EXHIBIT 4.13
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TESORO PETROLEUM CORPORATION
SENIOR SECURED TERM LOANS DUE 2008
8% SENIOR SECURED NOTES DUE 2008
COLLATERAL AGENCY AGREEMENT
Dated as of April 17, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE 1.
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1. Defined Terms.................................................2
SECTION 1.2. Rules of Interpretation.......................................3
ARTICLE 2.
OBLIGATIONS AND POWERS OF COLLATERAL AGENT
SECTION 2.1. Undertaking of the Collateral Agent...........................3
SECTION 2.2. Documents and Communications..................................4
SECTION 2.3. Release or Subordination of Liens.............................5
SECTION 2.4. Actionable Default............................................5
SECTION 2.5. Equal and Ratable Sharing.....................................5
SECTION 2.6. Application of Proceeds.......................................5
SECTION 2.7. Credit Bid Rights.............................................6
SECTION 2.8. Powers of the Collateral Agent................................7
SECTION 2.9. For Sole Benefit of Holders of Secured Obligations,
Equally and Ratably...........................................8
ARTICLE 3.
OBLIGATIONS ENFORCEABLE BY THE COMPANY AND GUARANTORS
SECTION 3.1. Release of Liens..............................................8
SECTION 3.2. Subordination of Liens........................................8
SECTION 3.3. Delivery of Copies to the Administrative Agent and
Trustee.......................................................9
SECTION 3.4. Collateral Agent not Required to Serve, File or Record........9
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ARTICLE 4.
IMMUNITIES OF THE COLLATERAL AGENT.
SECTION 4.1. No Implied Duty...............................................9
SECTION 4.2. Appointment of Co-Agents and Sub-Agents.......................9
SECTION 4.3. Other Agreements..............................................9
SECTION 4.4. Solicitation of Instructions.................................10
SECTION 4.5. Limitation of Liability......................................10
SECTION 4.6. Documents in Satisfactory Form...............................10
SECTION 4.7. Entitled to Rely.............................................10
SECTION 4.8. Defaults and Events of Default...............................10
SECTION 4.9. Actions by Collateral Agent..................................10
SECTION 4.10. Security or Indemnity in favor of the Collateral Agent.......11
ARTICLE 5.
RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
SECTION 5.1. Resignation or Removal of Collateral Agent...................11
SECTION 5.2. Appointment of Successor Collateral Agent....................11
SECTION 5.3. Succession...................................................11
SECTION 5.4. Limitation...................................................12
ARTICLE 6.
MISCELLANEOUS PROVISIONS.
SECTION 6.1. Amendment....................................................12
SECTION 6.2. Further Assurances...........................................12
SECTION 6.3. Successors and Assigns.......................................13
SECTION 6.4. Delay and Waiver.............................................14
SECTION 6.5. Notices......................................................14
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SECTION 6.6. Entire Agreement.............................................15
SECTION 6.7. Compensation; Expenses.......................................15
SECTION 6.8. Indemnity....................................................16
SECTION 6.9. Severability.................................................16
SECTION 6.10. Headings.....................................................17
SECTION 6.11. Obligations Secured..........................................17
SECTION 6.12. Applicable Law...............................................17
SECTION 6.13. Consent to Jurisdiction......................................17
SECTION 6.14. Waiver of Jury Trial.........................................17
SECTION 6.15. Counterparts.................................................18
SECTION 6.16. Effectiveness................................................18
SECTION 6.17. Additional Obligors..........................................18
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EXHIBITS: A Joinder Agreement
This COLLATERAL AGENCY AGREEMENT, dated as of April 17, 2003 (this
"Agreement"), is entered into by and among TESORO PETROLEUM CORPORATION, a
Delaware corporation (the "Company"), THE SUBSIDIARIES OF THE COMPANY PARTY
HERETO (the "Guarantors"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as Administrative
Agent under the Term Loan Agreement (each, as defined below), THE BANK OF NEW
YORK, as Trustee under the Indenture (each, as defined below), and WILMINGTON
TRUST COMPANY, as Collateral Agent (together with its successors in such
capacity, the "Collateral Agent").
RECITALS
1. The Company intends to borrow $200,000,000 in principal amount of
Term Loans (the "Initial Term Loans") under the Term Loan Agreement dated as of
April 17, 2003 (the "Term Loan Agreement") by and among the Company, the
Guarantors, the lenders from time to time party thereto, the Administrative
Agent (together with its successors in such capacity, the "Administrative
Agent") and ▇▇▇▇▇▇▇ Sachs Credit Partners L.P., as sole lead arranger, sole
bookrunner and syndication agent.
2. The Company intends to issue $375,000,000 in principal amount of
8.00% Senior Secured Notes due April 15, 2008 (the "Initial Notes") pursuant to
the Indenture dated as of April 17, 2003 (the "Indenture") by and among the
Company, the Guarantors and The Bank of New York, as Trustee (together with its
successors in such capacity, the "Trustee").
3. Pursuant to the Term Loan Agreement, the Guarantors guarantee
payment of the Initial Term Loans and all other Term Loan Obligations. Pursuant
to the Indenture, the Guarantors guarantee payment of the Initial Notes and all
other Note Obligations.
4. The Term Loan Agreement and Indenture require the Company and the
Guarantors to secure payment of the Initial Term Loans and the Initial Notes and
other Secured Obligations, Equally and Ratably, by security interests in the
Collateral. Without providing any commitments to the Company as to the funding
of any future indebtedness, the Term Loan Agreement and Indenture permit the
Company from time to time to incur Indebtedness which it is otherwise permitted
to incur under the Term Loan Agreement and Indenture in the form of additional
Term Loans borrowed under the Term Loan Agreement or additional Notes issued
under the Indenture (or both) and to secure such additional Term Loans and
additional Notes, Equally and Ratably with the Initial Term Loans and the
Initial Notes, by such security interests in the Collateral, up to an aggregate
principal amount (including the Initial Term Loans and the Initial Notes) not
exceeding $725,000,000 at any one time outstanding (the "Secured Principal
Cap").
5. The Term Loan Agreement and Indenture further require that such
security interests in the Collateral be granted pursuant to the Security
Documents to a collateral agent acting for the benefit of the holders of Term
Loans, Notes and other Secured Obligations. This Agreement sets forth the terms
on which the Collateral Agent has undertaken to accept, hold and enforce such
security interests and all related rights, interests and powers as agent for,
and for the benefit exclusively of, the present and future holders of the Term
Loans, Notes and other Secured Obligations.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 Defined Terms.
(a) Capitalized terms used in this Agreement that are defined in the
Term Loan Agreement and Indenture and not otherwise defined herein shall have
the meanings set forth in the Term Loan Agreement and Indenture.
(b) All capitalized terms used in this Agreement that are defined in
Article 9 of the UCC, as in effect on the date of this Agreement in the State of
New York, and not otherwise defined herein shall have the meanings therein set
forth.
(c) The following terms shall have the following meanings:
"Act of the Secured Debtholders" means, as to any matter, a
direction in writing delivered to the Collateral Agent by or with the written
consent of (i) the number of Secured Debtholders required to consent to such
matter under any express provision of the Term Loan Agreement or the Indenture
requiring that all Secured Debtholders or a number of Secured Debtholders
greater than the Required Secured Debtholders consent to such matter or (ii) the
Required Secured Debtholders, in all other cases, accompanied by written
confirmation (x) from the Administrative Agent (in a form reasonably
satisfactory to the Administrative Agent and the Collateral Agent) as to the
principal amount of outstanding Term Loans registered by the Administrative
Agent as outstanding in the name of any consenting Secured Debtholder who is a
Lender under the Term Loan Agreement and (y) from the Trustee (in a form
reasonably satisfactory to the Trustee and the Collateral Agent) as to the
principal amount of outstanding Notes registered by the Trustee as outstanding
in the name of any consenting Secured Debtholder who is a Holder of Notes under
the Indenture.
"Actionable Default" means the failure by the Obligors to pay the
Term Loans or the Notes when due and payable in full, whether at maturity, upon
acceleration or otherwise, or the occurrence of any Event of Default described
in Sections 7.01(i) or 7.01(j) of the Term Loan Agreement or Sections 6.01(i) or
6.01(j) of the Indenture.
"Default" means a "Default" as defined in the Term Loan Agreement or
a "Default" as defined in the Indenture.
"Event of Default" means an "Event of Default" as defined in the
Term Loan Agreement or an "Event of Default" as defined in the Indenture.
"Indemnified Liabilities" means any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or
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nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement or any of the other Security
Documents, including any of the foregoing relating to the use of proceeds of the
Terms Loans or the Notes or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Company or any
of its Subsidiaries or any of the Collateral and the reasonable fees and
expenses of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against the Company or any Guarantor under any Term Loan
Document.
"Indemnitee" has the meaning given in Section 6.8(a).
"Joinder Agreement" means an agreement substantially in the form of
Exhibit A.
"Notice of Actionable Default" means written notice given to the
Collateral Agent by the Administrative Agent, the Trustee or the Required
Secured Debtholders, stating that an Actionable Default has occurred and is
continuing.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Collateral Agent that meets the requirements of
Section 14.05 of the Indenture. The opinion may include exceptions and
qualifications consistent with customary practice for written third party legal
opinions relating to the subject matter of the opinion. The counsel may be the
Company's chief legal officer or independent legal counsel to the Company.
"Required Secured Debtholders" means, at any time, Secured
Debtholders then holding a majority in aggregate outstanding principal amount of
Term Loans and Notes then outstanding, voting as a single class. For this
purpose only, Term Loans and Notes registered in the name of, or beneficially
owned by, the Company or any Affiliate of the Company shall be deemed not to be
outstanding.
"Secured Debtholder" means, at any time, a Person which then is a
Lender, as defined in the Term Loan Agreement, or a Holder, as defined in the
Indenture.
Section 1.2.Rules of Interpretation. The rules of interpretation or construction
set forth in Section 1.03 of the Term Loan Agreement and Section 1.04 of the
Indenture shall apply with like effect to this Agreement.
ARTICLE II.
OBLIGATIONS AND POWERS OF COLLATERAL AGENT
Section 2.1. Undertaking of the Collateral Agent.
(a) The Collateral Agent hereby irrevocably undertakes and agrees, on the
terms and conditions set forth in this Agreement, to act as agent for the
benefit exclusively of the present and future holders of Term Loans, Notes and
other Secured Obligations and in such capacity to accept, hold, administer and
enforce all collateral security at any time delivered to it by the Company or
any Guarantor as security for the Secured Obligations and all rights, interests
and powers at any time granted or enforceable in respect of such collateral
security under the
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Security Documents or applicable law. Without limiting the generality of the
foregoing, the Collateral Agent agrees that it will, as agent for the benefit
exclusively of the present and future holders of Term Loans, Notes and other
Secured Obligations, but subject to the terms and conditions hereof:
(i) enter into the Security Documents, receive, hold, administer and
enforce the security interests granted to it thereunder, perform its obligations
thereunder and protect, exercise and enforce the interests, rights, powers and
remedies granted or available to it thereunder or pursuant thereto or in
connection therewith;
(ii) upon direction of one Required Secured Debtholder, take all
lawful and commercially reasonable actions that it may deem necessary or
advisable to protect or preserve its interest in the Collateral and such
interests, rights, powers and remedies;
(iii) establish the Asset Sale Proceeds Account and maintain sole
dominion and control over the Asset Sale Proceeds Account and all deposits
therein and investments thereof;
(iv) deliver and receive notices pursuant to the Security Documents
and the Intercreditor Agreement;
(v) sell, assign, collect, assemble, foreclose on, institute legal
proceedings with respect to, or otherwise exercise or enforce the rights and
remedies of a secured party (including a mortgagee, trust deed beneficiary and
insurance beneficiary or loss payee) with respect to the Collateral and its
other interests, rights, powers and remedies;
(vi) remit to the Trustee and the Administrative Agent, Equally and
Ratably, all cash proceeds received by the Collateral Agent from the collection,
foreclosure or enforcement of its interest in the Collateral or any of its other
interests, rights, powers or remedies;
(vii) amend the Security Documents as from time to time authorized
and directed by Act of the Secured Debtholders;
(viii) release any Lien granted to it by any Security Document upon
any Collateral if and as required by Section 3.1; and
(ix) enter into the Intercreditor Agreement dated as of the Closing
Date.
(b) The Company and the Guarantors acknowledge and consent to the
undertaking of the Collateral Agent set forth in Section 2.1(a) and agree to
each of the other provisions of this Agreement applicable to them, as expressly
noted thereby.
Section 2.2 Documents and Communications. The Collateral Agent will permit the
Administrative Agent, the Trustee or any Secured Debtholder at any time or from
time to time, during normal business hours, to inspect and copy any and all
Security Documents and other documents, notices, certificates, instructions or
communications received by the Collateral Agent in its capacity as such.
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Section 2.3 Release or Subordination of Liens. The Collateral Agent will not
release or consent to the release or subordination of any Lien granted by any
Security Document, except as required by Article 3 and except as ordered
pursuant to applicable law by order of a court of competent jurisdiction.
Section 2.4 Actionable Default. If the Collateral Agent at any time receives a
Notice of Actionable Default or has actual knowledge that an Actionable Default
has occurred and is continuing, it shall promptly deliver written notice thereof
to the Administrative Agent and the Trustee. Thereafter, subject to Article 4,
the Collateral Agent shall act, or decline to act, as directed by Act of the
Secured Debtholders, in the exercise and enforcement the Collateral Agent's
interests, rights, powers and remedies in respect of the Collateral or under the
Security Documents or applicable law. Unless it has been directed to the
contrary by Act of the Secured Debtholders, the Collateral Agent in any event
may (but shall not be obligated to) take or refrain from taking such action with
respect to such Actionable Default as it may deem advisable and in the best
interest of the holders of Secured Obligations.
Section 2.5 Equal and Ratable Sharing.
Notwithstanding (i) anything to the contrary contained in the Note Documents or
the Term Loan Documents, (ii) the time, order or method of attachment of the
Collateral Agent's Liens, (iii) the time or order of filing or recording of
financing statements or other documents filed or recorded to perfect any Lien
upon any Collateral, (iv) the time of taking possession or control over any
Collateral or (v) the rules for determining priority under the UCC or any other
law governing relative priorities of secured creditors:
(a) all Liens at any time granted to secure any Secured Obligations will
secure Equally and Ratably all of the Notes (including additional Notes
permitted by clause (2) of the definition of "Permitted Liens"), all other
present and future Note Obligations, all of the Term Loans (including additional
Term Loans permitted by clause (2) of the definition of "Permitted Liens") and
all other present and future Term Loan Obligations; and
(b) all proceeds of Collateral encumbered by such Liens shall be allocated
and distributed Equally and Ratably on account of the Note Obligations and Term
Loan Obligations.
Section 2.6 Application of Proceeds.
(a) After the occurrence of an Actionable Default, all proceeds of
Collateral shall be applied in the following order of priority:
(i) first, to the payment of advances made and liabilities incurred
by the Collateral Agent in order to protect the Liens granted by the Security
Documents or the collateral security afforded thereby, with interest thereon at
the rate that would then be applicable to the Term Loans, and the payment of all
reasonable costs and expenses incurred by the Collateral Agent, the
Administrative Agent or the Trustee in connection with the preservation,
collection, foreclosure or enforcement of the Liens granted by the Security
Documents or any interest, right, power or remedy of the Collateral Agent or in
connection with the collection or enforcement of any of the Secured Obligations
or the proof, protection, administration or resolution of any claim based upon
the Secured Obligations in any bankruptcy case or insolvency or liquidation
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proceeding, including all reasonable fees and disbursements of attorneys,
accountants, auditors, consultants, appraisers and other professionals engaged
by the Collateral Agent, the Administrative Agent or the Trustee and reasonable
compensation of the Collateral Agent or the Trustee for services rendered in
connection therewith;
(ii) second, Equally and Ratably, to the payment of the Secured
Obligations then outstanding; and
(iii) third, to the extent of any surplus remaining after payment in
full of all Term Loans and Notes and all other Secured Obligations, to the
Company or other applicable Obligor, or its successors or assigns, or as a court
of competent jurisdiction may direct.
For this purpose, "proceeds" of Collateral includes any and all cash, securities
and other property realized from collection, foreclosure or enforcement of the
Collateral Agent's Liens upon the Collateral (including distributions of
Collateral in satisfaction of any Secured Obligations) or distributed in any
bankruptcy case or insolvency or liquidation proceeding in respect of any claim
upon any Secured Obligation that is allowed or enforceable therein as a claim
secured by Collateral pursuant to the Security Documents.
Section 2.7 Credit Bid Rights.
(a) If, during the continuance of an Actionable Default, the Collateral
Agent forecloses any of its Liens upon any Collateral, whether by public sale or
private sale or judicial foreclosure or otherwise, and if directed by an Act of
the Secured Debtholders to exercise its credit bid rights as provided in this
Section 2.7(a), the Collateral Agent, acting for and on behalf of the Secured
Debtholders and other holders of Secured Obligations, shall be entitled (to the
fullest extent it may lawfully do so) to use and apply then matured Secured
Obligations as a credit on account of the purchase price payable by the
Collateral Agent for any Collateral sold to the Collateral Agent at the
corresponding foreclosure sale, for all purposes related to bidding and making
settlement or payment of the purchase price at such foreclosure sale.
(b) If, in connection with or, during the continuance of an Actionable
Default, in anticipation of any foreclosure of any of the Collateral Agent's
Liens upon any Collateral, Term Loans and Notes representing at least a majority
in outstanding principal amount of Term Loans and Notes then outstanding are
transferred to and registered in the name of a single transferee for purposes of
facilitating or executing a bid for such Collateral at the corresponding
foreclosure sale, such transferee shall be entitled (to the fullest extent it
may lawfully do so) to use and apply all then matured Secured Obligations
outstanding to such transferee as a credit on account of the purchase price
payable by such transferee for any Collateral sold to such transferee at such
foreclosure sale, for all purposes related to bidding and making settlement or
payment of the purchase price at such foreclosure sale, but only if all Secured
Debtholders consent thereto or if:
(i) each Secured Debtholder has been offered the opportunity to
transfer to such transferee any or all of the Term Loans and Notes outstanding
held by such Secured Debtholder on terms equivalent to the most favorable terms
offered by such transferee to any Secured Debtholder for or in connection with
any transfer of Term Loans or Notes to such transferee; and
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(ii) effective provision is made (or found by order of a court of
competent jurisdiction to have been made) for sharing proceeds of the Collateral
Equally and Ratably, even if the proceeds received by Secured Debtholders other
than such transferee are different in kind (if reasonably equivalent in value
with at least equivalent liquidity) from the proceeds to be realized by such
transferee if it is the successful bidder at the foreclosure sale.
(c) Each of the Company and Guarantors hereby grants, confirms and agrees
to cooperate with and permit the exercise and enforcement of the rights set
forth in this Section 2.7.
Section 2.8 Powers of the Collateral Agent.
(a) The Collateral Agent is irrevocably authorized and empowered to enter
into and perform its obligations and protect, perfect, exercise and enforce its
interest, rights, powers and remedies, in each case pursuant to the Security
Documents and applicable law and to act as set forth in this Article 2 or as
requested in any lawful directions given to it from time to time in respect of
any matter by Act of the Secured Debtholders.
(b) Subject to Article 4, the Collateral Agent shall take direction only
pursuant to (i) an Act of the Secured Debtholders or (ii) the Administrative
Agent and the Trustee as required or permitted by the Term Loan Agreement and
the Indenture.
(c) No direction given to the Collateral Agent (whether given by Act of
the Secured Debtholders or by the Administrative Agent or Trustee or otherwise
by any Person) which imposes, or purports to impose, upon the Collateral Agent
any obligation not set forth in or arising under this Agreement or any other
Security Document accepted by the Collateral Agent shall be binding upon the
Collateral Agent unless the Collateral Agent elects, at its sole option, to
accept direction (i) pursuant to an Act of the Secured Debtholders or (ii) from
the Administrative Agent and the Trustee as required or permitted by the Term
Loan Agreement and the Indenture.
(d) No Act of the Secured Debtholders shall be effective to impose any
obligation or liability upon any Secured Debtholder, the Administrative Agent or
the Trustee, unless it is a signatory party thereto.
(e) The Administrative Agent and the Trustee are party to this Agreement
solely to confirm their consent to the undertaking of the Collateral Agent set
forth in Section 2.1(a) and their acceptance of the rights granted to them by
this Agreement. Neither the Administrative Agent nor the Trustee nor any Secured
Debtholder nor any other holder of Secured Obligations shall have (i) any
obligation under this Agreement or under any Act of the Secured Debtholders to
which it is not a signatory party; (ii) any responsibility or duty whatsoever in
respect of the Collateral or the Security Documents or any other interest,
right, power or remedy granted to or enforceable by the Collateral Agent, it
being understood and agreed by the Collateral Agent and by the Company and the
Guarantors that only the Collateral Agent shall be bound by, or liable for
breach of, the obligations of the Collateral Agent set forth in or arising under
the Security Documents, including all obligations imposed by law upon a secured
party relating the protection, maintenance, release or enforcement of any
security interest in any Collateral or any other interest, right, power or
remedy of the Collateral Agent; or (iii) any liability whatsoever for
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any act or omission of the Collateral Agent, whether or not constituting a
breach of its undertaking and obligations under this Agreement or otherwise
constituting wrongful conduct.
Section 2.9 For Sole Benefit of Holders of Secured Obligations, Equally and
Ratably. The Collateral Agent shall accept, hold, administer and enforce all
collateral security at any time delivered to it by the Company or any Guarantor
and all other interests, rights, powers and remedies at any time granted to or
enforceable by the Collateral Agent solely and exclusively for the benefit of
the Secured Debtholders and the other present and future holders from time to
time of Secured Obligations, Equally and Ratably, and shall distribute all cash
proceeds received by it in realization thereon or from enforcement thereof
solely and exclusively to the Administrative Agent and the Trustee, for the
benefit Equally and Ratably of the Secured Debtholders and the other present and
future holders of Secured Obligations.
ARTICLE III.
OBLIGATIONS ENFORCEABLE BY THE COMPANY AND GUARANTORS
Section 3.1 Release of Liens. The Collateral Agent agrees for the benefit of the
Company and Guarantors that if the Collateral Agent at any time receives an
Officers' Certificate stating that (a) the Collateral Agent is required by the
Term Loan Agreement and the Indenture or by an Act of the Secured Debtholders to
release any property of the Company or a Guarantor described in such Officers'
Certificate from any Lien granted by a Security Document specified in such
Officers' Certificate, (b) if such release is required as a result of a Sale of
Collateral, the proceeds thereof will be applied in accordance with the Term
Loan Documents and the Note Documents, and (c) no Default or Event of Default
will result from the release of such Lien, accompanied by the proposed
instrument releasing such Lien as to such property and an Opinion of Counsel for
the Company to the effect that the release of such Lien as to such property is
permitted by the Term Loan Agreement and the Indenture or by an Act of the
Secured Debtholders and that such proposed instrument is effective solely to
release such Lien as to such property, without requiring the Collateral Agent to
make any representation or warranty in respect thereof, without releasing or
satisfying any obligation secured by such Lien, and without imposing any
obligation or liability upon the Collateral Agent or any other Person, then,
subject to Article 4, the Collateral Agent will, within ten Business Days
thereafter, release such Lien upon such property by executing (and if necessary
acknowledging in recordable form) such proposed instrument reasonably requested
by the Company and delivering it to the Company or such Guarantor.
Section 3.2 Subordination of Liens. The Collateral Agent agrees for the benefit
of the Company and Guarantors that if the Collateral Agent at any time receives
an Officers' Certificate stating that the Company or any Guarantor intends to
incur Indebtedness that will be secured by a purchase money security interest
permitted under clause (4) in the definition of "Permitted Liens" upon property
identified therein with reasonable specificity to be acquired with such
Indebtedness, accompanied by (a) a proposed lien subordination agreement
subordinating the Liens under the Security Documents to such purchase money
security interest, to the extent it attaches to such property and secures
Indebtedness incurred to acquire such property, and (b) an Opinion of Counsel
for the Company to the effect that the subordination of such Liens to such
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purchase money security interest, and to such extent, is permitted by the Term
Loan Agreement and the Indenture or by an Act of the Secured Debtholders and
that such proposed lien subordination agreement is effective solely to
subordinate such Lien as to such property to such extent, without requiring the
Collateral Agent to make any representation or warranty in respect thereof,
without releasing or satisfying any such Lien or any obligation secured thereby,
and without imposing any obligation or liability upon the Collateral Agent or
any other Person, then, subject to Article 4, the Collateral Agent will, within
ten Business Days thereafter, execute such lien subordination agreement and
deliver to the Company or such Guarantor, subject to and effective upon the
incurrence of such Indebtedness and the use of the proceeds thereof to acquire
such property.
Section 3.3 Delivery of Copies to the Administrative Agent and Trustee. The
Company shall deliver to the Administrative Agent and the Trustee a copy of each
Officers' Certificate delivered to the Collateral Agent pursuant to Section 3.1
or 3.2, together with copies of all documents delivered to the Collateral Agent
with such Officers' Certificate. The Administrative Agent and Trustee shall not
be obligated to take notice thereof or to act thereon.
Section 3.4 Collateral Agent not Required to Serve, File or Record. The
Collateral Agent is not required to serve, file, register or record any
instrument releasing or subordinating its security interest in any Collateral.
ARTICLE IV.
IMMUNITIES OF THE COLLATERAL AGENT.
Section 4.1 No Implied Duty. The Collateral Agent shall not have any duties or
responsibilities except those expressly assumed by it in this Agreement and the
other Security Documents and shall not be required to take any action which is
contrary to applicable law or any provision of this Agreement or the other
Security Documents. The Collateral Agent makes no representation as to the
validity, value, genuineness or the collectability of any security or other
document or other instrument held by or delivered to the Collateral Agent. The
Collateral Agent shall not be called upon to advise any party as to the wisdom
in taking or refraining to take any action with respect to the Collateral.
Section 4.2 Appointment of Co-Agents and Sub-Agents. The Collateral Agent may
employ agents and appoint sub-agents or co-collateral agents as it determines
appropriate in the performance of its duties hereunder. The Collateral Agent
will exercise reasonable care in selecting any such agent, sub-agent or
co-collateral agent and in supervising the performance of any duties delegated
to any such agent, sub-agent or co-collateral agent but shall not otherwise be
responsible or liable for any act or omission of any such agent, sub-agent or
co-collateral agent.
Section 4.3 Other Agreements. The Collateral Agent has accepted and is bound by
the Security Documents delivered to it as of the date of this Agreement and,
subject to this Article 4, shall accept and be bound by all Security Documents
delivered to it at any time after the date of this Agreement. The Collateral
Agent shall not otherwise be bound by, or obligated to take
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cognizance of the provisions of, any agreement to which it is not a party,
including the Term Loan Agreement and the Indenture.
Section 4.4 Solicitation of Instructions. The Collateral Agent may at any time
solicit confirmatory instructions, including an Act of the Secured Debtholders
or an order of a court of competent jurisdiction, as to any action which it may
be requested or required to take, or which it may propose to take, in the
performance of any of its obligations under this Agreement.
Section 4.5 Limitation of Liability. The Collateral Agent shall not be
responsible or liable for any action taken or omitted to be taken by it
hereunder or under any Security Document, except for its own gross negligence or
willful misconduct.
Section 4.6 Documents in Satisfactory Form. The Collateral Agent shall be
entitled to require that all agreements, certificates, opinions, instruments and
other documents at any time submitted to it, including those expressly provided
for in this Agreement, be delivered to it in a form and upon substantive
provisions reasonably satisfactory to it.
Section 4.7 Entitled to Rely. The Collateral Agent may rely conclusively upon
any certificate, notice or other document (including any teletransmission)
reasonably believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons and need not investigate
any fact or matter stated in any such document. The Collateral Agent may seek
and rely upon any judicial order or judgment, upon any advice, opinion or
statement of legal counsel, independent consultants and other experts selected
by it in good faith and upon any certification, instruction, notice or other
writing delivered to it by the Company in compliance with the provisions of this
Agreement or delivered to it by the Administrative Agent or the Trustee as to
the Secured Debtholders whose action or consent is required for an Act of the
Secured Debtholders, without being required to determine the authenticity
thereof or the correctness of any fact stated therein or the propriety or
validity of service thereof. The Collateral Agent may act in reliance upon any
instrument comporting with the provisions of this Agreement or any signature
reasonably believed by it to be genuine and may assume that any Person
purporting to give notice or receipt or advice or make any statement or execute
any document in connection with the provisions hereof has been duly authorized
to do so. To the extent an Officers' Certificate or an Opinion of Company
Counsel is required or permitted under this Agreement to be delivered to the
Collateral Agent in respect of any matter, the Collateral Agent may rely
conclusively on such Officers' Certificate or Opinion of Company Counsel as to
such matter.
Section 4.8 Defaults and Events of Default. The Collateral Agent shall not be
required to inquire as to the occurrence or absence of any Default or Event of
Default and shall not be affected by or required to act upon any notice or
knowledge as to the occurrence of any Default or Event of Default unless and
until it receives a Notice of Actionable Default or a responsible officer of the
Collateral Agent has actual knowledge that an Actionable Default has occurred
and is continuing.
Section 4.9 Actions by Collateral Agent. As to any matter not expressly provided
for by this Agreement, the Collateral Agent shall act or refrain from acting as
directed by Act of the Secured Debtholders and shall be fully protected in doing
so.
10
Section 4.10 Security or Indemnity in favor of the Collateral Agent. The
Collateral Agent shall not be required to advance or expend any funds or
otherwise incur any financial liability in the performance of its duties or the
exercise of its powers or rights hereunder unless it has been provided with
security or indemnity which it, in its discretion, deems sufficient against any
and all liability or expense which may be incurred by it by reason of taking or
continuing to take such action. The Company and Guarantors hereby jointly and
severally agree to provide such security or indemnity to the Collateral Agent
promptly upon request by the Collateral Agent therefor.
Section 4.11 Not Responsible for Recitals. The recitals contained herein shall
be taken as statements of the Company and the Guarantors, and the Collateral
Agent assumes no responsibility for their correctness. The Collateral Agent
makes no representation as to the validity or sufficiency of this Agreement.
ARTICLE V.
RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
Section 5.1 Resignation or Removal of Collateral Agent. Subject to the
appointment of a successor Collateral Agent as provided in Section 5.1 and the
acceptance of such appointment by the successor Collateral Agent, (a) the
Collateral Agent may resign at any time by giving not less than 30 days' notice
of resignation to the Administrative Agent, the Trustee and the Company and (b)
the Collateral Agent may be removed at any time, with or without cause, by an
Act of the Secured Debtholders.
Section 5.2 Appointment of Successor Collateral Agent. Upon any such resignation
or removal, a successor Collateral Agent may be appointed by the Administrative
Agent and Trustee, acting jointly, or by Act of the Secured Debtholders. If no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the predecessor Collateral Agent gave
notice of resignation or was removed, the retiring Collateral Agent may appoint
a successor Collateral Agent, or petition a court of competent jurisdiction for
appointment of a successor Collateral Agent, which shall be a bank or trust
company (a) authorized to exercise corporate trust powers, (b) acceptable to the
Administrative Agent or the Trustee, (c) having a combined capital and surplus
of at least $50,000,000, and (d) maintaining an office in New York, New York.
Section 5.3 Succession. When the Person so appointed as successor Collateral
Agent accepts such appointment:
(i) such Person shall succeed to and become vested with all the
rights, powers, privileges and duties of the predecessor Collateral Agent, and
the predecessor Collateral Agent shall be discharged from its duties and
obligations hereunder, and
(ii) the predecessor Collateral Agent, upon payment of all amounts
owed to it, shall promptly transfer all Collateral within its possession or
control to the possession or control
11
of the successor Collateral Agent and shall execute and deliver such notices,
instructions and assignments as may be necessary or desirable or reasonably
requested by the successor Collateral Agent to transfer to the successor
Collateral Agent all Liens, interests, rights, powers and remedies of the
predecessor Collateral Agent in respect of the Collateral or under the Security
Documents.
Thereafter the predecessor Collateral Agent shall remain entitled to enforce the
immunities granted to it in Article 4.
Section 5.4 Limitation. The Collateral Agent shall not be the same Person as, or
an Affiliate of, the Administrative Agent or the Trustee. If the Collateral
Agent at any time becomes an Affiliate of the Administrative Agent or the
Trustee, it shall promptly resign subject to appointment of a successor
Collateral Agent and acceptance of such appointment as provided in this
Article 5.
ARTICLE VI.
MISCELLANEOUS PROVISIONS.
Section 6.1 Amendment.
(a) This Agreement may be amended or supplemented from time to time by
written agreement of the Company, the Guarantors, the Administrative Agent, the
Trustee and the Collateral Agent, acting pursuant to an Act of the Secured
Debtholders.
(b) The Collateral Agent shall not amend or supplement any of the
provisions of the Security Documents without the consent or direction by an Act
of the Secured Debtholders; provided that (i) no amendment or supplement to the
provisions of the Security Documents that adversely affects the right of any
holder of Secured Obligations to share in the Collateral equally and ratably
will become effective without the consent of each such holder and (ii) any
amendment or supplement to the provisions of the Security Documents that
releases all or substantially all of the Collateral will be governed by the
provisions described under Section 9.06 of the Term Loan Agreement and Section
10.06 of the Indenture.
(c) Any amendment or supplement to any Security Document that imposes any
obligation upon the Collateral Agent or adversely affects the rights of the
Collateral Agent in its individual capacity will become effective only with the
consent of the Collateral Agent in its individual capacity.
Section 6.2 Further Assurances.
(a) At any time or from time to time, each of the Company and Guarantors
will, at its expense, promptly execute, acknowledge and deliver such further
documents and do such other acts and things as may be necessary or appropriate,
or as the Collateral Agent, the Administrative Agent or the Trustee may
reasonably request, in order to assure and confirm that each Subsidiary required
by the Term Loan Agreement or the Indenture to guarantee payment of the Secured
Obligations has duly guaranteed payment of all the Secured Obligations and that
the Collateral
12
Agent holds, for the exclusive benefit of all present and future holders of
Secured Obligations, duly created, enforceable and perfected first priority
Liens (subject only to Permitted Prior Liens) upon all interests in Collateral
at any time owned or acquired by the Company or any of such Subsidiary or as the
Collateral Agent, the Administrative Agent or the Trustee otherwise may
reasonably request in order to carry out and give full effect to the intents and
purposes of the Term Loan Documents and the Note Documents.
(b) Upon request of the Collateral Agent at any time and from time to
time, the Company will, and will cause each of its Subsidiaries to, promptly
execute, acknowledge and deliver such security documents, instruments,
certificates, notices and other documents and take such other actions as shall
be required or which the Collateral Agent may reasonably request to create,
perfect, protect, assure or enforce the Liens and benefits intended to be
conferred, as contemplated by the Indenture, the Term Loan Agreement and the
Security Documents, upon the Collateral Agent for the exclusive benefit of the
holders of the Secured Obligations. If the Company or such Subsidiary fails to
do so, the Collateral Agent is hereby irrevocably authorized and empowered, with
full power of substitution, to execute, acknowledge and deliver such security
documents, instruments, certificates, notices and other documents and, subject
to the provisions of the Note Documents and the Term Loan Documents, take such
other actions in the name, place and stead of the Company or such Subsidiary,
but the Collateral Agent will have no obligation to do so and no liability for
any action taken or omitted by it in good faith in connection therewith.
Section 6.3 Successors and Assigns.
(a) This Agreement is legally binding upon and enforceable against the
Collateral Agent. Except as provided in Section 4.2, the Person acting as
Collateral Agent may not, in its individual capacity, delegate any of its duties
or assign any of its rights hereunder, and any attempted delegation or
assignment of any such duties or rights shall be void. All obligations of the
Collateral Agent hereunder shall inure to the benefit of, and be enforceable by,
the Administrative Agent, the Trustee and each present and future holder of
Secured Obligations, each of whom shall be entitled to enforce this Agreement as
a third party beneficiary hereof, and all of their respective successors and
assigns.
(b) This Agreement is further binding upon each of the Company and the
Guarantors and theirs respective successors. Neither the Company nor any
Guarantor may delegate any of its duties or assign any of its rights hereunder,
and any attempted delegation or assignment of any such duties or rights shall be
void. All obligations of the Company and Guarantors hereunder shall inure to the
benefit of, and be enforceable by, the Collateral Agent, the Administrative
Agent, the Trustee and each present and future holder of Secured Obligations,
each of whom shall be entitled to enforce this Agreement as a third party
beneficiary hereof, and all of their respective successors and assigns.
(c) The obligations of the Collateral Agent set forth in Sections 3.1 and
3.2 of this Agreement shall also be enforceable by the Company and any Guarantor
directly affected by any breach thereof and their respective successors and
assigns.
13
Section 6.4 Delay and Waiver. No failure to exercise, no course of dealing with
respect to the exercise of, and no delay in exercising, any right, power or
remedy arising under this Agreement or any of the other Security Documents shall
impair any such right, power or remedy or operate as a waiver thereof. No single
or partial exercise of any such right, power or remedy shall preclude any other
or future exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Section 6.5 Notices. Any communications, including notices and instructions,
between the parties hereto or notices provided herein to be given may be given
to the following addresses:
If to the Collateral Agent: Wilmington Trust Company
Attention: ▇▇▇▇ St. ▇▇▇▇▇
Assistant Vice President
Corporate Trust Administration
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trustee: The Bank of New York
Attention: Corporate Trust
Administration
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Administrative
Agent: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
as the Administrative Agent
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Company
or any Guarantor: Tesoro Petroleum Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Finance Department
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
14
Each notice hereunder shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and
signed for against receipt thereof, upon receipt of telefacsimile or telex, or
three Business Days after depositing it in the United States mail with postage
prepaid and properly addressed; provided, no notice to the Collateral Agent,
Administrative Agent or Trustee shall be effective unless and until received its
officer responsible for the administration of the transaction contemplated
hereby. Each party may change its address for notice hereunder to any other
location within the continental United States by giving written notice thereof
to the other parties as set forth in this Section 6.5.
Section 6.6 Entire Agreement. This Agreement states the complete agreement of
the parties relating to the undertaking of the Collateral Agent set forth herein
and supersedes all oral negotiations and prior writings in respect of such
undertaking.
Section 6.7 Compensation; Expenses. Whether or not the transactions contemplated
hereby shall be consummated, each of the Company and Guarantors jointly and
severally agrees to pay, promptly within 30 days following demand:
(a) reasonable compensation to the Collateral Agent and its agents,
co-agents and sub-agents;
(b) all reasonable costs and expenses incurred in the preparation,
execution, delivery, filing, recordation, administration or enforcement of this
Agreement or any other Security Document or any consent, amendment, waiver or
other modification relating thereto;
(c) all reasonable fees, expenses and disbursements of legal counsel and
any auditors, accountants, consultants or appraisers or other professional
advisors and agents engaged by the Collateral Agent in connection with the
negotiation, preparation, closing, administration, performance or enforcement of
this Agreement and the other Security Documents or any consent, amendment,
waiver or other modification relating thereto and any other document or matter
requested by the Company;
(d) all reasonable costs and expenses of creating, perfecting, releasing
or enforcing the Collateral Agent's security interests in the Collateral,
including filing and recording fees, expenses and taxes, stamp or documentary
taxes, search fees, title insurance premiums;
(e) all reasonable costs of any Opinion of Company Counsel required hereby
to be delivered to the Collateral Agent;
(f) all other reasonable costs and expenses incurred by the Collateral
Agent in connection with the negotiation, preparation and execution of the
Security Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby or the exercise of its rights
or performance of its obligations by the Collateral Agent thereunder; and
(g) after the occurrence and during the continuance of an Actionable
Default, all reasonable costs and expenses incurred by the Collateral Agent, the
Administrative Agent or the Trustee in connection with the preservation,
collection, foreclosure or enforcement of the Liens
15
granted by the Security Documents or any interest, right, power or remedy of the
Collateral Agent or in connection with the collection or enforcement of any of
the Secured Obligations or the proof, protection, administration or resolution
of any claim based upon the Secured Obligations in any bankruptcy case or
insolvency or liquidation proceeding, including all reasonable fees and
disbursements of attorneys, accountants, auditors, consultants, appraisers and
other professionals engaged by the Collateral Agent, the Administrative Agent or
the Trustee.
(h) The agreements in this Section 6.7 shall survive repayment of the
Notes and Term Loans and all other amounts payable hereunder.
Section 6.8 Indemnity.
(a) In addition to the payment of costs and expenses pursuant to Section
6.7, whether or not the transactions contemplated hereby shall be consummated,
each of the Company and the Guarantors jointly and severally agrees to defend
(subject to Indemnitees' selection of counsel), indemnify, pay and hold
harmless, the Collateral Agent, the Administrative Agent and the Trustee and
each of their respective Affiliates and each and all of the directors, officers,
partners, trustees, employees, attorneys and agents, and (in each case) their
respective heirs, representatives, successors and assigns (each of the
foregoing, an "Indemnitee") from and against any and all Indemnified
Liabilities; provided, no Indemnitee shall be entitled to indemnification
hereunder with respect to any Indemnified Liability to the extent such
Indemnified Liability is found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted directly and primarily from the gross
negligence or willful misconduct of such Indemnitee.
(b) All amounts due under Section 6.8(a) shall be payable not later than
10 days after written demand therefor.
(c) To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in Section 6.8(a) may be unenforceable in whole or in part
because they are violative of any law or public policy, each of the Company and
Guarantors shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.
(d) Neither the Company nor any Guarantor shall ever assert any claim
against any Indemnitee, on any theory of liability, for any lost profits or
special, indirect or consequential damages or (to the fullest extent lawful) any
punitive damages arising out of, in connection with, or as a result of, this
Agreement or any other Term Loan Document or Note Document or any agreement or
instrument or transaction contemplated hereby or relating in any respect to any
Indemnified Liability, and each of the Company and Guarantors hereby forever
waives, releases and agrees not to ▇▇▇ upon any claim for any such lost profits
or special, indirect, consequential or (to the fullest extent lawful) punitive
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
(e) The agreements in this Section 6.8 shall survive repayment of the
Notes and Term Loans and all other amounts payable hereunder.
Section 6.9 Severability. If any provision of this Agreement is invalid,
illegal or unenforceable in any respect or in any jurisdiction, the validity,
legality and enforceability of
16
such provision in all other respects and of all remaining provisions, and of
such provision in all other jurisdictions, shall not in any way be affected or
impaired thereby.
Section 6.10 Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
Section 6.11 Obligations Secured. All obligations of the Company or any
Guarantor set forth in or arising under this Agreement shall be Secured
Obligations and are secured by all Liens granted by the Security Documents.
Section 6.12 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF.
Section 6.13 Consent to Jurisdiction. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY PARTY HERETO ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
OTHER SECURITY DOCUMENTS MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO SUCH PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 6.5; (d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT; AND (e) AGREES EACH PARTY HERETO RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST ANY PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
Section 6.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER SECURITY DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE
INTENTS AND PURPOSES OF THE OTHER SECURITY DOCUMENTS. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE OTHER
SECURITY DOCUMENTS, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH PARTY HERETO HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH PARTY HERETO WILL CONTINUE TO RELY
ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY
17
HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 6.14 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF OR TO THIS AGREEMENT OR
ANY OF THE OTHER SECURITY DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING THERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 6.15 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. The delivery of an executed signature page of this Agreement,
or any Joinder Agreement in connection herewith, by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof.
Section 6.16 Effectiveness. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
each party of written or telephonic notification of such execution and
authorization of delivery thereof.
Section 6.17 Additional Obligors. The Company will cause each Subsidiary of the
Company that becomes an Obligor or is required to become a party to this
Agreement under Section 5.17 of the Term Loan Agreement and Section 4.17 of the
Indenture to become party to this Agreement, for all purposes of this Agreement
on the terms set forth herein applicable to a Guarantor, by causing such
Subsidiary to execute and deliver to the parties hereto a Joinder Agreement,
whereupon such Subsidiary shall be bound by the terms hereof to the same extent
as if it had executed and delivered this Agreement as a Guarantor as of the date
hereof.
18
IN WITNESS WHEREOF, the parties hereto have caused this Collateral
Agency Agreement to be executed by their respective officers or representatives
hereunto duly authorized as of the day and year first above written.
TESORO PETROLEUM CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
(signatures continue on next page)
[Collateral Agency Agreement]
THE GUARANTORS:
DIGICOMP INC.
KENAI PIPE LINE COMPANY
SMILEY'S SUPER SERVICE, INC.
TESORO ALASKA COMPANY
TESORO ALASKA PIPELINE COMPANY
TESORO AVIATION COMPANY
TESORO GAS RESOURCES COMPANY, INC.
TESORO HAWAII CORPORATION
TESORO HIGH PLAINS PIPELINE COMPANY
TESORO MARINE SERVICES HOLDING COMPANY
TESORO MARINE SERVICES, LLC
By: Tesoro Marine Services Holding
Company, as sole member
TESORO MARITIME COMPANY
TESORO NORTHSTORE COMPANY
TESORO PETROLEUM COMPANIES, INC.
TESORO REFINING AND MARKETING COMPANY
TESORO TECHNOLOGY COMPANY
TESORO TRADING COMPANY
TESORO VOSTOK COMPANY
TESORO WASATCH, LLC
By: Tesoro Petroleum Corporation,
as sole member
Executing this Agreement as Senior Vice
President and Chief Financial Officer and on
behalf of and so as to bind, each of the
Persons named above under the caption "The
Guarantors"
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(signatures continue on next page)
[Collateral Agency Agreement]
THE GUARANTORS:
FAR EAST MARITIME COMPANY
GOLD STAR MARITIME COMPANY
TESORO FINANCIAL SERVICES HOLDING COMPANY
VICTORY FINANCE COMPANY
Executing this Agreement as Vice President
and Treasurer and on behalf of and so as to
bind, each of the Persons named above under
the caption "The Guarantors"
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(signatures continue on next page)
[Collateral Agency Agreement]
WILMINGTON TRUST COMPANY,
as Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signer
(signatures continue on next page)
[Collateral Agency Agreement]
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇, SACHS & CO.
---------------------------------
Name: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
On behalf of each of the
Purchasers
(signatures continue on next page)
[Collateral Agency Agreement]
THE BANK OF NEW YORK
as Trustee
By: /s/ VON ▇. ▇▇▇▇▇
---------------------------------
Name: Von ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
Wilmington Trust Company,
as Collateral Agent
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ St. Amand,
Corporate Trust Administration
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
The Bank of New York,
as Trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Floor ▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
JOINDER AGREEMENT
The undersigned, [INSERT OBLIGOR'S NAME], a [INSERT DESCRIPTION OF
OBLIGOR], hereby agrees to become party to the Collateral Agency Agreement dated
as of April 17, 2003, by and among Tesoro Petroleum Corporation, a Delaware
corporation, the subsidiaries of the Company party thereto, ▇▇▇▇▇▇▇ Sachs Credit
Partners L.P., as Administrative Agent under the Term Loan Agreement (as defined
therein), The Bank of New York, as Trustee under the Indenture (as defined
therein), and Wilmington Trust Company, as Collateral Agent, for all purposes
thereof on the terms set forth therein applicable to a "Guarantor", as defined
therein, and to be bound by the terms of said Collateral Agency Agreement as
fully as if the undersigned had executed and delivered said Collateral Agency
Agreement as a Guarantor thereunder as of the date thereof.
The provisions of Article VI of said Collateral Agency Agreement
shall apply with like effect to this Joinder Agreement.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Joinder Agreement as of ___________________, 20____.
[___________________________________]
By:
---------------------------------
Name:
Title: