ex10_4.htm


    Exhibit 10.4

     

      
        

      

    

    
 

    FIRST
AMENDMENT

     

    TO

     

    MASTER
CRUDE OIL PURCHASE AND SALE CONTRACT

     

    Dated
Effective as of April 1, 2006

     

    among

     

    


    UTEXAM
LIMITED,

    AS
SELLER,

     

    


     

    AND

     

    


     

    FRONTIER
OIL AND REFINING COMPANY,

    AS
PURCHASER,

     

    


     

    FRONTIER
OIL CORPORATION,

    AS
GUARANTOR

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    FIRST
AMENDMENT TO MASTER CRUDE OIL PURCHASE AND SALE CONTRACT

     

    THIS FIRST
AMENDMENT TO MASTER CRUDE OIL PURCHASE AND SALE CONTRACT (this “First Amendment”)
dated effective as of April 1, 2006, is among Utexam Limited, a company
incorporated under the laws of the Republic of Ireland (the “Seller”), Frontier
Oil and Refining Company, a Delaware corporation (the “Purchaser”), and
Frontier Oil Corporation, a Wyoming corporation (the “Guarantor”).

     

    R E C I T A L
S

     

    A.           The
Seller, the Purchaser and the Guarantor are parties to that certain Master Crude
Oil Purchase and Sale Contract dated as of March 10, 2006 (the “Agreement”) pursuant
to which the Seller has agreed to sell and the Purchaser has agreed to buy, in
each case, subject to the terms and conditions set forth therein, certain
quantities of Crude Oil.

     

    B.           The
Seller, the Purchaser and the Guarantor have agreed to amend certain provisions
of the Agreement.

     

    C.           NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:

     

    Section
1. Defined
Terms.  Each capitalized term used herein but not otherwise
defined herein has the meaning given such term in the
Agreement.  Unless otherwise indicated, all section references in this
First Amendment refer to sections of the Agreement.

     

    Section
2. Amendments to
Agreement.

     

    2.1 Amendments to Section
1.01.

     

    (a) The
definition of “CMA” is hereby amended to read as follows:

     

    “CMA” shall mean for
any calendar month (a) the average of the daily settlement prices (expressed in
United States Dollars per Barrel) for the first nearby or prompt futures
contract for West Texas Intermediate Crude Oil as traded on the NYMEX (trading
days only), or (b) in the event a Supply Contract utilizes a reference or index
price other than CMA to establish the Acquisition Cost, such price as the Seller
and the Purchaser shall mutually agree.

    


    (b) The
definition of “Initial Swap” is hereby amended to read as follows:

     

    “Initial Swap” shall
mean any initial Swap, as identified by a confirmation number, applicable to a
Batch of Crude Oil and shall include any Swap executed under clauses (i), (ii)
or (iii) of Section 2.01(f) which is not a Replacement Swap.

     

    2.2 Time for Execution of
Swaps.  Clause (iv) of Section 2.01(b) is hereby amended to
read as follows and new clause (v) is added to Section 2.01(b):

     

    
      	
              (iv)  

            	
              Not
      sooner than the date of execution of a Deal Sheet, but in no event later
      than the first (1st) Business Day of the Injection Month applicable to the
      Crude Oil identified in each such Deal Sheet, Purchaser will consult with
      and advise Seller with respect to its execution of one or more Swaps with
      the Swap Provider as contemplated in clauses (i), (ii), (iii) and (iv) of
      Section 2.01(f); provided, however, if Purchaser fails to consult with and
      advise Seller with respect to any Swap, Seller may, on the first (1st)
      Business Day of the Injection Month described above and throughout each
      trading day of such Injection Month, proceed to execute such Ratable Swaps
      as defined in Section 2.01(f)(i).

            


    

     

    
      	
              (v)  

            	
              Notwithstanding
      the foregoing, if Purchaser shall advise Seller subsequent to the first
      (1st) Business Day of the Injection Month, with respect to any Batch or
      volumes that remain unhedged, then the Seller shall execute, in accordance
      with Purchaser’s advice, Swaps with the Swap Provider as contemplated in
      clause (ii) and clause (iii) of Section
2.01(f).

            


    

     

    2.3 Time of
Payment.  Section 2.01(d) is hereby amended to read as
follows:

     

    (d)           Seller
shall cause to be provided to Purchaser an invoice for the Purchase Price for
each Batch of Crude Oil Delivered (including for the avoidance of doubt, any
amounts not Delivered as the result of Transportation Allowances) in any
Delivery Month no later than the 10th day of the calendar month following such
Delivery Month.  All payments under this Agreement by Purchaser shall
be made by wire transfer not later than 1:00 p.m. New York City time in
immediately available funds on the relevant Payment Date to:

     

    
      	
               
      

            	
              Bank
      Name:

            	
              BNP
      Paribas New York

            


    

    
      	
               
      

            	
              ABA
      Account:

            	
              0260-0768-9

            


    

    
      	
               
      

            	
              Instructions:

            	
              For
      further credit to the account of Utexam Limited under Account No.
      0200-605032-001 74 USD;

            


    

    


    or such
other account designated by Seller from time to time; provided, however, any
change in account shall not be effective until the third (3rd) Business Day
following Purchaser’s receipt of Seller’s designation of a new payment
account.

    


    2.4 Swaps.  Section
2.01(f) is hereby amended to read as follows:

     

    (f) Swaps.  For
purposes of this Agreement and the calculation of the Swap Settlements, Seller
agrees in consultation with Purchaser to execute Swaps including Ratable Swaps,
Injection Swaps and Off-take Swaps (as such terms are defined below), or any
combination thereof, relating to one or more Batches (or other quantities) to be
Delivered under this Agreement having the following terms:

     

    (i)
“Ratable Swaps” shall be Swaps whereby (A) the Seller is the floating price
payor, as defined in the Master Agreement, for a quantity set forth in the
applicable Deal Sheets for the relevant Off-take Month; (B) such ratable Swaps
shall be executed each Business Day of the relevant Injection Month for
settlement during the originally scheduled Off-take Month in a quantity equal to
the quotient of 100 % of the quantity scheduled for such Off-take Month and the
number of Business Days in the relevant Injection Month; (C) the floating price
for any calculation period shall always be (unless otherwise agreed in writing
by the Purchaser) the arithmetic average of the settlement price per barrel of
West Texas Intermediate Light Sweet Crude Oil for each commodity business day in
such calculation period on the NYMEX of the futures contract corresponding to
the relevant Off-take Month during which delivery of such Batch (or other
quantities) is originally scheduled; and (D) the settlement date for such Swap
shall be the 20th day (or the nearest Business Day) of the calendar month
following the originally scheduled Off-take Month or, if Delivery is thereafter
delayed, the 20th day (or the nearest Business Day) of the calendar month
following the amended Off-take Month during which Delivery is then anticipated,
as evidenced by the amended Deal Sheet and Replacement Swap, if any, applicable
thereto.

     

    (ii)
“Injection Swaps” shall be Swaps related to the price of Barrels during the
Injection Month for which (A) Seller shall be the fixed price payor as defined
in the Master Agreement and shall receive a floating price, (B) the notional
volume associated with each Swap shall correspond to the number of Barrels to be
purchased by Seller during such Injection Month, (C) the floating price for any
calculation period shall always be (unless otherwise agreed in writing by
Purchaser) the arithmetic average of the settlement price per Barrel of West
Texas Intermediate Light Sweet Crude Oil for each commodity business day in such
calculation period on the NYMEX of the futures contract corresponding to the
Injection Month during which such Batch (or other quantities) is originally
purchased, and (D) the settlement date for such Swap shall be the 20th day (or
the nearest Business Day) of the calendar month following the originally
scheduled Off-take Month or, if delivery is thereafter delayed, the 20th day (or
the nearest Business Day) of the calendar month following the amended Off-take
Month during which Delivery is then anticipated, as evidenced by the amended
Deal Sheet and Replacement Swap, if any, applicable thereto; and

     

    (iii)
“Off-take Swaps” shall be Swaps related to the price of Barrels during the
originally scheduled Off-take Month for which (A) Seller shall be the floating
price payor as defined in the Master Agreement and shall receive a fixed price,
(B) the notional volume associated with each Swap shall correspond to the number
of Barrels to be Delivered during such Off-take Month, (C) the floating price
for any calculation period shall always be (unless otherwise agreed in writing
by Purchaser) the arithmetic average of the settlement price per Barrel of West
Texas Intermediate Light Sweet Crude Oil for each commodity business day in such
calculation period on the NYMEX of the futures contract corresponding to the
Off-take Month during which delivery of such Batch (or other quantities) is
originally scheduled, and (D) the settlement date for such Swap shall be the
20th day (or the nearest Business Day) of the calendar month following the
originally scheduled Off-take Month or, if Delivery is thereafter delayed, the
20th day (or the nearest Business Day) of the calendar month following the
amended Off-take Month during which Delivery is then anticipated, as evidenced
by the amended Deal Sheet and Replacement Swap, if any, applicable
thereto.

     

    (iv)  Each
Swap under (ii) and (iii) shall be executed by the Seller as coincident Swap
transactions, and as such, shall generate a single confirmation in accordance
with the Master Agreement.

     

    (v)   Each
Swap under clauses (i), (ii), or (iii) above shall comply with the terms and
provisions of the Master Agreement.

     

    2.5           Amendment to Section
2.03(a).  Section 2.03(a) is hereby deleted in its entirety and
the following inserted in lieu thereof:

     

    (a) Each
of Seller and Purchaser shall take such actions as shall be necessary to
properly nominate, schedule and confirm the delivery and receipt of Crude Oil
subject to each Transaction at the relevant Delivery Location in each Delivery
Month in compliance with applicable rules and regulations of the transporting
Pipeline(s).  Without limiting the foregoing, and to the extent the
Delivery Location for a Transaction is on the Spearhead Pipeline, Seller shall
assign to Purchaser, and Purchaser shall assume and accept, Seller's rights in
the Crude Oil transportation tariff applicable to the Spearhead Pipeline and the
associated portion of the Enbridge Pipeline that is located in the United
States, such rights currently derived from CCPS Transportation, LLC’s (“CCPS”) Tariff No. 11
on file with the Federal Energy Regulatory Commission, as supplemented, amended
or replaced from time to time (the “CCPS
Tariff”).  Seller’s assignment and Purchaser's assumption of
the foregoing rights shall be limited to the Batches involved in a Transaction
and shall be evidenced by certificates acceptable as to form and substance by
each of CCPS, Seller and Purchaser.

     

    2.6           Amendment to Section
2.03(b).  The second sentence of Section 2.03(b) is hereby
deleted and the following inserted in lieu thereof:

     

    In
connection with Crude Oil purchased by Seller under the Supply Contracts for
resale to Purchaser in the Transactions, Purchaser shall act as Seller’s
representative in making all necessary ministerial arrangements with respect to
nominating and scheduling deliveries, executing certificates in respect of the
CCPS Tariff under Section 2.03(a), managing overall imbalance and cash-out
exposure, trade imbalances with other shippers on each Pipeline’s system, and
cash-out imbalances with transporters, including, taking actions to avoid or
mitigate pipeline and distribution system penalties associated with
transportation, distribution and delivery of Seller Crude Oil, including
monitoring for system alert or operational notices, communicating with the
Pipelines regarding operational matters that may affect imbalances or penalties,
and taking actions to comply with or respond to any of the foregoing and
handling any issues related thereto, and, in the event transportation of Seller
Crude Oil is interrupted or suspended by a transporting Pipeline, assisting in
arranging for storage of such Crude Oil on such terms and conditions as Seller
deems acceptable (all of the foregoing being referred to as the “Transportation
Activities”).  

     

    Section
3. Miscellaneous.

     

    3.1 Confirmation.  The
provisions of the Agreement, as amended by this First Amendment, shall remain in
full force and effect following the effectiveness of this First
Amendment.

     

    3.2 Ratification and
Affirmation; Representations and Warranties.  Each party hereby
(a) acknowledges the terms of this First Amendment; and (b) ratifies and affirms
its obligations under, and acknowledges, renews and extends its continued
liability under, each Transaction Document to which it is a party and agrees
that each Transaction Document to which it is a party remains in full force and
effect, except as expressly amended hereby, notwithstanding the amendments
contained herein.

     

    3.3 Transaction
Document.  This First Amendment is a “Transaction Document” as
defined and described in the Agreement and all of the terms and provisions of
the Agreement relating to Transaction Documents shall apply hereto.

     

    3.4 Counterparts.  This
First Amendment may be executed by one or more of the parties hereto in any
number of separate counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.  Delivery
of this First Amendment by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.

     

    3.5 No Oral
Agreement.  This First Amendment, the Agreement and the other
Transaction Documents executed in connection herewith and therewith represent
the final agreement between the parties and may not be contradicted by evidence
of prior, contemporaneous, or unwritten oral agreements of the
parties.  There are no subsequent oral agreements between the
parties.

     

    3.6 GOVERNING
LAW.  THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE FEDERAL LAWS
OF THE UNITED STATES OF AMERICA.

     

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    IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly
executed as of the date first written above.

     

    UTEXAM
LIMITED

     

    By:  /s/ Thomas
Woulfe

    Name:
Thomas Woulfe

    Title:  Director

    


    


    By:  /s/ Clive W.
Christie

    Name:  Clive
W. Christie

    Title:  Company
Secretary

    


    


    FRONTIER
OIL AND REFINING COMPANY,

    as
Purchaser

     

    By:  /s/ Michael C.
Jennings

    Michael
C. Jennings

    Executive
Vice President – Chief Financial

    Officer

     

    


    FRONTIER
OIL CORPORATION, as Guarantor

     

    By: /s/ Doug S.
Aron

           Doug S. Aron

           Vice President - Corporate
Finance