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.
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(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.
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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. Xxxxx Xxxxxxxxx
-------------------------------
Name: G. Xxxxx Xxxxxxxxx
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/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
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/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
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/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
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/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
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/ Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Relationship Manager
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
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/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
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/ Xxxxx X. XxXxxxxx
-----------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
GUARANTY BANK
By: /s/ Xxx X. Xxxxxxxx
-----------------------------
Name: Xxx X. Xxxxxxxx
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/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
HIBERNIA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
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/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Senior Lender
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
NATEXIS BANQUES POPULAIRES
By:/s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxx, III
-----------------------------
Name: Xxxxx X. Xxxxxxx, 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/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
ALASKA PACIFIC BANK
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
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/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
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/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
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/ Xxxxx Xxx
-----------------------------
Name: Xxxxx Xxx
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/ Xxxxx Xxx
-----------------------------
Name: Xxxxx Xxx
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. Xxxxxx Xxxxx
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
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. Xxxxxx Xxxxx
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
MUIRFIELD TRADING LLC
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
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/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
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. Xxxxxx Xxxxx
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
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. Xxxxxx Xxxxx
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
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. Xxxxxx Xxxxx
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
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/ Xxxxxxx X. Saint
-----------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director Banking
Products Services, US
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Associate Director Banking
Products Services, US
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
XXX XXXXXX CLO I LTD.
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
XXX XXXXXX SENIOR INCOME TRUST
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
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 XXXXX POINT CLO, LTD.
as Term Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
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/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2 TO TESORO PETROLEUM CORPORATION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
