Exhibit 4
CONSENT AND WAIVER NO. 1
CONSENT AND WAlVER NO. 1 (the "Consent and Waiver"), dated as of
October 27, 1994, by and among Tesoro Petroleum Corporation (the "Company"),
Texas Commerce Bank National Association ("TCB"), individually, as an Issuing
Bank and as Agent (the "Agent"), Banque Paribas ("BP"), individually, as an
Issuing Bank and as Co-Agent, and Bank of Scotland, Christiania Bank, The Bank
of Nova Scotia, NBD Bank, N.A., Continental Bank, N.A., First Union National
Bank of North Carolina, National Bank of Canada and The Frost National Bank.
WITNESSETH
WHEREAS, the Company has entered into a Credit Agreement, dated as of
April 20, 1994, among the Company, TCB, individually, as an Issuing Bank and as
Agent, BP, individually, as an Issuing Bank and as Co-Agent, and the other
financial institutions parties thereto (the "Credit Agreement"; all capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement);
WHEREAS, the Company has requested that Majority Lenders consent to the
waiver of the Company's obligation to (i) maintain its Consolidated Working
Capital Ratio to, but excluding, December 31, 1994 and (ii) cause Tesoro Alaska
to maintain the Tesoro Alaska EBITDA for the Rolling Period ending on September
30, 1994;
WHEREAS, the Agent, the Issuing Banks and the Lenders are willing to
agree to the consent and waiver contained herein upon the terms and conditions
set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. The Majority Lenders hereby consent to
the waiver of the Company's obligations (i) under Section 5.03(b) of the Credit
Agreement to maintain its Consolidated Working Capital Ratio of at least 1.50 to
1.00 to, but excluding, December 31,1994 and (ii) under Section 5.03(d) to the
Credit Agreement to cause Tesoro Alaska to maintain the Tesoro Alaska EBITDA of
at least $15,000,000 for the Rolling Period ending on September 30, 1994;
provided, however, the Company agrees that it will comply in full with such
Sections 5.03(b) and (d) of the Credit Agreement on December 31, 1994.
SECTION 2. Representations and Warranties. On and as of the date
hereof, after giving effect to this Consent and Waiver, the Company represents
and warrants the following:
(a) all of the representations and warranties in Article IV of the
Credit Agreement are true and correct in all material respects as if made on and
as of the date of this Consent and Waiver, except to the extent any such
representation or warranty relates specifically to an earlier date;
(b) no Default or Event of Default has occurred and is continuing, or
would result from the effectiveness of this Consent and Waiver; and
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(c) The execution and delivery by the Company of this Consent and Waiver
are within the Company's powers and have been duly authorized by all necessary
corporate or other action.
SECTION 3. Effect on Credit Agreement. Except to the extent of the
consents and waivers specifically set forth herein, all provisions of the Credit
Agreement and the other Security Instruments are and shall remain in full force
and effect and are hereby ratified and confirmed in all respects, and the
execution, delivery and effectiveness of this Consent and Waiver shall not
operate as a waiver of any provision of the Credit Agreement or any other
Security Instrument not specifically referred to herein.
SECTION 4. Execution in Counterparts. This Consent and Waiver may be
executed in any number of counterparts, and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 5. GOVERNING LAW. THIS CONSENT AND WAIVER SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE APPLICABLE LAWS OF THE STATE OF TEXAS
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
SECTlON 6. Previous Agreements. This Consent and Waiver supersedes any
and all previous agreements, documents and understandings relating to the
consents and waivers set forth herein, to the extent inconsistent herewith.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Waiver to be duly executed and delivered by their respective officers or other
duly authorized representatives as of the date first above written.
COMPANY:
TESORO PETROLEUM CORPORATION
By: /s/ William T. Van Kleef
Name: William T. Van Kleef
Title: Vice President, Treasurer
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AGENT, ISSUING BANKS AND LENDERS:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, individually, as an Issuing
Bank and as Agent
By: /s/ P. Stan Burge
P. Stan Burge
Vice President
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BANQUE PARIBAS, individually, as an
Issuing Bank and as Co-Agent
By: /s/ Brian Malone
Name: BRIAN MALONE
Title: VICE PRESIDENT
By: /S/ Patrick J. Milon
Name: PATRICK J. MILON
Title: SVP-DEPUTY GENERAL MANAGER
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BANK OF SCOTLAND
By: /s/ Elizabeth Wilson
Name: ELIZABETH WILSON
Title: VICE PRESIDENT AND BRANCH MANAGER
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CHRISTIANIA BANK
By: /s/ Peter M. Dodge
Name: PETER M. DODGE
Title: VICE PRESIDENT
By: /s/ Jahn O. Roising
Name: JAHN O. ROISING
Title: FIRST VICE PRESIDENT
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THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. Ashby
Name: F. C. H. Ashby
Title: Senior Manager Loan Operations
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NBD BANK, N.A.
By: /s/ Russell H. Liebetrau, Jr.
Name: Russell H. Liebetrau, Jr.
Title: Vice President
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BANK OF AMERICA ILLINOIS
By: /s/ Ronald E. McKaig
Name: Ronald E. McKaig
Title: Vice President
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FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By: FIRST UNION CORPORATION OF
NORTH CAROLINA, as agent
By: /s/ Paul N. Riddle
Name: Mr. Paul N. Riddle
Title: Vice President
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NATIONAL BANK OF CANADA
By: /s/ Larry L. Sears
Name: Larry L. Sears
Title: Group Vice President
By: /s/ Charley Collie
Name: Charley Collie
Title: Vice President
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THE FROST NATIONAL BANK
By: /s/ Jim Crosby
Name: Jim Crosby
Title: Senior Vice President
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