ex10_1.htm


    Exhibit 10.1

    
      
        

      



    FIRST
AMENDMENT

    TO

    FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT

    


    


    


    This
First Amendment to Fourth Amended and Restated Revolving Credit Agreement (this
“Amendment”),
dated as of December 15, 2008, is entered into by (1) FRONTIER OIL AND REFINING
COMPANY, a Delaware corporation (the “Borrower”),
(2) FRONTIER OIL CORPORATION, a Wyoming corporation (“FOC”), (3)
each of the financial institutions party to the Credit Agreement referred to
below (the “Lenders”)
and (4) UNION BANK OF CALIFORNIA, N.A., a national banking association, as
administrative agent (the “Administrative
Agent”) for the Lenders.

    


    


    Recitals

    


    A.           The
Borrower, FOC, the Lenders, the Administrative Agent and BNP Paribas, a French
banking corporation, as syndication agent, are party to a Fourth Amended and
Restated Revolving Credit Agreement dated as of August 19, 2008 (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 Section 1.3 of the Credit Agreement are
incorporated herein by reference.

    


    B.           The
Borrower has requested that the definition of “Consolidated EBITDA” in the
Credit Agreement (1) be amended to exclude the effects of hedging gains and
losses if the Borrower switches its inventory-valuation method from first-in
first-out (FIFO) to last-in first-out (LIFO) but (2) continue to include the
effects of hedging gains and losses as long as the Borrower maintains first-in
first-out (FIFO) as its inventory-valuation method. Accordingly, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, FOC, the Lenders and the Administrative Agent hereby
agree as set forth below.

    


    


    SECTION
1. Amendment to Credit
Agreement

    . Subject
to satisfaction of the conditions precedent set forth in Section 2 of this
Amendment, the Borrower, FOC and the Lenders hereby agree that the definition of
“Consolidated EBITDA” in Section 1.1 of the Credit Agreement is amended in full
to read as follows:

    


    “‘Consolidated
EBITDA’ means, for FOC and its Subsidiaries on a consolidated basis for
any period, Consolidated Net Income plus (a) without duplication and to the
extent reflected as a charge in the statement of Consolidated Net Income, the
sum of (i) income-tax expense, (ii) Consolidated Interest Expense, (iii)
depletion, depreciation and amortization expense, (iv) extraordinary charges or
losses, (v) losses under Hedge Agreements (but only if and so long as the
Borrower utilizes last-in first-out (LIFO) as its inventory-valuation method)
and (vi) other noncash charges, expenses or losses (excluding any such charge,
expense or loss incurred in the ordinary course of business that constitutes an
accrual of or reserve for cash charges for any future period), provided that
cash payments made during such period or in any future period in respect of such
noncash charges, expenses or losses (other than any such excluded charge,
expense or loss) shall be subtracted from Consolidated Net Income in calculating
Consolidated EBITDA for the period in which such payments are made, minus (b)
without duplication and to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (i) interest income, (ii)
extraordinary income or gains, (iii) gains under Hedge Agreements (but only if
and so long as the Borrower utilizes last-in first-out (LIFO) as its
inventory-valuation method) and (iv) other noncash income (excluding any items
that represent the reversal of any accrual of, or cash reserve for, anticipated
cash charges in any prior period that are described in the parenthetical in
clause (a)(vi) above).”

    


    SECTION
2. Conditions
Precedent

    . This
Amendment shall become effective on the date, not later than December 31, 2008,
on which the Administrative Agent has received all of the following, each dated
the date hereof, in form and substance satisfactory to the Administrative Agent
and in the number of originals requested thereby:

    


    (a) this
Amendment, duly executed by the Borrower, FOC and the Majority Lenders;
and

    


    (b) a consent
to this Amendment, duly executed by the Guarantors and by the Borrower, in its
capacity as guarantor under the Borrower Guaranty.

    


    SECTION
3. Representations and
Warranties

    . Each of
the Borrower and FOC represents and warrants to the Lenders and the
Administrative Agent as set forth below.

    


    (a) The
execution, delivery and performance by each of the Borrower and FOC of this
Amendment and the Credit Agreement, as amended hereby, and the consummation of
the transactions contemplated hereby and thereby, are within such Credit Party’s
legal powers, have been duly authorized by all necessary legal action and do not
(i) contravene such Credit Party’s charter documents or bylaws, (ii) violate any
Governmental Rule, (iii) conflict with or result in the breach of, or constitute
a default under, any Material Contract, loan agreement, indenture, mortgage,
deed of trust or lease, or any other contract or instrument, binding on or
affecting such Credit Party, any of its Subsidiaries or any of their respective
properties, the conflict, breach or default of which could reasonably be
expected to have a Material Adverse Effect, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of such Credit Party or any of its Subsidiaries, except for Liens created or
permitted under the Credit Documents, as amended hereby. Neither such Credit
Party nor any of its Subsidiaries is in violation of any Governmental Rule or in
breach of any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other contract or instrument, the violation or breach of which could
reasonably be expected to have a Material Adverse Effect.

    


    (b) No
Governmental Action, and no authorization, approval or other action by, or
notice to, any third party, is required for the due execution, delivery or
performance by the Borrower or FOC of this Amendment or the Credit Agreement, as
amended hereby, or for the consummation of the transactions contemplated hereby
or thereby, except for (i) authorizations, approvals and other actions by, and
notices to, third parties, the failure to obtain which could not reasonably be
expected to have a Material Adverse Effect, and (ii) Governmental Action that
has been duly obtained, taken, given or made and is in full force and
effect.

    


    (c) This
Amendment and the Credit Agreement, as amended hereby, have been duly executed
and delivered by the Borrower and FOC. This Amendment and the Credit Agreement,
as amended hereby, are the legal, valid and binding obligations of the Borrower
and FOC, enforceable against each such Credit Party in accordance with their
respective terms, except as the enforceability hereof or thereof may be limited
by bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors’ rights generally or by equitable principles relating to
enforceability.

    


    (d) Each of
the Security Agreement and the Stock Pledge Agreement constitutes a valid and
perfected first-priority Lien on the Collateral purported to be encumbered
thereby, enforceable against all third parties in all jurisdictions, and secures
the payment of all obligations of the Borrower or FRMI, as applicable, under the
Credit Documents, as amended hereby, to which the Borrower or FRMI, as
applicable, is a party, and the execution, delivery and performance of this
Amendment do not adversely affect the Lien of the Security Agreement or the
Stock Pledge Agreement.

    


    (e) There has
been no amendment to the charter documents or bylaws of the Borrower or FOC on
or after August 19, 2008, except for the amendment and restatement of FOC’s
bylaws as provided in the Report on Form 8-K dated November 11, 2008 filed with
the Securities and Exchange Commission. The representations and warranties
contained in each Credit Document, as amended hereby, to which the Borrower
and/or FOC is a party are correct in all material respects on and as of the date
hereof, before and after giving effect to this Amendment, as though made on and
as of the date hereof. No event has occurred and is continuing, or would result
from the effectiveness of this Amendment, that constitutes a
Default.

    


    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 words of like
import referring to the Credit Agreement, and each reference in the other Credit
Documents to “the Credit Agreement,” “thereunder,” “thereof,” “therein” or words
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 above, 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 and the
Stock Pledge Agreement and all of the Collateral described therein do and shall
continue to secure the payment of all obligations under the Credit Documents, as
amended hereby, stated to be secured thereby.

    


    (c) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or any Lender
under any of the Credit Documents or constitute a waiver of any provision of any
of the Credit Documents.

    


    SECTION
5. Costs and
Expenses

    . The
Borrower agrees to pay on demand all costs and expenses of the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder,
including the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities 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 agreement. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier or e-mail shall be effective as
delivery of an originally executed counterpart of this Amendment.

    


    SECTION
7. Governing
Law

    . THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF
CALIFORNIA.

    


    


    


    


    [Signature
pages follow.]

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    The
parties hereto have caused this Amendment to be executed by their respective
duly authorized representatives as of the date first written above.

    


    


    FRONTIER
OIL AND REFINING COMPANY

    


    


    By:           /s/ Michael C.
Jennings                                                      

    Name:                      Michael C.
Jennings                                                      

    Title:                      EVP &
CFO                                                      

    


    


    


    FRONTIER
OIL CORPORATION

    


    


    By:           /s/ Doug S.
Aron                                                      

    Name:                      Doug S.
Aron                                                      

    Title:                      VP – Corporate
Finance                                                      

    


    


    


    UNION
BANK OF CALIFORNIA, N.A.,

       as
Administrative Agent and Lender

    


    


    By:           /s/ Randall L.
Osterberg                                                      

    Name:                      Randall L.
Osterberg                                                      

    Title:                      Sr. Vice President – US
Marketing Manager

    


    


    


    BNP
PARIBAS

    


    


    By:           /s/ Douglas R.
Liftman                                                      

    Name:                      Douglas R.
Liftman                                                      

    Title:                      Managing
Director                                                      

    


    


    By:           /s/ Courtney
Kubesch                                                                

    Name:                      Courtney
Kubesch                                                      

    Title:                      Vice
President                                                      

    


    


    


    TORONTO
DOMINION (TEXAS) LLC

    


    


    By:                                                      

    Name:                                                                

    Title:                                                                

    


    


    


    WELLS
FARGO BANK, N.A.

    


    


    By:           /s/ Oleg
Kogan                                           

    Name:                      Oleg
Kogan                                                      

    Title:                      Vice
President                                                                

    


    


    


    U.S. BANK
NATIONAL ASSOCIATION

    


    


    By:           /s/ Monte E.
Deckerd                                                                

    Name:                      Monte E.
Deckerd                                                      

    Title:                      Senior Vice
President                                                                

    


    


    


    EXPORT
DEVELOPMENT CANADA

    


    


    By:                                                      

    Name:                                                                

    Title:                                                                

    


    


    By:                                                      

    Name:                                                                

    Title:                                                                

    


    


    SUMITOMO
MITSUI BANKING CORPORATION

    


    


    By:                                                      

    Name:                                                                

    Title:                                                                

    


    


    


    BANK OF
SCOTLAND PLC

    


    


    By:           /s/ Julia R
Franklin                                                      

    Name:                      Julia R
Franklin                                                      

    Title:                      Assistant Vice
President                                                      

    


    


    


    CAPITAL
ONE, N.A.

    


    


    By:           /s/ Wes
Fontana                                                      

    Name:                      Wes
Fontana                                                      

    Title:                      Assistant Vice
President                                                      

    


    


    


    UBS LOAN
FINANCE LLC

    


    


    By:           /s/ Richard L.
Tavrow                                                                

    Name:                      Richard L.
Tavrow                                                      

    Title:                      Director                                           

    


    


    By:           /s/ Mary E.
Evans                                                      

    Name:                      Mary E.
Evans                                                      

    Title:                      Associate
Director                                                      

    


    


    


    THE FROST
NATIONAL BANK

    


    


    By:           /s/ Thomas H.
Dungan                                                      

    Name:                      Thomas H.
Dungan                                                      

    Title:                      Sr. Vice
President                                                      

    


    


    


    NATIXIS

    


    


    By:           /s/ Daniel
Payer                                                      

    Name:                      Daniel
Payer                                                      

    Title:                      Director                                           

    


    


    By:           /s/ Louis P. Laville,
III                                                      

    Name:                      Louis P. Laville,
III                                                      

    Title:                      Managing
Director