EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
April 23, 2002
Tesoro Petroleum Corporation
300 Concord Plaza Drive
San Antonio, Texas 78216-6999
Ladies and Gentlemen:
We have acted as counsel to Tesoro Petroleum Corporation, a Delaware
corporation (the "Company"), and the subsidiaries listed on Schedule I hereto
(collectively, the "Subsidiaries") in connection with the preparation of a
Registration Statement on Form S-3, Registration No. 333-84018, as amended (the
"Registration Statement"), filed by the Company and the Subsidiaries with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Act of 1933, as amended (the "Act"). The Registration Statement relates to the
offering, pursuant to Rule 415 under the Act, from time to time, as set forth in
the Registration Statement, the form of prospectus contained therein (the
"Prospectus") and one or more supplements to the Prospectus (each, a "Prospectus
Supplement"), of (i) debt securities in one or more series, which may be senior
("Senior Debt Securities") or subordinated ("Subordinated Debt Securities" and,
together with the Senior Debt Securities, the "Debt Securities"), (ii) shares of
preferred stock, no par value ("Preferred Stock"), (iii) shares of common stock,
par value $.16? per share ("Common Stock"), (iv) depositary shares ("Depositary
Shares") representing fractional shares of Preferred Stock and evidenced by
depositary receipts (the "Depositary Receipts"), (v) stock purchase contracts
for the purchase and sale of Common Stock or Preferred Stock ("Stock Purchase
Contracts"), (vi) warrants for the purchase of Debt Securities, Common Stock or
Preferred Stock (which may be represented by Depositary Shares) ("Warrants"),
(vii) guarantees of Debt Securities by the Subsidiaries ("Guarantees") and
(viii) units consisting of one or more Debt Securities (including any related
Guarantees), shares of Preferred Stock, shares of Common Stock, Depositary
Shares, Stock Purchase Contracts and Warrants ("Units"), having an aggregate
initial public offering price not to exceed $1,000,000,000, and each on terms to
be determined at the time of its offering. In addition, the Debt Securities,
Preferred Stock, Depositary Shares, Stock Purchase Contracts, Warrants and Units
may be convertible into or exercisable for Common Stock or Preferred Stock, as
the case may be, of the Company. The Debt Securities, Preferred Stock, Common
Stock, Depositary Shares, Stock Purchase Contracts, Warrants, Guarantees and
Units are collectively referred to herein as the "Securities".
The Debt Securities will be issued in one or more series pursuant to
(i) a senior indenture (the "Senior Debt Securities Indenture") or (ii) a
subordinated indenture (the "Subordinated Debt Securities Indenture" and,
together with the Senior Debt Securities Indenture, the "Indentures"), each
Indenture to be entered into by the Company, a financial institution to be named
therein, as
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April 23, 2002
Page 2
trustee (the "Trustee"), and, if applicable, one or more Subsidiaries as
guarantors with respect to one or more such series, substantially in the forms
attached as Exhibits 4.12 and 4.13, respectively, to the Registration Statement,
and each as the same may hereafter be modified or supplemented from time to
time, among other things, at the time of and in connection with the issuance of
one or more series of the Debt Securities.
Any Guarantee of one or more series of Debt Securities will be issued
pursuant to a supplement to the Indenture pursuant to which the corresponding
Debt Securities are issued.
The Depositary Shares will be issued under a deposit agreement (the
"Deposit Agreement") among the Company, a financial institution to be
determined, as depositary, and the holders from time to time of the Depositary
Receipts.
The Stock Purchase Contracts will be issued under a stock purchase
contract agreement (the "Stock Purchase Contract Agreement") between the Company
and a financial institution to be determined, as stock purchase contract agent.
Warrants to purchase Common Stock and Preferred Stock (which may be
represented by Depositary Shares) are collectively referred to herein as the
"Stock Warrants". Warrants to purchase Debt Securities are referred to herein as
the "Debt Warrants". The Stock Warrants and the Debt Warrants are collectively
referred to herein as the "Securities Warrants". The Stock Warrants will be
issued under a stock warrant agreement (the "Stock Warrant Agreement") between
the Company and a financial institution to be determined, as stock warrant
agent. The Debt Warrants will be issued under a debt warrant agreement (the
"Debt Warrant Agreement") between the Company and a financial institution to be
determined, as debt warrant agent. The Stock Warrant Agreement and the Debt
Warrant Agreement are collectively referred to herein as the "Warrant
Agreements".
We have examined the Registration Statement, the form of Senior Debt
Securities Indenture and the form of Subordinated Debt Securities Indenture,
which forms have been filed with the Commission as exhibits to the Registration
Statement.
In connection with the foregoing, we also have examined originals or
copies of such corporate records, as applicable, of the Company and the
Subsidiaries, certificates and other communications of public officials,
certificates of officers of the Company and the Subsidiaries and such other
records, agreements, instruments and other documents as we have deemed necessary
for the purpose of rendering the opinions expressed herein. As to questions of
fact material to those opinions, we have, to the extent we deemed appropriate,
relied on certificates of officers of the Company and the Subsidiaries and on
certificates and other communications of public officials. We have assumed the
genuineness of all signatures on, and the authenticity of, all documents
submitted to us as originals, the conformity to authentic original documents of
all documents submitted to us as copies, the due authorization, execution and
delivery by the parties thereto of all documents examined by us, and the legal
capacity of each individual who signed any of those documents.
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April 23, 2002
Page 3
In rendering the opinions expressed below with respect to the
Securities, we have assumed that:
(1) the Registration Statement and any amendments thereto
(including post-effective amendments) will have become effective and
comply with all applicable laws;
(2) a Prospectus Supplement with respect to each issued
Security will have been prepared and filed with the Commission
describing the corresponding Securities offered thereby;
(3) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated
in the Registration Statement, as amended and in effect, and the
corresponding Prospectus Supplement;
(4) a definitive purchase, underwriting or similar agreement
with respect to any Securities offered will have been duly authorized
and validly executed and delivered by the Company and the other parties
thereto;
(5) the Certificate of Incorporation and Bylaws of the Company
or similar governing documents of any of the Subsidiaries will not have
been amended in any manner that would affect any legal conclusion set
forth herein, and the Certificate of Designation in respect of the
Preferred Stock to which it applies will be in conformity therewith and
with applicable law;
(6) the consideration paid for any shares of Common Stock or
Preferred Stock will comply with Section 153(a) or (b) of the Delaware
General Corporation Law (the "DGCL"), the third sentence of Section 152
of the DGCL and Section III of Article IX of the Delaware Constitution,
or (in each case) any successor provision;
(7) at the time of any offering or sale of Securities, the
Company will have such number of shares of Common Stock or Preferred
Stock, if applicable, as set forth in such offering or sale, authorized
and available for issuance;
(8) all Securities issuable upon conversion, exchange or
exercise of any Security being offered will be duly authorized, created
and, if appropriate, reserved for issuance upon such conversion,
exchange or exercise;
(9) each supplemental indenture to either Indenture pursuant
to which any series of Debt Securities are issued will comply with such
Indenture as theretofore supplemented and related to such series, and
the form and terms of such Debt Securities will comply with such
Indenture as then supplemented and related to such series (including by
such supplemental indenture);
(10) none of the terms of any Security to be established
subsequent to the date hereof nor the issuance and delivery of such
Security, nor the compliance by the Company and the Subsidiaries with
the terms of such Security, will violate any applicable
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April 23, 2002
Page 4
law or will result in the violation of any provision of any instrument
or agreement then binding on the Company or any Subsidiary or any
restriction imposed by any court or governmental body having
jurisdiction over the Company or any Subsidiary;
(11) the receipt by each person to whom or for whose benefit a
Security is to be issued (collectively, the "Holders") of a certificate
for such Security or the receipt by an applicable depositary, acting as
agent, on behalf of all Holders of the class or series of Securities of
which such Security is one, of a certified receipt or other writing
then evidencing such Securities, and the issuance and sale of and
payment for the Securities so acquired, in accordance with the
applicable purchase, underwriting or similar agreement approved by the
Board of Directors of the Company (the "Board") and the governing body
of each applicable Subsidiary and the Registration Statement, as
amended and in effect (including the Prospectus and the applicable
Prospectus Supplement); and
(12) for all purposes of our opinions herein expressed at all
times material thereto there will be a single institution acting as
Trustee for the holders of Debt Securities outstanding under the Senior
Debt Securities Indenture, or the Subordinated Debt Securities
Indenture, as the case may be, and that the chief executive office and
the principal corporate trust office (from which the trusts established
by the Senior Debt Securities Indenture, or the Subordinated Debt
Securities Indenture, as the case may be, will be administered) of each
such institution will be located in the State of New York.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
(i) With respect to authorized but unissued Common Stock,
assuming (a) the taking by the Board of all necessary corporate action
to authorize and approve the issuance of such Common Stock, the terms
of the offering thereof and related matters and (b) the due issuance
and delivery of such Common Stock, upon payment (or delivery) of the
consideration therefor in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board, such
Common Stock will be legally issued, fully paid and nonassessable.
(ii) With respect to authorized but unissued Preferred Stock,
assuming (a) the taking by the Board of all necessary corporate action
to authorize and approve the issuance of a series of the Preferred
Stock, the terms of the offering thereof and related matters, (b) the
due filing with the Office of the Secretary of State of Delaware of the
corresponding Certificate of Designation for the particular series of
Preferred Stock to be issued and (c) the due issuance and delivery of
such series of the Preferred Stock, upon payment therefor in accordance
with the applicable definitive purchase, underwriting or similar
agreement approved by the Board, such shares of the Preferred Stock
will be legally issued, fully paid and nonassessable.
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April 23, 2002
Page 5
(iii) With respect to the Depositary Shares, assuming (a) the
taking by the Board of all necessary corporate action to authorize and
approve the issuance and terms of the Depositary Shares, the terms of
the offering thereof and related matters, (b) the due filing with the
Office of the Secretary of State of Delaware of the corresponding
Certificate of Designation for the particular series of Preferred Stock
represented by such Depositary Shares and (c) the due issuance and
delivery of the Depositary Shares and the related Depositary Receipts,
upon payment of the consideration therefor in accordance with the
applicable definitive purchase, underwriting or similar agreement
approved by the Board and otherwise in accordance with the provisions
of the Deposit Agreement, the Depositary Shares will be legally issued.
(iv) With respect to any series of Debt Securities to be
issued under the Senior Debt Securities Indenture, assuming (a) the
Senior Debt Securities Indenture, all then existing and applicable
supplements thereto and the supplemental indenture pursuant to which
such Debt Securities are issued, if any, executed and delivered at the
time of and in connection with the issuance of such Debt Securities,
have been duly authorized and validly executed and delivered by the
Company and validly executed, delivered and authenticated by the
Trustee, (b) the Senior Debt Securities Indenture, as then and
theretofore supplemented, has been duly qualified under the Trust
Indenture Act of 1939, as amended, (c) the Company has taken all
necessary corporate action to approve the Senior Debt Securities
Indenture, and the issuance and terms of such series of Debt
Securities, the terms of the offering thereof and related matters, and
(d) the Debt Securities of such series have been duly executed,
authenticated, issued and delivered in accordance with the terms of the
Senior Debt Securities Indenture (as then supplemented and applicable)
and the applicable definitive purchase, underwriting or similar
agreement approved by the Board, upon payment (or delivery) of the
consideration therefor provided for therein, such series of Debt
Securities will be legally issued and constitute valid and legally
binding obligations of the Company.
(v) With respect to any series of Debt Securities to be issued
under the Subordinated Debt Securities Indenture, assuming (a) the
Subordinated Debt Securities Indenture, all then existing and
applicable supplements thereto and the supplemental indenture pursuant
to which such Debt Securities are issued, if any, executed and
delivered at the time of and in connection with the issuance of such
Debt Securities, have been duly authorized and validly executed and
delivered by the Company and validly executed, delivered and
authenticated by the Trustee, (b) the Subordinated Debt Securities
Indenture, as then and theretofore supplemented, has been duly
qualified under the Trust Indenture Act of 1939, as amended, (c) the
Company has taken all necessary corporate action to approve the
Subordinated Debt Securities Indenture, and the issuance and terms of
such series of Debt Securities, the terms of the offering thereof and
related matters, and (d) the Debt Securities of such series have been
duly executed, authenticated, issued and delivered in accordance with
the terms of the Subordinated Debt Securities Indenture (as then
supplemented and applicable) and the applicable definitive purchase,
underwriting or similar agreement approved by the Board, upon
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April 23, 2002
Page 6
payment (or delivery) of the consideration therefor provided for
therein, such series of Debt Securities will be legally issued and
constitute valid and legally binding obligations of the Company.
(vi) With respect to the Guarantees, assuming (a) the taking
of all necessary corporate or other action by the governing body of
each Subsidiary a party thereto to authorize and approve the issuance
and terms of the Guarantees, the terms of the offering thereof and
related matters (b) the due execution, issuance and delivery of the
Guarantees for fair consideration or reasonably equivalent value
therefor as provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the governing body of
each Subsidiary and otherwise in accordance with the applicable
Indenture, such Guarantees will be legally issued and constitute valid
and legally binding obligations of the applicable Subsidiary.
(vii) With respect to the Stock Purchase Contracts, assuming
(a) the taking by the Board of all necessary corporate action to
authorize and approve the issuance and terms of the Stock Purchase
Contracts, the terms of the offering thereof and related matters and
(b) the due execution, issuance and delivery of the Stock Purchase
Contracts, upon payment of the consideration therefor or provided for
in the applicable definitive purchase, underwriting or similar
agreement approved by the Board and otherwise in accordance with the
provisions of the applicable Stock Purchase Contract Agreement, such
Stock Purchase Contracts will be legally issued.
(viii) With respect to the Warrants, assuming (a) the taking
by the Board of all necessary corporate action to authorize and approve
the issuance and terms of the Warrants, the terms of the offering
thereof and related matters and (b) the due execution, issuance and
delivery of the Warrants, upon payment of fair consideration or
reasonably equivalent value therefor as provided for in the applicable
definitive purchase, underwriting or similar agreement approved by the
Board and otherwise in accordance with the applicable Warrant
Agreement, such Warrants will be legally issued.
(ix) With respect to the Units, assuming (a) the taking by the
Board of all necessary corporate action to authorize and approve the
issuance and terms of the Units, the terms of the offering thereof and
related matters and (b) the due execution, issuance and delivery of the
Units, upon payment of fair consideration or reasonably equivalent
value therefor as provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board and the
governing body of each applicable Subsidiary and otherwise in
accordance with the applicable Unit agreement, such Units will be
legally issued.
The foregoing opinions are subject to the following:
(a) The enforceability of any document, instrument or Security
may be limited or affected by (i) bankruptcy, insolvency,
reorganization, moratorium, liquidation,
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April 23, 2002
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rearrangement, fraudulent transfer, fraudulent conveyance and other
similar laws (including court decisions) now or hereafter in effect and
affecting the rights and remedies of creditors generally or providing
for the relief of debtors, (ii) the refusal of a particular court to
grant equitable remedies, including without limitation specific
performance and injunctive relief, (iii) general principles of equity
(regardless of whether such remedies are sought in a proceeding in
equity or at law) and (iv) with respect to any Debt Securities
denominated in a currency other than United States dollars, the
requirement that a claim (or a foreign currency judgment in respect of
such a claim) with respect to such Securities be converted to United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or governmental authority.
(b) In rendering the foregoing opinions, we express no opinion
as to the legality, validity, enforceability or binding effect of
provisions of each of the referenced agreements relating to indemnities
and rights of contribution to the extent prohibited by public policy or
that might require indemnification for losses or expenses caused by
negligence, gross negligence, willful misconduct, fraud or illegality
of an indemnified party.
(c) We express no opinion as to any provision that (i) relates
to severability or separability or (ii) purports to require all
amendments, supplements or waivers to be in writing.
This opinion speaks as of its date and we undertake no, and hereby
disclaim any, duty to advise as to changes of fact or law coming to our
attention after the delivery hereof on such date. For the purposes of the
opinions expressed above, we have assumed that, at the time of the execution and
delivery of each Indenture, each supplemental indenture, each Certificate of
Designation in respect of Preferred Stock and Depositary Shares, each Warrant
Agreement to be used in connection with an issuance of Warrants, each Deposit
Agreement to be used in connection with an issuance of Depositary Shares, each
Stock Purchase Contract Agreement to be used in connection with an issuance of
Stock Purchase Contracts and any Unit agreement to be used in connection with an
issuance of Units, and at the time of the issuance and delivery of each
Security, (a) the Company will be validly existing in good standing under the
law of the State of Delaware, it will have full power and authority to execute,
deliver and perform its obligations under such Indenture, supplemental
indenture, Certificate of Designation, Warrant Agreement, Deposit Agreement,
Stock Purchase Contract Agreement, Unit agreement or Security, as the case may
be, and there shall have occurred no change in applicable law (statutory or
decisional), rule or regulation, or in any other relevant fact or circumstance,
that (in any such case) would adversely affect our ability to render at such
time an opinion containing the same legal conclusions herein set forth and
subject only to such (or fewer) assumptions, limitations and qualifications as
are contained herein, and (b) in the case of the Securities, at the time of
issuance, execution and delivery thereof or of the instrument evidencing the
same (i) the Registration Statement, and any amendments thereto (including
post-effective amendments), will have become effective and will comply with all
applicable laws, (ii) a Prospectus Supplement will have been prepared and filed
with the Commission describing the Securities offered thereby, (iii) all
Securities will have been issued and sold in compliance with applicable United
States
Tesoro Petroleum Corporation
April 23, 2002
Page 8
federal and state securities laws and in the manner stated in the
Registration Statement, as amended and in effect, and the corresponding
Prospectus Supplement, and (iv) a definitive purchase, underwriting or similar
agreement with respect to any Securities offered will have been duly authorized
and validly executed and delivered by the Company and the other parties thereto.
The opinions expressed herein are limited exclusively to the federal
laws of the United States of America, the laws of the State of New York and the
General Corporation Law of the State of Delaware, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements made with respect thereto under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
Very truly yours,
/s/ FULBRIGHT & JAWORSKI L.L.P.
SCHEDULE I
Digicomp, Inc.
Far East Maritime Company
Gold Star Maritime Company
Kenai Pipe Line Company
Smiley's Super Service, Inc.
Tesoro Alaska Company
Tesoro Alaska Pipeline Company
Tesoro Aviation Company
Tesoro Financial Services Holding Company
Tesoro Gas Resources Company, Inc.
Tesoro Hawaii Corporation
Tesoro High Plains Pipeline Company
Tesoro Marine Services Holding Company
Tesoro Marine Services, LLC
Tesoro Maritime Company
Tesoro Northstore Company
Tesoro Petroleum Companies, Inc.
Tesoro Refining and Marketing Company
Tesoro Technology Company
Tesoro Trading Company
Tesoro Vostok Company
Victory Finance Company