CONSENT AND WAIVER NO. 2
CONSENT AND WAIVER NO. 2 (the "Consent and Waiver"), dated as of July
31, 1995, 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, Bank of America Illinois, 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 cause the Tesoro Refining and Marketing
Group to maintain the Tesoro Refining and Marketing Group EBITDA for the Rolling
Period ending on June 30,1995;
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 under Section 5.03(d) to the Credit
Agreement to cause the Tesoro Refining and Marketing Group to maintain the
Tesoro Refining and Marketing Group EBITDA of at least $15,000,000 for the
Rolling Period ending on June 30, 1995; provided, however, the Company agrees
that it will be required to comply in full with such Section 5.03(d) of the
Credit Agreement for the Rolling Period ending on September 30,1995.
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
(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 Apreement. 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.
SECTION 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/ D. G. Mills
Name: D. G. Mills
Title: 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/ Barton D. Schouest
Name: Barton D. Schouest
Title: Group Vice President
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BANK OF SCOTLAND
By: /s/ Catherine M. Oniffrey
Name: CATHERINE M. ONIFFREY
Title: VICE PRESIDENT
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CHRISTIANIA BANK
By: /s/ Peter M. Dodge
Name: PETER M. DODGE
Title: VICE PRESIDENT
By: /s/ Debra Ives
Name: DEBRA IVES
Title: 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
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: /s/ Michael J. Kolosowsky
Name: Michael J. Kolosowsky
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/ Douglas G. Clark
Name: Douglas G. Clark
Title: Vice President
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THE FROST NATIONAL BANK
By: /s/ Phil Dudley
Name: Phil Dudley
Title: Vice President
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