UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 13, 2018
Andeavor
(Exact name of registrant as specified in its charter)
Delaware | 1-3473 | 95-0862768 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
||
19100 Ridgewood Pkwy San Antonio, Texas |
78259-1828 | |||
(Address of principal executive offices) | (Zip Code) |
(210) 626-6000
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.):
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 |
Entry into a Material Definitive Agreement. |
On September 13, 2018, Andeavor (the Company) and U.S. Bank National Association, as trustee (the Trustee), entered into Supplemental Indentures (the Supplemental Indentures) following the Companys receipt of the requisite consents of the holders of the Companys outstanding 5.375% Senior Notes due 2022, 5.125% Senior Notes due 2024, 4.750% Senior Notes due 2023, 5.125% Senior Notes due 2026, 3.800% Senior Notes due 2028, and 4.500% Senior Notes due 2048 (collectively, the Notes) pursuant to consent solicitations in respect of certain amendments to the Notes that commenced on August 29, 2018 (the Consent Solicitations). The Supplemental Indentures eliminate most of the restrictive covenants and certain default provisions respecting the Notes. The Supplemental Indentures are effective upon execution but will only become operative upon consummation of the Consent Solicitations.
Copies of the Supplemental Indentures are filed as Exhibits 4.1, 4.2, 4.3 and 4.4 to this Form 8-K and are incorporated herein by reference. The description of the Supplemental Indentures is qualified in its entirety by the terms of the respective Indentures and the Supplemental Indentures.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be filed on its behalf by the undersigned hereunto duly authorized.
ANDEAVOR | ||
By: |
/s/ Blane W. Peery |
|
Name: | Blane W. Peery | |
Title: | Vice President and Controller |
Date: September 14, 2018
Exhibit 4.1
ANDEAVOR
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SUPPLEMENTAL INDENTURE
Dated as of September 13, 2018
to
Indenture
Dated as of September 27, 2012
5.375% Senior Notes due 2022
THIS SUPPLEMENTAL INDENTURE (this Supplemental Indenture ), dated as of September 13, 2018, is by and between Andeavor, a Delaware corporation (the Company ), and U.S. Bank National Association, as trustee (the Trustee ).
WHEREAS, the Company, the Guarantors (as defined in the Indenture referred to herein) and the Trustee are parties to that certain Indenture dated as of September 27, 2012, creating the Companys 5.375% Senior Notes due 2022 (the Notes ), as supplemented by that Supplemental Indenture, dated as of February 27, 2013, as further supplemented by that Supplemental Indenture, dated as of September 5, 2013, as further supplemented by that Supplemental Indenture, dated as of March 3, 2014, as further supplemented by that Supplemental Indenture, dated as of November 11, 2015, as further supplemented by that Supplemental Indenture, dated as of January 7, 2016, as further supplemented by that Supplemental Indenture, dated as of April 26, 2016, as further supplemented by that Supplemental Indenture, dated as of November 4, 2016, and as further amended and supplemented in relation to the Notes (the Indenture );
WHEREAS, $475,000,000 aggregate principal amount of the Notes is currently outstanding;
WHEREAS, the Subsidiary Guarantee of each of the Guarantors was previously released pursuant to the terms of the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders, with respect to the Notes, of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with an exchange offer for the Notes), the Company and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has been soliciting consents to this Supplemental Indenture upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Marathon Petroleum Corporation and the Company dated August 29, 2018 (which, including any amendments, modifications or supplements thereto, governs the Consent Solicitation for the Notes); and
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its Affiliates), all as certified by an Officers Certificate delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Section 9.06 of the Indenture and (3) the Company has satisfied all other conditions required under Article IX of the Indenture to enable the Company and the Trustee to enter into this Supplemental Indenture.
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NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the other and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE I
AMENDMENTS TO INDENTURE AND NOTES
Section 1.1 Amendments to Articles 3, 4, 5 and 6 . The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety:
Section 3.09 (Offer to Purchase by Application of Asset Sale Proceeds);
Section 4.03 (Reports);
Section 4.07 (Restricted Payments);
Section 4.08 (Dividend and Other Payment Restrictions Affecting Subsidiaries);
Section 4.09 (Incurrence of Indebtedness and Issuance of Disqualified Equity);
Section 4.10 (Asset Sales);
Section 4.11 (Transactions with Affiliates);
Section 4.14 (Corporate Existence);
Section 4.15 (Offer to Repurchase Upon Change of Control Triggering Event);
Section 4.16 (Additional Subsidiary Guarantees);
Clause (iii) of Section 5.01 (Merger, Consolidation or Sale of Assets); and
Clauses (c) (h) of Section 6.01 (Events of Default).
Section 1.2 Amendments to Notes . The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Supplemental Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 Defined Terms . For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
Section 2.2 Indenture . Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Supplemental Indenture shall control.
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Section 2.3 Governing Law . THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.4 Successors . All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
Section 2.5 Duplicate Originals . All parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. It is the express intent of the parties to be bound by the exchange of signatures on this Supplemental Indenture via telecopy or other form of electronic transmission.
Section 2.6 Severability . In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 2.7 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
Section 2.8 Effectiveness . The provisions of this Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this Supplemental Indenture shall become operative only upon the closing of the Consent Solicitation and the related Exchange Offer (as defined in the Offering Memorandum and Consent Solicitation Statement), with the result that the amendments to the Indenture effected by this Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if such closing shall not occur. The Company shall notify the Trustee promptly after the occurrence of such closing or promptly after the Company shall determine that such closing will not occur.
Section 2.9 Endorsement and Change of Form of Notes . Any Notes authenticated and delivered after the close of business on the date that this Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the
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Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:
Effective as of September 13, 2018, certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the Supplemental Indenture, dated as of September 13, 2018. Reference is hereby made to such Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.
Section 2.10 Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year written above.
ANDEAVOR | ||
By: |
/s/ Stephan E. Tompsett |
|
Name: | Stephan E. Tompsett | |
Title: | Vice President and Treasurer |
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE | ||
By: |
/s/ James Kowalski |
|
Name: | James Kowalski | |
Title: | Vice President |
Exhibit 4.2
ANDEAVOR
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SUPPLEMENTAL INDENTURE
Dated as of September 13, 2018
to
Indenture
Dated as of March 18, 2014
5.125% Senior Notes due 2024
THIS SUPPLEMENTAL INDENTURE (this Supplemental Indenture ), dated as of September 13, 2018, is by and between Andeavor, a Delaware corporation (the Company ), and U.S. Bank National Association, as trustee (the Trustee ).
WHEREAS, the Company, the Guarantors (as defined in the Indenture referred to herein) and the Trustee are parties to that certain Indenture dated as of March 18, 2014, creating the Companys 5.125% Senior Notes due 2024 (the Notes ), as supplemented by that Supplemental Indenture, dated as of November 11, 2015, as further supplemented by that Supplemental Indenture, dated as of January 7, 2016, as further supplemented by that Supplemental Indenture, dated as of April 26, 2016, as further supplemented by that Supplemental Indenture, dated as of November 4, 2016, and as further amended and supplemented in relation to the Notes (the Indenture );
WHEREAS, $300,000,000 aggregate principal amount of the Notes is currently outstanding;
WHEREAS, the Subsidiary Guarantee of each of the Guarantors was previously released pursuant to the terms of the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders, with respect to the Notes, of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with an exchange offer for the Notes), the Company and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has been soliciting consents to this Supplemental Indenture upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Marathon Petroleum Corporation and the Company dated August 29, 2018 (which, including any amendments, modifications or supplements thereto, governs the Consent Solicitation for the Notes); and
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its Affiliates), all as certified by an Officers Certificate delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Section 9.06 of the Indenture and (3) the Company has satisfied all other conditions required under Article IX of the Indenture to enable the Company and the Trustee to enter into this Supplemental Indenture.
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NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the other and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE I
AMENDMENTS TO INDENTURE AND NOTES
Section 1.1 Amendments to Articles 4 and 6 . The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety:
Section 4.03 (Reports);
Section 4.09 (Secured Indebtedness);
Section 4.14 (Corporate Existence);
Section 4.15 (Offer to Repurchase Upon Change of Control Triggering Event);
Section 4.16 (Additional Subsidiary Guarantees); and
Clauses (c) (h) of Section 6.01 (Events of Default).
Section 1.2 Amendments to Notes . The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Supplemental Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 Defined Terms . For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
Section 2.2 Indenture . Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Supplemental Indenture shall control.
Section 2.3 Governing Law . THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.4 Successors . All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
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Section 2.5 Duplicate Originals . All parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. It is the express intent of the parties to be bound by the exchange of signatures on this Supplemental Indenture via telecopy or other form of electronic transmission.
Section 2.6 Severability . In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 2.7 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
Section 2.8 Effectiveness . The provisions of this Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this Supplemental Indenture shall become operative only upon the closing of the Consent Solicitation and the related Exchange Offer (as defined in the Offering Memorandum and Consent Solicitation Statement), with the result that the amendments to the Indenture effected by this Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if such closing shall not occur. The Company shall notify the Trustee promptly after the occurrence of such closing or promptly after the Company shall determine that such closing will not occur.
Section 2.9 Endorsement and Change of Form of Notes . Any Notes authenticated and delivered after the close of business on the date that this Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:
Effective as of September 13, 2018, certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the Supplemental Indenture, dated as of September 13, 2018. Reference is hereby made to such Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.
Section 2.10 Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year written above.
ANDEAVOR | ||
By: |
/s/ Stephan E. Tompsett |
|
Name: | Stephan E. Tompsett | |
Title: | Vice President and Treasurer |
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE | ||
By: |
/s/ James Kowalski |
|
Name: | James Kowalski | |
Title: | Vice President |
Exhibit 4.3
ANDEAVOR
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 13, 2018
to
Indenture
Dated as of December 22, 2016
4.750% Senior Notes due 2023
5.125% Senior Notes due 2026
THIS FIRST SUPPLEMENTAL INDENTURE (this Supplemental Indenture ), dated as of September 13, 2018, is by and between Andeavor, a Delaware corporation (the Company ), and U.S. Bank National Association, as trustee (the Trustee ).
WHEREAS, the Company, the Guarantors (as defined in the Indenture referred to herein) and the Trustee are parties to that certain Indenture dated as of December 22, 2016, creating the Companys 4.750% Senior Notes due 2023 (the 2023 Notes ) and the Companys 5.125% Senior Notes due 2026 (the 2026 Notes and, together with the 2023 Notes, the Notes ), and as further amended and supplemented in relation to the Notes (the Indenture );
WHEREAS, $850,000,000 aggregate principal amount of the 2023 Notes is currently outstanding;
WHEREAS, $750,000,000 aggregate principal amount of the 2026 Notes is currently outstanding;
WHEREAS, the Subsidiary Guarantee of each of the Guarantors was previously released pursuant to the terms of the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders, with respect to a series of the Notes, of at least a majority in aggregate principal amount of the then outstanding Notes of such series, voting as one class (including, without limitation, consents obtained in connection with an exchange offer for the Notes), the Company and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has been soliciting consents to this Supplemental Indenture upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Marathon Petroleum Corporation and the Company dated August 29, 2018 (which, including any amendments, modifications or supplements thereto, governs the Consent Solicitation for the Notes); and
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes of each series (excluding any Notes owned by the Company or any of its Affiliates), all as certified by an Officers Certificate delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Section 9.06 of the Indenture and (3) the Company has satisfied all other conditions required under Article IX of the Indenture to enable the Company and the Trustee to enter into this Supplemental Indenture.
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NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the other and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE I
AMENDMENTS TO INDENTURE AND NOTES
Section 1.1 Amendments to Articles 4 and 6 . The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety:
Section 4.03 (Reports);
Section 4.09 (Secured Indebtedness);
Section 4.14 (Corporate Existence);
Section 4.15 (Offer to Repurchase Upon Change of Control Triggering Event);
Section 4.16 (Additional Subsidiary Guarantees); and
Clauses (c) (h) of Section 6.01 (Events of Default).
Section 1.2 Amendments to Notes . The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Supplemental Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 Defined Terms . For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
Section 2.2 Indenture . Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Supplemental Indenture shall control.
Section 2.3 Governing Law . THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.4 Successors . All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
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Section 2.5 Duplicate Originals . All parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. It is the express intent of the parties to be bound by the exchange of signatures on this Supplemental Indenture via telecopy or other form of electronic transmission.
Section 2.6 Severability . In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 2.7 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
Section 2.8 Effectiveness . The provisions of this Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this Supplemental Indenture shall become operative only upon the closing of the Consent Solicitation and the related Exchange Offer (as defined in the Offering Memorandum and Consent Solicitation Statement), with the result that the amendments to the Indenture effected by this Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if such closing shall not occur. The Company shall notify the Trustee promptly after the occurrence of such closing or promptly after the Company shall determine that such closing will not occur.
Section 2.9 Endorsement and Change of Form of Notes . Any Notes authenticated and delivered after the close of business on the date that this Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:
Effective as of September 13, 2018, certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the First Supplemental Indenture, dated as of September 13, 2018. Reference is hereby made to such First Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.
Section 2.10 Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year written above.
ANDEAVOR | ||
By: |
/s/ Stephan E. Tompsett |
|
Name: | Stephan E. Tompsett | |
Title: | Vice President and Treasurer |
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE | ||
By: |
/s/ James Kowalski |
|
Name: | James Kowalski | |
Title: | Vice President |
Exhibit 4.4
ANDEAVOR
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 13, 2018
to
Indenture
Dated as of December 21, 2017
3.800% Senior Notes due 2028
4.500% Senior Notes due 2048
THIS SECOND SUPPLEMENTAL INDENTURE (this Supplemental Indenture ), dated as of September 13, 2018, is by and between Andeavor, a Delaware corporation (the Company ), and U.S. Bank National Association, as trustee (the Trustee ).
WHEREAS, the Company and the Trustee are parties to that certain Indenture dated as of December 21, 2017, as supplemented by the First Supplemental Indenture dated as of December 21, 2017 creating the Companys 3.800% Senior Notes due 2028 (the 2028 Notes ), and the Companys 4.500% Senior Notes due 2048 (the 2048 Notes and, together with the 2028 Notes, the Notes ) and as further amended and supplemented in relation to the Notes (the Indenture );
WHEREAS, $500,000,000 aggregate principal amount of the 2028 Notes is currently outstanding;
WHEREAS, $500,000,000 aggregate principal amount of the 2048 Notes is currently outstanding;
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders, with respect to a series of Notes, of at least a majority in aggregate principal amount of the then outstanding Notes of such series, voting as one class (including, without limitation, consents obtained in connection with an exchange offer for the Notes), the Company and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has been soliciting consents to this Supplemental Indenture upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Marathon Petroleum Corporation and the Company dated August 29, 2018 (which, including any amendments, modifications or supplements thereto, governs the Consent Solicitation for the Notes); and
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes of each series (excluding any Notes owned by the Company or any of its Affiliates), all as certified by an Officers Certificate delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Section 9.06 of the Indenture and (3) the Company has satisfied all other conditions required under Article IX of the Indenture to enable the Company and the Trustee to enter into this Supplemental Indenture.
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NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the other and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE I
AMENDMENTS TO INDENTURE AND NOTES
Section 1.1 Amendments to Articles 4 and 6 . The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety:
Section 4.03 (Reports);
Section 4.07 (Corporate Existence); and
Clauses (c) (g) of Section 6.01 (Events of Default).
Section 1.2 Amendments to Notes . The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Supplemental Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 Defined Terms . For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
Section 2.2 Indenture . Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Supplemental Indenture shall control.
Section 2.3 Governing Law . THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.4 Successors . All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
Section 2.5 Duplicate Originals . All parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. It is the express intent of the parties to be bound by the exchange of signatures on this Supplemental Indenture via telecopy or other form of electronic transmission.
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Section 2.6 Severability . In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 2.7 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
Section 2.8 Effectiveness . The provisions of this Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the provisions of this Supplemental Indenture shall become operative only upon the closing of the Consent Solicitation and the related Exchange Offer (as defined in the Offering Memorandum and Consent Solicitation Statement), with the result that the amendments to the Indenture effected by this Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if such closing shall not occur. The Company shall notify the Trustee promptly after the occurrence of such closing or promptly after the Company shall determine that such closing will not occur.
Section 2.9 Endorsement and Change of Form of Notes . Any Notes authenticated and delivered after the close of business on the date that this Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:
Effective as of September 13, 2018, certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the Second Supplemental Indenture, dated as of September 13, 2018. Reference is hereby made to such Second Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.
Section 2.10 Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year written above.
ANDEAVOR | ||
By: |
/s/ Stephan E. Tompsett |
|
Name: | Stephan E. Tompsett | |
Title: | Vice President and Treasurer |
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE |
By: |
/s/ James Kowalski |
|
Name: | James Kowalski | |
Title: | Vice President |