SECOND AMENDMENT AND SUPPLEMENT TO
CREDIT AGREEMENT
AMONG
TESORO PETROLEUM CORPORATION,
as the Company,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Individually, as an Issuing Bank and as Agent,
BANQUE PARIBAS,
Individually, as an Issuing Bank, and as Co-Agent
and
FINANCIAL INSTITUTIONS NOW OR HEREAFTER
PARTIES TO THE CREDIT AGREEMENT
Effective as of September 1, 1995
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
Section 1.01 Terms Defined Above . . . . . . . . . . . . . 1
Section 1.02 Terms Defined in Credit Agreement . . . . . . 2
Section 1.03 Other Definitional Provisions . . . . . . . . 2
ARTICLE II. AMENDMENTS TO CREDIT AGREEMENT
Section 2.01 Amendments and Supplements to Definitions . . 2
Section 2.02 Amendments and Supplements to Article II. . . 3
Section 2.03 Amendments and Supplements to Article V.. . . 3
Section 3.01 Sale of Oil and Gas Properties to Coastal . . 3
Section 3.02 Extent of Waivers . . . . . . . . . . . . . . 3
ARTICLE IV. CONDITIONS
Section 4.01 Loan Documents. . . . . . . . . . . . . . . . 4
Section 4.02 Corporate Proceedings of Loan Parties . . . . 4
Section 4.03 Representations and Warranties. . . . . . . . 4
Section 4.04 No Default. . . . . . . . . . . . . . . . . . 4
Section 4.05 Security Instruments. . . . . . . . . . . . . 4
Section 4.06 Other Instruments or Documents. . . . . . . . 4
ARTICLE V. MISCELLANEOUS
Section 5.01 Adoption, Ratification and Confirmation
of Credit Agreement . . . . . . . . . . . . . 5
Section 5.02 Ratification and Affirmation of Guaranty. . . 5
Section 5.03 Successors and Assigns. . . . . . . . . . . . 5
Section 5.04 Counterparts. . . . . . . . . . . . . . . . . 5
Section 5.05 Number and Gender . . . . . . . . . . . . . . 5
Section 5.06 Entire Agreement. . . . . . . . . . . . . . . 5
Section 5.07 Invalidity. . . . . . . . . . . . . . . . . . 6
Section 5.08 Titles of Articles, Sections and Subsections. 6
Section 5.09 Governing Law . . . . . . . . . . . . . . . . 6
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SECOND AMENDMENT AND SUPPLEMENT TO
CREDIT AGREEMENT
This SECOND AMENDMENT AND SUPPLEMENT TO CREDIT AGREEMENT (this "Second
Amendment") executed effective as of the 1st day of September, 1995 (the
"Effective Date"), is by and among TESORO PETROLEUM CORPORATION, a Delaware
corporation (the "Company"); TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
individually, as an Issuing Bank and as Agent; BANQUE PARIBAS, individually, as
an Issuing Bank and as Co-Agent, each of the lenders that is a signatory hereto
or which becomes a signatory hereto and to the hereinafter described Credit
Agreement as provided in Section 8.07 of the Credit Agreement (individually, a
"Lender" and collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Company, the Agent, the Co-Agent, the Issuing Banks and the
Lenders are parties to that certain Credit Agreement dated as of April 20, 1994,
as amended by First Amendment to Credit Agreement dated effective as of December
31, 1994 (as amended, the "Credit Agreement"), pursuant to which the Lenders
agreed to make loans and issue Letters of Credit to and for the account of the
Company; and
WHEREAS, Tesoro E&P Company, L.P., a Delaware limited partnership ("Tesoro
LP"), by and through its general partner, Tesoro Exploration and Production
Company, and Coastal Oil & Gas of Texas, L.P. ("Coastal LP"), by and through its
general partner, Coastal Oil & Gas Corporation have entered into that certain
Purchase and Sale Agreement dated as of September 1, 1995, whereby Tesoro LP is
selling to Coastal LP certain of its Oil and Gas Properties which are encumbered
by Liens in favor of the Agent pursuant to the E&P Mortgage.
WHEREAS, the Company and Tesoro LP desire that the Agent release its Lien in
such Oil and Gas Properties being sold to Coastal LP and the Agent and the
Lenders have agreed to release such Lien, subject to the provisions and
conditions contained herein;
WHEREAS, as a result of the foregoing, the Company, the Agent, the Co-Agent,
Guarantors and the Lenders desire to amend the Credit Agreement in the
particulars hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01 Terms Defined Above. As used in this Second Amendment, each of
the terms "Company", "Coastal LP", "Credit Agreement", "Effective Date", "Second
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Amendment", "Lenders", "Coastal Purchase and Sale Agreement", "Tesoro E&P" and
"Tesoro LP" shall have the meaning assigned to such term hereinabove.
Section 1.02 Terms Defined in Credit Agreement. Each term defined in the
Credit Agreement and used herein without definition shall have the meaning
assigned to such term in the Credit Agreement, unless expressly provided to the
contrary.
Section 1.03 Other Definitional Provisions.
(a) The words "hereby", "herein", "hereinafter", "hereof", "hereto"
and "hereunder" when used in this Second Amendment shall refer to this
Second Amendment as a whole and not to any particular Article, Section,
subsection or provision of this Second Amendment.
(b) Section, subsection and Exhibit references herein are to such
Sections, subsections and Exhibits to this Second Amendment unless otherwise
specified.
ARTICLE II. AMENDMENTS TO CREDIT AGREEMENT
The Company, the Agent, the Co-Agent, the Issuing Banks and the Lenders
agree that the Credit Agreement is hereby amended and supplemented, effective as
of the Effective Date, in the following particulars.
Section 2.01 Amendments and Supplements to Definitions.
(a) The definition of "Agreement" in Section 1.01 of the Credit
Agreement is hereby amended to mean the Credit Agreement, as amended and
supplemented by this Second Amendment and as the same may from time to time
be further amended, supplemented or modified.
(b) Section 1.01 of the Credit Agreement is hereby further amended and
supplemented by adding the following new definitions where alphabetically
appropriate, which read in their entirety as follows:
"Second Amendment" shall mean that certain Second Amendment and
Supplement to Credit Agreement dated as of September 1, 1995, by and
among the Company, the Agent, the Co-Agent, the Issuing Banks and the
Lenders.
"Coastal Purchase and Sale Agreement" shall mean that certain
Purchase and Sale Agreement dated as of September 1, 1995, by and
between Tesoro LP, acting by and through its general partner, Tesoro
E&P, as seller, and Coastal Oil & Gas of Texas, L.P., a Texas limited
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partnership, acting by and through its general partner, Coastal Oil &
Gas Corporation, as purchaser.
Section 2.02 Amendments and Supplements to Article II. Section 2.20(a) of
the Credit Agreement is hereby amended by deleting the last sentence thereof and
substituting therefor the following:
"During the period from and after the effective date of the Second
Amendment until the next Redetermination Date, the amount of the E&P Loan
Value shall be $40,000,000."
Section 2.03 Amendments and Supplements to Article V. Section 5.04 of the
Credit Agreement is hereby amended and supplemented by adding thereto a new
subsection (p) to read in its entirety:
"(p) Proceeds of Coastal Sale. Permit Tesoro LP, without
obtaining prior written approval from the Majority Lenders and in exchange
for the Lenders agreeing to the release of the associated Liens, to use the
proceeds received by Tesoro LP from the sale of Oil & Gas Properties
pursuant to the Coastal Purchase and Sale Agreement for Capital
Expenditures, acquisitions or repayment of debt incurred pursuant to the
Subordinated Debentures or in any other manner, except (i) to hold in a
demand deposit account (ii) to reduce Lender Indebtedness or (iii) to make
investments permitted by clauses (ii), (iii) and (vi) of Section 5.04(e).
ARTICLE III. WAIVERS
Section 3.01 Sale of Oil and Gas Properties to Coastal. The Agent, the
Co-Agent, the Issuing Banks and the Lenders agree that the Company shall not be
deemed to be in default of the Credit Agreement solely by reason of the fact
that Tesoro LP has entered into and will perform under the Coastal Purchase and
Sale Agreement.
Section 3.02 Extent of Waivers. The foregoing waivers and consent shall
not be deemed to be a waiver or consent by the Agent, the Co-Agent, the Issuing
Banks and the Lenders of any other covenant, condition or obligation on the part
of the Company or any Subsidiary of the Credit Agreement or any other Financing
Document, except as set forth in Section 3.01 of this Second Amendment. In
addition, the foregoing waiver and consent shall in no respect evidence any
commitment by the Agent, the Co-Agent, the Issuing Banks or the Lenders to grant
any future waivers or consents of any covenant, condition or obligation on the
part of the Company or any Subsidiary under the Credit Agreement or any other
Financing Document. Any further waivers or consents must be specifically agreed
to in writing in accordance with Section 8.02 of the Credit Agreement.
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ARTICLE IV. CONDITIONS
The enforceability of this Second Amendment against the Agent, the Co-Agent,
the Issuing Banks and the Lenders is subject to the satisfaction of the
following conditions precedent:
Section 4.01 Loan Documents. The Agent shall have received multiple
original counterparts, as requested by the Agent, of this Second Amendment
executed and delivered by a duly authorized officer of the Company, each of the
Guarantors, the Agent, the Co-Agent, each Issuing Bank and each Lender, as
applicable;
Section 4.02 Corporate Proceedings of Loan Parties. The Agent shall have
received multiple copies, as requested by the Agent, of the resolutions, in form
and substance reasonably satisfactory to the Agent, of the Boards of Directors
of the Company and the Guarantors, authorizing the execution, delivery and
performance of this Second Amendment, each such copy being attached to an
original certificate of the Secretary or an Assistant Secretary of the Company
or the Guarantors, as applicable, dated as of the Effective Date, certifying (i)
that the resolutions attached thereto are true, correct and complete copies of
resolutions duly adopted by written consents or at meetings of the Boards of
Directors, (ii) that such resolutions constitute all resolutions adopted with
respect to the transactions contemplated hereby, (iii) that such resolutions
have not been amended, modified, revoked or rescinded as of the Effective Date,
(iv) that the respective articles of incorporation and bylaws of the Company and
the Guarantors have not been amended or otherwise modified since the effective
date of the Credit Agreement, except pursuant to any amendments attached
thereto, and (v) as to the incumbency and signature of the officers of the
Company or the Guarantors, as applicable, executing this Second Amendment.
Section 4.03 Representations and Warranties. Except as affected by the
transactions contemplated in the Credit Agreement and this Second Amendment,
each of the representations and warranties made by the Company and the
Guarantors in or pursuant to the Financing Documents, including the Credit
Agreement, shall be true and correct in all material respects as of the
Effective Date, as if made on and as of such date.
Section 4.04 No Default. No Default or Event of Default shall have
occurred and be continuing as of the Effective Date.
Section 4.05 Security Instruments. All of the Security Instruments
(subject to any partial releases thereof) shall be in full force and effect and
provide to the Agent the security intended thereby to secure the Indebtedness.
Section 4.06 Other Instruments or Documents. The Agent or any Lender or
counsel to the Agent shall receive such other instruments or documents as they
may reasonably request.
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ARTICLE V. MISCELLANEOUS
Section 5.01 Adoption, Ratification and Confirmation of Credit Agreement.
Each of the Company, the Guarantors, the Agent, the Co-Agent, the Issuing Banks
and the Lenders does hereby adopt, ratify and confirm the Credit Agreement, as
amended hereby, and acknowledges and agrees that the Credit Agreement, as
amended hereby, is and remains in full force and effect.
Section 5.02 Ratification and Affirmation of Guaranty. Each of the
Guarantors hereby expressly (i) acknowledges the terms of this Second Amendment,
(ii) ratifies and affirms its obligations under the Guaranty Agreement dated as
of April 20, 1994, in favor of the Agent, the Co-Agent, the Issuing Banks and
the Lenders, as amended, supplemented or otherwise modified, (iii) acknowledges,
renews and extends its continued liability under the Guaranty Agreement and
agrees that such Guaranty Agreement remains in full force and effect; and (iv)
guarantees to the Agent, the Co-Agent, each Issuing Bank and each Lender to
promptly pay when due all amounts owing or to be owing by it under the Guaranty
pursuant to the terms and conditions thereof.
Section 5.03 Successors and Assigns. This Second Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted pursuant to the Credit Agreement.
Section 5.04 Counterparts. This Second 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 and shall be enforceable as of the Effective Date upon the execution
of one or more counterparts hereof by the Company, the Guarantors, the Agent,
the Co-Agent, the Issuing Banks and the Lenders. In this regard, each of the
parties hereto acknowledges that a counterpart of this Second Amendment
containing a set of counterpart execution pages reflecting the execution of each
party hereto shall be sufficient to reflect the execution of this Second
Amendment by each necessary party hereto and shall constitute one instrument.
Section 5.05 Number and Gender. Whenever the context requires, reference
herein made to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the singular. Words
denoting sex shall be construed to include the masculine, feminine and neuter,
when such construction is appropriate; and specific enumeration shall not
exclude the general but shall be construed as cumulative. Definitions of terms
defined in the singular or plural shall be equally applicable to the plural or
singular, as the case may be, unless otherwise indicated.
Section 5.06 Entire Agreement. This Second Amendment constitutes the
entire agreement among the parties hereto with respect to the subject hereof.
All prior understandings, statements and agreements, whether written or oral,
relating to the subject hereof are superseded by this Second Amendment.
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Section 5.07 Invalidity. In the event that any one or more of the
provisions contained in this Second Amendment shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Second Amendment.
Section 5.08 Titles of Articles, Sections and Subsections. All titles or
headings to Articles, Sections, subsections or other divisions of this Second
Amendment or the exhibits hereto, if any, are only for the convenience of the
parties and shall not be construed to have any effect or meaning with respect to
the other content of such Articles, Sections, subsections, other divisions or
exhibits, such other content being controlling as the agreement among the
parties hereto.
Section 5.09 Governing Law. This Second Amendment and the rights and
obligations of the parties hereunder and under the Credit Agreement shall be
governed by and construed in accordance with the laws of the State of Texas and
the United States of America.
This Second Amendment, the Credit Agreement, as amended and
supplemented hereby, the Notes, and the other Financing Documents
constitute a written loan agreement and represent the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the Effective Date.
COMPANY: TESORO PETROLEUM CORPORATION
By: /s/ William T. Van Kleef
Name: William T. Van Kleef
Title: Vice President, Treasurer
AGENT, ISSUING BANK
AND LENDER: TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, individually, as an Issuing Bank and
as Agent
By: /s/ P. Stan Burge
Name: P. Stan Burge
Title: Vice President
CO-AGENT, ISSUING BANK BANQUE PARIBAS, individually, as an Issuing
AND LENDER: Bank and as Co-Agent
By: /s/ Brian Malone
Name: Brian Malone
Title: Vice Predident
By: /s/ Barton D. Schouest
Name: Barton D. Schouest
Title: Group Vice President
LENDERS: BANK OF SCOTLAND
By: /s/ Catherine M. Oniffrey
Name: Catherine M. Oniffrey
Title: Vice President
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CHRISTIANIA BANK
By: /s/ Carl-Petter Svendsen
Name: Carl-Petter Svendsen
Title: First Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
NBD BANK
By: /s/ Russell H. Liebetrau, Jr.
Name: Russell H. Liebetrau, Jr.
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ Ronald McKaig
Name: Ronald McKaig
Title: Vice President
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
THE FROST NATIONAL BANK
By: /s/ Phil Dudley
Name: Phil Dudley
Title: Vice President
GUARANTORS: TESORO ALASKA PETROLEUM COMPANY
TESORO EXPLORATION AND PRODUCTION COMPANY
TESORO PETROLEUM COMPANIES, INC.
DIGICOMP, INC.
TESORO TECHNOLOGY PARTNERS COMPANY
INTERIOR FUELS COMPANY
TESORO ALASKA PIPELINE COMPANY
TESORO NORTHSTORE COMPANY
TESORO REFINING, MARKETING & SUPPLY COMPANY
TESORO NATURAL GAS COMPANY
TESORO BOLIVIA PETROLEUM COMPANY
TESORO PETROLEUM DISTRIBUTING COMPANY
TESORO LOUISIANA DISTRIBUTING COMPANY
TESORO ENVIRONMENTAL RESOURCES COMPANY
By: /s/ William T. Van Kleef
Name: William T. Van Kleef
Title: Vice President and Treasuer
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TESORO E&P COMPANY, L.P.
By: TESORO EXPLORATION AND PRODUCTION
COMPANY, as its general partner
By: /s/ William T. Van Kleef
William T. Van Kleef
Vice President and Treasurer
TESORO GAS RESOURCES COMPANY, INC
By: /s/ George L. Dodgen
Name: George L. Dodgen
Title: President
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