SUCH FUNDING
PAYMENT OR PAYMENT OR PAYMENT) NOTATION MADE BY
- ------------------ ----------------- ------------------- ----------------