EXHIBIT 5.1
FULBRIGHT & JAWORSKI L.L.P.
A Registered Limited Liability Partnership
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
www.fulbright.com
TELEPHONE: (713) 651-5151 FACSIMILE: (713) 651-5246
July 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 $.16-2/3 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
Austin o Dallas o Hong Kong o Houston o London o Los Angeles
o Minneapolis o Munich o New York o San Antonio o Washington DC
Tesoro Petroleum Corporation
July 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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July 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
Tesoro Petroleum Corporation
July 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.
(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
Tesoro Petroleum Corporation
July 23, 2002
Page 5
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 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.
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July 23, 2002
Page 6
(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 and constitute valid and binding obligations of the Company under
applicable state law governing the Stock Purchase Contract Agreement.
(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 and constitute valid and binding obligations of the Company
under applicable state law governing the Warrant Agreement.
(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, rearrangement, fraudulent transfer, fraudulent
conveyance and other similar laws
Tesoro Petroleum Corporation
July 23, 2002
Page 7
(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 federal and state securities laws and in the manner stated in the
Registration Statement, as
Tesoro Petroleum Corporation
July 23, 2002
Page 8
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