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Exhibit 10.1
SECOND AMENDMENT
TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT
AND
WAIVER THEREUNDER
This
Second Amendment to Third Amended and Restated Revolving
Credit Agreement and Waiver Thereunder (this “
Amendment
”), dated as of June 23, 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 (“ UBOC
”), 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 Third Amended and Restated Revolving Credit
Agreement dated as of October 1, 2007, as amended by a First
Amendment to Third Amended and Restated Revolving Credit
Agreement dated as of March 3, 2008 (said Agreement, as so
amended, herein called 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, pursuant to Section 2.1(b) of the
Credit Agreement, that the Lenders increase the Maximum
Aggregate Commitment to $350,000,000. In addition, the
Borrower, FOC, the Lenders and the Administrative Agent wish
to amend the Credit Agreement to, among other things, (1)
amend a portion of the definition of “Borrowing
Base” and (2) provide for the issuance of Letters of
Credit by BNP Paribas in addition to UBOC, subject to the
terms and conditions hereof. 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.
Amendments to Credit Agreement .
Subject to satisfaction of the conditions precedent set forth in
Section 3 of this Amendment, the Borrower, FOC and the Lenders
hereby agree that the Credit Agreement is amended as set forth
below.
(a)
The
definition of “Borrowing Base” in Section 1.1 of the
Credit Agreement is amended by amending clause (vii) thereof in
full to read as follows:
“(vii) 70%
of Eligible Prepaid Crude Purchases ( provided
, however ,
that (A) the aggregate amount of Eligible Prepaid Crude
Purchases, before making the calculation described in this
clause (vii) for the purpose of determining the aggregate
amount of Eligible Prepaid Crude Purchases to be included in
the Borrowing Base, shall not exceed $30,000,000, and (B) the
aggregate amount of Eligible Inventory and Eligible Prepaid
Crude Purchases included in the Borrowing Base shall not
exceed 70% of the Borrowing Base);”
(b)
The
definition of “Issuing Bank” in Section 1.1 of the
Credit Agreement is amended in full to read as
follows:
“‘
Issuing
Bank ’ means UBOC or BNP Paribas in its capacity
as an issuer of Letters of Credit hereunder, as requested by
the Borrower pursuant hereto from time to time; provided
, however ,
that (a) an Issuing Bank shall not be obligated to, but may in
its sole and absolute discretion, issue a Letter of Credit as
requested by the Borrower pursuant hereto if such issuance
would cause the sum of (i) the aggregate Letter of Credit
Amount of all outstanding Letters of Credit issued by such
Issuing Bank and (ii) the aggregate amount of unreimbursed
drawings under all Letters of Credit issued by such Issuing
Bank to exceed 50% of the Maximum Aggregate Commitment, and
(b) each reference in this Agreement to ‘the Issuing
Bank’ in respect of a particular Letter of Credit shall
mean UBOC if it was or is to be the issuer thereof or BNP
Paribas if it was or is to be the issuer
thereof.”
(c)
The
definition of “Letter of Credit Request” in Section 1.1
of the Credit Agreement is amended in full to read as
follows:
“‘
Letter
of Credit Request ’ means a request by the
Borrower for the issuance of a Letter of Credit, on the
Issuing Bank’s standard form of letter of credit
application (UBOC’s current form of which is attached
hereto as Exhibit B) and containing terms and conditions
satisfactory to the Issuing Bank in its sole
discretion.”
(d)
Section
2.12(b) of the Credit Agreement is amended in full to read as
follows:
“(b) The
Borrower will pay to the Issuing Bank for its own account such
additional fees and charges (including cable charges) as are
generally associated with letters of credit, in accordance
with the Issuing Bank’s standard internal charge
guidelines in effect from time to time.”
(e)
Article
2 of the Credit Agreement is amended by adding the following new
Section 2.20 at the end thereof:
“
Section
2.20 Pricing
Increase . If this Agreement is not amended and
restated, or otherwise replaced, by October 1, 2008, then on
that date (a) each percentage set forth in (i) the definition
of “Applicable Base Rate Margin” in Section 1.1,
(ii) the definition of “Applicable LIBOR Margin”
in Section 1.1, (iii) the definition of “Applicable LOC
Fee Rate” in Section 1.1 and (iv) Section 2.12(a) shall
be increased by 0.25% ( i.e. , 25 basis
points), and (b) each percentage set forth in the definition
of “Applicable Commitment Fee Rate” in Section 1.1
shall be increased by 0.05% ( i.e. , 5 basis
points), in each case without any action by any Person.
”
(f)
Section
4.3 of the Credit Agreement, through clause (a) thereof, is amended
in full to read as follows:
“
Section
4.3
Letters of
Credit . The obligation of the Issuing Bank to issue,
and of each other Lender to participate in, each Letter of
Credit is subject to the limitations of the Commitments, to
the limitations contained in the definition of ‘Issuing
Bank’ in Section 1.1, to the performance by the Borrower
of all of its obligations under this Agreement and to the
satisfaction of the following further conditions:
(a) the
Issuing Bank has received a Letter of Credit Request, duly
executed by the Borrower, with respect to such Letter of
Credit;”
(g)
Sections
10.8(a), (c) and (d) of the Credit Agreement are amended in full to
read as follows:
“(a) Each
Lender may assign to one or more banks or other entities all
or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment, the
Advances owing to it and its participations in outstanding
Letters of Credit); provided
, however ,
that (i) except in the case of an assignment to a Person that,
immediately before such assignment, was a Lender, the amount
of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of
the Assignment and Assumption with respect to such assignment)
shall in no event be less than the lesser of (A) the entire
Commitment of such Lender at such time and (B) $10,000,000,
(ii) each such assignment shall be subject to the prior
written consent of the Administrative Agent and each Issuing
Bank (which consent may not be unreasonably withheld or
delayed), and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Assumption, together with a processing and recording fee of
$3,500. Upon such consent, execution, delivery, acceptance and
recording, from and after the effective date specified in the
applicable Assignment and Assumption, which effective date
shall be at least 5 Business Days after the date of delivery
thereof to the Administrative Agent or, if so specified in
such Assignment and Assumption, the date of acceptance thereof
by the Administrative Agent, (i) the assignee thereunder shall
be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to
such Assignment and Assumption, shall have the rights and
obligations of a Lender hereunder, and (ii) the Lender
assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to
such Assignment and Assumption, relinquish its rights and be
released from its obligations under this Agre
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