EXHIBIT 10.4
AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 1 to SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (the "Amendment"), dated as of February 20, 2004, is entered into by
and among Tesoro Petroleum Corporation (the "Company"), the financial
institutions party to the below-defined Credit Agreement (the "Lenders"), and
Bank One, NA (Main Office Chicago), as Administrative Agent (the "Agent"). Each
capitalized term used herein and not otherwise defined herein shall have the
meaning given to it in the below-defined Credit Agreement.
WITNESSETH
WHEREAS, the Company, the Lenders, and the Agent are parties
to a Second Amended and Restated Credit Agreement dated as of June 17, 2003 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"); and
WHEREAS, the Company wishes to amend the Credit Agreement in
certain respects and the Lenders and the Agent are willing to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company, the Agent and the Lenders hereby agree as follows:
1. Amendment to Credit Agreement. Effective as of the date first
above written, and subject to the satisfaction of the condition to effectiveness
set forth in Section 2 below, Section 2.19.1 of the Credit Agreement, which
Section sets forth issuance requirements for Facility LCs, is hereby amended to
delete therefrom the Facility LC sublimit amount of "$400,000,000" and to
substitute therefor the Facility LC sublimit amount of "$500,000,000."
2. Condition of Effectiveness. This Amendment shall become
effective and be deemed effective as of the date hereof, if, and only if, the
Agent shall have received executed copies of this Amendment from the Company and
the Lenders.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants as follows:
(a) The Credit Agreement as previously executed constitutes
the legal, valid and binding obligation of the Company and is enforceable
against the Company in accordance with its terms.
(b) Upon the effectiveness of this Amendment, the Company
hereby (i) represents that no Default or Unmatured Default exists under the
terms of the Credit Agreement, (ii) reaffirms all covenants, representations and
warranties made in the Credit Agreement, and (iii) agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment, provided that any such covenant,
representation, or warranty that references a specific date is reaffirmed as of
such referenced date. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of the Lenders or the Agent under the Credit
Agreement or any related document, instrument or agreement.
4. Effect on the Credit Agreement.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement, as amended and modified hereby.
(b) Except as specifically amended and modified above, the
Credit Agreement and all other documents, instruments and agreements executed
and/or delivered in connection therewith shall remain in full force and effect,
and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall neither, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Lenders or the Agent, nor constitute
a waiver of any provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection therewith.
5. Costs and Expenses. The Company agrees to pay all reasonable
costs, fees and out-of-pocket expenses (including attorneys' fees and expenses
charged to the Agent) incurred by the Agent and the Lenders in connection with
the preparation, arrangement, execution and enforcement of this Amendment.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS, AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS, OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT IF A COURT,
TRIBUNAL OR OTHER JUDICIAL ENTITY WITH JURISDICTION OVER THE CREDIT AGREEMENT,
THIS AMENDMENT AND THE TRANSACTIONS EVIDENCED BY THE LOAN DOCUMENTS WERE TO
DISREGARD SUCH CHOICE OF LAW, THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS, AS OPPOSED TO THE CONFLICTS OF LAW
PROVISIONS, OF THE STATE OF ILLINOIS.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more of
the parties to the Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
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9. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Amendment. In the event an
ambiguity or question of intent or interpretation arises, this Amendment shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Amendment.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
TESORO PETROLEUM CORPORATION
By: /s/ G. Scott Spendlove
-----------------------------------------
Name: G. Scott Spendlove
Title: Vice President, Finance and Treasurer
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BANK ONE, NA (MAIN OFFICE CHICAGO),
individually, as initial LC Issuer,
and as Administrative Agent
By: /s/ Andrew D. Hall
----------------------
Name: Andrew D. Hall
Title: Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ Todd Eggertsen
--------------------------
Name: Todd Eggertsen
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FLEET CAPITAL CORPORATION
By: /s/ Dennis M. Hansen
----------------------------
Name: Dennis M. Hansen
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Curtis D. Ishii
----------------------------------
Name: Curtis D. Ishii
Title: Senior Investment Officer
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FORTIS CAPITAL CORP.
By: /s/ Darrell W. Holley
-----------------------------
Name: Darrell W. Holley
Title: Managing Director
By: /s/ Deirdre Sanborn
-----------------------------
Name: Deirdre Sanborn
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Vickie Leon
-----------------------------
Name: Vickie Leon
Title: Relationship Manager
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
WELLS FARGO FOOTHILL, LLC
By: /s/ Claudia Hughes
-------------------------
Name: Claudia Hughes
Title: Assistant Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SIEMENS FINANCIAL SERVICES, INC.
By: /s/ Frank Amodio
--------------------
Name: Frank Amodio
Title: Vice President-Credit
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
PB CAPITAL CORPORATION
By: /s/ Tyler J. McCarthy
-----------------------------
Name: Tyler J. McCarthy
Title: Vice President
By: /s/ Andrew Shipman
-----------------------------
Name: Andrew Shipman
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
GUARANTY BANK
By: /s/ Jim R. Hamilton
----------------------------
Name: Jim R. Hamilton
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Thomas Visconti
-----------------------------
Name: Thomas Visconti
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
HIBERNIA NATIONAL BANK
By: /s/ Nancy G. Moragas
-----------------------------
Name: Nancy G. Moragas
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THE FROST NATIONAL BANK
By: /s/ Jim Crosby
-----------------------------
Name: Jim Crosby
Title: Senior Lender
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
NATEXIS BANQUES POPULAIRES
By: /s/ Daniel Payer
-----------------------------
Name: Daniel Payer
Title: Vice President
By: /s/ Louis P. Laville, III
-----------------------------
Name: Louis P. Laville, III
Title: Vice President and Group Manager
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
LASALLE BUSINESS CREDIT, LLC
By: /s/ Richard Pierce
-----------------------------
Name: Richard Pierce
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
ALASKA PACIFIC BANK
By: /s/ John E. Robertson
-----------------------------
Name: John E. Robertson
Title: Senior Vice President and
Chief Lending Officer
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
C-SQUARED CDO LTD
By: TCW Advisors, Inc.,
as its Portfolio Manager
By: /s/ Jonathan R. Insull
-----------------------------
Name: Jonathan R. Insull
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Olivier Audemard
-----------------------------
Name: Olivier Audemard
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
KZH CRESCENT 2 LLC
By: /s/ Dorian Herrera
-----------------------------
Name: Dorian Herrera
Title: Authorized Agent
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
KZH CRESCENT 3 LLC
By: /s/ Dorian Herrera
-----------------------------
Name: Dorian Herrera
Title: Authorized Agent
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
CELERITY CLO LIMITED
By: TCW Advisors, Inc.,
As Agent
By: /s/ G. Steven Kalin
---------------------------------
Name: G. Steven Kalin
Title: Senior Vice President
By: /s/ Jonathan R. Insull
---------------------------------
Name: Jonathan R. Insull
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
LOAN FUNDING I LLC,
a wholly owned subsidiary
of Citibank, N.A.
By: TCW Advisors, Inc.,
as portfolio manager of
Loan Funding I LLC
By: /s/ G. Steven Kalin
-----------------------------
Name: G. Steven Kalin
Title: Senior Vice President
By: /s/ Jonathan R. Insull
-----------------------------
Name: Jonathan R. Insull
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
MUIRFIELD TRADING LLC
By: /s/ Diana M. Himes
-----------------------------
Name: Diana M. Himes
Title: Assistant Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Diana M. Himes
-----------------------------
Name: Diana M. Himes
Title: Authorized Agent
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SEQUILS I, LTD.
By: TCW Advisors, Inc.
as its Collateral Manager
By: /s/ G. Steven Kalin
-----------------------------
Name: G. Steven Kalin
Title: Senior Vice President
By: /s/ Jonathan R. Insull
-----------------------------
Name: Jonathan R. Insull
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SEQUILS IV, LTD.
By: TCW Advisors, Inc. as its
Collateral Manager
By: /s/ G. Steven Kalin
-----------------------------
Name: G. Steven Kalin
Title: Senior Vice President
By: /s/ Jonathan R. Insull
-----------------------------
Name: Jonathan R. Insull
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc. as its
Collateral Manager
By: /s/ G. Steven Kalin
-----------------------------
Name: G. Steven Kalin
Title: Senior Vice President
By: /s/ Jonathan R. Insull
-----------------------------
Name: Jonathan R. Insull
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
UBS AG, STAMFORD BRANCH
By: /s/ Wilfred V. Saint
------------------------
Name: Wilfred V. Saint
Title: Associate Director Banking
Products Services, US
By: /s/ Juan Zuniga
-------------------
Name: Juan Zuniga
Title: Associate Director Banking
Products Services, US
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
VAN KAMPEN CLO I LTD.
By: /s/ Frank Sherrod
-----------------------------
Name: Frank Sherrod
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
VAN KAMPEN SENIOR INCOME TRUST
By: /s/ Brad Langs
-----------------------------
Name: Brad Langs
Title: Executive Director
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Sankaty Advisors, LLC as Collateral
Manager for AVERY POINT CLO, LTD.
as Term Lender
By: /s/ Timothy Barns
-----------------------------
Name: Timothy Barns
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Timothy Barns
-----------------------------
Name: Timothy Barns
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT