HOLLYFRONTIER CORPORATION
(successor-in-interest to Frontier Oil Corporation),
THE GUARANTORS NAMED
HEREIN
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
THIRD SUPPLEMENTAL
INDENTURE
to Indenture dated as of
September 17, 2008
Providing for Issuance
of
8.5% Senior Notes due
2016
THIRD SUPPLEMENTAL
INDENTURE
This THIRD
SUPPLEMENTAL INDENTURE (this “ Third Supplemental
Indenture ”), dated as of July 1, 2011, among
HOLLYFRONTIER CORPORATION, a Delaware corporation and
successor-in-interest to Frontier Oil Corporation (the “
Company ”), the Guarantors and WELLS FARGO BANK, N.A.,
a national banking association, as Trustee (the “
Trustee ”), under the Indenture, dated as of
September 17, 2008, as supplemented by the First Supplemental
Indenture, dated September 17, 2008 and the Second
Supplemental Indenture, dated May 26, 2011 (collectively, the
“ Indenture ”). Capitalized terms used herein
and not otherwise defined shall have the meaning assigned to them
in the Indenture.
WHEREAS, the
Frontier Oil Corporation (“ FOC ”),
predecessor-in-interest to the Company entered into an Agreement
and Plan of Merger, dated as of February 21, 2011, with the
Company, and North Acquisition, Inc., a Delaware corporation and
direct wholly owned subsidiary of the Company (“ Merger
Sub ”), pursuant to which, effective at 12:01 a.m.
MDT on July 1, 2011, Merger Sub merged with and into FOC, with
FOC being the surviving corporation of such merger (the “
Merger ”);
WHEREAS, following
the Merger, on the date hereof, FOC merged with and into the
Company, with the Company surviving such merger;
WHEREAS, the
Company has agreed, pursuant to Section 8.2 of the Indenture,
to assume all of FOC’s indebtedness outstanding under the
8.5% Notes and the Indenture;
WHEREAS, certain
Restricted Subsidiaries of the Company have agreed to provide a
guarantee (a “ Guarantee ”) to comply with
Section 10.17 of the Indenture, and Section 9.1(6) of the
Indenture provides that the Company and the Trustee may amend or
supplement the Indenture for such purpose without the consent of
the Holders of the 8.5% Notes;
WHEREAS, Frontier
Holdings LLC (f/k/a Frontier Holdings Inc.), a Delaware limited
liability company and a Guarantor of the 8.5% Notes, has merged
with and into Eagle Consolidation LLC, a Delaware limited liability
company and a Guarantor of the 8.5% Notes by the execution of this
Third Supplemental Indenture (“ ECLLC ”), all in
accordance with Section 14.4 of the Indenture;
WHEREAS, Frontier
Oil and Refining Company LLC (f/k/a Frontier Oil and Refining
Company), a Delaware limited liability company and a Guarantor of
the 8.5% Notes, has merged with and into HollyFrontier Refining
& Marketing LLC (f/k/a Holly Refining & Marketing LLC), a
Delaware limited liability company and a Guarantor of the 8.5%
Notes (“ HFRMLLC ”) by the execution of this
Third Supplemental Indenture, all in accordance with
Section 14.4 of the Indenture; and
WHEREAS, all acts
and things prescribed by the Indenture, by law and by the
certificate of incorporation and the bylaws or comparable
constituent documents of the Company, of the Guarantors and of the
Trustee necessary to make this Third Supplemental Indenture a valid
instrument legally binding on the Company, the Guarantors and the
Trustee, in accordance with its terms, have been duly done and
performed;
NOW, THEREFORE, to
comply with the provisions of the Indenture and in consideration of
the above premises, the Company, the Guarantors and the Trustee
covenant and agree for the equal and proportionate benefit of the
respective Holders of the 6 7/8% Notes as follows:
1
Section 1.01.
This Third Supplemental Indenture is supplemental to the Indenture
and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Indenture for any
and all purposes.
Section 1.02.
This Third Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Company,
the Guarantors and the Trustee.
Section 2.01.
From this date, in accordance with Section 8.2 of the
Indenture, and by executing this Third Supplemental Indenture, the
Company hereby assumes all of the obligations of FOC under the 8.5%
Notes and the Indenture.
Section 2.02.
From this date, in accordance with Section 14.4 of the
Indenture, and by executing this Third Supplemental Indenture and
the accompanying notation of Guarantee (a copy of which is attached
hereto), each of ECLLC and HFRMLLC hereby assumes all of the
obligations of FHLLC and FORCLLC, respectively, under the
applicable Subsidiary Guaranty.
Section 2.03.
From this date, in accordance with Section 10.17 of the
Indenture, and by executing this Third Supplemental Indenture and
the accompanying notation of Guarantee (a copy of which is attached
hereto), the Guarantors whose signatures appear below are subject
to the provisions of the Indenture to the extent provided for in
Article Fourteen thereunder.
Section 3.01.
Except as specifically modified herein, the Indenture and the 8.5%
Notes are in all respects ratified and confirmed (mutatis mutandis)
and shall remain in full force and effect in accordance with their
terms.
Section 3.02.
Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed
to be assumed, by the Trustee by reason of this Third Supplemental
Indenture. This Third Supplemental Indenture is executed and
accepted by the Trustee subject to all of the terms and conditions
set forth in the Indenture with the same force and effect as if
those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto. The Trustee makes no
representation as t
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