Amendment #2 to Amended/Restated Credit Agreement

EX-10.5 4 d12883exv10w5.txt AMENDMENT #2 TO AMENDED/RESTATED CREDIT AGREEMENT EXHIBIT 10.5 AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT This AMENDMENT NO. 2 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 6.1.11 of the Credit Agreement, which Section sets forth certain reporting requirements, is amended in its entirety as follows: 6.1.11 For so long as Excess Availability is: (x) less than or equal to 25% of the Borrowing Base then in effect, as soon as practicable, and in any event within three Business Days after the end of each calendar week during such period; and (y) greater than 25% but less than or equal to 35% of the Borrowing Base then in effect, as soon as practicable, and in any event within 3 Business Days after the end of each of the second and fourth full calendar weeks of any calendar month during such period; the Borrower shall provide to the Agent an Interim Collateral Report for the applicable one-week or two-week period certified as being true and correct by an Authorized Officer of the Borrower. Each Interim Collateral Report shall identify, for the applicable reporting period, the aggregate amount of all contra-accounts related to Specified Customers net of the aggregate of the face amounts of all letters of credit issued on behalf of the Borrower or the applicable Subsidiary Guarantor to Specified Customers as payment for goods or services purchased by the Borrower or the applicable Subsidiary Guarantor from the Specified Customers. No Interim Collateral Report described in this Section 6.1.11 shall be required to be delivered by the Borrower during any period Excess Availability exceeds 35% of the Borrowing Base then in effect. 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 Required 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. 2 (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. 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. 3 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 TO TESORO PETROLEUM CORPORATION SECOND AMENDED AND RESTATED CREDIT AGREEMENT KZH CRESCENT 2 LLC By: /s/ Susan Lee ----------------------------- Name: Susan Lee Title: Authorized Agent SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION SECOND AMENDED AND RESTATED CREDIT AGREEMENT KZH CRESCENT 3 LLC By: /s/ Susan Lee ----------------------------- Name: Susan Lee Title: Authorized Agent SIGNATURE PAGE TO AMENDMENT NO. 2 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. 2 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. 2 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. 2 TO TESORO PETROLEUM CORPORATION SECOND AMENDED AND RESTATED CREDIT AGREEMENT OLYMPIC FUNDING TRUST, SERIES 1991-1 By: /s/ Diana M. Himes ----------------------------- Name: Diana M. Himes Title: Authorized Agent SIGNATURE PAGE TO AMENDMENT NO. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 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. 2 TO TESORO PETROLEUM CORPORATION SECOND AMENDED AND RESTATED CREDIT AGREEMENT