exv4w3



 






Exhibit 4.3




EXECUTION COPY




EXCHANGE AND REGISTRATION RIGHTS AGREEMENT




TESORO CORPORATION




$450,000,000 6 1/4% Senior Notes due 2012




          This Registration Rights Agreement (this “Agreement”) is made and entered into as of November
16, 2005 by and among Tesoro Corporation, a Delaware corporation (the “Company”), Digicomp Inc.,
Gold Star Maritime Company, Kenai Pipe Line Company, Smiley’s Super Service, Inc., Tesoro Alaska
Company, Tesoro Alaska Pipeline Company, Tesoro Aviation Company, Tesoro Environmental Resources
Company, Tesoro Far East Maritime Company, Tesoro Financial Services Holding Company, Tesoro Hawaii
Corporation, Tesoro High Plains Pipeline Company, Tesoro Maritime Company, Tesoro Northstore
Company, Tesoro Petroleum Companies, Inc., Tesoro Refining and Marketing Company, Tesoro Trading
Company, Tesoro Wasatch, LLC and Victory Finance Company (each a “Guarantor” and collectively, the
“Guarantors”), and Lehman Brothers Inc., Goldman, Sachs & Co. and J.P. Morgan Securities, Inc., as
the several initial purchasers named in the Purchase Agreement (the “Purchasers”), who have agreed
to purchase $450,000,000 aggregate amount of the Company’s 6 1/4% Senior Notes due 2012 (the “Initial
Notes”) pursuant to and subject to the terms and conditions of that certain Purchase Agreement,
dated November 8, 2005 (the “Purchase Agreement”) among the Company, the Guarantors and the
Purchasers. In order to induce the Purchasers to purchase the Initial Notes, the Company and the
Guarantors have agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligation of the Purchasers to
purchase the Initial Notes pursuant to the Purchase Agreement.




          1. Definitions. As used in this Agreement, the following capitalized terms shall have the
following meanings:




          6 5/8% Senior Notes due 2015: The 6 5/8% Senior Notes due 2015 of the Company issued pursuant to
that certain Indenture, dated as of November 16, 2005, among the Company, the Guarantors and U.S.
Bank National Association, as trustee.




          Advice: As defined in Section 6(d) hereof.




          Affiliate: With respect to any specified person, “Affiliate” shall mean any other person
directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified person. For the purposes of this definition, “control,” when used with respect to
any person, means the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise and the
terms “affiliated,” “controlling” and “controlled” have meanings correlative to the foregoing.




          Broker-Dealer: Any broker or dealer registered under the Exchange Act.





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          Broker Dealer Transfer Restricted Securities: Exchange Notes that are acquired by a
Broker-Dealer in the Exchange Offer in exchange for Initial Notes that such Broker-Dealer acquired
for its own account as a result of market-making activities or other trading activities (other than
Initial Notes acquired directly from the Company or any of its Affiliates).




          Business Day: Any day except a Saturday, Sunday or other day in the City of New York, or in
the city of the corporate trust office of the Trustee, on which banks are authorized to close.




          Closing Date: The date on which the Initial Notes are initially issued.




          Commission: The United States Securities and Exchange Commission, or any other federal agency
at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.




          Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Exchange Offer Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Company to the Trustee under the Indenture of
Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Initial
Notes that were tendered by Holders thereof pursuant to the Exchange Offer.




          Damages Payment Date: With respect to the Transfer Restricted Securities, each Interest
Payment Date.




          Definitive Notes: As defined in the Indenture.




          Effectiveness Target Date: As defined in Section 5 hereof.




          Effective Time: In the case of (i) an Exchange Registration, shall mean the time and date as
of which the Commission declares the Exchange Offer Registration Statement effective or as of which
the Exchange Offer Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes
effective.




          Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.




          Exchange Notes: The Company’s 6 1/4% Senior Notes due 2012 to be issued pursuant to the
Indenture (i) in the Exchange Offer or (ii) upon the request of any Holder of Notes covered by a
Shelf Registration Statement, in exchange for such Notes. Each Note is entitled to the benefit of
the guarantee provided for in the Indenture (the “Guarantee”) and, unless the context otherwise
requires, any reference herein to a “Note,” an “Exchange Note” or a “Transfer Restricted Security”
shall include a reference to the related Guarantee.






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          Exchange Offer: The registration by the Company under the Securities Act of the Exchange
Notes pursuant to an Exchange Offer Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.




          Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.




          Global Note: As defined in the Indenture.




          Holders: As defined in Section 2(b) hereof.




          indemnified party: As defined in Section 8(c) hereof.




          indemnifying party: As defined in Section 8(c) hereof.




          Indenture: The Indenture, dated as of November 16, 2005, among the Company, the Guarantors
and U.S. Bank National Association, as trustee (the “Trustee”), pursuant to which the Notes are to
be issued, as such Indenture is amended or supplemented from time to time in accordance with the
terms thereof.




          Interest Payment Date: As defined in the Indenture and the Notes.




          NASD: National Association of Securities Dealers, Inc.




          Notes: The Initial Notes and the Exchange Notes.




          Person: An individual, partnership, corporation, limited liability company, joint venture,
association, joint- stock company, trust or unincorporated organization, or a government or agency
or political subdivision thereof or any other entity.




          Prospectus: The prospectus included in a Registration Statement at the time such Registration
Statement is declared effective, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.




          Record Holder: With respect to any Damages Payment Date relating to Notes, each Person who is
a Holder of Notes on the record date with respect to the Interest Payment Date on which such
Damages Payment Date shall occur.




          Registration Default: As defined in Section 5 hereof.




          Registration Statement: Any registration statement of the Company and the Guarantors relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each case
(i) which is filed pursuant to the provisions of this Agreement, and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.





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          Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer Transfer Restricted
Securities.




          Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.




          Shelf Filing Deadline: As defined in Section 4 hereof.




          Shelf Registration Statement: As defined in Section 4 hereof.




          Special Interest: As defined in Section 5 hereof.




          TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section 77aaa-77bbbb), as in
effect on the date of the Indenture.




          Transfer Restricted Securities: Each Initial Note, until the earliest to occur of (a) the
date on which such Initial Note is exchanged in the Exchange Offer and entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery requirements of the
Securities Act, (b) the date on which such Initial Note has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration Statement, (c) the date on
which such Initial Note is distributed to the public pursuant to Rule 144 or is saleable pursuant
to Rule 144(k) under the Securities Act and (d) the date on which such Initial Note is distributed
by a Broker-Dealer pursuant to the “Plan of Distribution” (or similar provision) section
contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein).




          Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.




          2. Securities Subject to this Agreement.




          (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.




          (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.




          3. Registered Exchange Offer.




          (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied with), the Company
shall (i) cause to be filed with the Commission as soon as practicable after the Closing Date, but
in no event later than 240 days after the Closing Date, the Exchange Offer Registration Statement
under the Securities Act relating to the Exchange Notes and the Exchange Offer, (ii) use its
reasonable best efforts to have the Exchange Offer Registration Statement declared effective by the
Commission at the earliest possible time, but in no event later than one year from the Closing
Date, (iii) in connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause such Exchange Offer
Registration Statement to become effective, (B) if applicable, file a







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post-effective amendment to
such Exchange Offer Registration Statement pursuant to Rule 430A under the Securities Act and (C)
cause all necessary filings, if any, in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence the Registered Exchange Offer and use its reasonable best efforts
to issue, on or prior to 60 days after the date on which the Exchange Offer Registration Statement
was declared effective by the Commission, Exchange Notes in exchange for all Initial Notes tendered
prior thereto in the Registered Exchange Offer. The Exchange Offer Registration Statement shall be
on the appropriate form permitting registration of the Exchange Notes to be offered in exchange for
the Transfer Restricted Securities and to permit sales of Broker-Dealer Transfer Restricted
Securities by Broker-Dealers as contemplated by Section 3(c) below.




          (b) The Company shall use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open for a period of not
less than the minimum period required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event shall such period be less than
20 Business Days. The Company shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Notes and, at the Company’s option, the
6 5/8% Senior Notes due 2015 shall be included in the Exchange Offer Registration Statement.




          (c) The Company shall include a “Plan of Distribution” (or similar provision) section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate that any Restricted
Broker-Dealer who holds Initial Notes that are Transfer Restricted Securities and that were
acquired for the account of such Restricted Broker-Dealer as a result of market-making activities
or other trading activities (other than Transfer Restricted Securities acquired directly from the
Company or one of its Affiliates) may exchange such Initial Notes pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities
Act in connection with its initial sale of the Exchange Notes received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan
of Distribution” (or similar provision) section shall also contain all other information with
respect to such resales of Broker-Dealer Transfer Restricted Securities that the Commission may
require in order to permit such sales pursuant thereto but such “Plan of Distribution” (or other
similar provision) section shall not name any such Broker-Dealer or disclose the amount of Notes
held by any such Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.




          The Company and the Guarantors shall use their respective reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and amended as required
by the provisions of Section 6(c) below to the extent necessary to ensure that it is available for
resales of Broker-Dealer Transfer Restricted Securities acquired by Restricted Broker-Dealers and
to ensure that it conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to time, for a period of
180 days from the date on which the Exchange






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Offer Registration Statement is declared effective or,
if shorter, until all Broker-Dealer Transfer Restricted Securities have been sold thereunder.




          The Company shall provide sufficient copies of the latest version of such Prospectus to such
Restricted Broker-Dealers promptly upon request at any time during such 180 day period (or such
shorter period, if applicable) in order to facilitate such sales.




          4. Shelf Registration.




          (a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a)
below have been complied with) or (ii) any Holder of Transfer Restricted Securities shall notify
the Company within 20 Business Days of the Consummation of the Exchange Offer that (A) such Holder
is prohibited by applicable law or Commission policy from participating in the Exchange Offer, (B)
such Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such Holder, or (C) such
Holder is a Broker-Dealer and holds Initial Notes acquired directly from the Company or one of its
Affiliates, then the Company and the Guarantors shall:





     (i) use its reasonable best efforts to file a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the “Shelf Registration Statement”), on or prior
to the earlier to occur of (1) the 30th day after the date on which the Company receives
notice from the Commission or determines that it is not required to file the Exchange Offer
Registration Statement pursuant to clause (i) above, and (2) the 30th day after the date on
which the Company receives notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) above, (such earliest date being the “Shelf Filing Deadline”),
which Shelf Registration Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the information required pursuant to
Section 4(b) hereof; and




     (ii) use its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 90th day after the Shelf Filing
Deadline.



          The Company and the Guarantors shall use their respective reasonable best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as required by and
subject to the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it
is available for sales of Transfer Restricted Securities by the Holders thereof entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended pursuant to Section
6(c)(i)) following the date on which such Shelf Registration Statement first becomes effective
under the Securities Act or such shorter period ending when all of the Transfer Restricted
Securities available for sale thereunder have been sold pursuant thereto.





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          (b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder
of Transfer Restricted Securities shall be entitled to Special Interest (as defined below) pursuant
to Section 5 hereof unless and until such Holder shall have provided all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially misleading.




          5. Special Interest. If (i) any of the Registration Statements required by this Agreement are
not filed with the Commission on or prior to the date specified for such filing in this Agreement,
(ii) any of such Registration Statements has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement (the “Effectiveness Target
Date”), (iii) the Exchange Offer has not been Consummated within 60 days after the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement or (iv) any Registration
Statement required by this Agreement is filed and declared effective but shall thereafter cease to
be effective or fail to be usable for its intended purpose without being succeeded within 30 days
by a post-effective amendment to such Registration Statement, the effectiveness of another
Registration Statement or the use of the Prospectus (as amended or supplemented) is again permitted
that cures such failure (each such event referred to in clauses (i) through (iv), a “Registration
Default”), the Company hereby agrees to pay, as liquidated damages for such Registration Default,
subject to the provisions of Section 12(a), special interest (“Special Interest”). Special
interest shall be paid to each Holder of Transfer Restricted Securities with respect to the first
90-day period immediately following the occurrence of such Registration Default, in an amount equal
to $0.05 per week per $1,000 principal amount of Transfer Restricted Securities held by such Holder
for each week or portion thereof that the Registration Default continues. The amount of the
Special Interest shall increase by an additional $0.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Special Interest of $0.50 per week per $1,000
principal amount of Transfer Restricted Securities. All accrued Special Interest shall be paid to
the holder(s) of Global Note(s) representing Transfer Restricted Securities by the Company by wire
transfer of immediately available funds or by federal funds check and to Holders of Certificated
Securities by wire transfer to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified on each Damages Payment Date, as
provided in the Indenture. Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional Registration Statement that
causes the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or the Prospectus to be made usable in the case of (iv)





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above, the Special Interest payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.




          All obligations of the Company and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.




          6. Registration Procedures.




          (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company
and the Guarantors shall comply with all applicable provisions of Section 6(c) below, shall use
their respective reasonable best efforts to effect such exchange to permit the sale of
Broker-Dealer Transfer Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (which shall be in a manner consistent with the terms of this
Agreement), and shall comply with all of the following provisions:





     (i) If, following the date hereof and prior to the Consummation of the Exchange Offer,
there has been published a change in Commission policy with respect to exchange offers such
as the Exchange Offer, such that in the reasonable opinion of counsel to the Company there
is a substantial question as to whether the Exchange Offer is permitted by applicable law
or Commission policy, the Company and the Guarantors hereby agree to seek a no-action
letter or other favorable decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Initial Notes. The Company and the
Guarantors hereby agree to pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially unreasonable action to effect a change
of Commission policy. The Company and the Guarantors hereby agree, however, to take all
such other actions as are reasonably requested by the Commission staff or otherwise
required in connection with the issuance of such decision, including without limitation, to
(A) participate in telephonic conferences with the Commission staff, (B) deliver to the
Commission staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be favorable) by the
Commission staff of such submission.




     (ii) As a condition to its participation in the Exchange Offer pursuant to the terms
of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of the Company, prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an Affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business. In addition, all such Holders of Transfer Restricted Securities shall
otherwise reasonably cooperate in the Company’s preparations for the Exchange Offer. Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission



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policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in no-action letters issued to
Morgan Stanley and Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters (including any no-
action letter obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in connection with
a secondary resale transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K if the resales
are of the Exchange Notes obtained by such Holder in exchange for Initial Notes acquired by
such Holder directly from the Company or an Affiliate thereof.




     (iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company
and the Guarantors shall provide a supplemental letter to the Commission (A) stating that
the Company and the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in no-action letters issued to Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co. Incorporated (available June
5, 1991) and, if applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that neither the Company nor any Guarantor has entered into
any arrangement or understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Company’s information and
belief, each Holder participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the Exchange Offer and
(C) any other undertaking or representation required by the Commission as set forth in any
no-action letter obtained pursuant to clause (i) above.



          (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, the
Company and the Guarantors shall comply with all the provisions of Section 6(c) below and shall use
their reasonable best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company and the Guarantors will as expeditiously as possible, and
in any event within the time periods and otherwise in accordance with the provisions hereof,
prepare and file with the Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods of distribution
thereof.




          (c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Exchange Offer Registration Statement and the related
Prospectus required to permit resales of Transfer Restricted Securities by Restricted
Broker-Dealers), the Company and the Guarantors shall:





     (i) use their respective reasonable best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable; upon the occurrence



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of any
event that would cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period required by this Agreement,
the Company and the Guarantors shall file promptly an appropriate amendment to such
Registration Statement, (1) in the case of clause (A), correcting any such misstatement or
omission, and (2) in the case of either clause (A) or (B), use their respective reasonable
best efforts to cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter;




     (ii) use their respective reasonable best efforts to prepare and file with the
Commission such amendments and post-effective amendments to the Registration Statement as
may be necessary to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424, 430A and 462, as applicable, under the
Securities Act in a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;




     (iii) advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment thereto has been filed, and, with
respect to any Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities Act or of
the suspension by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue in any material respect, or that requires the
making of any additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein, in light of the circumstances under which they were
made, not misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest practicable time;




     (iv) upon written request, furnish to the Initial Purchasers, and, upon written
request, to each of the selling Holders and each of the underwriter(s) in connection with



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such sale, if any, before filing with the Commission, copies of any Registration Statement
or any Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus, which documents will be subject to the review of such
Holders and underwriter(s) in connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration Statement or Prospectus
to which a selling Holder of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof. A selling Holder or
underwriter in connection with such sale, if any, shall be deemed to have reasonably
objected to such filing (A) if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Securities Act or (B)
if any of the information furnished to the Company by such selling Holder or underwriter in
connection with such sale, if any, and included in such Registration statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed is incorrect in any
respect;




     (v) upon written request, promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, provide copies of
such document to the selling Holders and to the underwriter(s) in connection with such
sale, if any, make the Company’s and the Guarantors’ representatives available for
discussion of such document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling Holders or
underwriters, if any, reasonably may request;




     (vi) in the case of a shelf registration, make available at reasonable times for
inspection by the selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all relevant financial and other records,
pertinent corporate documents and properties of the Company and cause the Company’s
officers, directors and employees to supply all information, in each case, reasonably
requested by any such Holder, underwriter, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;




     (vii) if requested by any selling Holders or the underwriter(s) in connection with
such sale, if any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the “Plan of Distribution”
of the Transfer Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer Restricted Securities to
be sold in such offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective amendment;



11









 






     (viii) use their respective commercially reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s) in connection with such
sale, if any, unless such Transfer Restricted Securities are already so rated;




     (ix) furnish to each selling Holder and each of the underwriter(s) in connection with
such sale, if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits incorporated therein
by reference);




     (x) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the Company and the
Guarantors hereby consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;




     (xi) enter into such agreements (including an underwriting agreement), and make such
representations and warranties with respect to the business of the Company as are
customarily addressed in representations and warranties made by issuers to underwriters in
underwritten offerings, and take all such other commercially reasonable actions in
connection therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement contemplated by this
Agreement, all to such extent as may be requested by the Initial Purchasers or by any
Holder of Transfer Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this Agreement; and whether
or not an underwriting agreement is entered into and whether or not the registration is an
Underwritten Registration, the Company and the Guarantors shall:




          (A) furnish to the Initial Purchasers, each selling Holder and each underwriter,
if any, in such substance and scope as they may reasonably request and as are
customarily made by issuers to underwriters in primary underwritten offerings, upon the
date of the Consummation of the Exchange Offer and, if applicable, the effectiveness of
the Shelf Registration Statement:




          (1) a certificate, dated the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration Statement, as the case may be, signed
on behalf of the Company and each of the Guarantors by the Chairman of the Board,
President or any Vice President and Treasurer or Chief Financial Officer of the
Company, confirming, as of the date thereof, the matters set forth in Section 7(h) of
the Purchase Agreement and such other matters as such parties may reasonably request;




          (2) opinions, dated the date of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case may be, of counsel or
counsels for the Company and the Guarantors, covering such matters as



12









 






are customarily
covered in opinions given in connection with underwritten firm commitment offerings.




          (3) customary comfort letters, dated as of the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the
case may be, from the Company’s independent accountants, in the customary form and
covering matters of the type customarily covered in comfort letters by underwriters in
connection with Underwritten Offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7 (f) and Section 7(g) of the Purchase
Agreement, without exception;




          (B) set forth in full or incorporate by reference in the underwriting agreement,
if any, the indemnification provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section; and




          (C) deliver such other documents and certificates as may be reasonably requested
by such parties to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement entered into by
the Company and the Guarantors pursuant to this clause (xi), if any.



          The above shall be done at each closing under such underwriting or similar agreement, as and
to the extent required thereunder, and, if at any time the representations and warranties of the
Company and the Guarantors contemplated in clause (A)(1) above cease to be true and correct in any
material respect, the Company and the Guarantors shall so advise the Initial Purchasers and the
underwriter(s), if any, each selling Holder and each Restricted Broker-Dealer promptly and, if
requested by such Persons, shall confirm such advice in writing;





     (xii) prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and its counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s), if any,
may request and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither the Company nor any
Guarantor shall be required to register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it to the service of process in
suits or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;




     (xiii) shall issue, upon the request of any Holder of Initial Notes covered by any
Shelf Registration Statement contemplated by this Agreement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of the Initial Notes
surrendered to the Company by such Holder in exchange therefor or being sold by such
Holder; such Exchange Notes to be registered in the name of such Holder or in the name of
the purchaser(s) of such Notes, as the case may be; in return, the Initial Notes held by
such Holder shall be surrendered to the Company for cancellation;




     (xiv) cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer



13









 






Restricted
Securities to be sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);




     (xv) use their respective commercially reasonable efforts to cause the disposition of
the Transfer Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;




     (xvi) subject to Section 6(c)(i), if any fact or event contemplated by clause
6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which they were made not
misleading;




     (xvii) provide a CUSIP number for all Transfer Restricted Securities not later than
the effective date of the Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit with the Depositary
Trust Company;




     (xviii) cooperate and assist in any filings required to be made with the NASD and in
the performance of any due diligence investigation by any underwriter (including any
“qualified independent underwriter” that is required to be retained in accordance with the
rules and regulations of the NASD), and use their respective reasonable best efforts to
cause such Registration Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer Restricted Securities;




     (xix) otherwise use their respective commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make generally available to its
security holders, as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm or best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the Company’s first
fiscal quarter commencing after the effective date of the Registration Statement;




     (xx) qualify the Indenture under the TIA (at or before the Effective Time of the
Exchange Offer or the Shelf Registration, as the case may be)



14









 






     (xxi) cause all Transfer Restricted Securities covered by the Registration Statement
to be listed on each securities exchange on which similar securities issued by the Company
are then listed if requested by the Holders of a majority in aggregate principal amount of
the Initial Notes or the managing underwriter(s), if any; and




     (xxii) provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15(d) of the Exchange
Act.



          (d) Restrictions on Holders. (i) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement until such
Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof, or until it is advised in writing (the “Advice”) by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder
will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies
then in such Holder’s possession, of the Prospectus covering such Transfer Restricted Securities
that was current at the time of receipt of such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to
and including the date when each selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof or shall have received the Advice.





     (i) The Company may require a Holder of Transfer Restricted Securities to be included
in a Registration Statement to furnish to the Company such information as required by law
to be disclosed by such Holder in such Registration Statement, and the Company may exclude
from such Registration Statement the Transfer Restricted Securities of any Holder who
unreasonably fails to furnish such information within a reasonable time after receiving
such request.



          7. Registration Expenses. All expenses incident to the Company’s and the Guarantors’
performance of or compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses (including filings made by the Initial Purchasers or
Holder with the NASD (and, if applicable, the fees and expenses of any “qualified independent
underwriter”) that may be required by the rules and regulations of the NASD); (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the Exchange Notes to be issued in the
Exchange Offer and printing of Prospectuses); (iv) all fees and disbursements of counsel for the
Company; (v) all messenger and delivery services and telephone expenses of the Company and the
Guarantors; (vi) all application and filing fees in connection with listing Notes on a national
securities exchange or automated quotation system pursuant to the requirements hereof; and (vii)
all fees and disbursements of independent certified public accountants of the Company (including
the expenses of any special audit and comfort letters required by or incident to such performance).





15









 








          The Company and the Guarantors will, in any event, bear their internal expenses (including,
without limitation, all salaries and expenses of any of their officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company or the Guarantors.




          8. Indemnification.




          (a) The Company and each Guarantor, jointly and severally, shall indemnify and hold harmless
each Holder, its directors, officers and each person, if any, who controls such Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities, judgments and actions, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim, damage, liability,
judgment or action relating to purchases and sales of Notes), to which that Holder, its directors,
officers or controlling persons may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability, judgment or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any Registration
Statement, Preliminary Prospectus or Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state in any Registration Statement, Preliminary Prospectus or
Prospectus, or in any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall reimburse such Holder
and each such director, officer or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by such Holder, director, officer or controlling person in connection
with investigating or defending or preparing to defend against any such loss, claim, damage,
liability, judgment or action as such expenses are incurred; provided, however, that the Company
and the Guarantors shall not be liable in any such case to the extent that any such loss, claim,
damage, liability, judgment or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Registration Statement,
Preliminary Prospectus or Prospectus, or in any such amendment or supplement thereto, in reliance
upon and in conformity with written information concerning such Holder furnished to the Company by
or on behalf of such Holder specifically for inclusion therein. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise have to any Holder or to any
director, officer or controlling person of such Holder.




          (b) Each Holder, severally and not jointly, shall indemnify and hold harmless the Company, the
Guarantors and their respective directors, officers and each person, if any, who controls the
Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages, liabilities, judgments or
actions, joint or several, or any action in respect thereof, to which the Company, any Guarantor or
any such director, officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability, judgment or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement, Preliminary Prospectus or Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in any Registration Statement,
Preliminary Prospectus or Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written information concerning
such Holder furnished to the Company by or on




16









 







behalf of such Holder specifically for inclusion
therein, and shall reimburse the Company, the Guarantors and any such director, officer or
controlling person promptly upon demand for any legal or other expenses reasonably incurred by the
Company, any Guarantor or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim, damage, liability,
judgment or action as such expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Holder may otherwise have to the Company, any Guarantor or any such
director, officer or controlling person.




          (c) Promptly after receipt by any person in respect of which indemnity may be sought pursuant
to Section 8(a) or 8(b) (the “indemnified party”) of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made against any person
against whom indemnity may be sought pursuant to Section 8(a) or 8(b) (the “indemnifying party”),
notify the indemnifying party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it has been materially prejudiced by
such failure and, provided further, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party
and the payment of all fees and expenses of such counsel shall be the responsibility of the
indemnifying party. After notice from the indemnifying party to the indemnified party of the
indemnifying party’s election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In addition, any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by the indemnifying
party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ
counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such
action (including any impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in addition to any
local counsel) of all indemnified parties, and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Purchasers in the case of the
parties indemnified pursuant to Section 8(a), and by the Company in the case of parties indemnified
pursuant to Section 8(b). No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened claim, action, suit
or proceeding in





17









 







respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a
final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment.




          (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable
or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any
loss, claim, damage, liability, judgment or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss, claim, damage,
liability, judgment or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the
Holders, on the other, from the offering of the Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantors, on the one hand, and the Holders, on the other, with respect to the
statements or omissions which resulted in such loss, claim, damage, liability, judgment or action
in respect thereof, as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors, on the one hand, and the Holders, on the other, with
respect to such offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Initial Notes purchased under the Purchase Agreement (before deducting
expenses) received by the Company on the one hand, and the total net proceeds received by such
Holder upon its resale of Notes less the amount paid by such Holder for such Notes, on the other
hand, bear to the total sum of such amounts. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company and the Guarantors
or such Holder, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. Solely for the purposes of the
preceding two sentences, the net proceeds received by the Company shall be deemed also to be
indirectly for the benefit of the Guarantors and the information supplied by the Company shall also
be deemed to have been supplied by the Guarantors. The Company and the Guarantors and the Holders
agree that it would not be just and equitable if contributions pursuant to this Section 8 were to
be determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage, liability, judgment or action in respect thereof, referred to above in
this Section 8, shall be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no
Holder, and none of its directors, officers or controlling persons, shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total net proceeds
received by such Holder upon its resale of Notes exceeds the sum of the amount paid by such Holder
for such Notes and the





18









 







amount of any damages which such Holder has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders’ obligations to contribute as provided in this Section
8(d) are several in proportion to the respective principal amount of Notes held by each of the
Holders hereunder and not joint.




          (e) The remedies provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified party at law or in equity.




          9. Rule 144A. The Company and the Guarantors hereby agree with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in which the Company
and the Guarantors are subject to Section 13 or 15(d) of the Exchange Act, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof
and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.




          10. Participation in Underwritten Registration. No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.




          11. Selection of Underwriters. For any Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer such offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Company. Such investment bankers and managers are referred to herein as the
“underwriters.”




          12. Miscellaneous.




          (a) Remedies. Each Holder, in addition to being entitled to exercise all rights provided
herein, in the Indenture, the Purchase Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its rights under this
Agreement. The Company and the Guarantors agree that monetary damages (including the Special
Interest contemplated hereby) would not be adequate compensation for any loss incurred by reason of
a breach by them of the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.




          (b) No Inconsistent Agreements. Neither the Company nor any Guarantor will on or after the
date of this Agreement enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions
hereof. Neither the Company nor any Guarantor is currently bound by any





19









 







agreement granting
registration rights with respect to its securities that conflicts with the registration rights set
forth herein.




          (c) Adjustments Affecting the Initial Notes. Neither the Company nor any Guarantor will take
any action, or permit any change to occur, with respect to the Initial Notes that would materially
and adversely affect the ability of the Holders to Consummate any Exchange Offer.




          (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless (i) in the case of Section 5 hereof and this Section 12(d), the Company has obtained the
written consent of the Holders of all outstanding principal amount of Transfer Restricted
Securities and (ii) in the case of all other provisions hereof, the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of Transfer Restricted Securities being
tendered or registered.




          (e) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), fax, or air courier guaranteeing overnight delivery:





     (i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and


with a copy to:


Lehman Brothers Inc.

Goldman, Sachs & Co.

J.P. Morgan Securities Inc.

c/o Lehman Brothers Inc.

745 Seventh Avenue

New York, New York 10019

Attention: Syndicate Department

Fax: 212-526-0943


with a copy to:


Simpson Thacher & Bartlett LLP

Attention: Kenneth B. Wallach, Esq.

425 Lexington Avenue

New York, New York 10017

Fax: 212-455-2502




     (ii) if to the Initial Purchasers, to the address specified in Section 12(a) of the
Purchase Agreement.



20









 






     (iii) if to the Company:


Tesoro Corporation

300 Concord Plaza Drive

San Antonio, Texas 78216-6999

Attention: Vice President and Treasurer

Fax: 210-828-2600


with a copy to:


Fulbright & Jaworski L.L.P.

Fulbright Tower

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

Attention: Charles L. Strauss, Esq.

Fax: 713-651-5246



          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if faxed; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.




          Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.




          (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by owning and holding
such Transfer Restricted Securities such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and
such Person shall be entitled to receive the benefits hereof.




          (g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.




          (h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.




          (i) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflict of laws principles.






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          (j) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable by a court
of competent jurisdiction, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be affected or impaired
thereby.




          (k) Entire Agreement. This Agreement and the other writings referred to herein (including the
Purchase Agreement, the Indenture and the form of Notes) are intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement and the other writings referred to
herein (including the Purchase Agreement, the Indenture and the form of Notes) supersede all prior
agreements and understandings between the parties with respect to such subject matter.






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          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 	 	 
	 	 	TESORO CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Gregory A. Wright
	 	 
	 

	 	 	 	Title: Executive Vice President and
Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	GOLD STAR MARITIME COMPANY	 	 
	 	 	SMILEY’S SUPER SERVICE, INC.	 	 
	 	 	TESORO FAR EAST MARITIME COMPANY	 	 
	 	 	TESORO HAWAII CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Gregory A. Wright	 	 
	 

	 	 	 	Title: Executive Vice President and
 Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	TESORO FINANCIAL SERVICES HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Charles L. Magee	 	 
	 

	 	 	 	Title: President	 	 






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	 	 	VICTORY FINANCE COMPANY

DIGICOMP INC.

KENAI PIPE LINE COMPANY

TESORO ALASKA COMPANY

TESORO ALASKA PIPELINE COMPANY

TESORO AVIATION COMPANY

TESORO ENVIRONMENTAL RESOURCES COMPANY

TESORO HIGH PLAINS PIPELINE COMPANY

TESORO MARITIME COMPANY

TESORO NORTHSTORE COMPANY

TESORO PETROLEUM COMPANIES, INC.

TESORO REFINING AND MARKETING COMPANY

TESORO WASATCH, LLC

TESORO TRADING COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: G. Scott Spendlove	 	 
	 

	 	 	 	Title: Vice President, Finance and Treasurer	 	 






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Accepted as of the date hereof:




	 	 	 	 	 
	LEHMAN BROTHERS INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Representative	 	 
	 
	 	 	 	 
	GOLDMAN, SACHS & CO.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Representative	 	 
	 
	 	 	 	 
	J.P. MORGAN SECURITIES INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Representative	 	 







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