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EXHIBIT 4.5
DECLARATION OF TRUST
OF
TESORO CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of April 29, 1998 (this
"Declaration"), by and among Tesoro Petroleum Corporation, a Delaware
corporation, as sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee") and Xxxxx X.
Xxxxx, Xxxxx X. Xxxx, Xx., and Xxxxxxx X. Xxxxxx, as administrative trustees
(the "Administrative Trustees", and, together with the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Tesoro Capital Trust I"
(the "Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Administrative Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Administrative Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust
Act"), and that this document constitute the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form as the
Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust (i) the
Delaware Trustee shall not have any duty or obligation hereunder or with respect
to the trust estate, except as otherwise required by applicable law, and (ii)
the Administrative Trustees and the Sponsor shall take any action as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), (ii) indemnify, defend and hold harmless the Trustees and any of the
officers, directors employees and agent of the Trustees (collectively, including
the Delaware Trustee in its individual capacity, the "Indemnified Persons") from
and against any and all losses, damages, liabilities, claims, actions, suits,
costs, expenses, disbursements (including the reasonable fees and expenses of
counsel), taxes and penalties of any kind and nature whatsoever (collectively,
"Expenses"), to the extent that such Expenses arise out of or are imposed upon
or asserted at any time against such Indemnified Persons with respect to the
performance of this
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Declaration, the creation, operation, administration or
termination of the Trust, or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify an Indemnified
Person for Expenses to the extent such Expenses result from the willful
misconduct, bad faith or gross negligence of such Indemnified Person, and (iii)
advance to each Indemnified Person Expenses (including reasonable legal fees and
expenses) incurred by such Indemnified Person in defending any claim, demand,
action, suit or proceeding prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified
therefor under this Section 4.
5. The Sponsor, as sponsor of the Trust, and each Administrative
Trustee is hereby authorized, in its discretion, (i) to file with the
Securities and Exchange Commission (the "Commission") and to execute, in the
case of the 1933 Act Registration Statement and 1934 Act Registration Statement
(each as herein defined), on behalf of the Trust, (a) the Registration
Statement, including pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act
of 1933, as amended (the "1933 Act"), of the Preferred Securities of the Trust
(the "1933 Act Registration Statement"), (b) any preliminary prospectus or
prospectus or supplement thereto relating to the Preferred Securities required
to be filed under the 1933 Act, and (c) if required, a Registration Statement
on Form 8-A or other appropriate form (the "1934 Act Registration
Statement")(including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange or any other exchange (collectively, the "Exchange") and execute
on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on the
Exchange; (iii) to prepare, execute and file on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf
of the Trust, may deem necessary or desirable; (iv) to negotiate, execute,
deliver and perform on behalf of the Trust, an underwriting agreement with the
Sponsor and the underwriter or underwriters of the Preferred Securities of the
Trust; (v) to prepare, execute, deliver and perform, including on behalf of the
Trust, a depository agreement with, letters and documents to, and instruments
for filing with the initial clearing agency or any other depository, relating
to the Preferred Securities; (vi) to apply for and obtain a tax identification
number for the Trust; and (vii) to prepare, execute and deliver on behalf of
the Trust any and all documents, papers and instruments as may be desirable in
connection with any of the foregoing and to direct the Delaware Trustee to do
or take actions in connection with any of the foregoing. Any power of the
Administrative Trustees hereunder to execute any document or take other action
on behalf of the Trust may be exercised by one Administrative Trustee acting
alone or by two or more Administrative Trustees acting together.
In the event that any filing referred to in this Section 5 is required
by the rules and regulations of Securities and Exchange Commission, PORTAL or
applicable state securities or
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Blue Sky laws to be executed on behalf of the Trust by one or more Trustees,
each Trustee, in its capacity as a trustee of the Trust, so required to execute
such filings is hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being understood
that a Trustee, in its capacity as a trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such document
unless required to do so by the rules and regulations of the Commission, PORTAL
or applicable state securities or Blue Sky laws. In connection with all of the
foregoing, the Sponsor hereby constitutes and appoints Xxxxx X. Xxxx, Xx., as
its true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution for the Sponsor or in the Sponsor's name, place and stead, in
any and all capacities, to sign any and all amendments (including all
pre-effective and post-effective amendments) to the 1933 Act Registration
Statement and any 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and any other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as the
Sponsor might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his respective substitute or substitutes,
shall do or cause to be done by virtue hereof.
6. The Delaware Trustee shall take such action or refrain from taking
such action under this Declaration as it may be directed in writing from time to
time by the Sponsor or any Administrative Trustee; provided, however, that the
Delaware Trustee shall not be required to take or refrain from taking any such
action if it shall have determined, or shall have been advised by counsel, that
such performance is likely to involve the Delaware Trustee in personal liability
or is contrary to the terms of this Declaration or of any document contemplated
hereby to which the Trust or the Delaware Trustee is a party or is otherwise
contrary to law. If at any time the Delaware Trustee determines that it requires
or desires guidance regarding the application of any provision of this
Declaration or any other document, then the Delaware Trustee may deliver a
notice to the Sponsor requesting written instructions as to the course of action
desired by the Sponsor, and such instructions shall constitute full and complete
authorization and protection for actions taken by the Delaware Trustee in
reliance thereon. Until the Delaware Trustee receives such instructions, it
shall refrain from taking any action with respect to the matters described in
such notice to the Sponsor.
7. This Declaration may be executed in one or more counterparts.
8. The number of trustees of the Trust initially shall be four (4) and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that the number of trustees shall in no event be less than two (2); provided,
further, that to the extent required by the Business Trust Act, one trustee of
the Trust shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law. Subject to the foregoing, the Sponsor is entitled to
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appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
9. This Declaration shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
TESORO PETROLEUM CORPORATION, as Sponsor
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Chairman of the Board
of Directors, President
and Chief Executive Officer
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Delaware
Trustee of the Trust
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Administrate Account Manager
Xxxxx X. Xxxxx, not in his individual
capacity but solely as Administrative Trustee
of the Trust
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxx, Xx., not in his individual
capacity but solely as Administrative Trustee
of the Trust
/s/ XXXXX X. XXXX, Xx.
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Xxxxxxx X. Xxxxxx, not in his individual
capacity but solely as Administrative Trustee
of the Trust
/s/ XXXXXXX X. XXXXXX
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5 TESORO CAPITAL TRUST I
