exv4w2



 






Exhibit 4.2




TESORO CORPORATION




and each of the Guarantors named herein




95⁄8% SENIOR SUBORDINATED NOTES DUE 2012




 






SUPPLEMENTAL INDENTURE




Dated November 14, 2005




 






U.S. Bank National Association




Trustee



 




 









 








     This SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of November 14,
2005, is by and among Tesoro Corporation, a Delaware corporation (formerly known as Tesoro Escrow
Corp., which was merged with and into Tesoro Petroleum Corporation, the “Issuer”), the
direct or indirect subsidiaries of the Issuer listed on the signature pages hereof (collectively,
the “Guarantors”) and U.S. Bank National Association, as trustee under the indenture
referred to below (the “Trustee”).



     WHEREAS, the Issuer and certain of the Guarantors have heretofore executed and delivered to
the Trustee the indenture dated as of April 9, 2002 (as amended and supplemented and in effect, the
“Indenture”), providing for the initial original issuance of an aggregate principal amount
of $450,000,000 of 95⁄8% Senior Subordinated Notes due 2012 (the “Notes”);



     WHEREAS, the Issuer and the Guarantors propose to amend the Indenture (the “Proposed
Amendments”), which Proposed Amendments must be approved with the written consent of the
Holders of at least a majority of the aggregate principal amount of the outstanding Notes;



     WHEREAS, the Issuer has solicited the consent of the Holders of the Notes pursuant to the
Offer to Purchase and Consent Solicitation Statement dated October 31, 2005, as amended,
supplemented or modified (the “Consent Solicitation Statement”) to the Proposed Amendments
to the Indenture upon the terms and subject to the conditions set forth therein;



     WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuer and the Trustee may amend or
supplement the Indenture as contemplated hereby provided that the Holders of at least a majority in
aggregate principal amount of Notes then outstanding have consented;



     WHEREAS, the Issuer has received and delivered or caused to be delivered to the satisfaction
of the Trustee the consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Notes to the Proposed Amendments pursuant to the Consent Solicitation Statement;



     WHEREAS, the Trustee is in receipt of such written consents;



     WHEREAS, the Issuer and each Guarantor has been authorized by a resolution of its respective
board of directors or board of managers to enter into this Supplemental Indenture;



     WHEREAS, all other acts and proceedings required by law, by the Indenture and by the
certificate or articles of incorporation and by-laws or similar organizational documents of the
Issuer and the Guarantors to make this Supplemental Indenture a valid and binding agreement for the
purposes expressed herein, in accordance with its terms, have been duly done and performed;



     WHEREAS, pursuant to Section 9.02 and Section 9.06 of the Indenture, the Trustee is authorized
to execute this Supplemental Indenture;



     WHEREAS, following the execution of this Supplemental Indenture, the terms hereof will become
operative (the “Operative Date”) on the first date that the Issuer purchases the Notes
validly tendered in the “Offer to Purchase” contemplated by the Consent Solicitation Statement; and



     WHEREAS, the terms of this Supplemental Indenture shall be null and void if the Operative Date
does not occur on or prior to December 15, 2005.



 









 





     NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:



     That, for and in consideration of the premises herein contained and in order to effect the
Proposed Amendments contained in the Consent Solicitation Statement, pursuant to Section 9.02 of
the Indenture the Issuer and the Guarantors agree with the Trustee as follows:



ARTICLE ONE

AMENDMENT OF INDENTURE




     SECTION 1.01. Amendment of Indenture. Effective as of the Operative Date, this Supplemental
Indenture amends the Indenture as provided for herein. The Issuer and the Guarantors acknowledge
and agree that no amendment or waiver of the provisions described in Section 9.02 of the Indenture
requiring the consent of each affected Holder has been made hereby. If the Operative Date does not
occur on or prior to December 15, 2005, then the terms of this Supplemental Indenture shall be null
and void and the Indenture shall continue in full force and effect without any modification hereby.
The Issuer shall give the Trustee prompt written notice of the Operative Date or of the failure of
the Operative Date to occur.



     SECTION 1.02. Amendment of Section 1.01. Section 1.01 of the Indenture is hereby amended by
(a) deleting in their entirety the definitions of “Acquired Debt”, “Change of Control”, “Commodity
Hedging Agreements”, “Commodity Hedging Obligations”, “Consolidated Cash Flow”, “Consolidated Net
Income”, “Fixed Charge Coverage Ratio”, “Fixed Charges”, “Net Income”, “Permitted Debt” and
“Unrestricted Subsidiary” contained in the Indenture and (b) adding the following defined term to
Section 1.01 of the Indenture:



     "incur” means to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness.



     SECTION 1.03. Amendment of Section 1.02. Section 1.02 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 1.02. Other Definitions.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	"Asset Sale Offer”
	 	 	3.09	 
	"DTC”
	 	 	2.03	 
	"Event of Default”
	 	 	6.01	 
	"Funding Guarantor”
	 	 	11.05	 
	"Legal Defeasance”
	 	 	8.03	 
	"Nonpayment Default”
	 	 	10.03	 
	"Offer Amount”
	 	 	3.09	 
	"Offer Period”
	 	 	3.09	 
	"Original Notes”
	 	 	2.02	 
	"Paying Agent”
	 	 	2.03	 
	"Payment Blockage Notice”
	 	 	10.03	 
	"Purchase Date”
	 	 	3.09	 
	"Registrar”
	 	 	2.03	 
	"Terminated Covenant”
	 	 	4.19	 






 









 






     SECTION 1.04. Amendment to Section 4.02. Section 4.02 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.02. [Intentionally Omitted.]



     SECTION 1.05. Amendment to Section 4.04. Section 4.04 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.04. [Intentionally Omitted.]



     SECTION 1.06. Amendment to Section 4.05. Section 4.05 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.05. [Intentionally Omitted.]



     SECTION 1.07. Amendment to Section 4.06. Section 4.06 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.06. [Intentionally Omitted.]



     SECTION 1.08. Amendment to Section 4.07. Section 4.07 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.07. [Intentionally Omitted.]



     SECTION 1.09. Amendment to Section 4.08. Section 4.08 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.08. [Intentionally Omitted.]



     SECTION 1.10. Amendment to Section 4.09. Section 4.09 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.09. [Intentionally Omitted.]



     SECTION 1.11. Amendment to Section 4.10. Section 4.10 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.10. [Intentionally Omitted.]



     SECTION 1.12. Amendment to Section 4.11. Section 4.11 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.11. [Intentionally Omitted.]



     SECTION 1.13. Amendment to Section 4.12. Section 4.12 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.12. [Intentionally Omitted.]



 









 





     SECTION 1.14. Amendment to Section 4.13. Section 4.13 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.13. [Intentionally Omitted.]



     SECTION 1.15. Amendment to Section 4.14. Section 4.14 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.14. [Intentionally Omitted.]



     SECTION 1.16. Amendment to Section 4.15. Section 4.15 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.15. [Intentionally Omitted.]



     SECTION 1.17. Amendment to Section 4.16. Section 4.16 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.16. [Intentionally Omitted.]



     SECTION 1.18. Amendment to Section 4.17. Section 4.17 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.17. [Intentionally Omitted.]



     SECTION 1.19. Amendment to Section 4.18. Section 4.18 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.18. [Intentionally Omitted.]



     SECTION 1.20. Amendment to Section 4.19. Section 4.19 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 4.19. Suspension of Covenants. In the event that at any time (i) the rating assigned
to the Notes by each of S&P and Moody’s is an Investment Grade Rating and (ii) no Default has
occurred and is continuing, the Company and its Restricted Subsidiaries will no longer be subject
to Section 11.03(b)(iii) hereof (the “Terminated Covenant”); provided, however, that all other
provisions of this Indenture shall continue to be in full force and effect.



     SECTION 1.21. Amendment to Section 5.01. Section 5.01 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 5.01. [Intentionally Omitted.]



     SECTION 1.22. Amendment to Section 5.02. Section 5.02 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 5.02. [Intentionally Omitted.]



 









 





     SECTION 1.23. Amendment to Section 6.01. Section 6.01 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 6.01. Events of Default.



     An “Event of Default” occurs if:



     (a) the Company defaults in the payment when due of interest on, or Liquidated Damages, if
any, with respect to, the Notes and such default continues for a period of 30 days (whether or not
prohibited by Article 10 hereof);



     (b) the Company defaults in the payment when due of principal of or premium, if any, on the
Notes (whether or not prohibited by Article 10 hereof);



     (c) [Intentionally Omitted];



     (d) [Intentionally Omitted];



     (e) [Intentionally Omitted];



     (f) [Intentionally Omitted];



     (g) the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of the
Bankruptcy Code:




     (i) commences a voluntary case,




     (ii) consents to the entry of an order for relief against it in an involuntary case,




     (iii) consents to the appointment of a Custodian of it or for all or substantially all
of its property,




     (iv) makes a general assignment for the benefit of its creditors, or




     (v) generally is not paying its debts as they become due;



     (h) [Intentionally Omitted]; or



     (i) [Intentionally Omitted].



     SECTION 1.24. Amendment to Section 6.03. Section 6.03 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 6.03. [Intentionally Omitted.]



     SECTION 1.25. Amendment to Section 6.08. Section 6.08 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 6.08. [Intentionally Omitted.]



 









 





     SECTION 1.26. Amendment to Section 8.03. Section 8.03 of the Indenture is hereby amended and
restated in its entirety to read as follows:




Section 8.03. Defeasance. The Company may defease the outstanding Notes at any time by
placing on deposit with a reputable servicing agent an amount equal to the outstanding
principal amount of all the outstanding Notes being defeased plus an amount sufficient to
cover the required interest payments and servicing fees with respect to such defeased notes,
all as shall be determined by the Company in its reasonable business judgment. Such
defeasance shall constitute a “Legal Defeasance” for all purposes of this Indenture.



     SECTION 1.27. Amendment to Section 8.04. Section 8.04 of the Indenture is hereby amended and
restated in its entirety to read as follows:




Section 8.04. Conditions to Defeasance. The Company shall have delivered to the Trustee an
Officer’s Certificate and an Opinion of Counsel, subject to customary assumptions and
exceptions, each stating that all applicable conditions precedent relating to the defeasance
have been complied with.



     SECTION 1.28. Amendment to Section 8.05. Section 8.05 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 8.05. [Intentionally Omitted.]



     SECTION 1.29. Amendment to Section 8.06. Section 8.06 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 8.06. [Intentionally Omitted.]



     SECTION 1.30. Amendment to Section 8.07. Section 8.07 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 8.07. [Intentionally Omitted.]



     SECTION 1.31. Amendment to Section 8.08. Section 8.08 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 8.08. [Intentionally Omitted.]



     SECTION 1.32. Amendment to Section 8.09. Section 8.09 of the Indenture is hereby amended and
restated in its entirety to read as follows:



     Section 8.09. [Intentionally Omitted.]



     SECTION 1.33. General Conforming Amendment. The Indenture shall hereby be deemed to be
amended to delete any and all references therein to any section or subsections deleted pursuant
hereto and to any defined terms in the Indenture that are used solely in those deleted sections or
subsections.



 









 





ARTICLE TWO

MISCELLANEOUS PROVISIONS




     SECTION 2.01. Instruments to be Read Together. This Supplemental Indenture is an indenture
supplemental to and in implementation of the Indenture, and said Indenture and this Supplemental
Indenture shall henceforth be read together.



     SECTION 2.02. Confirmation. The Indenture as amended and supplemented by this Supplemental
Indenture is in all respects confirmed and preserved.



     SECTION 2.03. Terms Defined. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture. For all purposes of the Indenture and this
Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise
requires, the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
the Indenture and this Supplemental Indenture as a whole and not to any particular Article, Section
or subdivision.



     SECTION 2.04. Counterparts. This Supplemental Indenture may be signed in any number of
counterparts, delivered either in the original and electronically, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



     SECTION 2.05. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



     SECTION 2.06. Effectiveness. The provisions of this Supplemental Indenture will take effect
immediately upon execution thereof by the parties hereto and will become operative to amend the
Indenture as provided in Article One hereof on the Operative Date of this Supplemental Indenture.



     SECTION 2.07. Conflict with Trust Indenture Act. If any provision of this 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 Supplemental Indenture, the provision of the Trust Indenture Act
shall control. If any provision of this 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
Supplemental Indenture, as the case may be.



     SECTION 2.08. Severability. In case any provision in this 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.



     SECTION 2.09. Benefits of Supplemental Indenture, etc. Nothing in this Supplemental
Indenture or the Notes, 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 Notes, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this Supplemental Indenture
or the Notes.



     SECTION 2.10. Successors. All agreements of the Company in this Supplemental Indenture shall
bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its
successors.



     SECTION 2.11. 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 Supplemental
Indenture or the due authorization of this Supplemental Indenture by the Company.




     SECTION 2.12. Certain Duties and Responsibilities of the Trustee. In entering into this
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.



     SECTION 2.13. Governing Law. The laws of the State of New York shall govern this Supplemental
Indenture without regard to principles of conflicts of law.



[remainder of the page intentionally left blank]





 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.



	 	 	 	 	 
	 	TESORO CORPORATION, as Issuer

 	 
	 	By:  	/s/ Gregory A. Wright
 	 
	 	 	Name:  	Gregory A. Wright 	 
	 	 	Title:  	Executive Vice President and Chief
Financial Officer 	 
	 



	 	 	 	 	 
	 	 	 	 	TESORO FAR EAST MARITIME COMPANY (f/k/a 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 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

	 	 	 	 	TESORO ENVIRONMENTAL RESOURCES COMPANY, as Guarantor

	 	 	 	 	VICTORY FINANCE COMPANY, as Guarantor








	 	 	 	 	 
	 	 	 
	 	By:  	                                          /s/ Gregory A. Wright
 	 
	 	 	Name:  	Gregory A. Wright 	 
	 	 	Title:  	Executive Vice President and Chief Financial
Officer 	 
	 








 









 











	 	 	 	 	 
	 	TESORO HAWAII CORPORATION, as Guarantor

 	 
	 	By:  	/s/ Gregory A. Wright
 	 
	 	 	Name:  	Gregory A. Wright 	 
	 	 	Title:  	Executive Vice President, Chief
Financial Officer and Treasurer 	 
	 



	 	 	 	 	 
	 	TESORO GAS RESOURCES COMPANY, INC., as Guarantor

DIGICOMP, INC., as Guarantor

 	 
	 	By:  	/s/ Scott Spendlove
 	 
	 	 	Name:  	Scott Spendlove 	 
	 	 	Title:  	Vice President, Finance and Treasurer 	 
	 



	 	 	 	 	 
	 	TESORO FINANCIAL SERVICES HOLDING COMPANY, as Guarantor

 	 
	 	By:  	/s/ Scott Spendlove
 	 
	 	 	Name:  	Scott Spendlove 	 
	 	 	Title:  	Attorney-in-fact 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

 	 
	 	By:  	/s/ James Kowalski
 	 
	 	 	Name:  	James Kowalski 	 
	 	 	Title:  	Vice President