exv4w2



 





Exhibit 4.2




EXECUTION VERSION




Form of Registration Rights Agreement




EXCHANGE AND REGISTRATION RIGHTS AGREEMENT




TESORO CORPORATION




$500,000,000 61/2% Senior Notes due 2017




          This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 29,
2007 by and among Tesoro Corporation, a Delaware corporation (the “Company”), Gold Star Maritime
Company, Smiley’s Super Service, Inc., Tesoro Alaska Company, Tesoro Aviation Company, Tesoro
Companies, Inc., Tesoro Environmental Resources Company, Tesoro Far East Maritime Company, Tesoro
Financial Services Holding Company, Tesoro Hawaii Corporation, Tesoro Maritime Company, Tesoro
Northstore Company, Tesoro Refining and Marketing Company, Tesoro Trading Company, Tesoro Wasatch,
LLC, Tesoro Sierra Properties, LLC, Tesoro South Coast Company, LLC, Tesoro Vostok Company and
Tesoro West Coast Company, LLC (each a “Guarantor” and collectively, the “Guarantors”), and Lehman
Brothers Inc., J.P. Morgan Securities, Inc., Goldman, Sachs & Co. and Greenwich Capital Markets,
Inc., as the several initial purchasers named in the Purchase Agreement (the “Purchasers”), who
have agreed to purchase $500,000,000 aggregate amount of the Company’s 61/2% Senior Notes due 2017
(the “Initial Notes”) pursuant to and subject to the terms and conditions of that certain Purchase
Agreement, dated May 23, 2007 (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:




          61/2% Senior Notes due 2017: The 61/2% Senior Notes due 2017 of the Company issued pursuant to
that certain Indenture, dated as of May 29, 2007, 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.




1









 








          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, or any successor statute and
the rules and regulations promulgated thereunder.




          Exchange Notes: The Company’s 61/2% Senior Notes due 2017 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.




2









 








          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.




          Free Writing Prospectus: Each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Company (or any of its agents or representatives)
or used or referred to by the Company (or any of its agents or representatives) in connection with
the sale of the Notes or the Exchange Notes.




          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 May 29, 2007, 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.




3









 








          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.




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




          Securities Act: The Securities Act of 1933, as amended, or any successor statute 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.




          Additional Interest: As defined in Section 5 hereof.




          TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section 77aaa-77bbbb), as
amended, or any successor statute and the rules and regulations promulgated thereunder.




          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


4









 







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 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 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.




5









 








          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 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
 

6









 








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.




          (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 Additional 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.   Additional 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
(“Additional Interest”). Additional 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 Additional 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 Additional Interest of $0.50 per week per $1,000 principal amount of Transfer
Restricted Securities. All accrued Additional 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

7









 







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) above, the
Additional 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



8









 







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 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


9









 







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 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



10









 







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
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) promptly following the filing of any document that is incorporated by reference
into a Registration Statement or Prospectus, upon written request, 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 any information in any
amended version of such document following 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



11









 







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;




     (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



12









 







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 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



13









 







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 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



14









 







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)




     (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



15









 





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).




          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, Prospectus, Free Writing Prospectus or any “issuer information”
(as defined in Rule 433 of the Securities Act) filed or required to be filed pursuant to Rule
433(d) under the Securities Act or 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


16









 








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 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

17









 








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 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

18









 








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 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

19









 







Additional 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) Free Writing Prospectus. The Company represents, warrants and covenants that it
(including its agents and representatives) will not prepare, make, use, authorize, approve or refer
to any “written communication” (as defined in Rule 405 under the Securities Act) in connection with
the issuance and sale of the Notes and the Exchange Notes, other than any communication pursuant to
Rule 134, Rule 135 or Rule 135c under the Securities Act, any document constituting an offer to
sell or solicitation of an offer to buy the Notes or the Exchange Notes that falls within the
exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act or a
prospectus satisfying the requirements of Section 10(a) of the Securities Act or of Rule 430, Rule
430A, Rule 430B, Rule 430C or Rule 431 under the Securities Act.




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




          (d) 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.




          (e) 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.




          (f) 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:




20









 







Lehman Brothers Inc.

J.P. Morgan Securities Inc.

Goldman, Sachs & Co.

Greenwich Capital Markets, 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.




     (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.




          (g) 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


21









 







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.




          (h) 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.




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




          (j) 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.




          (k) 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.




          (l) 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.




22









 








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




	 	 	 	 	 
	 	TESORO CORPORATION

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

Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	GOLD STAR MARITIME COMPANY

TESORO FAR EAST MARITIME COMPANY

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

Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	TESORO HAWAII CORPORATION

 	 
	 	By:  	/s/  Gregory A. Wright	 
	 	 	Name:  	Gregory A. Wright 	 
	 	 	Title:  	Executive Vice President,

Chief Financial Officer and Treasurer 	 
	 



	 	 	 	 	 
	 	TESORO FINANCIAL SERVICES HOLDING

      COMPANY

 	 
	 	By:  	/s/  Charles L. Magee	 
	 	 	Name:  	Charles L. Magee 	 
	 	 	Title:  	President 	 



23









 







	 	 	 	 	 



	 	 	 	 	 
	 	SMILEY’S SUPER SERVICE, INC.

TESORO ALASKA COMPANY

TESORO AVIATION COMPANY

TESORO COMPANIES, INC.

TESORO ENVIRONMENTAL RESOURCES COMPANY

TESORO MARITIME COMPANY

TESORO NORTHSTORE COMPANY

TESORO REFINING AND MARKETING COMPANY

TESORO SIERRA PROPERTIES, LLC

TESORO SOUTH COAST COMPANY, LLC

TESORO TRADING COMPANY

TESORO VOSTOK COMPANY

TESORO WASATCH, LLC

TESORO WEST COAST COMPANY, LLC

 	 
	 	By:  	/s/  Otto C. Schwethelm	 
	 	 	Name:  	Otto C. Schwethelm 	 
	 	 	Title:  	Vice President, Finance and Treasurer 	 



24









 






	 	 	 	 	 



	 	 	 	 	 
	Accepted as of the date hereof:	 	 
	 
	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 
	LEHMAN BROTHERS INC.	 	 
	J.P. MORGAN SECURITIES INC.	 	 
	GOLDMAN, SACHS & CO.	 	 
	GREENWICH CAPITAL MARKETS, INC.	 	 
	 
	 	 	 	 
	By: LEHMAN BROTHERS INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Peter J. Toal 	 	 
	 

	 	 

Authorized Representative
	 	 
	 
	 	 	 	 
	 
	 	Peter J. Toal 	 	 
	 
	 	Managing Director 	 	 







25