FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND LETTER OF CREDIT AGREEMENT
This Amendment, dated as of June 30, 1998, is entered into
by (1) FRONTIER OIL AND REFINING COMPANY, a Delaware corporation
(the "Borrower"), (2) the banks parties to this Amendment (the
"Banks") and (3) UNION BANK OF CALIFORNIA, N.A., a national
banking association, as agent (the "Agent") for the Banks.
Recitals
A. The Borrower, the Banks and the Agent have entered
into an Amended and Restated Revolving Credit and Letter of
Credit Agreement dated as of June 30, 1997 (the "Credit
Agreement"). Terms defined in the Credit Agreement and not
otherwise defined herein have the same respective meanings when
used herein, and the rules of interpretation set forth in
Sections 1.2 and 1.3 of the Credit Agreement are incorporated
herein by reference.
B. The Borrower, the Banks and the Agent wish to amend
the Credit Agreement to, among other things, extend the
Commitment Termination Date. Accordingly, the Borrower, the
Banks and the Agent hereby agree as set forth below.
Section 1. Amendments to Credit Agreement. Effective as
of the date first set forth above and subject to satisfaction of
the conditions precedent set forth in Section 2, the Credit
Agreement is hereby amended as set forth below.
(a) The definition of "Borrowing Base" in Section
1.1 of the Credit Agreement is amended by adding the word "and"
after the semicolon in clause (d), deleting clauses (e) and (f)
and adding the following new clause (e):
"(e) seventy percent (70%) of Eligible Invento-
ry (provided, however, that the aggregate amount of
Eligible Inventory, before making the calculation
described in this clause (e) for the purpose of
determining the aggregate amount of Eligible
Inventory to be included in the Borrowing Base
Certificate, shall not exceed thirty-five million
dollars ($35,000,000))."
(b) The definitions of "Commitment Termination
Date," "Interest Period" and "Type" in Section 1.1 of the Credit
Agreement are amended in full to read as follows:
"'Commitment Termination Date' means June 30,
2000; provided, however, that, upon (a) written
request by the Borrower not later than May 31, 1999
and (b) notice of such extension by the Agent to the
Borrower not later than June 30, 1999, the Commitment
Termination Date may be extended by the Agent and the
Banks, in their sole and absolute discretion, for up
to an additional year; and further provided, however,
that the Agent's failure to notify the Borrower of
any such extension by the applicable date referred to
above shall constitute a denial of such extension."
"'Interest Period' means, with respect to each
LIBOR Loan or Base Rate Loan making up part of the
same Borrowing, the period commencing on the date of
such Loan or the date of the Conversion of any Loan
into such a Loan and ending on the last day of the
period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately
preceding Interest Period and ending on the last day
of the period selected by the Borrower pursuant to
the provisions below. The duration of each Interest
Period for LIBOR Loans shall be any number of days
between 7 days and one (1) month, or two (2),
three (3) or six (6) whole months, as the Borrower
may select upon notice received by the Agent not
later than 11:00 a.m., Los Angeles time, on the third
Business Day before the first day of such Interest
Period, and the duration of each Interest Period for
Base Rate Loans shall be any number of days between 1
day and 7 days, as the Borrower may select upon
notice received by the Agent not later than 1:30
p.m., Los Angeles time, on the Business Day
immediately preceding the first day of such Interest
Period; provided, however, that
(a) Interest Periods commencing on the
same date for Loans making up part of the same
Borrowing shall be of the same duration;
(b) whenever the last day of an Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, unless, if such Interest Period relates
to LIBOR Loans, such extension would cause the last
day of such Interest Period to occur in the next
succeeding calendar month, in which case the last day
of such Interest Period shall occur on the next
preceding Business Day;
(c) no more than five (5) different
Interest Periods shall be outstanding at any one
time; and
(d) no Interest Period shall end after the
Commitment Termination Date."
"'Type' refers to the distinction among LIBOR
Loans, Reference Rate Loans and Base Rate Loans."
(c) Section 1.1 of the Credit Agreement is amended
by deleting the definitions of the terms "FOC," "FOC Guaranty,"
"Wainoco," "Wainoco Demand Note" and "Wainoco Note Offering" and
adding the following new definitions in appropriate alphabetical
order:
"'Base Rate' means, for any Interest Period for
each Base Rate Loan that is part of the same
Borrowing, the rate of interest per annum equal to
the sum of (a) the Term Federal Funds Rate for such
Interest Period plus (b) 0.5% per annum."
"'Base Rate Loan' means, at any time, any Loan
that bears interest as provided in Section 2.6(a)
(iii)."
"'FOC' means Frontier Oil Corporation, a Wyoming
corporation formerly known as 'Wainoco Oil Corpora-
tion.'"
"'FOC Demand Note' means the Demand Promissory
Note executed by FOC in favor of the Borrower
substantially in the form of Exhibit A to the Note
Pledge Agreement."
"'FOC Note Offering' means the offering by FOC
pursuant to the Prospectus of one hundred million
dollars ($100,000,000) in principal amount of its
Senior Notes Due 2002."
"'FRMI' means Frontier Refining & Marketing,
Inc., a Delaware corporation that is wholly owned by
FHI and was formerly known as 'Frontier Oil
Corporation.'"
"'FRMI Guaranty' means the Amended and Restated
Guaranty executed by FRMI in favor of the Banks and
the Agent substantially in the form of Exhibit A."
"'Term Federal Funds Rate' means, for any
Interest Period for each Base Rate Loan that is part
of the same Borrowing, the rate per annum at which
Union Bank is offered federal funds in the term
federal funds market as of 10:00 a.m., Los Angeles
time, on the first day of such Interest Period, in an
amount comparable to the amount of Union Bank's Base
Rate Loan for such Interest Period and for a term
coinciding with such Interest Period."
(d) The Credit Agreement is amended by deleting the
terms "FOC," "FOC Guaranty," "Wainoco," "Wainoco Demand Note"
and "Wainoco Note Offering" wherever they appear in the Credit
Agreement (other than in the definitions set forth in Section
1(c) of this Amendment) and substituting the terms "FRMI," "FRMI
Guaranty," "FOC," "FOC Demand Note" and "FOC Note Offering,"
respectively, as appropriate in each instance.
(e) Section 2.4(a) of the Credit Agreement is
amended in full to read as follows:
"(a) Each Borrowing shall be made on notice,
given (i) with respect to any Borrowing consisting of
Reference Rate Loans or Base Rate Loans, not later
than 1:30 p.m., Los Angeles time, on the Business Day
before the date of the proposed Borrowing and
(ii) with respect to any Borrowing consisting of
LIBOR Loans, not later than 11:00 a.m., Los Angeles
time, on the third Business Day before the date of
the proposed Borrowing, each such notice to be given
by the Borrower to the Agent, which shall give each
Bank prompt notice thereof by telecopier. Each such
notice of a Borrowing (a 'Notice of Borrowing') shall
be in writing, or by telephone confirmed promptly in
writing, by an Authorized Officer, specifying (i) the
requested date of such Borrowing (which shall be a
Business Day), (ii) the requested Type of Loans
making up such Borrowing, (iii) the requested
aggregate amount of such Borrowing, (iv) in the case
of a Borrowing consisting of LIBOR Loans or Base Rate
Loans, the requested initial Interest Period for such
Loans and (v) the fact that the statements set forth
in Section 4.2(b) are true as of the date of such
Borrowing. Each Bank shall, before 11:00 a.m., Los
Angeles time, on the day of such Borrowing, make
available to the Agent at its address referred to in
Section 9.2, in immediately available funds, such
Bank's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article 4, the
Agent will make such funds available to the Borrower
by crediting the Borrower's concentration account
number 0880412175 at the Agent's aforesaid address.
Notwithstanding the provisions of the first sentence
of this Section 2.4(a), if the Borrower gives the
Agent notice of a Borrowing consisting of Reference
Rate Loans or Base Rate Loans not later than 8:30
a.m., Los Angeles time, on the day of the proposed
Borrowing, the Agent and the Banks will use their
best efforts (but shall not be obligated) to make
such Loans available on the day on which such notice
is given; provided, however, that the Agent and the
Banks shall no longer be required to use their best
efforts as described in this sentence if the Agent,
at its sole option exercisable at any time, gives the
Borrower notice of the same."
(f) Section 2.6(a) of the Credit Agreement is
amended in full to read as follows:
"(a) The Borrower shall pay interest on the
unpaid principal amount of each Loan made by each
Bank, from the date of such Loan until such principal
amount has been paid in full, (i) during such periods
as such Loan is a Reference Rate Loan, at a rate per
annum equal at all times to the sum of the Reference
Rate in effect from time to time plus 0.5% per annum,
payable monthly in arrears on the last Business Day
of each calendar month during such periods and on the
Commitment Termination Date, (ii) during such periods
as such Loan is a LIBOR Loan, at a rate per annum
equal at all times during each Interest Period for
such Loan to the sum of the LIBOR Rate for such
Interest Period for such Loan plus 1.75% per annum,
payable on the last day of such Interest Period, and
(iii) during such periods as such Loan is a Base Rate
Loan, at a rate per annum equal at all times during
each Interest Period for such Loan to the sum of the
Base Rate for such Interest Period for such Loan plus
1.75% per annum, payable on the last day of such
Interest Period."
(g) Section 2.6(d) of the Credit Agreement is
amended in full to read as follows:
"(d) If the Borrower fails to select the
duration of any Interest Period for any LIBOR Loans
or Base Rate Loans in accordance with the provisions
contained in the definition of 'Interest Period' in
Section 1.1, the Agent will forthwith so notify the
Borrower and the Banks, and such Loans shall
automatically, on the last day of the then existing
Interest Period therefor, Convert into Reference Rate
Loans."
(h) Section 2.7(a) of the Credit Agreement is
amended in full to read as follows:
"(a) The Borrower may on any Business Day, in
the case of Reference Rate Loans or Base Rate Loans
upon prior written notice not later than 9:00 a.m.,
Los Angeles time, on the day of any prepayment of
such Loans, and in the case of LIBOR Loans upon at
least three (3) Business Days' prior written notice,
to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the
outstanding principal amounts of the Loans making up
a Borrowing in whole or ratably in part, together, in
the case of LIBOR Loans or Base Rate Loans, with
accrued interest to the date of such prepayment on
the principal amount prepaid; provided, however, that
any prepayment of LIBOR Loans or Base Rate Loans
shall be made on, and only on, the last day of an
Interest Period for such Loans; and provided further,
however, that each partial prepayment shall be in the
aggregate principal amount of one hundred thousand
dollars ($100,000) or an integral multiple thereof."
(i) Section 2.8 of the Credit Agreement is amended
in full to read as follows:
"Section 2.8 Voluntary Conversion of Loans.
The Borrower may on any Business Day, upon prior
written notice (signed by an Authorized Officer)
given to the Agent (a) with respect to any Conversion
to Reference Rate Loans or Base Rate Loans, not later
than 11:00 a.m., Los Angeles time, on the Business
Day immediately preceding the date of the proposed
Conversion and (b) with respect to any Conversion to
LIBOR Loans, not later than 11:00 a.m., Los Angeles
time, on the third Business Day before the date of
the proposed Conversion, subject to the provisions of
Sections 3.2 and 3.3, Convert all the Loans of one
Type making up the same Borrowing into Loans of the
other Type; provided, however, that any Conversion of
LIBOR Loans or Base Rate Loans into Loans of another
Type shall be made on, and only on, the last day of
an Interest Period for such LIBOR Loans or Base Rate
Loans. Each such notice of a Conversion shall,
within the restrictions specified above, specify (i)
the date of such Conversion, (ii) the Loans to be
Converted and (iii) if such Conversion is into LIBOR
Loans or Base Rate Loans, the duration of the
Interest Period for such Loans. Each such notice of
a Conversion shall be irrevocable and binding on the
Borrower. The Agent shall give each Bank prompt
notice by telecopier of each such notice of a
Conversion."
(j) Section 3.6 of the Credit Agreement is amended
by adding the words "or Base Rate Loan" after the words "LIBOR
Loan."
(k) Section 6.1 of the Credit Agreement is amended
by deleting the word "and" at the end of clause (d),
redesignating clause (e) as clause (g), and adding the following
new clauses (e) and (f) after clause (d):
"(e) not later than June 30 of each year,
reports prepared internally by the Borrower for the
purpose of updating, as of not earlier than the
previous March 31, each of (i) the environmental
report prepared by ENSR Consulting and Engineering
("ENSR") in August of 1991 (as thereafter updated)
and (ii) the refinery review and engineering report
prepared by ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. ("▇▇▇▇▇▇ ▇▇▇▇▇▇") in
September of 1991 (as thereafter updated), in each
case addressed to the Agent and in form and scope
reasonably satisfactory to the Agent;
"(f) within 90 days after any request therefor
by the Majority Banks (but not more often than
annually), report(s) updating either or both of the
reports referred to in Sections 6.1(e)(i) and (ii),
in each case (i) prepared by ENSR or ▇▇▇▇▇▇ ▇▇▇▇▇▇,
as applicable, or by another independent company or
companies acceptable to the Agent, (ii) addressed to
the Agent and (iii) in form and scope reasonably
satisfactory to the Agent; and."
(l) Section 6.6 of the Credit Agreement is amended
in full to read as follows:
"Section 6.6 Cleanup Period. The Borrower
will not permit any calendar year to pass without
there being a period of at least five (5) consecutive
Business Days in such calendar year during which the
Borrower either (a) has no Loans outstanding or
(b) to the extent any Loans are outstanding during
such period, maintains an amount equal to the
aggregate principal amount of such Loans in the
'Control Account' (as defined in the Account Pledge
Agreement)."
(m) Section 9.4 of the Credit Agreement is amended
by deleting the reference to "Sections 4.1(a)(ix) and (x)" and
substituting "Sections 6.1(e) and (f)."
Section 2. Conditions to Effectiveness. This Amendment
shall become effective as of the date first set forth above when
the Agent has received a renewal fee of $100,000 for the account
of the Banks and all of the following documents, each dated on
or before the date hereof, in form and substance satisfactory to
the Agent and in the number of originals requested by the Agent:
(a) this Amendment, duly executed by the Borrower
and the Banks;
(b) an amendment to the FOC Guaranty and the other
Credit Documents, excluding the Credit Agreement (said amendment
herein called the "General Amendment"), for the purpose, among
others, of changing references therein in accordance with
Section 1(e) above, duly executed by the Borrower, the
Affiliates and the Banks;
(c) a consent to this Amendment, duly executed by
the Affiliates;
(d) copies of the resolutions of the Board of
Directors of the Borrower approving this Amendment and any
documents delivered by the Borrower pursuant hereto, certified
by the Secretary or an Assistant Secretary of the Borrower to be
correct and complete and in full force and effect as of the date
of execution, and as of the effective date, of this Amendment;
(e) a certificate of the Secretary or an Assistant
Secretary of the Borrower as to the incumbency, and setting
forth a specimen signature, of each of the persons who has
signed this Amendment or any document delivered by the Borrower
pursuant hereto;
(f) a certificate of the Borrower, signed on behalf
of the Borrower by its President or a Vice President and its
Secretary or any Assistant Secretary, certifying as to (i) the
absence of any amendments to the charter documents or bylaws of
the Borrower on or after June 30, 1997, (ii) the truthfulness in
all material respects of the representations and warranties
contained in the Credit Documents as though made on and as of
the effective date of this Amendment and (iii) the absence of
any event occurring and continuing, or resulting from the
effectiveness of this Amendment, that constitutes a Default or
an Event of Default; and
(g) such other approvals, opinions, evidence and
documents as the Agent may reasonably request.
Section 3. Representations and Warranties of Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(b) The execution, delivery and performance by the
Borrower of this Amendment, the General Amendment and the Credit
Documents, as amended hereby and thereby, to which it is or is
to be a party are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action and do
not (i) contravene the Borrower's charter documents or bylaws,
(ii) contravene any Governmental Rule or contractual restriction
binding on or affecting the Borrower or (iii) result in or
require the creation or imposition of any Lien or preferential
arrangement of any nature (other than any created by the Credit
Documents) upon or with respect to any of the properties now
owned or hereafter acquired by the Borrower.
(c) No Governmental Action is required for the due
execution, delivery or performance by the Borrower of this
Amendment, the General Amendment or any of the Credit Documents,
as amended hereby or thereby, to which the Borrower is or is to
be a party.
(d) This Amendment, the General Amendment and each
of the Credit Documents, as amended hereby and thereby, to which
the Borrower is a party constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Security Agreement, the Account Pledge
Agreement, the Note Pledge Agreement and the Stock Pledge
Agreement constitute valid and perfected first-priority Liens on
the Collateral covered thereby, enforceable against all third
parties in all jurisdictions, and secure the payment of all
obligations of the Borrower or FOC, as applicable, under the
Credit Documents, as amended hereby and by the General
Amendment; and the execution, delivery and performance of this
Amendment and the General Amendment do not adversely affect the
Lien of the Security Agreement, the Account Pledge Agreement,
the Note Pledge Agreement or the Stock Pledge Agreement.
(f) The consolidated balance sheet of FOC and its
Subsidiaries as of December 31, 1997 and the related
consolidated statements of income, retained earnings and cash
flows of FOC and its Subsidiaries for the fiscal year then
ended, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., independent public
accountants, and the report as of April 30, 1998 referred to in
Section 7.1(j)(i) of the FOC Guaranty, certified by the chief
financial officer or chief accounting officer of FOC, fairly
present the consolidated financial condition of FOC and its
Subsidiaries as of such dates and the consolidated results of
the operations of FOC and its Subsidiaries for the fiscal
periods ended on such dates, all in accordance with generally
accepted accounting principles applied on a consistent basis.
Since April 30, 1998 there has been no material adverse change
in the business, condition (financial or otherwise), operations,
performance, properties or prospects of FOC or any of its
Subsidiaries. FOC and its Subsidiaries have no material
contingent liabilities except as disclosed in such financial
statements or the notes thereto.
(g) There is no pending or, to the knowledge of the
Borrower, threatened action or proceeding affecting FOC or any
its Subsidiaries before any Governmental Person or arbitrator
that may materially and adversely affect the financial condition
or operations of FOC or any of its Subsidiaries or that purports
to affect the legality, validity or enforceability of this
Amendment, the General Amendment or any of the Credit Documents,
as amended hereby or thereby.
Section 4. Reference to and Effect on Credit Documents.
(a) On and after the effective date of this
Amendment, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or any other
expression of like import referring to the Credit Agreement, and
each reference in the other Credit Documents to "the Credit
Agreement," "thereunder," "thereof," "therein" or any other
expression of like import referring to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as amended
by this Amendment.
(b) Except as specifically amended hereby or by the
General Amendment, the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby
ratified and confirmed. Without limiting the generality of the
foregoing, the Security Agreement, the Account Pledge Agreement,
the Note Pledge Agreement and the Stock Pledge Agreement, and
all of the Collateral described therein, do and shall continue
to secure the payment of all obligations of the Borrower or FOC,
as applicable, under the Credit Documents, as amended hereby and
by the General Amendment.
(c) The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Bank or
the Agent under any of the Credit Documents or constitute a
waiver of any provision of any of the Credit Documents.
Section 5. Costs, Expenses and Taxes. The Borrower
agrees to pay on demand all costs and expenses of the Agent in
connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be deliv-
ered hereunder, including the reasonable fees and out-of-pocket
expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibil-
ities hereunder and thereunder.
Section 6. Execution in Counterparts. This Amendment may
be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
Section 7. Governing Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED
IN THE STATE OF CALIFORNIA.
FRONTIER OIL AND REFINING COMPANY
By: _________________________
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Chief
Financial Officer
UNION BANK OF CALIFORNIA, N.A.,
as Agent and as a Bank
By: _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
BANQUE PARIBAS
By: _________________________
Name: _______________________
Title: ______________________
By: _________________________
Name: _______________________
Title: ______________________
DEN NORSKE BANK AS
By: _________________________
Name: _______________________
Title: ______________________
By: _________________________
Name: _______________________
Title: ______________________