EXHIBIT 4.2
ANNEX A
TESORO PETROLEUM CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 23, 2004
To
Indenture dated as of April 17, 2003, between Tesoro Petroleum Corporation, as
Issuer, guarantors from time to time party thereto and
The Bank of New York, as Trustee, relating to
8.00% Senior Secured Notes due 2008
A-2
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture") is
made as of the twenty-third day of June, 2004, between Tesoro Petroleum
Corporation (the "Company"), certain Guarantor parties thereto and The Bank of
New York, as trustee (the "Trustee").
WHEREAS, the Company, the guarantors party thereto and the Trustee
heretofore executed and delivered an indenture dated as of April 17, 2003 (the
"Indenture");
WHEREAS, pursuant to the Indenture, the Company issued and the Trustee
authenticated and delivered, as Notes under the Indenture, the Company's 8.00%
Senior Secured Notes Due 2008 (the "Securities"); and
WHEREAS, Section 9.02 of the Indenture provides that the Company, with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding, when authorized by a resolution of the Board
of Directors, and the Trustee, may enter into one or more supplemental
Indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of modifying in any
manner the rights of the Holders of the Securities; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this First Supplemental Indenture and to make this First Supplemental
Indenture valid and binding have been complied with or have been done or
performed;
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any
provision of the Indenture which, absent this First Supplemental Indenture,
might operate to limit such action, the Company and the Trustee agree as follows
for the equal and ratable benefit of the Holders of the Securities:
1. - DEFINITIONS
(a) GENERAL.
For all purposes of the Indenture and this First Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
A. the words "herein", "hereof" and "hereunder" and other words
of similar import refer to the Indenture and this First
Supplemental Indenture as a whole and not to any particular
Article, Section or subdivision; and
B. capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indenture.
2. - AMENDMENT
(a) AMENDMENT TO SECTION 4.07 OF THE INDENTURE - RESTRICTED PAYMENTS
Section 4.07 shall be amended as follows:
(i) in clause (c) of the first paragraph of Section 4.07, the "or"
before "(xii)" in the fourth line thereof will be deleted and
replaced with a comma, and such "(xii)" will be followed by "or
(xiii)";
(ii) in the second paragraph of Section 4.07, the "and" before
clause (xii) will be deleted and a new clause will be added after
such clause (xii) and before the phrase "provided, further" to read
in its entirety "and (xiii) the redemption by the Company prior to
its stated maturity of all of the outstanding principal amount of
the Company's outstanding 9% senior subordinated notes due 2008,
plus all accrued and unpaid interest and premiums and all other fees
and expenses incurred in connection therewith and all other related
payments therewith and thereon;".
(iii) the final clause of the second paragraph of Section 4.07 which
begins "provided, further" shall be amended to read in its entirety
"provided, further, that with respect to clauses (ii), (iii), (v),
(vi), (vii), (viii), (x), (xi), (xii), and (xiii) above, no Default
or Event of Default shall have occurred and be continuing".
3. - MISCELLANEOUS
(a) EFFECTIVENESS.
This First Supplemental Indenture shall become effective upon its
execution and delivery by the Company and the Trustee. Upon the execution and
delivery of this First Supplemental Indenture by the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this First
Supplemental Indenture shall form a part of the Indenture for all purposes.
(b) INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented hereby, all provisions in the Indenture shall
remain in full force and effect. For greater certainty, the parties confirm that
the amendments to the Indenture effected by this First Supplemental Indenture,
and the payment by the Company and the receipt by the Holders of the Securities
of a fee in respect of the consent of the Holders to such amendments, are not
intended by the parties to (i) discharge, rescind, cancel or extinguish all or
any part of the indebtedness represented by the Securities; or (ii) effect a
novation, reissuance or disposition of the indebtedness represented by the
Securities or to create new indebtedness in respect of the indebtedness
represented by the Securities.
(c) INDENTURE AND FIRST SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.
This First Supplemental Indenture is an indenture supplemental to the
Indenture, and the Indenture and this First Supplemental Indenture shall
henceforth be read and construed together.
(d) CONFIRMATION AND PRESERVATION OF INDENTURE.
The Indenture as supplemented by this First Supplemental Indenture is in
all respects confirmed and preserved.
(e) CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this First Supplemental Indenture limits, qualifies or
conflicts with any provision of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), that is required under the Trust Indenture Act to be
part of and govern any provision of this First Supplemental Indenture, the
provision of the Trust Indenture Act shall control. If any provision of this
First Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the provision of the Trust
Indenture Act shall be deemed to apply to the Indenture as so modified or to be
excluded by this First Supplemental Indenture, as the case may be.
(f) SEVERABILITY.
In case any provision in this First Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(g) HEADINGS.
The Article and Section headings of this First Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part
of this First Supplemental Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
(h) BENEFITS OF SUPPLEMENTAL INDENTURE, ETC.
Nothing in this First Supplemental Indenture or the Securities, express or
implied, shall give to any person, other than the parties hereto and thereto and
their successors hereunder and thereunder and the Holders of the Securities, any
benefit of any legal or equitable right, remedy or claim under the Indenture,
this First Supplemental Indenture or the Securities.
(i) SUCCESSORS.
All agreements of the Company in this First Supplemental Indenture shall
bind its successors. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successors.
(j) TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee shall not be liable or responsible for the validity or sufficiency of
this First Supplemental Indenture or the due authorization of this First
Supplemental Indenture by the Company.
(k) CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
In entering into this First Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Indenture relating to the
conduct of, affecting the liability of or affording protection to the Trustee,
whether or not elsewhere herein so provided.
(l) GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
(m) COUNTERPART ORIGINALS.
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the date and year first above written.
TESORO PETROLEUM CORPORATION, as
Issuer
By: /s/ Gregory A. Wright
--------------------------------------
Name: Gregory A. Wright
Title: Executive Vice President and
Chief Financial Officer
DIGICOMP INC., as Guarantor
TESORO FINANCIAL SERVICES HOLDING
COMPANY, as Guarantor
FAR EAST MARITIME COMPANY, as
Guarantor
GOLD STAR MARITIME COMPANY, as
Guarantor
KENAI PIPE LINE COMPANY, as Guarantor
SMILEY'S SUPER SERVICE, INC., as
Guarantor
TESORO ALASKA COMPANY, as Guarantor
TESORO ALASKA PIPELINE COMPANY, as
Guarantor
TESORO AVIATION COMPANY, as Guarantor
TESORO HAWAII CORPORATION as
Guarantor
TESORO HIGH PLAINS PIPELINE
COMPANY, as Guarantor
TESORO MARINE SERVICES HOLDING
COMPANY, as Guarantor
TESORO MARINE SERVICES, LLC., as
Guarantor
By: Tesoro Marine Services Holding
Company, as sole member
TESORO MARITIME COMPANY, as Guarantor
TESORO NORTHSTORE COMPANY, as
Guarantor
TESORO PETROLEUM COMPANIES, INC. as
Guarantor
TESORO REFINING AND MARKETING
COMPANY, as Guarantor
TESORO TECHNOLOGY COMPANY, as
Guarantor
TESORO TRADING COMPANY, as Guarantor
TESORO VOSTOK COMPANY, as Guarantor
TESORO WASATCH, LLC, as Guarantor
By: /s/ Gregory A. Wright
--------------------------------------------
Name: Gregory A. Wright
Title: Executive Vice President and Chief
Financial Officer
TESORO GAS RESOURCES COMPANY,
INC., as Guarantor
VICTORY FINANCE COMPANY, as Guarantor
By: /s/ G. Scott Spendlove
--------------------------------------------
Name: G. Scott Spendlove
Title: Vice President, Finance and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Van K. Brown
----------------------------------------
Name: Van K. Brown
Title: Vice President