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) confli
