SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Among
TESORO PETROLEUM CORPORATION
as the Company
and
BANQUE PARIBAS
Individually, as an Issuing Bank and as Administrative Agent,
THE BANK OF NOVA SCOTIA
Individually and as Documentation Agent
and
THE FINANCIAL INSTITUTIONS
NOW OR HEREAFTER PARTIES HERETO
Effective as of March 31, 1997
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
Section 1.01 Terms Defined Above . . . . . . . . . . . . .1
Section 1.02 Terms Defined in Credit Agreement . . . . . .1
Section 1.03 Other Definitional Provisions . . . . . . . .1
ARTICLE II. AMENDMENTS TO CREDIT AGREEMENT
Section 2.01 Amendments and Supplements to Definitions . .2
Section 2.02 Amendments to Article V . . . . . . . . . . .2
Section 2.03 Amendments to Article VI. . . . . . . . . . .3
ARTICLE III. CONDITIONS
Section 3.01 Loan Documents. . . . . . . . . . . . . . . .3
Section 3.02 Corporate Proceedings of Loan Parties . . . .4
Section 3.03 Representations and Warranties. . . . . . . .4
Section 3.04 No Default. . . . . . . . . . . . . . . . . .4
Section 3.05 Security Instruments. . . . . . . . . . . . .4
Section 3.06 Other Instruments or Documents. . . . . . . .4
ARTICLE IV. MISCELLANEOUS
Section 4.01 Adoption, Ratification and Confirmation of
Credit Agreement. . . . . . . . . . . . . .4
Section 4.02 Ratification and Affirmation of Guaranty. . .4
Section 4.03 Successors and Assigns. . . . . . . . . . . .5
Section 4.04 Counterparts. . . . . . . . . . . . . . . . .5
Section 4.05 Number and Gender . . . . . . . . . . . . . .5
Section 4.06 Entire Agreement. . . . . . . . . . . . . . .5
Section 4.07 Invalidity. . . . . . . . . . . . . . . . . .5
Section 4.08 Titles of Articles, Sections and Subsections.5
Section 4.09 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 March 31, 1997 (the "Effective Date"), is
by and among TESORO PETROLEUM CORPORATION, a Delaware corporation (the
"Company"); BANQUE PARIBAS, individually, as an Issuing Bank and as
Administrative Agent, THE BANK OF NOVA SCOTIA, individually and as Documentation
Agent, and each of the lenders that is a signatory hereto or which becomes a
party hereto as provided in Section 9.07 (individually, a "Lender" and,
collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent, the Documentation Agent, the
Issuing Bank and the Lenders are parties to that certain Amended and Restated
Credit Agreement dated as of June 7, 1996, as amended by First Amendment to
Amended and Restated Credit Agreement dated as of March 21, 1997 (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, the Company, the Guarantors, the Administrative Agent, the
Documentation Agent, 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", "Credit Agreement", "Effective Date", "Second
Amendment", and "Lenders" 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 Administrative Agent, the Documentation Agent, the Issuing
Bank and the Lenders agree that the Credit Agreement is hereby amended,
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 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 definition
where alphabetically appropriate, which reads in its entirety as
follows:
"Second Amendment" shall mean that certain Second
Amendment to Amended and Restated Credit Agreement dated as of
March 31, 1997, by and among the Company, the Administrative
Agent, the Documentation Agent, the Issuing Bank and the
Lenders.
Section 2.02 Amendments to Article V. Section 5.15(e) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(e) Engineering Reports. Promptly after December 31st and June 30th
of each year, but in no event later than 60 days after such date, a report
(the "Reserve Report") in form and substance satisfactory to the Majority
Lenders, and in the case of the December 31 Reserve Report, prepared by the
engineering staff of the Company and audited by Netherland, Sewell &
Associates or other independent petroleum consultant(s) acceptable to the
Majority Lenders (the previous acceptability of an independent petroleum
consultant satisfactory to the Majority Lenders shall have no bearing on
such consultant's present or future acceptability), which Reserve Report
shall evaluate the Hydrocarbon reserves included in the Mortgaged Property
as of each such date and which shall, together with any other information
reasonably requested by any Lender, set forth the total Proved Hydrocarbon
reserves by accepted and customary reserve category attributable to such
Mortgaged Property, together with a projection of the rate of production and
future net income with respect thereto as of each such date. The June 30
Reserve Report shall be an unaudited Reserve Report prepared by the
engineering staff of the Company and shall update the most recent Reserve
Report. Notwithstanding the foregoing, (i) if the Company or any of its
Subsidiaries acquires additional Oil and Gas Properties that, in the
determination of the Majority Lenders, materially affects
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the E&P Borrowing Base, then the Majority Lenders may require that an
initial Reserve Report relating to such newly acquired Oil and Gas
Properties be prepared by Netherland, Sewell & Associates or other
independent petroleum consultants acceptable to the Majority Lenders, to be
delivered to the Lenders concurrently with the next required Reserve Report
and (ii) if there is a material adverse effect on Tesoro LP because of a
change in the value of the Hydrocarbon reserves included in the
determination of the E&P Borrowing Base (other than solely as the result of
a change in the price of natural gas), then the Majority Lenders may require
that a Reserve Report relating to all of the Oil and Gas Properties included
in the determination of the E&P Borrowing Base be prepared by Netherland,
Sewell & Associates or other independent petroleum consultants acceptable to
the Majority Lenders, to be delivered within 60 days after the request
therefor by the Administrative Agent on behalf of the Majority Lenders."
Section 2.03 Amendments to Article VI.
(a) Section 6.05(n) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(n) Indebtedness, not to exceed $18,000,000 in the
aggregate, incurred by Tesoro Northstore or Tesoro Alaska, to
be used for (i) the purchase (in fee or leasehold),
construction, and/or upgrading of retail outlet stores or (ii)
modifications to the hydrocracker located at the Kenai
Refinery, subject, however, to the execution of an
intercreditor agreement satisfactory in form and substance to
the Administrative Agent and Documentation Agent."
(b) Section 6.06(p) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(p) Liens securing up to $18,000,000 of Indebtedness
permitted by Section 6.05(n);"
ARTICLE III. CONDITIONS
The enforceability of this Second Amendment against the Administrative
Agent, the Documentation Agent, the Issuing Bank and the Lenders is subject to
the satisfaction of the following conditions precedent:
Section 3.01 Loan Documents. The Administrative Agent shall have received
multiple original counterparts, as requested by the Administrative Agent, of
this Second Amendment executed and delivered by a duly authorized officer of the
Company, each of the Guarantors, the Administrative Agent, the Documentation
Agent, each Issuing Bank and each Lender, as applicable;
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Section 3.02 Corporate Proceedings of Loan Parties. The Administrative
Agent shall have received multiple copies, as requested by the Administrative
Agent, of the resolutions, in form and substance reasonably satisfactory to the
Administrative 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 3.03 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 3.04 No Default. No Default or Event of Default shall have
occurred and be continuing as of the Effective Date.
Section 3.05 Security Instruments. All of the Security Instruments
(subject to any partial releases thereof) shall be in full force and effect and
provide to the Administrative Agent the security intended thereby to secure the
Indebtedness.
Section 3.06 Other Instruments or Documents. The Administrative Agent or
any Lender or counsel to the Administrative Agent shall receive such other
instruments or documents as they may reasonably request.
ARTICLE IV. MISCELLANEOUS
Section 4.01 Adoption, Ratification and Confirmation of Credit Agreement.
Each of the Company, the Guarantors, the Administrative Agent, the Documentation
Agent, the Issuing Bank 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 4.02 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 Second Amended and Restated
Guaranty Agreement dated as of
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January 28, 1997, in favor of the Administrative Agent, the Documentation Agent,
the Issuing Bank and the Lenders, as amended, supplemented or otherwise modified
("Guaranty Agreement"), (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 Administrative
Agent, the Documentation Agent, each Issuing Bank and each Lender to promptly
pay when due all amounts owing or to be owing by it under the Guaranty Agreement
pursuant to the terms and conditions thereof.
Section 4.03 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 4.04 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
Administrative Agent, the Documentation Agent, the Issuing Bank 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 4.05 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 4.06 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.
Section 4.07 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 4.08 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
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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 4.09 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/ G. A. Wright
Name: G. A. Wright
Title: Vice President and Treasurer
ADMINISTRATIVE AGENT,
ISSUING BANK AND LENDER: BANQUE PARIBAS, individually, as an Issuing
Bank and as Administrative Agent
By: /s/ B. Malone
Name: Brian Malone
Title: Vice President
By: /s/ Larry Robinson
Name: Larry Robinson
Title: Vice President
DOCUMENTATION AGENT,
ISSUING BANK AND LENDER: THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Manager
Loan Operations
LENDERS: BANK OF SCOTLAND
By: /s/ Annie Chin Tat
Name: Annie Chin Tat
Title: Assistant Vice President
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CHRISTIANIA BANK OG KREDITKASSE
By: /s/ Williams S. Phillips
Name: Williams S. Phillips
Title: Vice President
By: /s/ Peter M. Dodge
Name: Peter M. Dodge
Title: First Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as an Issuing Bank
By: /s/ D. Andrew Bateman
Name: D. Andrew Bateman
Title: Authorized Agent
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By: /s/ Michael J. Kolosowsky
Name: Michael J. Kolosowsky
Title: Vice President
NATIONAL BANK OF CANADA
By: /s/ John T. Dixon
Name: John T. Dixon
Title: Vice President
By: /s/ Doug G. Clark
Name: Doug G. Clark
Title: Vice President
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THE FROST NATIONAL BANK
By: /s/ Jim Crosby
Name: Jim Crosby
Title: SVP
DEN NORSKE BANK ASA
By: /s/ Byron L. Cooley
Name: Byron L. Cooley
Title: Senior Vice President
By: /s/ Morten Bjornsen
Name: Morten Bjornsen
Title: Senior 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 VOSTOK COMPANY
KENAI PIPE LINE COMPANY
TESORO MARINE SERVICES COMPANY
TESORO COASTWIDE SERVICES COMPANY
COASTWIDE MARINE SERVICES, INC.
By: /s/ G. A. Wright
Name: G. A. Wright
Title: Vice President and Treasurer
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TESORO GAS RESOURCES COMPANY, INC.
TESORO FINANCIAL SERVICES HOLDING COMPANY
By: /s/ J. B. Fabian
Name: Jeffrey B. Fabian
Title: President
VICTORY FINANCE COMPANY
By: /s/ David W. Dupert
Name: David W. Dupert
Title: President
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
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