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EXHIBIT 4.9
SECOND AMENDMENT
SECOND AMENDMENT, dated as of February 22, 2000 (this
"Amendment"), to the THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
July 2, 1998 (the "Credit Agreement"), as amended by the Amended and Restated
First Amendment and Consent, dated as of November 10, 1999, among TESORO
PETROLEUM CORPORATION, a Delaware corporation (the "Borrower"), the several
banks and other financial institutions or entities from time to time parties
thereto (the "Lenders"), ▇▇▇▇▇▇ BROTHERS INC. ("LBI"), as advisor and arranger
thereunder (in such capacity, the "Arranger"), ▇▇▇▇▇▇ COMMERCIAL PAPER INC.
("LCPI"), as syndication agent thereunder (in such capacity, the "Syndication
Agent"), PARIBAS and BANK ONE, NA (formerly known as The First National Bank of
Chicago), as co-administrative agents thereunder (in such capacity, the
"Co-Administrative Agents"), BANK ONE, NA (formerly known as The First National
Bank of Chicago), as general administrative agent thereunder (in such capacity,
the "General Administrative Agent"), PARIBAS, as collateral agent thereunder (in
such capacity, the "Collateral Agent"), and THE BANK OF NOVA SCOTIA, as
documentation agent thereunder (in such capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower intends to repurchase (the "Repurchase")
up to 3,000,000 shares of its common stock in open market transactions or
privately negotiated transactions;
WHEREAS, the Repurchase would constitute a Restricted Payment
under the Credit Agreement; and
WHEREAS, the Borrower has requested that the Lenders agree to
amend certain provisions of the Credit Agreement, upon the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration the receipt of
which is hereby acknowledged, the Borrower and the Lenders hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendment to Credit Agreement. Subsection 7.6 of the Credit Agreement is
hereby amended by adding at the end thereof the following:
"Notwithstanding the foregoing, the Borrower may repurchase up
to 3,000,000 shares of its common stock in open market transactions or privately
negotiated
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transactions so long as no Default or Event of Default shall be in existence at
the time of such repurchase."
3. Conditions to Effectiveness. This Amendment shall become effective as of
the date first written above, upon receipt by the General Administrative Agent
of (i) counterparts of this Amendment duly executed by the Borrower and the
Required Lenders, and (ii) counterparts of the Acknowledgment and Consent
attached hereto executed by each Subsidiary of the Borrower.
4. Representations and Warranties. On and as of the date hereof, and after
giving effect to this Amendment, the Borrower confirms, reaffirms and restates
that the representations and warranties set forth in Section 4 of the Credit
Agreement are true and correct in all material respects, provided that the
references to the Credit Agreement therein shall be deemed to be references to
the Credit Agreement as amended by this Amendment.
5. Limited Amendment. Except as expressly amended hereby, the Credit
Agreement is, and shall remain, in full force and effect. This Amendment shall
not be deemed to be a waiver of, or consent to, or a modification or amendment
of, any other term or condition of the Credit Agreement or to prejudice any
other right or rights which the Lenders may now have or may have in the future
under or in connection with the Credit Agreement or any of the instruments or
agreements referred to therein, as the same may be amended from time to time.
6. Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
TESORO PETROLEUM CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
▇▇▇▇▇▇ BROTHERS INC.,
as Arranger
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
SYNDICATED LOAN FUNDING TRUST as Syndication Agent and as a
BY: ▇▇▇▇▇▇ COMMERCIAL PAPER INC. Lender
NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS ASSET
MANAGER By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- Title: Authorized Signatory
NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: AUTHORIZED SIGNATORY
BANK ONE, NA (formerly known as The
First National Bank of Chicago), as
Co-Administrative Agent, General
Administrative Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. BOTH
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Name: ▇▇▇▇▇▇ ▇. Both
Title: First Vice President
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PARIBAS,
as Co-Administrative Agent,
Collateral Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Documentation Agent and as a
Lender
By: /s/ F.C.H. ▇▇▇▇▇
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Name: F.C.H. ▇▇▇▇▇
Title: SENIOR MANAGER LOAN
OPERATIONS
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President Title: Assistant Vice President
BANK LEUMI USA
By: /s/ ▇▇▇▇▇ ▇▇▇ HONG
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Name: ▇▇▇▇▇ ▇▇▇ Hong
Title: Vice President
BANK OF HAWAII
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VP & Manager
BALANCED HIGH YIELD FUND I, LTD. by BHF
(USA) Capital corporation acting as
attorney-in-fact
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
BHF (USA) Capital Corporation
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
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CIBC INC
By: /s/ M. ▇▇▇▇ ▇▇▇▇▇▇
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Name: M. ▇▇▇▇ ▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
COMERICA BANK
By:
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Name:
Title:
CREDIT LYONNAIS
By:
-----------------------------------
Name:
Title:
FIRST HAWAIIAN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Manager
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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FROST NATIONAL BANK
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
& MANAGER
GUARANTY FEDERAL BANK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President,
HOUSTON OFFICE
MEESPIERSON CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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NATIONAL BANK OF ALASKA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BENZ
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BENZ
Title: VICE PRESIDENT
NATIONAL BANK OF CANADA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
Title: VP/Manager/VP
THE ROYAL BANK OF SCOTLAND
By:
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Name:
Title:
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
THE SUMITOMO BANK, LTD.
By:
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Name:
Title:
THE TORONTO-DOMINION BANK
By:
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Name:
Title:
The Acknowledgment and Consent has been omitted. The Registrant will furnish a
copy of this omitted document to the Securities and Exchange Commission upon
request.
