EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment")
is entered into as of August 25, 1997, among GIANT INDUSTRIES, INC., a
Delaware corporation (the "Company"), GIANT INDUSTRIES ARIZONA, INC.,
an Arizona corporation ("Arizona"), GIANT EXPLORATION & PRODUCTION
COMPANY, a Texas corporation ("Exploration"), SAN XXXX REFINING
COMPANY, a New Mexico corporation ("San Xxxx"), GIANT FOUR CORNERS,
INC., an Arizona corporation ("Corners"), CINIZA PRODUCTION COMPANY, a
New Mexico corporation ("Ciniza") and PHOENIX FUEL CO., INC., an
Arizona corporation ("Phoenix") (Arizona, Exploration, San Xxxx,
Corners, Ciniza and Phoenix are individually referred to herein as a
"Guarantor" and collectively as the "Guarantors"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent (the "Agent"), BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (successor to Bank
of America Illinois), as Issuing Bank and as a Bank, THE FIRST
NATIONAL BANK OF CHICAGO (successor to NBD Bank, by assignment), as a
Bank and UNION BANK OF CALIFORNIA, N.A. (formerly known as Union
Bank), as a Bank. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement referred to
below shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Company, the Agent and the Banks are parties to a
certain Credit Agreement dated as of October 4, 1995 (the "Initial
Agreement"); and
WHEREAS, the Company, the Agent and the Banks are parties to a
certain First Amendment to Credit Agreement dated as of May 15, 1996
(the "First Amendment");
WHEREAS, the Company, the Agent and the Banks are parties to a
certain Second Amendment to Credit Agreement dated as of May 23, 1997
(the "Second Amendment");
WHEREAS, the Initial Agreement, as amended by the First Amendment
and the Second Amendment, and as may be further amended and restated
from time to time, is hereinafter called the "Credit Agreement;" and
WHEREAS, the Company has requested that the Agent and the Banks
agree to amend the Credit Agreement as herein provided; and subject to
the terms hereof the Agent and the Banks are willing to agree to the
Company's requested modification;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto
hereby agrees as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. Article I of the
Credit Agreement is hereby amended in the following respect: the
definition of "Consolidated Funded Indebtedness" is hereby amended by
changing the period (".") at the end of such definition to ",", and
adding the following immediately thereafter:
"less the portion of the sum of cash and Cash Equivalents owned
by the Company and its Consolidated Subsidiaries that exceeds
$10,000,000.00 (provided that such cash and Cash Equivalents are not
encumbered by any Liens)."
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Company and each
of the Guarantors represent and warrant to the Agent and to each of
the Banks that:
(a) This Amendment, the Credit Agreement as amended hereby and
each Guaranty and each Note have been duly authorized, executed and
delivered by the Company and the Guarantors who are parties thereto
and constitute their legal, valid and binding obligations enforceable
in accordance with their respective terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity).
(b) The representations and warranties set forth in Article V of
the Credit Agreement are true and correct in all material respects
before and after giving effect to this Amendment with the same effect
as if made on the date hereof.
(c) As of the date hereof, at the time of and immediately after
giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing.
(d) No material adverse change in the business, assets,
operations, financial condition, liabilities or capitalization of the
Company and its Subsidiaries has occurred since June 30, 1997.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment shall be
effective on the date (the "Effective Date") of the delivery by the
Company and the Guarantors to the Agent of the following:
(a) AMENDMENT. This Amendment, signed by the Company, the
Guarantors, the Agent, and each of the Banks;
(b) OTHER. Such other approvals, opinions and documents as the
Agent or the Majority Banks may reasonably request.
SECTION 4. EFFECT OF AMENDMENT. This Amendment (i) except as
expressly provided herein, shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the Credit
Agreement or of any of the instruments or agreements referred to
therein and (ii) shall not prejudice any right or rights which the
Agent or the Banks may now have under or in connection with the Credit
Agreement, as amended by this Amendment. Except as otherwise
expressly provided by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement shall remain the same. It is
declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect,
and that this Amendment and such Credit Agreement shall be read and
construed as one instrument.
SECTION 5. GUARANTIES. Each of the Guarantors hereby consents
to and accepts the terms and conditions of this Amendment, agrees to
be bound by the terms and conditions hereof, and ratifies and confirms
that its Guaranty executed and delivered in connection with the Credit
Agreement is and remains in full force and effect.
SECTION 6. MISCELLANEOUS This Amendment shall for all purposes
be construed in accordance with and governed by the laws of the State
of Texas. The captions in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof.
This Amendment may be executed in separate counterparts, each of which
when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment,
it shall not be necessary to produce or account for more than one such
counterpart.
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NO ORAL AGREEMENTS. THE CREDIT AGREEMENT (AS AMENDED BY THE
FIRST AMENDMENT, THE SECOND AMENDMENT AND THIS THIRD AMENDMENT) AND
THE OTHER LOAN DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their proper and duly authorized
officers as of the date and year first above written.
GIANT INDUSTRIES, INC., as Borrower
By:________________________________
Name:
Title:
GIANT INDUSTRIES ARIZONA, INC.,
GIANT EXPLORATION & PRODUCTION
COMPANY,
GIANT FOUR CORNERS, INC.,
SAN XXXX REFINING COMPANY,
CINIZA PRODUCTION COMPANY, and
PHOENIX FUEL CO., INC.
as Guarantors
By:________________________________
Name:
in each case, as Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, As Agent
By:________________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank and as
Issuing Bank
By:________________________________
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO
By:________________________________
Name:
Title:
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UNION BANK OF CALIFORNIA, N.A.
By:________________________________
Name:
Title:
