THIRD AMENDMENT TO MASTER CRUDE OIL PURCHASE AND SALE CONTRACT Effective as of March 31, 2009 among UTEXAM LIMITED, AS SELLER, AND FRONTIER OIL AND REFINING COMPANY, AS PURCHASER, FRONTIER OIL CORPORATION, AS GUARANTOR
Exhibit 10.1
THIRD
AMENDMENT
TO
Effective
as of March 31, 2009
among
UTEXAM
LIMITED,
AS
SELLER,
AND
FRONTIER
OIL AND REFINING COMPANY,
AS
PURCHASER,
FRONTIER
OIL CORPORATION,
AS
GUARANTOR
THIRD
AMENDMENT TO MASTER CRUDE OIL PURCHASE AND SALE CONTRACT
THIS THIRD
AMENDMENT TO MASTER CRUDE OIL PURCHASE AND SALE CONTRACT (this “Third Amendment”)
dated as of July 1, 2009, to be effective as of March 31, 2009, 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, as amended by the
First Amendment to Master Crude Oil Purchase and Sale Contract, dated April 1,
2006 and by the Second Amendment to Master Crude Oil Purchase and Sale Contract,
dated March 12, 2008 (as amended, 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
Third Amendment refer to sections of the Agreement.
Section
2. Amendments to
Agreement.
2.1 Section
1.01. The following definition is hereby amended in its
entirety:
“Factor” shall mean
with respect to the calculation of the amount of each Acquisition Cost and each
Swap Settlement, as the case may be, the product of (a) the sum of 2.75% plus
LIBOR for the period corresponding to any Days Outstanding calculation, times
(b) the number of Days Outstanding divided by 360.
Section
3. Miscellaneous.
3.1 Confirmation. The
provisions of the Agreement, as amended by this Third Amendment, shall remain in
full force and effect following the effectiveness of this Third
Amendment.
3.2 Ratification and
Affirmation; Representations and Warranties. Each party hereby
(a) acknowledges the terms of this Third 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 Third 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
Third 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 Third Amendment by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
3.5 No Oral
Agreement. This Third 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 THIRD 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.
3.7 Credit
Facility. Pursuant to Section 4.02 of the Agreement, Purchaser
hereby consents to the amendment of the Credit Facility in the form of amendment
attached hereto as Exhibit A.
[Signature Pages
Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly
executed as the date first written above, to be effective as of March 31,
2009.
UTEXAM
LIMITED
By: /s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Director
By: /s/
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
Director
FRONTIER
OIL AND REFINING COMPANY,
as
Purchaser
By: /s/ ▇▇▇▇
▇. ▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇
Executive
Vice President – Chief Financial
Officer
FRONTIER
OIL CORPORATION, as Guarantor
By: /s/ ▇▇▇▇
▇.
▇▇▇▇
|
|
▇▇▇▇
▇. ▇▇▇▇
|
Executive
Vice President – Chief Financial
Officer
EXHIBIT
A
SEVENTH
AMENDMENT
TO
REVOLVING
CREDIT AGREEMENT (UNCOMMITTED)
DATED
AS OF
MARCH
31, 2009
AMONG
UTEXAM
LIMITED,
AS
BORROWER,
BNP
PARIBAS,
AS
ADMINISTRATIVE AGENT,
AND
THE
LENDERS PARTY HERETO
SEVENTH
AMENDMENT TO REVOLVING CREDIT AGREEMENT (UNCOMMITTED)
THIS SEVENTH
AMENDMENT TO REVOLVING CREDIT AGREEMENT (UNCOMMITTED) (this “Seventh Amendment”)
dated as of March 31, 2009, is among UTEXAM LIMITED, a company
incorporated under the laws of Ireland (the “Borrower”); BNP
PARIBAS, as administrative agent (in such capacity, together with its
successors in such capacity, the “Administrative
Agent”) for the lenders party to the Credit Agreement referred to below
(collectively, the “Lenders”); and the
undersigned Lenders.
R E C I T A L
S
A. The
Borrower, the Administrative Agent and the Lenders are parties to that certain
Revolving Credit Agreement (Uncommitted) dated as of March 10, 2006, as amended
by the First Amendment to Revolving Credit Agreement (Uncommitted), dated
October 24, 2006, the Second Amendment to Revolving Credit Agreement
(Uncommitted), dated as of March 8, 2007, the Third Amendment to Revolving
Credit Agreement (Uncommitted), dated as of May 16, 2007, the Fourth Amendment
to Revolving Credit Agreement (Uncommitted), dated as of February 20, 2008, the
Fifth Amendment to Revolving Credit Agreement (Uncommitted), dated as of March
12, 2008 and the Sixth Amendment to Revolving Credit Agreement (Uncommitted),
dated as of January 20, 2009 (as amended, the “Credit Agreement”),
pursuant to which the Lenders have made certain extensions of credit available
to the Borrower.
B. The
Borrowers and the Lenders have agreed to amend certain provisions of the Credit
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
4. Defined
Terms. Each capitalized term used herein, but not otherwise
defined herein has the meaning given such term in the Credit Agreement. Unless
otherwise indicated, all references to Sections in this Seventh Amendment refer
to Sections of the Credit Agreement.
Section
5. Amendment to Credit
Agreement.
5.1 Section
1.02. The definition of “Applicable Margin” in Section 1.02 is
hereby amended by replacing “2.00%” with “2.75%.”
5.2 Section 1.02. The
definition of “Maturity Date” in Section 1.02 is hereby amended by replacing
“March 31, 2009” with “March 31, 2010.”
2.3 Annex
I. Annex I is hereby amended and restated in its entirety as
follows:
ANNEX
I
LIST
OF COMMITMENTS
Aggregate
Commitments
|
Name
of Lender
|
Percentage
Share
|
Commitment
|
|
BNP
Paribas
|
45.454545455%
|
$50,000,000.00
|
|
Allied
Irish Banks, p.l.c.
|
31.818181818%
|
$35,000,000.00
|
|
Union
Bank of California, N.A.
|
22.727272727%
|
$25,000,000.00
|
|
TOTAL
|
100.00%
|
$110,000,000.00
|
Section
6. Conditions
Precedent. The effectiveness of this Seventh Amendment is
subject to the receipt by the Administrative Agent of the following documents
and satisfaction of the other conditions provided in this Section 3, each of
which shall be reasonably satisfactory to the Administrative Agent in form and
substance:
6.1 The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable, if any, in connection with this Seventh Amendment on or
prior to the Effective Date.
6.2 The
Administrative Agent shall have received from all of the Lenders and the
Borrower, counterparts (in such number as may be requested by the Administrative
Agent) of this Seventh Amendment signed on behalf of such Persons.
6.3 The
Administrative Agent shall have received evidence that the Borrower has obtained
a consent from the Purchaser to amend the Agreement pursuant to Section 4.02(b)
of the PSC.
6.4 The
Administrative Agent shall have received such other documents as the
Administrative Agent or special counsel to the Administrative Agent may
reasonably request.
6.5 No
Default shall have occurred and be continuing, after giving effect to the terms
of this Seventh Amendment.
Section
7. Miscellaneous.
7.1 Confirmation. The
provisions of the Credit Agreement, as amended by this Seventh Amendment, shall
remain in full force and effect following the effectiveness of this Seventh
Amendment.
7.2 Ratification and
Affirmation; Representations and Warranties. The Borrower
hereby (a)
acknowledges the terms of this Seventh Amendment; (b) ratifies and
affirms its obligations under, and acknowledges, renews and extends its
continued liability under, each Loan Document to which it is a party and agrees
that each Loan Document to which it is a party remains in full force and effect,
except as expressly amended hereby, notwithstanding the amendments contained
herein and (c)
represents and warrants to the Lenders that as of the date hereof, after giving
effect to the terms of this Seventh Amendment: (i) all of the
representations and warranties contained in each Loan Document to which it is a
party are true and correct, unless such representations and warranties are
stated to relate to a specific earlier date, in which case, such representations
and warranties shall continue to be true and correct as of such earlier date and
(ii) no Default has occurred and is continuing.
7.3 Termination of Commitments
Unless Extended. Pursuant to the terms of the Credit
Agreement, the Commitments of the Lenders shall terminate on the date hereof,
except for the Commitments of those Lenders who have extended the maturity of
their Commitments hereunder. Bayerishe Hypo-Und Vereinsbank AG, New
York Branch has not extended the maturity of its Commitment hereunder, thus its
Commitment hereby terminates on the date hereof and such Lender shall no longer
be a party to the Credit Agreement.
7.4 Loan Document and
Assignment. This Seventh Amendment is a “Loan Document” as
defined and described in the Credit Agreement and all of the terms and
provisions of the Credit Agreement relating to Loan Documents and Assignments
shall apply hereto.
7.5 Counterparts. This
Seventh 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 Seventh Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
7.6 NO ORAL
AGREEMENT. THIS SEVENTH AMENDMENT, THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES.
7.7 GOVERNING
LAW. THIS SEVENTH AMENDMENT (INCLUDING, BUT NOT LIMITED TO,
THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURES
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IN
WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to be
duly executed as of the date first written above.
BORROWER: UTEXAM
LIMITED
By:
Name:
Title:
By:
Name:
Title:
|
ADMINISTRATIVE
AGENT:
|
BNP
PARIBAS
|
By:
Name:
Title:
By:
Name:
Title:
LENDERS: BNP PARIBAS
By:
Name:
Title:
By:
Name:
Title:
|
LENDERS:
|
UNION BANK OF CALIFORNIA,
N.A., as Syndication Agent and a
Lender
|
By:
Name:
Title:
|
|
ALLIED IRISH BANKS,
p.l.c., as
a Lender
|
By:
Name:
Title:
By:
Name:
Title:
AGREED
AND ACCEPTED TO
AS OF THE
DATE FIRST WRITTEN ABOVE:
BAYERISCHE
HYPO- UND VEREINSBANK
AG,
NEW YORK BRANCH
By:
Name:
Title: