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EXHIBIT 10.30
FIRST AMENDMENT TO FIRST AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
This First Amendment to First Amended and Restated Loan and Security
Agreement is made as of February 22, 2001 by and among GMAC Commercial Credit
LLC ("Lender" or "GMAC"), having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and Greka Integrated, Inc. ("Greka"), Saba Realty, Inc.
("Saba"), and Santa Xxxxx Refining Company ("Santa Xxxxx"), having their
principal place of business at 0000 Xxx Xxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx 00000. Each of Greka, Saba and Santa Xxxxx is individually and
collectively hereinafter referred to as the "Borrower". The liability of Greka,
Saba and Santa Xxxxx hereunder shall be joint and several.
WHEREAS, on November 30, 1999 Borrower entered into a First Amended and
Restated Loan and Security Agreement (the "Agreement") whereby Lender provided
to Borrower (i) a Revolving Credit Facility in the original principal amount of
$10,000,000 (the "Revolving Credit") and (ii) a Term Loan in the original
principal amount of $25,000,000 (the "Term Loan"); and
WHEREAS, Borrower has requested that Lender (i) provide additional
financing to Borrower by increasing the principal amount of the Term Loan to
$36,000,000 and (ii) provide certain modifications to the terms of the
Agreement;
WHEREAS, subject to the terms and conditions of this First Amendment,
Lender is willing to provide such additional financing to Borrower and to
provide such modifications to the terms of the Agreement as more particularly
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto, the
parties hereto do hereby agree as follows:
1. Amendments to Agreement. The Agreement is hereby amended in the
following manner:
(a) Section 1.A of the Agreement, definition of "Contract Rate" is
hereby amended by inserting the following text immediately
after the date "December 31, 0000", "xxx (xxx) the Alternate
Base Rate, plus one-quarter of one percent (.25%) as of
December 31, 2002".
(b) Section 1.A of the Agreement, definition of "Maximum Loan
Amount" is hereby amended by deleting the numeral
"$35,000,000" and by substituting the numeral "$46,000,000" in
its place and stead.
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(c) Section 1.A of the Agreement, the definition of "Term" is
hereby amended by deleting the date "November 30, 2003" and by
substituting the following text in its place and stead: "(a)
November 30, 2005, if the Second Advance is made by Lender to
Borrower" and (b) November 30, 2004, if the Second Advance is
not made by Lender to Borrower."
(d) Section 1.A of the Agreement is hereby amended by inserting
the following definition in alphabetical order:
""Letter of Credit Availability" means the amount of Revolving
Credit Advances against Eligible Inventory of Santa Xxxxx
purchased under commercial Letters of Credit Lender may from
time to time during the Term make available to Borrower, up to
65% ("Letter of Credit Advance Rate") of the value of such
Eligible Inventory (calculated on the basis of the lower of
cost or market, on a first in first out basis). The face
amount of all Letters of Credit shall not exceed $4,000,000 in
the aggregate at any time outstanding."
(e) Section 1.A of the Agreement is hereby amended by inserting
the following definition in alphabetical order:
""Letter of Credit Advance Rate" shall have the meaning set
forth in the definition of "Letter of Credit Availability."
(f) Section 1.A of the Agreement is hereby amended by inserting
the following definition in alphabetical order:
""Letter of Credit" shall mean commercial letters of credit or
standby letters of credit issued or caused to be issued by
Lender for the account of Santa Xxxxx for the benefit of Santa
Maria's suppliers for the purchase by Santa Xxxxx of Eligible
Inventory."
(g) Section 2(d) of the Agreement is hereby amended by deleting
the text of said section in its entirety and by substituting
the following in its place and stead:
"Subject to the terms and conditions set forth herein and in
the Ancillary Agreements, Lender may, in its sole discretion,
make revolving credit advances (the "Revolving Credit
Advances") to Borrower from time to time during the Term
which, in the aggregate at any time outstanding, will not
exceed the lesser of (x) the Maximum Revolving Amount or (y)
an amount equal to the sum of:
(i) Receivables Availability, plus
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(ii) Inventory Availability, plus
(iii) Letter of Credit Availability, minus
(iv) The face amount available to be drawn under all
outstanding Letters of Credit, minus
(v) such reserves as Lender may in its sole and absolute
discretion deem proper and necessary from time to
time.
The sum of 2(d)(i) plus (ii) plus (iii) minus (iv) minus (v) shall be
referred to as the "Formula Amount". In this regard, Borrower agrees that it
shall submit a Borrowing Base Certificate to Lender, in form and substance and
with such frequency, as more fully described in Section 9 below, to include such
calculations, in each instance that Lender may deem necessary or desirable in
order to verify whether Borrower is in compliance with the preceding limitations
pertaining to Revolving Credit Advances."
(h) Section 2(k) of the Agreement is hereby amended by deleting
the existing text of said section in its entirety and by
substituting the following text in its place and stead:
"(k) Subject to the terms and conditions set forth herein and
in the Ancillary Agreements, and provided no Incipient Event
of Default or Event of Default shall have occurred, Lender
shall make a term loan to Borrower in the amount of up to
$36,000,000 (the "Term Loan"). The Term Loan will consist of
two (2) advances. The first advance (the "First Advance") will
consist of (i) $13,300,000 in presently existing indebtedness
which was previously advanced by Lender to Borrower (ii) a new
advance in the amount of $4,000,000 to be used to reduce the
aggregate outstanding Revolving Credit Advances in order to
create availability for the issuance of Letters of Credit or
the cash purchase of oil Inventory and (iii) a new advance in
the amount of up to $5,700,000 for certain capital
expenditures as set forth herein. The second advance (the
"Second Advance") will consist of up to $13,000,000 for the
purchase of certain oil and gas properties (the "Properties").
Advances under the Term Loan shall be made as follows:
1. First Advance. Contemporaneously with the
execution of a certain First Amendment to First Amended and
Restated Loan and Security Agreement (the "First Amendment")
and upon satisfaction of all of the terms and conditions
contained in Section 2 therein and in this Agreement and the
Ancillary Agreements, Lender will advance to
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Borrower the amount of $4,000,000. Advances for capital
expenditures shall be subject to the provisions of Section
2(k)3 hereof.
2. Second Advance. At any time following the date
hereof through and including April 30, 2001, Borrower may
request the Second Advance solely for the purchase of the
Properties. The Second Advance shall be subject to the
satisfaction of such conditions precedent as Lender shall
require, including, without limitation, all of the following:
(A) Borrower shall have provided to Lender such
approvals, environmental audits, consents or
documents as Lender may reasonably request; and
(B) Borrower shall have provided to Lender an
opinion of counsel from a law firm reasonably
acceptable to Lender regarding such matters as
Lender may request, including, without limitation,
due authorization, execution and delivery,
validity and enforceability of documents, no
defaults, etc.
(C) Borrower shall have submitted to Lender a copy
of all acquisition documents relating to the
purchase of the Properties, the terms and
conditions of which acquisition documents must be
satisfactory to Lender in its sole and absolute
discretion with respect to the payment terms and
with respect to title to the Properties and
reasonably satisfactory to Lender in all other
respects; and
(D) Borrower shall have executed and delivered to
Lender such documents and instruments as Lender
deems necessary in form and substance acceptable
to Lender to grant, assign, convey and/or pledge
to Lender a first priority security interest in
the assets to be purchased with the Second Advance
free and clear of all liens and encumbrances of
any kind which are not consented to by the Lender
and Borrower shall have provided to Lender title
insurance policies and/or Attorney's Certificate
of Title (as requested by Lender) for the
Properties issued by a law firm acceptable to
Lender opining to and/or insuring in amounts
acceptable to Lender
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(i) the first priority of Lender's liens and /or
security interests therein, and (ii) that Lender's
interests are subject to no liens, claims,
encumbrances, or restrictions of any kind unless
consented to by Lender; and
(E) Borrower shall have provided to Lender
evidence receipt of additional funds, from sources
acceptable to Lender in its sole and absolute
discretion, necessary to complete the acquisition
of the Properties together with fully-executed
subordination agreements in form and substance
acceptable to Lender with respect to any funds
loaned to Borrower in connection with such
acquisition; and
(F) all representations and warranties contained
in the First Amendment and herein shall be true
and correct on and as of the date of funding of
the Second Advance as though made on and as of
such date; and
(G) no Incipient Event of Default or Event of
Default shall have occurred and/or be continuing.
(H) the manner and timing of funding the Second
Advance shall be acceptable to Lender in all
respects in its sole and absolute discretion.
(I) Borrower must have submitted to Lender the
completed Form of Request for Term Loan Advance
attached hereto as Schedule 2(k).
In the event that (i) Borrower shall have failed to deliver to Lender a
binding fully executed purchase agreement for the Properties on or before March
15, 2001 or (ii) Borrower shall have delivered to Lender Borrower's irrevocable
written notice that negotiations to purchase the Properties have terminated or
(iii) Lender shall not have provided the Second Advance to Borrower on or before
April 30, 2001, then Lender shall be under no further obligation to provide the
Second Advance.
3. Capital Expenditure Advances. Lender shall,
provided no Event of Default or Incipient Event of Default shall have
occurred hereunder, provide advances to Borrower in the amount of up to
$5,700,000 for the purchase of certain fixed assets acceptable to
Lender (the "Capital Expenditure
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Advances"). The Capital Expenditure Advances will be used by Borrower
solely for the purchase of fixed assets acceptable to Lender. Prior to
each Capital Expenditure Advance, Borrower will deliver to Lender a
detailed budget and description of the particular capital expenditure,
which expenditure shall be subject to prior approval by Lender.
Provided no Event of Default or Incipient Event of Default shall have
occurred hereunder, the capital expenditures described on Schedule
2(k)3 annexed hereto for the second (2nd), third (3rd) and fourth (4th)
fiscal quarters of 2001 have been approved by Lender and so long as no
Event of Default or Incipient Event of Default shall have occurred
hereunder, the applicable amount shall be credited to Borrower's
account with Lender on the first business day of the months of May,
July and October, 2001. Capital Expenditure Advances will be limited to
$2,000,000 per fiscal quarter of Borrower. No Capital Expenditure
Advances shall be made by Lender to Borrower prior to May 1, 2001."
(i) Section 2(l) of the Agreement is hereby amended by deleting
the existing text of said section in its entirety and by
substituting the following in its place and stead:
"(l) In the event that the Second Advance is made by Lender to
Borrower, the Term Loan shall be payable in monthly payments
of principal, each in the amount of $1,000,000 on the first
day of each of the months of April, May, June, July, August,
September, October and November, commencing on April 1, 2001
and continuing through and including November 1, 2001.
Commencing on April 1, 2002 and on the same day of each of the
months of April, May, June, July, August, September , October
and November of such year and each year thereafter through the
end of the term, the Term Loan shall be payable in monthly
payments of principal, each in the amount of $875,000.00.
In the event that the Second Advance is not made by
Lender to Borrower, the Term Loan shall be paid in monthly
payments of principal, each in the amount of $625,000 on the
first day of each of the months of April, May, June, July,
August, September, October and November, commencing on April
1, 2001 and continuing through and including November 1, 2001.
Commencing on April 1, 2002 and on the same day of each of the
months of April, May, June, July, August, September, October
and November of such year and each year thereafter through the
end of the term, the Term Loan shall be payable in monthly
payments of principal, each in the amount of $750,000.
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Borrower shall make payments of interest on the
outstanding balance of the Term Loan at the rate(s) set forth
herein on the first day of each and every month hereafter. In
the event that the Second Advance is made by Lender to
Borrower, all remaining principal and accrued interest
outstanding under the Term Loan shall be due and payable in
full in October 1, 2005. In the event that the Second Advance
is not made by Lender to Borrower, all remaining principal and
accrued interest outstanding under the Term Loan shall be due
and payable in full on October 1, 2004. The Term Loan shall be
subject to acceleration upon the occurrence of an Event of
Default hereunder or termination of the Agreement and shall
otherwise be evidenced by and subject to the terms and
conditions set forth in the secured promissory note in
substantially the form of the note attached hereto as Schedule
2(l) ("Term Loan Note")."
(j) Section 11 of the Agreement is hereby amended by inserting the
following words immediately after the parenthetical in the
fourth (4th) line of the last paragraph of said section: "and
for the immediately succeeding four (4) fiscal years
thereafter". Notwithstanding the foregoing, prior to the
Second Advance and as a condition precedent to any obligation
of Lender to provide the Second Advance, Borrower shall be
required to deliver to Lender the remaining projections
covering the initial five (5) full years.
(k) Section 12(o) of the Agreement is hereby amended by deleting
the words and numerals "$3,000,000 in the aggregate during
Borrower's 2000 fiscal year " from the second (2nd) line of
said section and by substituting the words and numerals
"$6,000,000 in the aggregate during Borrower's 2001 fiscal
year, excluding any amounts distributed by Greka Energy
Corporation to Borrower for additional capital expenditures"
in its place and stead.
(l) Section 12 (aa) of the Agreement is hereby amended by
inserting the following text immediately after the word
"business" in the last line of said Section: "but only to the
extent that Borrower shall have availability of at least
$500,000 under the Formula Amount after giving effect to each
such distribution."
(m) Section 12(cc)(8) is hereby amended by deleting the words
"Deed of Trust" from the second to last line of said section
and by substituting the words "Agreement or Ancillary
Agreements" in their place and stead.
(n) Section 17 of the Agreement is hereby amended by deleting the
last sentence of said section and by substituting the
following text in its place and stead:
"For purposes hereof, Required Percentage shall mean (I) in
the event that the Second Advance is made by Lender to
Borrower on
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or before April 30, 2001 (a) 3% from the Closing Date through
November 29, 2001, (b) 2% from November 30, 2001 through
November 29, 2002 and (c) 1% from November 30, 2002 through
November 29, 2005 and during any year of any Renewal Term and
(II) in the event that the Second Advance is not made by
Lender to Borrower on or before April 30, 2001, (a) 2% from
the Closing Date through November 29, 2001, (b) 1% from
November 30, 2001 through November 29, 2004 and during any
year of any Renewal Term. Notwithstanding the foregoing, in
the event that Lender shall notify Borrower of the existence
of an Event of Default solely as a result of the existence of
the circumstances set forth in Section 18(r) and provided no
other Event of Default shall have occurred hereunder, then
Borrower may terminate this Agreement without payment of a
termination fee provided all Obligations are paid in full on
or before the date which is 90 days following the date of such
default notice from Lender to Borrower."
(o) Section 18 of the Agreement is hereby amended by inserting a
new subsection "r" immediately after existing subsection "q"
as follows:
"(r) the market price of Santa Xxxxx Valley crude oil
shall at any time be less than $12.00 per barrel."
(p) All references in the Agreement to "First Term Loan Advance",
"Second Term Loan Advance" and "Third Term Loan Advance" are
hereby deleted.
(q) Section 5 (a)(i) of the Agreement is hereby amended by adding
the following sentence to the end of said section; "Without
limiting the foregoing, in the event that any instrument or
document submitted by Borrower to Lender in connection with
Collateral reporting requirements hereunder shall contain any
misrepresentation or misleading, false or incorrect statement
or information and Revolving Credit Advances in excess of the
Formula Amount shall result therefrom which are not paid in
full within five (5) business days following the date of
creation of such overadvance, then the average daily balance
of all Obligations shall bear interest at the Default Rate for
a period of ninety (90) days following the date of creation of
such overadvance.
2. Effectiveness. This First Amendment and the transactions described
herein shall become effective on the date on which all of the following
conditions have been satisfied.
(a) Lender shall have received, reviewed, approved and, where
appropriate, recorded all necessary instruments, documents,
certificates and opinions as Lender shall request, in its sole
discretion.
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(b) Lender shall have reviewed and approved current UCC and lien
searches and certificates of good standing of Borrower.
(c) Lender shall have received all necessary consents, approvals
and resolutions authorizing the transactions described herein
by all of the parties constituting Borrower.
(d) Borrower shall have executed and delivered to Lender this
First Amendment and all instruments and documents related
thereto.
(e) Each of the representations and warranties made by Borrower in
the Agreement and the Ancillary Agreements shall be true and
correct in all material respects on and as of the date hereof
as if made on and as of such date.
(f) Borrower shall have availability of at least $500,000 under
the Formula Amount immediately prior to the funding of the
First Advance; and
(g) Lender shall have executed this Agreement.
3. Closing Fee. Contemporaneously with the funding of the First Advance,
Borrower shall pay to Lender the amount of $200,000 as a closing fee
for the First Advance. This fee shall be deemed to be fully earned on
such date and may be paid by a charge to Borrower's account with
Lender. In the event that Lender provides the Second Advance to
Borrower, Borrower shall pay to Lender the amount of $200,000 as a
closing fee for the Second Advance, payable on the date the Second
Advance is made. Such fee shall be deemed to be fully earned on such
date and may be paid by a charge to Borrower's account with Lender.
4. Ratification Except as heretofore and hereby amended, the Agreement
shall remain in full force and effect in accordance with its terms and
the same is hereby ratified and confirmed by Borrower as being its
valid and binding agreement, enforceable in accordance with its terms,
as amended hereby.
5. Governing Law and Waiver of Jury Trial. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. LENDER SHALL HAVE THE RIGHTS AND REMEDIES OF
SECURED PARTY UNDER APPLICABLE LAW INCLUDING, BUT NOT LIMITED TO, THE
UNIFORM COMMERCIAL CODE OF NEW YORK. BORROWER AGREES THAT ALL ACTIONS
AND PROCEEDINGS RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR
ANY ANCILLARY AGREEMENT OR ANY OTHER OBLIGATIONS SHALL BE LITIGATED IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
OR, AT LENDER'S OPTION, IN ANY OTHER COURTS LOCATED IN NEW YORK STATE
OR ELSEWHERE AS LENDER MAY SELECT AND THAT SUCH COURTS ARE CONVENIENT
FORUMS AND BORROWER
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SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS. BORROWER WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS THAT SERVICE OF PROCESS UPON
BORROWER MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO BORROWER AT BORROWER'S ADDRESS IN CALIFORNIA AND
NEW YORK APPEARING ON LENDER'S RECORDS, AND SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON RECEIPT VIA NATIONALLY RECOGNIZED OVERNIGHT
COURIER SERVICE THE SECOND BUSINESS DAY FOLLOWING DEPOSIT WITH SUCH
COURIER SERVICE BOTH PARTIES HERETO WAIVE THE RIGHT TO ATRIAL BY JURY
IN ANY ACTION OR PROCEEDING BETWEEN BORROWER AND LENDER, AND BORROWER
WAIVES THE RIGHT TO ASSERT IN ANY ACTION OR PROCEEDING INSTITUTED BY
LENDER WITH REGARD TO THIS AGREEMENT OR ANY OF THE OBLIGATIONS ANY
OFFSETS OR COUNTERCLAIMS (OTHER THAN COMPULSORY COUNTERCLAIMS) WHICH IT
MAY HAVE.
6. Modification. Neither this First Amendment, nor any portion or
provisions thereof may be charged, modified, amended, waived,
supplemented, discharged, cancelled or terminated orally or by any
course of dealing, or in any manner other than by an agreement in
writing, signed by the parties hereto and thereto.
7. Captions. All captions are and shall be without substantive meaning or
content of any kind whatsoever.
8. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which taken together shall constitute one and the
same instrument.
9. Construction. The parties acknowledge that each party and its counsel
have reviewed this First Amendment and that the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation
of this First Amendment or any amendments, schedules of exhibits
thereto.
IN WITNESS WHEREOF, this First Amendment has been duly executed as of
the day and year first above written.
ATTEST: GREKA INTEGRATED, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ----------------------------------
SECRETARY Xxxxxxx X. Xxxxxx
Title: Chairman, CEO & Pres.
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ATTEST: SABA REALTY, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ----------------------------------
SECRETARY Xxxxxxx X. Xxxxxx
Title: Chairman, CEO & Pres.
ATTEST: SANTA XXXXX REFINING COMPANY
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ----------------------------------
SECRETARY Xxxxxxx X. Xxxxxx
Title: Chairman, CEO & Pres.
GMAC COMMERCIAL CREDIT LLC
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Title: Senior Vice President
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