AMENDED AND RESTATED GUARANTY AGREEMENT
(Subsidiaries)
AMENDED AND RESTATED GUARANTY AGREEMENT, dated as of June 7, 1996 (this
"Guaranty Agreement"), among TESORO ALASKA PETROLEUM COMPANY, a Delaware
corporation, TESORO EXPLORATION AND PRODUCTION COMPANY, a Delaware corporation,
and TESORO PETROLEUM COMPANIES, INC., a Delaware corporation, DIGICOMP, INC., a
Delaware corporation, TESORO TECHNOLOGY PARTNERS COMPANY, a Delaware
corporation, INTERIOR FUELS COMPANY, an Alaskan corporation, TESORO ALASKA
PIPELINE COMPANY, a Delaware corporation, TESORO NORTHSTORE COMPANY, an Alaskan
corporation, TESORO REFINING, MARKETING & SUPPLY COMPANY, a Delaware
corporation, TESORO NATURAL GAS COMPANY, a Delaware corporation, TESORO BOLIVIA
PETROLEUM COMPANY, a Texas corporation, TESORO GAS RESOURCES COMPANY, INC., a
Delaware corporation, TESORO E&P COMPANY, L.P., a Delaware limited partnership,
TESORO VOSTOK COMPANY, a Delaware corporation, TESORO COASTWIDE SERVICES
COMPANY, a Delaware corporation, COASTWIDE MARINE SERVICES, INC., a Texas
corporation, and KENAI PIPE LINE COMPANY, a Delaware corporation (the
"Guarantors"), in favor of BANQUE PARIBAS, individually, as Administrative Agent
and as an Issuing Bank, and the other financial institutions now or hereafter
parties to the Credit Agreement (as such term is hereinafter defined).
RECITALS
A. On April 20, 1994, Tesoro Petroleum Corporation, a Delaware corporation
(the "Company"), Texas Commerce Bank National Association, individually and as
agent and the other financial institutions now or hereafter parties thereto
entered into a Credit Agreement (as amended from time to time, the "Prior Credit
Agreement").
B. The conditions precedent to the effectiveness of the Credit Agreement
included the execution and delivery of that certain Guaranty Agreement dated of
even date therewith by each Subsidiary of the Company (the "Prior Guaranty
Agreement").
C. Of even date herewith, the Company, Banque Paribas, as Administrative
Agent, The Bank of Nova Scotia, as Documentation Agent and various lenders (the
"Lenders") are entering into an Amended and Restated Credit Agreement (the
"Credit Agreement") amending and restating the Prior Credit Agreement.
D. Therefore, in consideration of the premises contained herein, the
Guarantors and the Administrative Agent agree to amend and restate the Prior
Guaranty Agreement as follows:
AGREEMENT
1. Defined Terms. As used in this Guaranty Agreement, capitalized terms
defined in the Credit Agreement are used herein as defined therein unless
otherwise noted herein, and the following additional capitalized terms shall
have the following meanings:
"Collateral" shall mean any Property in which the Agent is granted a
Lien from time to time as security for the Lender Indebtedness.
"Contribution Obligation" shall mean an amount equal, at any time and
from time to time and for each respective Guarantor, to the product of (i)
its Contribution Percentage times (ii) the sum of all payments made previous
to or at the time of calculation by all Guarantors in respect of the
Obligations, as a Guarantor or debtor under any Loan Document (less the
amount of any such payments previously returned to any Guarantor by
operation of law or otherwise, but not including payments received by any
Guarantor by way of its rights of subrogation and contribution under this
Guaranty Agreement), provided, however, such Contribution Obligation for any
Guarantor shall in no event exceed such Guarantor's Maximum Guaranteed
Amount.
"Contribution Percentage" shall mean for any Guarantor for any
applicable date as of which such percentage is being determined, an amount
equal to the quotient of (i) the Net Worth of such Guarantor as of such
date, divided by (ii) the sum of the Net Worth of all the Guarantors as of
such date.
"Maximum Guaranteed Amount" shall mean, for each Guarantor, the greater
of (i) the "reasonably equivalent value" or "fair consideration" (or
equivalent concept) received by such Guarantor in exchange for the
obligation incurred hereunder by such Guarantor, within the meaning of any
state or federal fraudulent conveyance or transfer laws applicable to such
Guarantor; or (ii) the lesser of (A) the maximum amount that will not render
such Guarantor insolvent, or (B) the maximum amount that will not leave such
Guarantor (after giving effect to this Guaranty Agreement) with Property
deemed an unreasonably small capital. Clauses (A) and (B) are and shall be
determined pursuant to and as of the appropriate date mandated by such
applicable state or federal fraudulent conveyance or transfer laws and to
the extent allowed by law take into account the rights to contribution and
subrogation under this Guaranty Agreement so as to provide for the largest
MaximumGuaranteed Amount possible.
"Net Payments" shall mean an amount equal, at any time and from time to
time and for each respective Guarantor, to the difference of (i) the sum of
all payments made
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previous to or at the time of calculation by such Guarantor in respect to
the Obligations, as a Guarantor, and in respect of its obligations contained
in this Guaranty Agreement or any other Financing Document, less (ii) the
sum of all such payments previously returned to such Guarantor by operation
of law or otherwise and including payments received by such Guarantor by way
of its rights of subrogation and contribution under this Guaranty
Agreements.
"Net Worth" shall mean for any Guarantor, calculated on and as of any
applicable date on which such amount is being determined, the greater of (i)
zero or (ii) the difference between (A) the sum of all such Guarantor's
property, at a fair valuation and as of such date, minus (B) the sum of all
such Guarantor's debts, at a fair valuation and as of such date, excluding
the Obligations.
"Obligations" shall mean (i) all Lender Indebtedness now or hereafter
owing, including, but not limited to, (A) the unpaid principal of and
accrued interest on (including interest accruing on or after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or not a
claim for post-filing or post-petition interest is allowed in such
proceeding) the Notes, and (B) the obligation of the Company to otherwise
reimburse the Lender, whether on account of fees, indemnities, costs, taxes,
expenses (including all fees and disbursements set forth in Sections 2.21 or
9.04 of the Credit Agreement) or otherwise, (ii) payment of and performance
of any and all present or future obligations of the Company according to the
terms of any present or future interest or currency rate swap, rate cap,
rate floor, rate collar, exchange transaction, forward rate agreement or
other exchange or rate protection agreements or any option with respect to
any such transaction now existing or hereafter entered into between the
Company and the Administrative Agent or any of the Lenders (or any of their
Affiliates) and authorized pursuant to the terms of the Credit Agreement;
(iii) payment of and performance of any and all present or future
obligations of the Company according to the terms of any present or future
swap agreements, cap, floor, collar, exchange transaction, forward agreement
or other exchange or protection agreements relating to crude oil, natural
gas or other hydrocarbons or any option with respect to any such transaction
now existing or hereafter entered into between the Company and the
Administrative Agent or any of the Lenders (or any of their Affiliates) and
authorized pursuant to the terms of the Credit Agreement; and (iv) any and
all other sums payable by the Company or any of its Subsidiaries under or in
respect of any Financing Document.
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"Subrogation and Contribution Agreement" shall mean that certain
Subrogation and Contribution Agreement dated as of April 20, 1994 among
certain of the Guarantors and the Company which is hereby declared
terminated.
2. Guarantee. (a) Each of the Guarantors hereby unconditionally and
irrevocably and jointly and severally guarantees to the Agent, the Issuing Banks
and each Lender the prompt and complete payment when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, and each of the
Guarantors further agrees, jointly and severally, to pay any and all expenses
which may be paid or incurred by the Agent, either Issuing Bank or any Lender in
enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
any Guarantor under this Guaranty Agreement; provided, however, that,
notwithstanding anything herein or in any other Financing Document to the
contrary, the maximum liability of each Guarantor hereunder and under the other
Financing Documents shall in no event exceed the Maximum Guaranteed Amount for
such Guarantor.
(b) Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the Maximum Guaranteed Amount for such Guarantor without
impairing this Guaranty Agreement or affecting the rights and remedies of the
Agent, either Issuing Bank or any Lender.
(c) No payment or payments made by the Company, any Guarantor, any other
guarantor or any other Person or received or collected by the Agent, either
Issuing Bank or any Lender from the Company, any Guarantor, any other guarantor
or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of each Guarantor hereunder, which shall,
notwithstanding any such payment or payments, other than payments made by such
Guarantor in respect of the Obligations or payments received or collected from
such Guarantor in respect of the Obligations, remain liable for the Obligations
up to the Maximum Guaranteed Amount for such Guarantor until the Obligations are
paid in full.
(d) It is the intention of the parties hereto that all intercompany
indebtedness either owed to or by any Guarantor not be included as either an
asset or a liability, respectively, in determining the solvency or capital of
any Guarantor. Accordingly, each Guarantor agrees that in connection with any
determination of the Maximum Guaranteed Amount, such intercompany indebtedness
may be treated in the manner that would achieve the result intended by the first
sentence of this subsection (d).
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(e) Right to Collect on the Notes. The Company and the Guarantors are
personally obligated and fully liable for the amounts due under the Notes. The
Lenders have the right to sue on the Notes and obtain a personal judgment
against the Company and the Guarantors for satisfaction of the amounts due under
the Notes either before or after a judicial foreclosure of the Alaska Deed of
Trust under Alaska Statute 09.45.170 - 09.45.220.
(f) Senior Debt. Tesoro Alaska's guarantee of the payment of the
Obligations constitutes Senior Debt as such term is defined in that certain
Subordination Agreement dated December 15, 1993, among the Company, Tesoro
Alaska, and the State of Alaska, attached as Exhibit 7 to the Settlement
Agreement dated December 15, 1992, among the Company, Tesoro Alaska, and the
State of Alaska.
3. Right of Contribution. Each Guarantor agrees that after all the
Obligations have been paid in full that if its then current Net Payments are
less than the amount of its then current Contribution Obligation, such Guarantor
shall pay to the other Guarantors an amount (together with any payments required
of the other Guarantors by this Section 3) such that the Net Payments made by
all Guarantors in respect of the Obligations shall be shared among all of the
Guarantors in proportion to their respective Contribution Percentage. The
provisions of this Paragraph 3 shall in no respect limit the obligations and
liabilities of any Guarantor to the Agent, the Issuing Banks or any Lender, and
each Guarantor shall remain liable to the Agent, the Issuing Banks and each
Lender for the full amount guaranteed by such Guarantor hereunder.
4. Right of Set-off. The Agent, the Issuing Bank and each Lender is hereby
irrevocably authorized upon the occurrence of an Event of Default without notice
to the Guarantors, any such notice being expressly waived by each Guarantor, to
set-off and credit against any credits, indebtedness or claims, in any currency,
in each case whether direct or indirect or contingent or matured or unmatured,
at any time held or owing by the Agent, either Issuing Bank or any Lender to or
for the credit or the account of any Guarantor, or any part thereof in such
amounts as the Agent, such Issuing Bank or such Lender may elect, against and on
account of the obligations and liabilities of the applicable Guarantor to the
Agent, the Issuing Banks and the Lenders hereunder and claims of every nature
and description of the Agent, the Issuing Banks and the Lenders against such
Guarantor, in any currency, whether arising hereunder, under the Credit
Agreement, any other Financing Document or otherwise, as the Agent, either
Issuing Bank or any Lender may elect, whether or not the Agent, such Issuing
Bank or such Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The Agent
agrees to notify (promptly after receipt of notice by the Agent) the Company and
the applicable Guarantor of any such set-off and the application made by the
Agent, such Issuing Bank or any such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Agent, either
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Issuing Bank and each Lender under this paragraph are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which any such Person may have. If foreign currency is exchanged for U.S.
Dollars by the Agent, either Issuing Bank or any Lender, such Person shall use
the rate of exchange prevailing at the time for customers exchanging a similar
amount of currency.
5. No Subrogation. Notwithstanding any payment or payments made by any
Guarantor hereunder or any set-off or application of funds of any Guarantors by
the Agent, either Issuing Bank or any Lender, any such Guarantor shall not be
entitled to be subrogated to any of the rights of the Agent, either Issuing Bank
or any Lender against the Company or any collateral security or guaranty or
right of offset held by any such Person for the payment of the Obligations, nor
shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Company in respect of payments made by any such Guarantor
hereunder, until all Obligations are paid in full. If any amount shall be paid
to any Guarantor on account of such subrogation rights at any time when all of
the Obligations shall not have been paid in full, such amount shall be held by
such Guarantor in trust for the Agent, the Issuing Banks and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Agent in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Agent, if required), to
be applied against the Obligations, whether matured or unmatured in such order
as the Agent may determine.
6. Amendments, etc. with respect to the Obligations; Waiver of Rights.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against the Guarantors and without notice to or
further assent by the Guarantors, any demand for payment of any of the
Obligations made by the Agent, either Issuing Bank or any Lender may be
rescinded and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guaranty therefor or right of offset with respect thereto, may, from
time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Agent, the
Issuing Banks or the Lenders and the Credit Agreement, the Notes and any
collateral security document or other guaranty or document in connection
therewith (including, without limitation, the other Financing Documents) may be
amended, modified, supplemented or terminated, in whole or in part, as the
Agent, the Issuing Banks or the Lenders may deem advisable from time to time,
and any collateral security or guaranty or right of offset at any time held by
the Agent, the Issuing Banks or the Lenders for the payment of the Obligations
may be sold, exchanged, waived, surrendered or released, all without the
necessity of any reservation of rights against the Guarantors and without notice
to or further assent by the Guarantors which will remain bound hereunder,
notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange, waiver,
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surrender or release. Neither the Agent, either Issuing Bank nor any Lender
shall have an obligation to protect, secure, perfect or insure any Lien at any
time held as security for the Obligations or this Guaranty Agreement or any
Property subject thereto. When making any demand hereunder against any
Guarantor, the Agent may, but shall be under no obligation to, make a similar
demand on the Company or any other guarantor, and any failure by the Agent to
make any such demand or to collect any payments from the Company or any such
other guarantor, or any release of the Company or other guarantor, shall not
relieve any such Guarantor of its obligations or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a
matter of law, of the Agent, the Issuing Banks of the Lenders against each
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
7. Guaranty Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Agent, either Issuing Bank or any
Lender upon this Guaranty Agreement or acceptance of this Guaranty Agreement,
and the Obligations (and any of them) shall conclusively be deemed to have been
created, contracted or incurred and extended, amended and waived in reliance
upon this Guaranty Agreement, and all dealings between the Company or the
Guarantors and the Agent, either Issuing Bank or any Lender shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty Agreement. Each Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment, notice of intention to
accelerate maturity and notice of acceleration of maturity to or upon the
Company or the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that this Guaranty Agreement shall be construed as a
continuing, absolute, completed, unconditional (except as expressly conditioned
pursuant to the terms hereof) and irrevocable guarantee of payment and not of
collection without regard to (a) the validity, regularity or enforceability of
the Credit Agreement, the other Financing Documents, any of the Obligations or
any collateral security or guaranty therefor or right of offset with respect
thereto at any time or from time to time held by the Agent, either Issuing Bank
or any Lender, (b) any defense, set-off or counterclaim which may at any time be
available to or be asserted by the Company or any other Person liable for the
Obligations against the Agent, either Issuing Bank or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Company or any Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company or any other Person
liable for the Obligations, or of any Guarantor under this Guaranty Agreement,
in bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against any Guarantor, the Agent, the Issuing Banks and the Lenders
may, but shall be under no obligation to, pursue such rights and remedies as
they may have against the Company or any other Person or against any collateral
security or guaranty for the Obligations or any right of offset with respect
thereto, and
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any failure by the Agent, the Issuing Banks or the Lenders to pursue such other
rights or remedies or to collect any payments from the Company or any such other
Person or to realize upon any such collateral security or guaranty or to
exercise any such right of offset, or any release of the Company or any such
other Person or any such collateral security, guaranty or right of offset, shall
not relieve any Guarantor of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Agent, either Issuing Bank or any Lender against any
Guarantor. This Guaranty Agreement shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon each Guarantor
and the respective successors and assigns thereof, and shall inure to the
benefit of the Agent, Issuing Banks and the Lenders, and the respective
successors, indorsees, transferees and assigns thereof, until all the
Obligations and the obligations of the Guarantors under this Guaranty Agreement
shall have been satisfied by payment in full.
8. Reinstatement. This Guaranty Agreement shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Agent, either Issuing Bank or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Company or any
Guarantor or any substantial part of such Person's property, or otherwise, all
as though such payments had not been made.
9. Payments. Each Guarantor hereby guarantees that payments hereunder will
be paid, without set-off or counterclaim and in immediately available funds and
in lawful currency of the United States of America, to Agent in Houston, Texas,
at the Agent's Payment Office, not later than 11:00 A.M., Houston time.
10. Representations and Warranties. Each Guarantor hereby represents and
warrants that:
(a) Corporate Existence. Each Guarantor (other than Tesoro E&P
Company, L.P.) is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation and
has the corporate power and authority and the legal right to own and lease
its property and to conduct its business.
(b) Corporate Power; Authorization. Each Guarantor (other than Tesoro
E&P Company, L.P.) has the corporate power and authority and the legal right
to make, deliver and perform this Guaranty Agreement. Each Guarantor has
taken all necessary
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corporate action to authorize the execution, delivery and performance of
this Guaranty Agreement.
(c) Partnership Existence and Authorization. Tesoro E&P Company, L.P.
is a limited partnership duly formed, validly existing and in good standing
under the laws of the State of Delaware and has the partnership power and
authority and the legal right to own and lease its property and to conduct
its business. Tesoro E&P Company, L.P. has the partnership power and
authority and the legal right to make, deliver and perform this Guaranty
Agreement and has taken all necessary partnership action to authorize the
execution, delivery and performance of this Guaranty Agreement.
(d) Enforceable Obligations. This Guaranty Agreement has been duly
executed and delivered by each Guarantor and constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles.
11. No Waiver: Cumulative Remedies. Neither the Agent, either Issuing
Bank nor any of the Lenders shall by any act, delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise and no delay in exercising,
on the part of the Agent, either Issuing Bank or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege preclude any other or further
exercise thereof, or the exercise of any other power, privilege or right. A
waiver by the Agent, either Issuing Bank or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which any such Person would have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently, and are not exclusive of any rights or remedies provided by law.
12. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telecopy or similar
teletransmission or writing) and, in the case of any Guarantor, shall be given
to such Guarantor at the address or telecopy number of the Company now or
hereafter provided for in the Credit Agreement and in the case of the Agent,
either Issuing Bank or any Lender, at the address or telecopy number for such
Person now or hereafter provided for in the Credit Agreement. Each such notice,
request or other communication shall be effective (i) if given by telecopier
during regular business hours, once such telecopy is transmitted to the telecopy
number specified in the Credit Agreement, (ii) if
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given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iii) if given by any
other means (including, without limitation, by air courier), when delivered at
the address specified in the Credit Agreement; provided that notices to the
Agent shall not be effective until received.
13. Entire Agreement. This Guaranty Agreement, the Credit Agreement, the
Notes, the Security Instruments, the other Financing Documents referred to in
sections 3.02 the Credit Agreement, and the Fee Letter embody the entire
agreement and understanding between the Agent, the Issuing Banks, the Lenders
and the other respective parties hereto and thereto and supersede all prior
agreements and understandings between such parties relating to the subject
matter hereof and thereof. There are no unwritten oral agreements between the
parties. Any conflict or ambiguity between the terms and provisions of this
agreement and the terms and provisions in any other financing document shall be
controlled by the terms and provisions hereof.
14. Governing Law; Submission to Jurisdiction, Etc.
(a) This Guaranty Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law
(without giving effect to the conflict of law principles thereof) of the State
of Texas.
(b) Any legal action or proceeding with respect to this Agreement, may be
brought in the courts of the State of Texas or of the United States of America
for the Southern District of Texas, Houston Division, and, by execution and
delivery of this Agreement, each Guarantor hereby accepts for itself and in
respect of its Property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Guarantor hereby irrevocably waives any objection,
including but not limited to any objection to the laying of venue or based on
the grounds of Forum Non Conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions.
(c) The Company and the Agent, each Issuing Bank and each Lender hereby (i)
irrevocably and unconditionally waive, to the fullest extent permitted by law,
trial by jury in any legal action or proceeding relating to this Guaranty
Agreement or any Financing Document and for any counterclaim therein; (ii)
certify that no party hereto nor any representative or agent of counsel for any
party hereto has represented, expressly or otherwise, or
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implied that such party would not, in the event of litigation, seek to enforce
the foregoing waivers, and (iii) acknowledge that it has been induced to enter
into this Agreement, the Financing Documents and the transactions contemplated
hereby and thereby by, among other things, the mutual waivers and certifications
contained in this section.
(d) Each Guarantor that is not a Texas corporation hereby irrevocably
designates the General Counsel of the Company (as of the Closing Date, James C.
Reed, Jr.) located at 8700 Tesoro Drive, San Antonio, Texas 78217, as the
designee, appointee and agent of such Guarantor to receive, for and on behalf of
such Guarantor, service of process in such respective jurisdictions in any legal
action or proceeding with respect to this Agreement, the Notes, the Security
Instruments or the other Financing Documents. It is understood that a copy of
such process served on such agent will be promptly forwarded by mail to such
Guarantor at its address set forth opposite its signature below, but the failure
of such Guarantor to receive such copy shall not affect in any way the service
of such process. Each Guarantor further irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage prepaid,
to such Guarantor at its said address, such service to become effective 30 days
after such mailing.
(e) Nothing herein shall affect the right of the Agent or any Lender or any
holder of a Note to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Guarantor in Texas
or any other jurisdiction in which assets of any Guarantor are located.
15. Severability. Any provision of this Guaranty Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Paragraph Headings. The Paragraph headings used in this Guaranty
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
17. Interest. It is the intention of the parties hereto to conform
strictly to usury laws applicable to each Lender and the Transactions.
Accordingly, if the Transactions would be usurious as to any Lender under
applicable law, then, notwithstanding anything to the contrary in the Notes,
this Agreement or in any Financing Document or agreement entered into in
connection with the Transactions or as security for the Obligations, it is
agreed as follows:
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(i) the aggregate of all consideration which constitutes interest as to any
Lender under applicable law that is contracted for, taken, reserved, charged or
received by such Lender under the Notes, this Agreement or under any of the
Financing Documents or agreements or otherwise in connection with the
Transactions shall under no circumstances exceed the maximum amount allowed by
such applicable law, (ii) in the event that the maturity of the Notes is
accelerated for any reason, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest as to any Lender
under applicable law may never include more than the maximum amount allowed by
such applicable law, and (iii) excess interest, if any, provided for in this
Agreement or otherwise in connection with the Transactions shall be cancelled
automatically and, if theretofore paid, shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent that the principal amount
of the Obligations shall have been or would thereby be paid in full, refunded by
such Lender to the Company). The right to accelerate the maturity of the Notes
does not include the right to accelerate any interest which has not otherwise
accrued on the date of such acceleration, and the Lenders do not intend to
collect any unearned interest in the event of acceleration. All sums paid or
agreed to be paid to each Lender for the use, forbearance or detention of sums
included in the Obligations shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of the Notes
until payment in full so that the rate or amount of interest on account of the
Obligations does not exceed the applicable usury ceiling, if any. As used in
this Section, the term "applicable law" shall mean the laws of the State of
Texas (or of any other jurisdiction whose laws may be mandatorily applicable
notwithstanding other provisions of this Agreement) or laws of the United States
of America applicable to any Lender and the Transactions, which would permit
such Lender to contract for, charge, take, reserve or receive a greater amount
of interest than under Texas (or such other jurisdiction's) law. To the extent
that Article 5069-1.04 of the Texas Revised Civil Statutes is relevant to the
Lenders for the purpose of determining the Highest Lawful Rate, the Lenders
hereby elect to determine the applicable rate ceiling under such Article by the
indicated (weekly) rate ceiling from time to time in effect, subject to the
Lenders' right subsequently to change such method in accordance with applicable
law. In no event shall the provisions of Tex. Rev. Civ. Stat. art. 5069-2.01
through 5069-8.06 or 5069-15.01 through 5069-15.11 be applicable to the Loans
evidenced hereby.
18. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original but all of which
shall together constitute one and the same instrument.
[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty Agreement to be
duly executed and delivered by its duly authorized officer on the day and year
first above written.
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 VOSTOK COMPANY
KENAI PIPE LINE COMPANY
By: /s/ G. A. Wright
G. A. Wright
Vice President and Treasurer
TESORO COASTWIDE SERVICES COMPANY
COASTWIDE MARINE SERVICES, INC.
By: /s/ Sharon L. Layman
Sharon L. Layman
Assistant Treasurer
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TESORO E&P COMPANY, L.P.
By: TESORO EXPLORATION AND PRODUCTION COMPANY, as its
general partner
By: /s/ G. A. Wright
Name: G. A. Wright
Title: Vice President and Treasurer
TESORO GAS RESOURCES COMPANY, INC
By: /s/ George Dodgen
Name: George Dodgen
Title: President
BANQUE PARIBAS, AS ADMINISTRATIVE 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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