Amendment No. 3 to the Third Amended and Restated Credit Agreement

EX-10.2 3 d38152exv10w2.htm AMENDMENT NO. 3 TO THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT exv10w2

Exhibit 10.2

AMENDMENT NO. 3

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 3 to THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”), dated as of July 31, 2006, is entered into by and among Tesoro Corporation (the “Borrower”), the financial institutions party to the below-defined Credit Agreement (the “Lenders”), and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Illinois)), 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 Borrower, the Lenders, and the Agent are parties to a Third Amended and Restated Credit Agreement dated as of May 25, 2004 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and

WHEREAS, the Borrower 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 Borrower, the Agent and the Lenders hereby agree as follows:

1. Amendments to Credit Agreement. Effective as of the date first above written, and subject to the satisfaction of the conditions to effectiveness set forth in Section 2 below, the Credit Agreement is hereby amended as follows:

(a) The definition of “Applicable Fee Rate” set forth in Section 1.1 of the Credit Agreement is hereby amended in its entirety as follows:

“Applicable Fee Rate” means, with respect to the Commitment Fee at any time, 0.25%.

(b) The definition of “Commitment Schedule” set forth in Section 1.1 of the Credit Agreement is hereby amended to delete the reference to “as of the Closing Date” each time such reference appears therein.

(c) The definition of “Termination Date” set forth in Section 1.1 of the Credit Agreement is hereby amended in its entirety as follows:

“Termination Date” means the earlier of (a) June 30, 2009 and (b) the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.4 hereof or the Revolving Loan Commitments pursuant to Section 8.1 hereof.

(d) Section 2.19.4 of the Credit Agreement is hereby amended to delete therefrom the reference to 0.125% set forth in clause (a) thereof and to substitute 0.10% therefor.

(e) The Pricing Schedule to the Credit Agreement is hereby amended in its entirety pursuant to the Pricing Schedule attached hereto as Exhibit A.

(f) The Commitment Schedule to the Credit Agreement is hereby amended in its entirety pursuant to the Commitment Schedule attached hereto as Exhibit B.

2. Conditions of Effectiveness. This Amendment shall become effective and be deemed effective as of the date hereof, if, and only if:

(a) the Agent shall have received executed copies of this Amendment from the Borrower and each of the Lenders;

(b) the Agent shall have received a written reaffirmation of the Borrower’s and the Subsidiary Guarantors’ respective obligations under the Guaranty and the Collateral Documents in form and substance substantially similar to Exhibit C hereto; and

(c) the Agent shall have receive the following fees in immediately available funds, which, once paid, shall be fully earned and non-refundable: for each Lender with a Revolving Loan Commitment that signs this Amendment, an amount equal to 0.05% times such Lender’s Revolving Loan Commitment.

3. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:

(a) The Credit Agreement as previously executed constitutes the legal, valid and binding obligation of the Borrower and is enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyances, reorganization or similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equitable principles (whether considered in a proceeding in equity or at law); and (iii) requirements of reasonableness, good faith and fair dealing.

(b) Upon the effectiveness of this Amendment, the Borrower 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.

(c) The modifications contemplated by this Amendment are permitted under the terms of the Other Senior Secured Debt and those indentures referenced in Section 9.18 of the Credit Agreement that remain in effect as of the date hereof.

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 Borrower 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. Delivery of an executed counterpart of a signature page of this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.

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.

IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.


		TESORO CORPORATION,
		as the Borrower

		By:		/s/ Otto C. Schwethelm

		Name:		Otto C. Schwethelm
		Title:		Vice President, Finance and Treasurer


		JPMORGAN CHASE BANK, N.A. (successor by merger
		to Bank One, NA (Illinois)),
		individually, as initial LC Issuer, and as Administrative
		Agent

		By:		/s/ John Freeman

		Name:		John Freeman
		Title:		Vice President