EXHIBIT 4.10
SUPPLEMENTAL INDENTURE
ESCROW CORP. MERGER
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of May
17, 2002 among Tesoro Escrow Corp. (the "Company"), Tesoro Petroleum Corporation
("Tesoro"), the subsidiary guarantors listed on the signature page hereto (the
"Original Guarantors") and U.S. Bank National Association, as trustee under the
indenture referred to below (the "Trustee"). Capitalized terms used herein and
not defined herein shall have the meaning ascribed to them in the Indenture (as
defined below).
WITNESSETH
WHEREAS, the Company has executed and delivered to the Trustee an
indenture (as amended and in effect, the "Indenture"), dated as of April 9,
2002, providing for the initial original issuance of an aggregate principal
amount of $450,000,000 of 9 5/8% Senior Subordinated Notes due 2012 (the
"Notes");
WHEREAS, Section 5.01 of the Indenture provides that, upon any merger
of the Company with and into another corporation, the Person surviving such
merger (if other than the Company) shall assume all of the obligations and
covenants of the Company under the Notes and the Indenture pursuant to a
supplemental indenture;
WHEREAS, Section 5.02 of the Indenture provides that, upon any merger
of the Company in accordance with Section 5.01 of the Indenture, the successor
corporation into which the Company is merged shall succeed to, and be
substituted for and may exercise every right and power of, the Company under the
Indenture with the same effect as if such successor Person had been a party to
the Indenture;
WHEREAS, Tesoro intends to merge the Company with and into Tesoro
immediately prior to the acquisition of the Golden Eagle Assets (the "Escrow
Corp. Merger") and pursuant to this Supplemental Indenture Tesoro, as the
surviving corporation, intends to assume all of the obligations and covenants of
the Company under the Notes and the Indenture and succeed to and be substituted
for the Company under the Indenture;
WHEREAS, Article XI of the Indenture provides that upon the
consummation of the Escrow Corp. Merger and Tesoro's assumption of the
obligations and covenants of the Company under the Notes and the Indenture, the
Original Guarantors shall execute and deliver to the Trustee this Supplemental
Indenture pursuant to which such Subsidiaries shall unconditionally guarantee
all of Tesoro's Obligations (as successor to the Company) under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein;
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, Tesoro, the Original
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Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Effect. This Supplemental Indenture shall become effective upon
filing of the certificate of merger with the Secretary of State of Delaware to
effectuate the acquisition of the Golden Eagle Assets.
2. Succession to Indenture. Tesoro hereby assumes all obligations and
covenants (including, without limitation, all the Obligations) of the Company
under the Indenture and the Notes, and pursuant to Section 5.02 of the
Indenture, Tesoro hereby succeeds to and is substituted for, and may exercise
every right and power of, the Company under the Indenture and the Notes, with
the same effect as if Tesoro has been a party to the Indenture. Tesoro agrees to
comply with all applicable terms of the Indenture and the Notes.
3. Agreement to Guarantee. Each of the Original Guarantors hereby
agrees, jointly and severally with all other Original Guarantors, to guarantee
Tesoro's Obligations under the Notes and the Indenture on the terms and subject
to the conditions set forth in Article XI of the Indenture and to be bound by
all other applicable provisions of the Indenture as a Guarantor thereunder.
4. No Recourse Against Others. No past, present or future director,
officer, employee, manager, incorporator, partner, member, agent, shareholder or
other owner of Capital Stock of the Company, Tesoro and any Guarantor, as such,
shall have any liability for any obligations of the Company, Tesoro or any
Guarantor under the Notes, any Subsidiary Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
8. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the Original
Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
TESORO ESCROW CORP.
By: /s/ GREGORY A. WRIGHT
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Name: Gregory A. Wright
Title: Senior Vice President and Chief
Financial Officer
TESORO PETROLEUM CORPORATION
By: /s/ GREGORY A. WRIGHT
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Name: Gregory A. Wright
Title: Senior Vice President and Chief
Financial Officer
FAR EAST MARITIME COMPANY
GOLD STAR MARITIME COMPANY
TESORO FINANCIAL SERVICES HOLDING
COMPANY
VICTORY FINANCE COMPANY
By: /s/ SHARON L. LAYMAN
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Name: Sharon L. Layman
Title: Authorized Person
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
TESORO MARITIME COMPANY
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TESORO NORTHSTORE COMPANY
TESORO PETROLEUM COMPANIES, INC.
TESORO REFINING AND MARKETING COMPANY
TESORO TECHNOLOGY COMPANY
TESORO TRADING COMPANY
TESORO VOSTOK COMPANY
By: /s/ SHARON L. LAYMAN
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Name: Sharon L. Layman
Title: Vice President and Treasurer
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ JAMES KOWALSKI
---------------------------------------
Name: James Kowalski
Title: Assistant Vice President
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