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Exhibit 10.1

 

EXECUTION VERSION

 

 

 

 

AMENDED AND RESTATED UNCOMMITTED REVOLVING CREDIT AGREEMENT

 

 

Dated as of October 11, 2011

 

 

among

 

 

TESORO PANAMA COMPANY, S.A.,

as Borrower,

 

 

CERTAIN LENDERS LISTED ON THE SIGNATURE PAGES HEREOF,

as Lenders,

 

 

and

 

 

BNP PARIBAS,

as Administrative Agent, Collateral Agent, Letter of Credit Issuer, Swing Line Lender and Daylight Overdraft Bank

 

 

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Syndication Agent

 

 

and

 

 

BNP PARIBAS SECURITIES CORP.,

as Arranger

 

 

 

 

 

 

 

 

 

 

 

 

 

NY 904904

 

 


 

 

 

 

TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

ARTICLE I DEFINITIONS

1

SECTION 1.01

Certain Defined Terms

1

SECTION 1.02

Other Interpretive Provisions

39

SECTION 1.03

Accounting Principles

40

SECTION 1.04

Types of Loans

40

ARTICLE II THE UNCOMMITTED FACILITY

40

SECTION 2.01

Uncommitted Line

40

SECTION 2.02

Purpose of Uncommitted Facility

41

SECTION 2.03

The Sublimits

42

SECTION 2.04

Increases and Decreases In Maximum Availability Amount and Maximum Considered Amount

42

SECTION 2.05

Administrative Agent Decrease In Maximum Availability Amount

43

ARTICLE III REVOLVING LOANS

44

SECTION 3.01

Loans

44

SECTION 3.02

Loan Accounts

44

SECTION 3.03

Requests for Borrowings

45

SECTION 3.04

Optional Prepayments

46

SECTION 3.05

Mandatory Prepayments of Loans

47

SECTION 3.06

Repayment

48

SECTION 3.07

Interest

48

SECTION 3.08

Computation of Fees and Interest

49

SECTION 3.09

Payments by the Borrower

50

SECTION 3.10

Fees

51

SECTION 3.11

The Election of Approving Lenders to Continue Funding

51

SECTION 3.12

Daylight Overdraft Loans

52

 

 

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Page

 

 

 

SECTION 3.13

Swing Line Loans

55

SECTION 3.14

Collection Account; Instructions to Account Debtors and Other Payors

58

ARTICLE IV LETTERS OF CREDIT

59

SECTION 4.01

Requests for Letters of Credit

59

SECTION 4.02

Amendment and Renewal of Letters of Credit

62

SECTION 4.03

Drawings and Reimbursements

64

SECTION 4.04

Role of the Letter of Credit Issuers

65

SECTION 4.05

Obligations Absolute

66

SECTION 4.06

Cash Collateral Pledge

67

SECTION 4.07

Letter of Credit Fees

68

SECTION 4.08

Uniform Customs and Practice and International Standby Other Practices

69

SECTION 4.09

Payments to Suppliers

69

SECTION 4.10

Existing Letters of Credit

69

ARTICLE V YIELD PROTECTION, TAXES, ETC.

69

SECTION 5.01

Additional Costs

69

SECTION 5.02

Inability to Determine Interest Rate

72

SECTION 5.03

Illegality

73

SECTION 5.04

Treatment of Affected Loans

73

SECTION 5.05

Compensation

74

SECTION 5.06

Compensation of Lenders

75

SECTION 5.07

Taxes

75

SECTION 5.08

Certificate of Administrative Agent

78

SECTION 5.09

Sharing of Payments, Etc.

78

SECTION 5.10

Pro Rata Treatment

79

 

 

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TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

SECTION 5.11

Payments and Deductions; Defaulting Lenders

79

SECTION 5.12

Survival

82

ARTICLE VI CONDITIONS PRECEDENT

82

SECTION 6.01

Matters to be Satisfied Upon Execution of Agreement

82

SECTION 6.02

Conditions to All Credit Extensions

86

SECTION 6.03

Conditions to Increase or Decrease In The Maximum Availability Amount

89

SECTION 6.04

Conditions to Increase In The Maximum Considered Amount

90

ARTICLE VII REPRESENTATIONS AND WARRANTIES

91

SECTION 7.01

Corporate Existence and Power

91

SECTION 7.02

Corporate Authorization: No Contravention

92

SECTION 7.03

Governmental Authorization.

92

SECTION 7.04

Binding Effect; Creation and Perfection of Security Interests

92

SECTION 7.05

Litigation

92

SECTION 7.06

Default

93

SECTION 7.07

ERISA Compliance

93

SECTION 7.08

Use of Proceeds, Margin Regulations

94

SECTION 7.09

Title to Properties

94

SECTION 7.10

Taxes

94

SECTION 7.11

Financial Condition

94

SECTION 7.12

Environmental Matters

95

SECTION 7.13

Regulated Entities

95

SECTION 7.14

Copyrights, Patents, Trademarks and Licenses, etc.

95

SECTION 7.15

Subsidiaries

95

SECTION 7.16

Insurance

96

 

 

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Page

 

 

 

SECTION 7.17

No Material Adverse Effect

96

SECTION 7.18

Full Disclosure

96

SECTION 7.19

Solvency

96

SECTION 7.20

Transactions With Affiliates

96

ARTICLE VIII AFFIRMATIVE COMPLIANCE GUIDELINES

96

SECTION 8.01

Financial Statements

96

SECTION 8.02

Certificates: Other Information

97

SECTION 8.03

Notices

98

SECTION 8.04

Preservation of Corporate Existence, etc.

100

SECTION 8.05

Maintenance of Property

100

SECTION 8.06

Insurance

100

SECTION 8.07

Payment of Obligations

101

SECTION 8.08

Compliance with Laws and Material Agreements

101

SECTION 8.09

Compliance with ERISA

101

SECTION 8.10

Inspection of Property and Books and Records

102

SECTION 8.11

Environmental Laws

102

SECTION 8.12

Use of Proceeds

102

SECTION 8.13

Position Limits

102

SECTION 8.14

Stop Loss Limit and VAR Limit

102

SECTION 8.15

Payments to Account with Administrative Agent

103

SECTION 8.16

Maintenance of Deposit Accounts

103

SECTION 8.17

Subordination of Indebtedness to Affiliates

103

SECTION 8.18

Risk Control Policy

103

SECTION 8.19

USA PATRIOT Act Notice

104

 

 

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Page

 

 

 

SECTION 8.20

Security For Obligations

104

ARTICLE IX NEGATIVE COMPLIANCE GUIDELINES

104

SECTION 9.01

Limitation on Liens; Negative Pledges

104

SECTION 9.02

Disposition of Assets

105

SECTION 9.03

Consolidations and Mergers

105

SECTION 9.04

Loans and Investments

105

SECTION 9.05

Limitation on Indebtedness

105

SECTION 9.06

Transactions with Affiliates

106

SECTION 9.07

Use of Proceeds; Margin Stock

106

SECTION 9.08

Contingent Obligations.

106

SECTION 9.09

Sale-Leaseback Transactions

107

SECTION 9.10

Restricted Payments

107

SECTION 9.11

Limitation on Prepayments

107

SECTION 9.12

ERISA

108

SECTION 9.13

Change in Business

108

SECTION 9.14

Minimum Adjusted Tangible Net Worth

108

SECTION 9.15

Minimum Adjusted Net Working Capital

109

SECTION 9.16

Maximum Leverage Ratio

109

SECTION 9.17

PTP Inventory Limit

109

SECTION 9.18

Organizational Documents Changes

109

SECTION 9.19

Risk Control Policy Changes

109

SECTION 9.20

Accounting Changes

109

SECTION 9.21

Limitation on Formation of Subsidiaries

110

SECTION 9.22

Limitation on Amendments to Certain Material Agreements

110

 

 

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TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

SECTION 9.23

Limitation on Swap Contracts

110

ARTICLE X EVENTS OF DEFAULT

110

SECTION 10.01

Event of Default

110

SECTION 10.02

Remedies

114

SECTION 10.03

Rights Not Exclusive

114

SECTION 10.04

Default Rate

114

ARTICLE XI THE ADMINISTRATIVE AGENT

115

SECTION 11.01

Appointment, Powers and Immunities

115

SECTION 11.02

Reliance by Administrative Agent

116

SECTION 11.03

Defaults

116

SECTION 11.04

Rights as a Lender

116

SECTION 11.05

Indemnification

116

SECTION 11.06

Non-Reliance on Administrative Agent and Other Lenders

117

SECTION 11.07

Failure to Act

118

SECTION 11.08

Resignation of Administrative Agent

118

SECTION 11.09

Administrative Agent as Collateral Holder

118

SECTION 11.10

Appointments of Collateral Agents for Purposes of Foreign Law

119

ARTICLE XII MISCELLANEOUS

121

SECTION 12.01

Amendments, etc.

121

SECTION 12.02

Notices

124

SECTION 12.03

No Waiver: Cumulative Remedies

124

SECTION 12.04

Costs and Expenses

125

SECTION 12.05

Indemnity

125

SECTION 12.06

Payments Set Aside

126

 

 

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Page

 

 

 

SECTION 12.07

Successors and Assigns

126

SECTION 12.08

Assignments; Participations, etc.

126

SECTION 12.09

Set-off

127

SECTION 12.10

Automatic Debits of Fees

128

SECTION 12.11

Counterparts

128

SECTION 12.12

Severability

128

SECTION 12.13

No Third Parties Benefited

128

SECTION 12.14

Appointment of Agent for Service of Process

128

SECTION 12.15

Currency Conversion

129

SECTION 12.16

Waiver of Immunities

130

SECTION 12.17

Governing Law and Jurisdiction

130

SECTION 12.18

Waiver of Jury Trial

131

SECTION 12.19

Discretionary Facility

131

SECTION 12.20

Entire Agreement

132

SECTION 12.21

Confidentiality

132

SECTION 12.22

Intercreditor Agreements

132

SECTION 12.23

Amendment and Restatement

133

 

 

 

 

 

 

 

 

 

 

 

 

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TABLE OF CONTENTS

Page

Exhibits

Exhibit A          Form of Collateral Pool Report

Exhibit B          Form of Borrowing Request

Exhibit C          Form of Compliance Certificate

Exhibit D          Form of Letter of Credit Request

Exhibit E          Form of Mark to Market Report

Exhibit F          Form of Note

Exhibit G          Form of Position Limit Report

Exhibit H          Risk Control Policy

Exhibit I          Form of Security Agreement

Exhibit J          Form of Notice of Declining Lender

Exhibit K          Form of Notice of Assignment

Exhibit L          Form of Notice of Maximum Availability Amount Election

Schedules

Schedule A          Approved Account Debtors

Schedule B          PTP Inventory Limits

Schedule C          Closing Date Swap Lender Close-Out Amounts

Schedule 1.01          List of Maximum Considered Limits

Schedule 3.03          Borrower's Account for Advances

Schedule 7.05          Litigation

Schedule 7.10          Taxes

Schedule 7.11          Material Indebtedness Not Included in Financial Statements

Schedule 7.15          Subsidiaries

Schedule 8.13          Position Limits

Schedule 8.14          Stop Loss Limit and VAR Limit

Schedule 9.05          Indebtedness

Schedule 9.06          Transaction with Affiliates

Schedule 9.08          Contingent Obligations

Schedule 12.02      Notices

 

 

 

 

 

 

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AMENDED AND RESTATED UNCOMMITTED REVOLVING CREDIT AGREEMENT

 

This AMENDED AND RESTATED UNCOMMITTED REVOLVING CREDIT AGREEMENT (the “ Agreement ”) is entered into as of October 11, 2011, by and among TESORO PANAMA COMPANY, S.A. , a Panamanian company (the “ Borrower ”), each of the financial institutions listed on the signature pages hereof as a Lender (individually, a “ Lender ” and collectively, the “ Lenders ”), and BNP PARIBAS , as Administrative Agent, Letter of Credit Issuer, Swing Line Lender, and Daylight Overdraft Bank (in its capacity as Administrative Agent for the Lenders, together with its successors in such capacity, the “ Administrative Agent ”), CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK , as Syndication Agent, and BNP PARIBAS SECURITIES CORP. , as Arranger.

WHEREAS , the Borrower, the Administrative Agent, BNP Paribas as Letter of Credit Issuer and the lenders party thereto (the “ Existing Lenders ”) entered into that certain Uncommitted Revolving Credit Agreement, dated as of October 18, 2010 (as amended, restated or modified from time to time prior to the date hereof, the “ Existing Credit Agreement ”) to provide for an uncommitted revolving credit facility with a letter of credit facility to the Borrower; and

WHEREAS , the parties to the Existing Credit Agreement wish to amend and restate the Existing Credit Agreement and certain other of the Loan Documents upon the terms and conditions more fully set forth herein to provide an uncommitted revolving credit facility with a letter of credit facility to the Borrower, all as set forth in this Agreement and the Borrower desires that the Lenders provide such financing.

NOW, THEREFORE , in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

ARTICLE I

 

DEFINITIONS

 

SECTION 1.01     Certain Defined Terms .     The following terms have the following meanings:

 

“Acceptable Investment Grade Credit Enhancement means (i) a guarantee (in form and substance satisfactory to the Administrative Agent) from a financial institution acceptable to the Administrative Agent, (ii) or a letter of credit (in form and substance satisfactory to the Administrative Agent) provided by any Person (other than an Affiliate of the Borrower) rated Investment Grade who has consented to an assignment of proceeds of such letter of credit to the Collateral Agent or otherwise as to which the Collateral Agent has a perfected security interest pursuant to Article 9 of the UCC, or (iii) credit insurance in amounts and from an insurance provider acceptable to the Administrative Agent in its sole discretion that is otherwise in compliance with Section 8.06 of this Agreement or other credit enhancement in form and substance acceptable to the Administrative Agent provided by a Lender covering the creditworthiness of an Account with respect to which the Administrative Agent shall have received such documentation and evidence as it deems necessary or desirable to confirm the

 

NY 904904


 

 

 

existence and direction of payment thereof ( provided , however , that the Administrative Agent shall not require disclosure of such Lender's remuneration in connection with any such credit enhancement).

Account has the meaning stated in the Uniform Commercial Code.

Account Debtor means a Person who is obligated to the Borrower under an Account of the Borrower.

Acquisition shall mean any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary) provided that the Borrower or the Subsidiary is the surviving entity.

Additional Costs has the meaning specified in Section 5.01(a) of this Agreement.

Adjusted Net Working Capital shall mean, as of the date of any determination thereof with respect to the Borrower, Net Working Capital minus the net amount of all loans and other advances or other amounts due and owing to the Borrower from its equity holders or Affiliates unless any such amount (a) is secured by a letter of credit acceptable to the Administrative Agent or (b) reflects Approved Affiliate Oil Cargo Receivables in an amount not to exceed more than 50% of the Borrower's total Net Working Capital on the date of such determination.

Adjusted Pro Rata Share shall have the meaning ascribed to it in the Swap Lender Intercreditor Agreement.

Adjusted Tangible Net Worth shall mean, as of the date of any determination thereof with respect to the Borrower, Tangible Net Worth minus the net amount of all loans and other advances or other amounts due and owing to the Borrower from its equity holders or Affiliates unless any such amount (a) is secured by a letter of credit acceptable to the Administrative Agent or (b) reflects Approved Affiliate Oil Cargo Receivables in an amount not to exceed more than 50% of the Borrower's total Tangible Net Worth on the date of such determination

Administrative Agent shall mean BNP Paribas in its capacity as administrative agent under this Agreement and the other Loan Documents, together with its successors and assigns in such capacity.

Administrative Agent-Related Persons shall mean BNP Paribas, together with its respective Affiliates and each of their respective officers, directors, employees, agents and attorneys.

Affiliate shall mean, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the

 

 

 

 

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power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise.

Aggregate Outstanding Extensions of Credit shall mean, at any time, the aggregate outstanding principal amount of all Loans, together with the aggregate amount of all L/C Obligations.

Agreement shall mean this Amended and Restated Uncommitted Revolving Credit Agreement, as amended, restated, supplemented, or otherwise modified from time to time.

Alternative Base Rate shall mean for any day the rate per annum (rounded upward, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the rate of interest established by BNP Paribas from time to time at its principal office in New York City as its “base rate” for loans in Dollars (the “base rate” is a rate set by BNP Paribas based upon various factors including BNP Paribas' costs and desired return, general economic conditions and other factors and is used as a reference point for pricing of some loans, which may be priced at, above or below such announced rate and is not intended to be the lowest rate of interest charged by BNP Paribas in connection with extensions of credit to debtors), (b) the Federal Funds Rate in effect on such day plus 0.50%, or (c) the Eurodollar Rate for Interest Periods of 3 months plus 1.50%. Any change in the reference rate announced by BNP Paribas shall take effect at the opening of business on the day specified in the public announcement of such change.

Alternative Base Rate Loans shall mean Loans that bear interest at rates based on rates referred to in the definition of “Alternative Base Rate”.

Applicable Lending Office shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate thereof) designated for such Type of Loan on the signature pages hereof or such other office of such Lender (or of an Affiliate thereof) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.

Applicable Margin shall mean, (i) with respect to Alternative Base Rate Loans, 1.75% per annum; and (ii) with respect to Eurodollar Rate Loans, 2.75% per annum.

Approved Account Debtor Limit shall mean the designated Dollar amount per Account Debtor that the Required Lenders and the Facility B Agent approve in writing from time to time for each Account Debtor that the Required Lenders approve in writing from time to time, which on the Closing Date shall be the Account Debtors and Dollar amounts set forth opposite the name of each such Account Debtor on Schedule A attached hereto . Each Lender shall inform the Administrative Agent of its approval or disapproval of additional Account Debtors and increases or decreases in Dollar amounts in writing by electronic communication at ed.tice@us.bnpparibas.com (or any other electronic address acceptable to the Administrative Agent in its discretion) within five (5) Business Days after receipt of notice from the Administrative Agent, provided , however , that failure of a Lender to affirmatively approve or disapprove of any Approved Account Debtor Limit shall be deemed approval of such Approved Account Debtor Limit by such Lender.

 

 

 

 

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Approved Affiliate Oil Cargo Receivable shall mean each Account, calculated in Dollars, due and payable to the Borrower within thirty (30) days on regular commercial terms documented by a written contract for sale in form and substance acceptable to and which contract shall have been delivered to the Administrative Agent and is acceptable to the Administrative Agent in its discretion, arising in connection with one (1) shipment or delivery of Products, with respect to which (i) the Account Debtor is an Affiliate of the Borrower, (ii) such Account has been guaranteed by the Parent in a manner acceptable to the Administrative Agent, and (iii) so long as such Account is outstanding, the Parent has available credit under one or more of its committed revolving credit facilities in an amount not less than the full aggregate amount of all Approved Affiliate Oil Cargo Receivables then outstanding and (1) no default, event of default, or other material violation or breach of such credit facilities exists and is continuing, and (2) there are no conditions to the drawing of funds in respect of such available credit that cannot be promptly satisfied solely by the Parent (but in any event satisfied within two (2) Business Days) without the consent or approval of any other Person at such time, unless such conditions have been expressly waived in writing by the applicable lender and any other Person required to so waive.

Approving Lenders shall have the meaning specified in Section 3.11(b) of this Agreement.

Assignee has the meaning specified in Section 12.08(a) of this Agreement.

Attorney Costs shall mean and includes all fees and disbursements of any law firm or other external counsel.

Authorized Officer shall mean, with respect to any action by the Borrower, any officer of the Borrower authorized to take such action pursuant to the Borrower's Organizational Documents or resolutions of the Borrower delivered to the Administrative Agent from time to time.

Bankruptcy Code shall mean the Federal Bankruptcy Reform Act of 1978, as amended (11 U. S.C. §101, et seq .).

Barrel shall mean a quantity equal to forty-two U.S. gallons.

Basis Risk shall mean, with respect to any Commodity Contract for the sale or purchase of Product that is hedged by another Commodity Contract for the sale or purchase of Product, the risk attributable to the Borrower resulting from changes in value that arise from differences between the delivery location, time of delivery or type or grade of the underlying asset for such Commodity Contract and the delivery location, time of delivery or type or grade of the underlying asset for the hedging Commodity Contract.

Basel Accord shall mean the proposals for risk-based capital framework described by the Basel Committee on Banking Regulations and Supervisory Practices in its paper entitled “International Convergence of Capital Measurement and Capital Standards” dated July 1988, and in its paper entitled “Basel III: A global regulatory framework for more resilient banks and banking systems”, dated December 2010, in each case as amended, modified and supplemented and in effect from time to time or any replacement thereof.

 

 

 

 

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Borrowing shall mean a borrowing hereunder consisting of Loans made to the Borrower on any given day under Article II or Article III of this Agreement.

Borrowing Date shall mean any date on which a Borrowing occurs hereunder.

Borrowing Request shall mean a request by the Borrower for a Borrowing, in the form attached hereto as Exhibit B , duly completed by the Borrower in accordance with this Agreement.

Business Day shall mean any day other than a Saturday, Sunday or other day on which commercial banks are not authorized to be open or are required to close in New York City; provided , however , that if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, or a Conversion of or into, or an Interest Period for, a Eurodollar Rate Loan or a notice by the Borrower with respect to any such borrowing, payment, prepayment, Conversion or Interest Period, Business Day shall mean any day other than a Saturday, Sunday or other day on which dealings in Dollar deposits are carried out in the London interbank market.

Capital Adequacy Regulation shall mean any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any Lender or of any corporation controlling a Lender.

Cash Collateral shall mean currency issued by the United States, as well as Cash Equivalents, which has been pledged and deposited with, or delivered to, the Collateral Agent as Collateral hereunder subject to a pledge of deposit agreement and other security documentation acceptable to the Administrative Agent. The Borrower shall grant the Collateral Agent a first priority perfected security interest in all such Cash Collateral (subject only to Permitted Liens). In the event that Cash Collateral is held at another financial institution, under a lockbox or any other arrangement, such Cash Collateral will be subject to an acceptable tri-party security agreement granting the Collateral Agent a first priority perfected security interest in such account (subject only to Permitted Liens).

Cash Collateral Account shall mean a deposit account or deposit accounts of the Borrower held by the Collateral Agent at either (a) its Principal Office in the name of the Borrower, or (b) at another depositary institution acceptable to the Administrative Agent, such approval not to be unreasonably withheld or delayed in each case pursuant to the terms of an account agreement providing for, among other things, the granting of first priority perfected security interest in such account (subject only to Permitted Liens) and subject to a control agreement or other security agreement of similar effect governed by the law of the jurisdiction where the deposit account is located.

Cash Equivalents shall mean direct obligations of, or guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality thereof, provided that such obligations (a) are backed by the full faith and credit of the United States, (b) shall mature within 180 days of their date of issuance, (c) are subject to a first priority perfected security interest (subject only to Permitted Liens), (d) are not subject to, or encumbered by, any

 

 

 

 

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Lien (except for (i) the Lien granted to the Collateral Agent pursuant to (x) the Security Agreements, or (y) another security agreement acceptable in form and substance to the Administrative Agent, and (ii) any other Permitted Liens), and (e) if in certificated form, are endorsed to the order of the Administrative Agent or in blank and delivered to the Administrative Agent or its bailee.

Castor/Tesoro Storage Agreement shall mean that certain Transportation and Storage Agreement, dated as of September 18, 2007, by and between the Borrower and Castor Petroleum Ltd., now known as Gunvor SA, as amended by that certain First Amendment to Transportation and Storage Agreement, dated November 27, 2008, and as further amended by that certain Second Amendment to Transportation and Storage Agreement, dated November 28, 2008, together with any amendments, restatements, or other modifications thereof.

Close-Out Amount shall have the meaning ascribed to it in the Swap Lender Intercreditor Agreement.

Closing Date shall mean the date on which all conditions precedent set forth in Section 6.01 of this Agreement have been satisfied or waived by the Administrative Agent and the Lenders, which in respect of this Agreement was October 11, 2011.

Code shall mean the Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder.

Collateral shall mean, all of the assets of the Borrower and its Subsidiaries whether now existing or hereafter arising and whether now owned or hereafter acquired, including all “Collateral” as such term is used in each of the Security Agreements and each of the following:

(a)All Accounts, Inventory, Chattel Paper, Instruments, Deposit Accounts, Securities Accounts, Commodity Accounts, Commercial Tort Claims, Letter of Credit Rights and Investment Property (including, without limitation, all Swap Contracts) now owned or hereafter acquired by the Borrower, together with any property the sale or lease of which has given rise to such Accounts, Inventory, Chattel Paper, Instruments, Deposit Accounts, Letter of Credit Rights or Investment Property and all Supporting Obligations securing the payment of, or performance under, any such Accounts, Inventory, Chattel Paper, Instruments, Deposit Accounts, Letter of Credit Rights or Investment Property;

 

(b)All other personal property now owned or hereafter acquired by the Borrower, including Documents, Documents of Title, Equipment, machinery, fixtures, licenses, patents, trademarks, contracts, contract rights and other General Intangibles (including, without limitation, all rights of the Borrower under any Swap Contracts);

 

(c)All policies of insurance (whether or not required by the Administrative Agent) covering any property referred to herein;

 

(d)All books, records, supplies, customer lists and other materials in any way related to any property described herein including computer software, computer files and all licenses and other rights necessary to own, operate and access the same;

 

 

 

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(e)All money or property of the Borrower in the Administrative Agent's possession;

 

(f)Cash and investments of the Borrower; and

 

(g)All proceeds, products, replacements, additions to, increases of, substitutions for, accessions of, and property necessary for the operation of any of the property described herein, including insurance payable as a result of loss or damage to such property and any proceeds thereunder, refunds of unearned premiums of any such insurance policy and claims against third parties.

 

Collateral Agent shall mean the Administrative Agent when acting in its capacity as collateral agent under this Agreement and the other Loan Documents for benefit of the Lenders, the Letter of Credit Issuers, and the Swap Lenders, and, to the extent provided for in the Combined Facilities Intercreditor Agreement, also when acting in its capacity as collateral agent for the benefit of the Facility B Agent and the Facility B Lenders.

Collateral Pool shall mean at any time, an amount equal to the sum of:

(a)    100% of the face value of Cash Collateral (including cash held in lockbox accounts or concentration accounts in the name of the Borrower so long as the Collateral Agent has been granted a first priority perfected security interest in such lockbox accounts, subject only to Permitted Liens); plus

 

(b)    90% of Eligible Accounts Receivable; plus

 

(c)    90% of Fully Hedged Eligible Inventory; plus

 

(d)    90% of the amount of Net Liquidity Value in Eligible Brokerage Accounts; plus

 

(e)    90% of the Letters of Credit Issued for Pre-Sold/Fully Hedged Products Not Yet Delivered; plus

 

(f)    85% of Hedged Eligible Inventory (excluding Fully Hedged Eligible Inventory and Tier II Hedged Eligible Inventory); plus

 

(g)    80% of Tier II Hedged Eligible Inventory (excluding Fully Hedged Eligible Inventory); plus

 

(h)    85% of the Letters of Credit Issued for Hedged Products Not Yet Delivered; plus

 

(i)    80% of Eligible Net Unrealized Positive MTM Gains; minus

 

(j)    100% of Reserves; minus

 

(k)    120% of the Lenders' Swap Liability.

 

 

 

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The value of the Collateral Pool shall be determined by reference to the most recently dated Collateral Pool Report prepared by the Borrower pursuant to Section 8.02(c) of this Agreement absent any error in such Collateral Pool Report as of the date delivered. The value of each type of Collateral set forth above shall be computed in accordance with the provisions of the respective definitions provided in or otherwise by this Agreement. Notwithstanding the foregoing, (i) the aggregate amount of Approved Affiliate Oil Cargo Receivables and any other Accounts for which the Account Debtor is an equity holder or Affiliate of the Borrower or the Parent included in the calculation of the Collateral Pool may not exceed an amount equal to 50% of the Borrower's minimum Adjusted Net Working Capital amount or minimum Adjusted Tangible Net Worth amount necessary to sustain the Combined Facilities Maximum Amount in effect on the date of such determination, and (ii) the aggregate amount of Hedged Eligible Inventory (excluding Tier II Hedged Eligible Inventory) included in the calculation of the Collateral Pool may not exceed an aggregate maximum volume of 1,000,000 Barrels at any time. Notwithstanding any other provision of the Loan Documents, no asset shall be given positive value (i.e. be added to) in the Collateral Pool unless the Collateral Agent has been granted a first priority (subject to Permitted Liens) perfected security interest in such asset. Notwithstanding any other provision of the Loan Documents, the Administrative Agent, in its sole and absolute discretion, shall have the right to permanently or temporarily decrease the Collateral Pool, or add or modify additional concentration or other limits affecting the Collateral Pool, at any time for any duration, effective upon verbal notification to the Borrower. In the event of any such decrease, addition or modification by the Administrative Agent, the Administrative Agent shall within one (1) Business Day give notice of such decrease, addition or modification to the Lenders. Notwithstanding any other provision of the Loan Documents, no asset shall be included in the Collateral Pool in duplicate categories such that it would be counted towards the calculation of the Collateral Pool more than once.

Collateral Pool Report ” shall mean a certificate, executed by a Responsible Officer of the Borrower and substantially in the form of Exhibit A hereto, delivered to the Administrative Agent and the Lenders in accordance with the requirements of Section 8.02(c) of this Agreement, which shall have attached thereto schedules in form and substance (as to accuracy and completeness) acceptable to the Administrative Agent and the Lenders showing the following with respect to all Collateral comprising the Collateral Pool:

(a)      bank account statements reflecting Cash Collateral and other statements reflecting ownership and market value of Cash Equivalents;

(b)      brokers account statements reflecting Net Liquidity Value in Eligible Brokerage Accounts;

(c)      schedule of Eligible Accounts Receivable with details (including break outs of any Approved Affiliate Oil Cargo Receivables) and reconciliations as to any offsets, counterclaims or other applicable deductions as provided in the definition of Eligible Accounts Receivable as well as agings;

(d)      schedule of Fully Hedged Eligible Inventory containing back-up information as to (i) location and pricing (calculated pursuant to a methodology acceptable to the Administrative Agent) of inventory (specifically setting out in-transit

 

 

 

 

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inventory, which shall be included as a separate line item on the Collateral Pool Report), (ii) weekly statements from third-party storage providers (including PTP) and inspection report for all Products in storage from an independent third-party firm in the Republic of Panama acceptable to the Administrative Agent that in each case includes confirmations of volume, (iii) schedule of negotiable documents of title representing such Fully Hedged Eligible Inventory, if applicable, and (iv) supporting documentation evidencing the hedges, including copies of the open strategy summary reports in form and substance acceptable to the Administrative Agent;

(e)      schedule of Hedged Eligible Inventory and Tier II Hedged Eligible Inventory containing back-up information as to (i) location and pricing (calculated pursuant to a methodology acceptable to the Administrative Agent) of inventory (specifically setting out in-transit inventory, which shall be included as a separate line item on the Collateral Pool Report), (ii) weekly statements from third-party storage providers (including PTP) and inspection report for all Products in storage from an independent third-party firm in the Republic of Panama acceptable to the Administrative Agent that in each case includes confirmations of volume, and (iii) schedule of negotiable documents of title representing such Hedged Eligible Inventory, if applicable, and (iv) supporting documentation evidencing the hedges, and (v) a copy of the open strategy summary reports in form and substance acceptable to the Administrative Agent;

(f)      evidence in form and substance acceptable to the Administrative Agent of committed available credit of the Parent;

(g)      the value of any Letters of Credit Issued for Products Not Yet Delivered, broken down by Letters of Credit Issued for Hedged Products Not Yet Delivered and Letters of Credit Issued for Pre-Sold/Fully Hedged Products Not Yet Delivered and by counterparty and showing all related liabilities including accounts payable, accrued payables, and marked-to-market losses;

(h)      the value of Eligible Net Unrealized Positive MTM Gains;

(i)      copies of third-party statements of accounts confirming account or asset balances in brokerage and commodities used in the calculation of the Collateral Pool, and other similar counterparty confirmations supporting the calculation of the Collateral Pool;

(j)      if any Eligible Account Receivable or the creation, attachment, perfection, or enforcement of any Lien on any Eligible Account Receivable is governed by Panama law, a copy (with original counterpart to follow promptly thereafter) of a “Supplemental Commercial Pledge Agreement” executed by a Responsible Officer of the Borrower in the form attached to that certain Amended and Restated Commercial Pledge Agreement, dated as of the date hereof, between the Borrower and the Administrative Agent (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time), with respect to each such Eligible Account Receivable;

 

 

 

 

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(k)      schedule of Reserves;

(l)      schedule of all Lenders' Swap Liability together with all supporting documentation in respect thereof,

(m)      schedule of Letters of Credit and Loans outstanding as of the relevant Collateral Pool Reporting Date;

(n)      schedule of Facility B Aggregate Outstanding Extensions of Credit as of the relevant Collateral Pool Reporting Date, which shall include without limitation updated values for escalating clause letters of credit,

(o)      the Facility B Maximum Amount then in effect; and

(p)      as required by Section 8.02(d) of this Agreement, a Position Limit Report and a Mark to Market Report.

All amounts in the Collateral Pool Report will be calculated in Dollars and, to the extent any such amounts shall be converted from another currency, shall be so converted pursuant to a methodology approved by the Administrative Agent and the Required Lenders.

Collateral Pool Reporting Date shall mean the last Business Day of each calendar week.

Collection Account shall have the meaning ascribed to such term in Section 3.14(a) of this Agreement.

Combined Facilities Aggregate Outstanding Extensions of Credit shall mean the sum of the Aggregate Outstanding Extensions of Credit and the Facility B Aggregate Outstanding Extensions of Credit.

Combined Facilities Intercreditor Agreement shall mean that certain Amended and Restated Intercreditor Agreement, in form and substance acceptable to the Lenders, dated as of even date herewith, among the Administrative Agent, on behalf of the Lenders, and the Facility B Agent, on behalf of the Facility B Lenders, relating to priority with respect to the Collateral and certain other matters addressed therein, as amended from time to time.

Combined Facilities Maximum Amount shall mean, as of any date of determination, the least of (a) the sum of the Maximum Availability Amount then in effect plus the Facility B Maximum Amount then in effect, (b) an amount equal to 10 times the Borrower's Adjusted Net Working Capital, calculated as of the reporting date contained in the last Compliance Certificate delivered or that should have been delivered pursuant to this Agreement, (c) an amount equal to 10 times the Borrower's Adjusted Tangible Net Worth, calculated as of the reporting date contained in the last Compliance Certificate delivered or that should have been delivered pursuant to this Agreement, or (d) $700,000,000.

Commodity Contract shall mean a contract for the purchase, sale, storage, transfer or exchange of Products; and any futures, forward, exchange, swap or other derivatives contract or

 

 

 

 

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any option or cap, collar or floor transactions, or similar arrangements or similar transactions (i) in respect of Products or (ii) relating to the purchase, sale, storage, transfer, exchange or price of any Product that may have a fixed price, a floating price and floating differential, or other pricing basis.

Commodity Swap Contract shall mean a Swap Contract documenting a commodity swap relating to Products.

Compliance Certificate shall mean a certificate in the form of Exhibit C hereto, pursuant to which a Responsible Officer of the Borrower certifies that (i) the Borrower is in compliance with this Agreement, (ii) shows in detail the calculations supporting such Responsible Officer's certification of compliance with Sections 9.14 , 9.15 , 9.16 , and 9.17 of this Agreement (in each case, with respect to any calculation adjusted on an Economic Basis, including a reconciliation with GAAP or IFRS, as applicable), and (iii) all representations and warranties contained herein are true and complete as of the date thereof (except with respect to representations and warranties relating to an earlier date, in which case such representations and warranties shall be true as of such earlier date).

Contingent Obligation shall mean, as to any Person, any direct or indirect liability of that Person, whether or not contingent, with or without recourse, (a) with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary borrower”) including any obligation of that Person (i) to purchase, repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance or provide funds for the payment or discharge of any such primary obligation, or to maintain working capital or equity capital of the primary borrower or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary borrower, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary borrower to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof (each, a “ Guaranty Obligation ”); (b) with respect to any Surety Instrument (other than any Letter of Credit) issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments; (c) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services are ever performed or tendered; or (d) in respect of any Swap Contract or Commodity Contract.

Continue ”, “ Continuation and Continued ” shall refer to the continuation pursuant to Section 3.04 of this Agreement of a Eurodollar Rate Loan from one Interest Period to the next Interest Period or of an Alternative Base Rate Loan upon its maturity to a new maturity.

Convert ”, “ Conversion and Converted shall refer to a conversion pursuant to Section 3.04 of this Agreement of one Type Loan into another Type of Loan, which may be accompanied by the transfer by a Lender (at its sole discretion) of a Loan from one Applicable Lending Office to another.

 

 

 

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Contractual Obligation shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.

Conversion to Approving Lenders Funding Date shall have the meaning specified in Section 3.11 of this Agreement.

Credit Extension shall mean and includes (a) the making of any Loans hereunder, and (b) the Issuance of any Letters of Credit hereunder.

Daylight Overdraft Bank shall mean, with respect to each Daylight Overdraft Loan, BNP Paribas in its capacity as the Lender that has agreed to provide Daylight Overdraft Loans to the Borrower, together with its successors and assigns in such capacity.

Daylight Overdraft Loan shall mean a discretionary Loan made by the Daylight Overdraft Bank to the Borrower as provided in Section 3.12 of this Agreement.

Daylight Overdraft Sublimit shall mean, as of any date, an amount equal to the lesser of (i) $25,000,000 or (ii) $50,000,000 minus the aggregate principal amount of any Swing Line Loans outstanding as of such date.

Declining Lender shall have the meaning specified in Section 3.11 of this Agreement.

Default shall mean any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.

Default Rate shall mean, in respect of any principal of any Loan, any obligation of the Borrower with respect to any Letter of Credit or any other amount under this Agreement (including any fee due hereunder), any Note or any other Loan Document equal to 2.00% per annum plus the otherwise applicable interest rate for such Loan or the stated per annum rate of such fee (including Letter of Credit fees) or other amounts (or, with respect to obligations of the Borrower in respect of Letters of Credit or other fees or obligations hereunder with no stated per annum rate or with respect to overdue interest, in all cases the Alternative Base Rate as in effect from time to time plus 2.00%).

Defaulting Lender shall mean at any time, any Lender that (a) within one (1) Business Day of when due, has failed to fund any portion of any Loans or participations in Letters of Credit, to the Borrower, the Administrative Agent, any Lender or any Letter of Credit Issuer required pursuant to the terms of this Agreement to be funded by such Lender, or has notified the Administrative Agent that it does not intend to do so, unless the subject of a good faith dispute; (b) notified the Borrower, the Administrative Agent, any Letter of Credit Issuer, or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit; (c) failed, within one (1) Business Day after request by the Administrative Agent or the Borrower (made in the good faith belief that such Lender may not comply with its

 

 

 

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obligations under this Agreement), to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans or participations in any Letter of Credit ( provided , however , that the issuance of a Notice of Declining Lender and the election not to fund further Extensions of Credit in accordance with the terms and conditions contained herein will not solely by virtue thereof result in a Declining Lender being a Defaulting Lender); (d) otherwise failed to pay over to the Administrative Agent, any Letter of Credit Issuer, or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless the subject of a good faith dispute; (e) (i) has become or is insolvent or has a parent company that has become or is insolvent or (ii) has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.

Delta shall mean, in relation to an option referencing any Product, the change in the option premium under such option for a one unit change in the price of the underlying Product.

Delta Equivalent Basis shall mean the method of calculating the quantity of cash (or futures) position in Product that will theoretically hedge an option position against an adverse change in the price of any underlying Product by multiplying the Delta of the option by the relevant contract size, volume, or nominal amount.

Dollars , dollars , and $ each mean lawful money of the United States.

Economic Basis shall mean the calculation of financial accounting terms in accordance with GAAP or IFRS, as the case may be, with after-tax mark to market adjustments to certain assets and liabilities, including without limitation marked-to-market gains on inventory, marked-to-market gains or losses on forward contracts not already included in financial statements prepared in accordance with GAAP or IFRS, as the case may be, and marked-to-market gains or losses on storage assets, but in each case pursuant to a methodology acceptable to the Administrative Agent and the Borrower; provided , however , that marked-to-market gains or losses on storage assets shall include marked-to-market gains or losses of all hedged storage assets and shall exclude marked-to-market gains or losses of unhedged storage assets to the extent that the demand charge in connection with such unhedged storage assets for the current and subsequent month is either prepaid or otherwise deducted from such calculation.

Eligible Accounts Receivable shall mean, at the time of any determination thereof, the Borrower's Accounts, as to which the following requirements have been fulfilled to the satisfaction of the Required Lenders:

(a)    Such Account (i) is the result of the sale of Products, and (ii) one of the following sets of criteria has been satisfied with respect to such Account:

 

(1)

such Account is supported or otherwise covered by an Acceptable Investment Grade Credit Enhancement and (A) the amount of such

 

 

 

 

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Account in the calculation of the Collateral Pool does not exceed the amount of such Acceptable Investment Grade Credit Enhancement after taking into account any deductibles and coverage limits and (B) the aggregate amount of all Eligible Account Receivables from such Account Debtor and its Affiliates included in the calculation of the Collateral Pool does not exceed $5,000,000 (unless a greater amount is approved by the Required Lenders and the Facility B Agent);

(2)

the related Account Debtor is subject to an Approved Account Debtor Limit, the aggregate amount of all Eligible Account Receivables from such Account Debtor included in the calculation of the Collateral Pool does not exceed such Account Debtor's Approved Account Debtor Limit, and the aggregate amount of all Eligible Account Receivables from such Account Debtor and its Affiliates included in the calculation of the Collateral Pool is equal to or greater than $250,000 in the aggregate; or

 

(3)

the related Account Debtor is not supported or otherwise covered by an Acceptable Investment Grade Credit Enhancement or subject to an Approved Account Debtor Limit, the aggregate amount of all Eligible Account Receivables from such Account Debtor included in the calculation of the Collateral Pool does not exceed $250,000, and the aggregate amount of all Eligible Account Receivables from Account Debtors included in the calculation of the Collateral Pool pursuant to this Subclause (a)(ii)(3) does not exceed $3,000,000 in the aggregate;

(b)    The Borrower has lawful and absolute title to such Account (subject to Permitted Liens);

 

(c)    Such Account is a valid, legally enforceable obligation of the Person who is obligated under such Account;

 

(d)    Such Account shall have excluded therefrom any portion that is subject to any dispute, offset or contra (including any offset relating to any forward contract marked-to-market loss), netting arrangement, counterclaim or other claim or defense on the part of the Account Debtor against the Borrower or any Affiliate of the Borrower or to any claim on the part of the Account Debtor denying liability under such Account (including without limitation, with respect to any Approved Affiliate Oil Cargo Receivables, any dispute, offset or contra, netting arrangement, counterclaim or other claim or defense of the Parent or any Affiliate of the Parent or the Borrower that in the ordinary course of business is offset throughout the organization); provided , however , that in the event that the portion that is subject to any such dispute, offset or contra, netting arrangement, counterclaim or other claim or defense is secured with a letter of credit or other irrevocable guarantee of payment

in form and substance satisfactory to the Administrative Agent and issued in the name of the Borrower or the Administrative

 

 

 

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Agent by a financial institution having an Investment Grade rating or such other financial institution acceptable to the Administrative Agent, such portion secured by the letter of credit or other irrevocable guarantee of payment shall not be excluded from eligibility hereunder;

 

(e)    Such Account is not evidenced by any chattel paper, promissory note or other instrument;

 

(f)    Such Account is subject to a first priority perfected security interest (or properly filed and acknowledged assignment, in the case of U.S. government contracts, if any) in favor of the Collateral Agent pursuant to the Loan Documents under all applicable law, prior to the rights of, and enforceable as such against, any other Person (including with respect to any Account that the Borrower may have in the future governed by or for which the creation, attachment, perfection, or enforcement of a Lien on such Account is governed by Panama law, that such Account is not subject to any agreement with the respective Account Debtor restricting the assignment thereof and the Administrative Agent shall have received a legal opinion of the Borrower's special Panama counsel confirming perfection of such lien in form and substance acceptable to the Administrative Agent), and such Account is not subject to any security interest or Lien in favor of any Person other than the Liens of the Administrative Agent pursuant to the Loan Documents;

 

(g)    Such Account shall have excluded any portion which is not payable in Dollars and/or representing sales tax, excise tax or any other Taxes or collections on behalf of any governmental entity or taxing authority (U.S. or foreign) which the Borrower is obligated to distribute to such governmental entity or taxing authority;

 

(h)    Such Account is by its terms due and payable within thirty (30) days or less from the date of the invoice, no extension or indulgence has been granted extending the due date, and such Account is not 10 or more days past due;

 

(i)    Such Account complies in all material respects with all applicable laws and regulations;

 

(j)    The related Account Debtor and/or other party which may be liable thereon is not subject to any bankruptcy or similar proceeding;

 

(k)    At the time of the sale the related Account Debtor is not in default on any prior indebtedness to the Borrower and the Borrower has no reason to anticipate that any such prior indebtedness or newly arising indebtedness of such Account Debtor will not be paid when due;

 

(l)    If the applicable Account Debtor with respect to such Account is to be billed on an open account basis, the Required Lenders have otherwise approved such Account Debtor for open account billing;

 

(m)    If the applicable Account Debtor with respect to such Account is not to be billed on an open account basis, the applicable Account Debtor shall have provided a

 

 

 

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letter of credit or bank guarantee from a financial institution acceptable to the Administrative Agent advised to the Borrower through the Administrative Agent;

 

(n)    The Administrative Agent, in its reasonable judgment, does not believe that collection of such receivable is insecure or that such receivable may not be paid by reason of the Account Debtor's financial inability to pay;

 

(o)    Unless such Account is an Approved Affiliate Oil Cargo Receivable, no Account Debtor in respect of such Account is (i) an Affiliate of the Borrower, or (ii) incorporated in or primarily conducting business in any jurisdiction outside of the U.S., unless such Account Debtor and Account is approved in writing by the Administrative Agent and the Required Lenders ( provided , however that each Lender shall inform the Administrative Agent of its approval or disapproval in writing by electronic communication at ed.tice@us.bnpparibas.com (or any other electronic address acceptable to the Administrative Agent in its discretion) within five (5) Business Days after receipt of notice from the Administrative Agent, provided , further , that failure of a Lender to affirmatively approve or disapprove shall be deemed approval by such Lender); and

 

(p)    Such Account has not been otherwise determined by the Administrative Agent, in its reasonable discretion, not to be eligible.

 

The aggregate value of Eligible Accounts Receivable, for purposes of calculating the Collateral Pool hereunder shall be the aggregate invoiced amount due and owing to the Borrower with respect to such Eligible Accounts Receivable (or, with respect to Eligible Accounts Receivable that have not yet been invoiced, such amounts for which the related Account Debtor has not received an invoice but have been recorded in the books and records of the Borrower and where the underlying Product has been delivered to the applicable Account Debtor), minus , for sake of clarity, amounts excluded pursuant to clauses (d) or (g) of this definition of “Eligible Accounts Receivable”.

Eligible Assignee shall mean (a) one of the existing Lenders hereunder, (b) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “ OECD ”), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States; (d) a Person that is primarily engaged in the business of commercial lending and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a Lender is a Subsidiary; (e) a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and having total assets in excess of $100,000,000; (f) another Person having a long-term credit rating no lower than A- by S&P, or if not rated by S&P, the equivalent rating of another nationally recognized statistical rating agency approved by the Administrative Agent, or (g) the Federal Reserve Bank.

 

 

 

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Eligible Inventory shall mean, at the time of determination thereof, all of the physical Inventory of Products of the Borrower, in-transit or stored at storage locations approved by the Administrative Agent, as to which the following requirements have been fulfilled to the satisfaction of the Required Lenders:

(a)    The Inventory is owned by the Borrower free and clear of all Liens in favor of third parties, except Liens in favor of the Collateral Agent under the Loan Documents and except for Permitted Liens;

 

(b)    The Inventory has not been allocated to deliveries with the result that a buyer would have rights to the Inventory that would be superior to the Collateral Agent's security interest, nor shall such Inventory have become the subject of a customer's ownership or Lien;

 

(c)    The Inventory is (i) in transit under the ownership of the Borrower and under the control of the Borrower, the Collateral Agent, or the Facility B Agent in its capacity as collateral agent for the benefit of the Lenders, the Letter of Credit Issuers, and the Swap Lenders pursuant to the Combined Facilities Intercreditor Agreement; or (ii) in a segregated storage tank owned by PTP and subject to a control or storage warrant or other custodial agreement by and among one or more of PTP, the Borrower and the Collateral Agent, in form and substance acceptable to the Administrative Agent;

 

(d)    The Inventory is subject to a negotiable tank receipt, other warehouse receipt, bill of lading or other document of title evidencing ownership of such Inventory all copies of which (and in the case of any bills of lading, original counterparts of three of three bills of lading) have been issued in the name of or endorsed to the order of the Administrative Agent and delivered to the Administrative Agent or the Facility B Agent;

 

(e)    For Inventory located in a third party-owned storage facility or pipeline, the Borrower agrees to notify the owner of the storage facility, in a format acceptable to the Administrative Agent, of the Administrative Agent's security interest and, if requested by the Collateral Agent, to request an acknowledgment from the owner of the storage facility of the Administrative Agent's security interest and its agreement to honor instructions from the Administrative Agent regarding the movement of Inventory;

 

(f)    The Inventory is subject to a fully perfected first priority security interest (subject only to Permitted Liens) in favor of the Administrative Agent pursuant to the Loan Documents;

 

(g)    The Inventory is currently saleable in the normal course of the Borrower's business without any notice to, or consent of, any governmental agency or department or division thereof, except for any immaterial notice or consent incidental to such sale where the failure to give such notice or consent does not prevent or rescind the sale or materially adversely affect the security interest to be granted therein pursuant to the Security Agreements or the perfection thereof;

 

 

 

 

 

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(h)    The Inventory does not consist of bill-and-hold goods (i.e., Inventory which has been previously sold by the Borrower but which is being held by the Borrower pending delivery); and

 

(i)    The Inventory has not otherwise been determined in the discretion of the Administrative Agent to be ineligible.

 

The Administrative Agent may exclude at any time from Eligible Inventory any type of Inventory that the Required Lenders reasonably determine to be unmarketable.

The aggregate value in Dollars of Eligible Inventory for purposes of calculating the Collateral Pool hereunder shall be the current market value as determined pursuant to a pricing methodology acceptable to the Administrative Agent based on Platts or another published industry index acceptable to the Administrative Agent, in each case with adjustments thereto acceptable to the Administrative Agent.

Eligible Net Unrealized Positive MTM Gains means the aggregate marked-to-market In The Money Positions of all Commodity Swap Contracts of the Borrower as to which the Collateral Agent has a perfected security interest pursuant to Article 9 of the UCC by counterparty for which the then current maturity date or termination date is less than or equal to twelve (12) months from the date of calculation thereof that serves to hedge another item of Collateral used in the calculation of the Collateral Pool, net of (i) Out Of The Money Positions, accounts payable, and other obligations of the Borrower to the related counterparty under such Commodity Swap Contracts; (ii) purchases contracted for but not yet invoiced, and (iii) margin consisting of cash or Cash Equivalents held by the Borrower received from any counterparties pursuant to such Commodity Swap Contracts, and (iv) any claim of offset or other counterclaim actually known by the Borrower, any of the Borrower's Affiliates, or the Administrative Agent in respect of such Commodity Swap Contracts by any counterparties thereto, which are reasonably expected to be deducted from payment. Eligible Net Unrealized Positive MTM Gains in respect of any counterparty shall only be included in the Collateral Pool if the counterparty is a Swap Lender or is otherwise subject to a designated Dollar amount limit for such counterparty that the Required Lenders and the Facility B Agent approve in writing from time to time, which on the Closing Date shall be the counterparties (including without duplication any Account Debtors) and Dollar amounts set forth opposite the name of each such counterparty on Schedule A attached hereto; provided , however , that any marked-to-market gains on transportation and storage commodity contracts shall not be included in the calculation of “Eligible Net Unrealized Positive MTM Gains”. Each Lender shall inform the Administrative Agent of its approval or disapproval of additional counterparties and increases or decreases in Dollar amounts in writing by electronic communication at ed.tice@us.bnpparibas.com (or any other electronic address acceptable to the Administrative Agent in its discretion) within five (5) Business Days after receipt of notice from the Administrative Agent, provided , however , that failure of a Lender to affirmatively approve or disapprove of any such limit shall be deemed approval of such limit by such Lender.

Environmental Claims shall mean all claims, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment.

 

 

 

 

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Environmental Laws shall mean all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters.

ERISA shall mean the Employee Retirement Income Security Act of 1974, and regulations promulgated thereunder.

ERISA Affiliate shall mean any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate of a Pension Plan as a termination within the meaning of Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

Eurodollar Rate Loans shall mean Loans that bear interest at rates based on rates referred to in the definition of “Eurodollar Rate”.

Eurodollar Rate shall mean for any day the rate per annum (rounded upward, if necessary, to the next 1/16 of 1%) equal to the rate for deposits in Dollars for a period equal to the applicable Interest Period appearing on the applicable Reuters Screen at 11:00 a.m., London time, two (2) Business Days prior to the first day of such Interest Period for Interest Periods of one, two or three months.

Event of Default shall mean any of the events or circumstances specified in Section 10.01 of this Agreement.

Exchange Act shall mean the Securities and Exchange Act of 1934, and regulations promulgated thereunder.

Excluded Taxes shall mean, with respect to the Administrative Agent or any Lender, or any other recipient of any payment to be made by or on account of any of the Obligations hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States or any similar tax

 

 

 

 

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imposed by any other jurisdiction in which any Lender is located, and (c) in the case of a Non-U.S. Person, any withholding tax that is imposed on amounts payable to such Non-U.S. Person at the time such Non-U.S. Person becomes a party to this Agreement (or designates a new lending office) or is attributable to such Non-U.S. Person's failure to comply with Section 5.07 of this Agreement, except to the extent that such Non-U.S. Person (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.07 of this Agreement.

Existing Letters of Credit shall mean all letters of credit Issued by a Letter of Credit Issuer for the account of the Borrower prior to the date of this Agreement pursuant to the Existing Credit Agreement and that remain outstanding as of the Closing Date.

Expiration Date shall mean the earliest to occur of:

(a)    364 days from the Closing Date; or

    

(b)    the date on which, in connection with a demand for payment of all Obligations, the Administrative Agent at the direction of the Required Lenders declares the Uncommitted Facility evidenced hereby terminated; or

 

(c)    the date that the Obligations are accelerated by the Administrative Agent and the Required Lenders pursuant to Section 10.02 of this Agreement.

 

Face Amount shall mean, with respect to any Letter of Credit or any other letter of credit referred to herein, the maximum aggregate amount the Letter of Credit Issuer (or, with respect to any letter of credit other than a Letter of Credit, the related letter of credit issuing bank) may be obligated to pay to the beneficiary pursuant to the terms of such Letter of Credit or other letter of credit and which, with respect to any Letter of Credit or other letter of credit issued in an “approximate” face amount or in a face amount with a tolerance of “plus or minus” a particular percentage, shall equal the sum of such face amount plus such percentage of such face amount equal to the maximum tolerance or such amount as shall be otherwise stipulated in the Letter of Credit or other letter of credit.

Facility B shall mean that certain senior secured credit facility provided to the Borrower pursuant to the Facility B Credit Agreement.

Facility B Agent shall mean BNP Paribas (Suisse) SA, as administrative agent and arranger for the Facility B Lenders.

Facility B Aggregate Outstanding Extensions of Credit shall mean, at any time, the aggregate outstanding principal amount and Face Amount of all Facility B L/C Obligations and any other credit extensions made pursuant to Facility B, including, without limitation, any advances of principal and any amounts owed to the lenders thereunder in respect of the countersigning of letters of indemnity.

Facility B Credit Agreement shall mean that certain Uncommitted Letter of Credit Facility Agreement, dated as of October 18, 2010, by and among the Borrower, the Facility B

 

 

 

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Agent, and the Facility B Lenders, as amended by Amendment No. 1, dated February 4, 2011, Amendment No. 2 dated May 18, 2011 , and Amendment No. 3, dated as of the date hereof and as the same may be amended, supplemented or otherwise modified from time to time.

Facility B Maximum Amount shall mean the aggregate maximum amount of credit available for advances of principal, letters of credit, countersigned letters of indemnity, and other extensions of credit under Facility B (prior to giving effect to the Collateral Pool or any other borrowing base or applicable sublimits).

Facility B L/C Obligations shall mean, at any time, the sum of (a) the aggregate Face Amount of all letters of credit then outstanding under Facility B and (b) the amount of all unreimbursed drawings under all letters of credit under Facility B.

Facility B Lenders shall mean all lenders under Facility B from time to time.

Facility B Letter of Credit shall mean any letter of credit then outstanding under Facility B.

Facility B Loan Documents shall mean the Facility B Credit Agreement, together with all definitive credit documentation relating thereto, and any amendment, restatement, supplement, or other modification of any of the foregoing.

Federal Funds Rate shall mean, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

Fee Letters shall mean (i) that certain amended and restated fee letter dated as of as of the date hereof by and among the Borrower, BNP Paribas in its capacity as Administrative Agent, Sole Bookrunner, Letter of Credit Issuer, and Swing Line Lender, and BNP Paribas Securities Corp. in its capacity as Arranger, pursuant to which the Borrower agreed to pay certain fees to BNP Paribas and BNP Paribas Securities Corp. upon the terms and conditions set forth more fully therein, and (ii) any other fee letter by and between the Borrower and the Administrative Agent, for the benefit of the Lenders, pursuant to which the Borrower agrees to pay certain fees to the Lenders upon the terms and conditions set forth more fully therein, in each case together with any amendments, restatements, supplements, or other modifications thereof.

Foreign Law Security Document shall mean each of (i) that certain Amended and Restated Deed of Security Over Contracts and Receivables Proceeds, dated as of the date hereof, by and between the Borrower and the Collateral Agent, (ii) that certain Swiss law governed Amended and Restated Assignment Agreement, dated as of the date hereof, by and between the Borrower and the Collateral Agent, (iii) that certain Swiss law governed Amended and Restated Pledge Agreement, dated as of the date hereof, by and between the Borrower and the Facility B Agent, (iv) that Amended and Restated Commercial Pledge Agreement, dated as of the date

 

 

 

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hereof, by and between the Borrower and the Collateral Agent, and (v) that certain Storage Warrant, dated October 18, 2010, by and among PTP, the Collateral Agent, and the Borrower (as reaffirmed as of the Closing Date), in each case together with any amendments, restatements, supplements, or other modifications thereof.

FRB shall mean the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.

Fully Hedged Eligible Inventory shall mean Hedged Eligible Inventory with respect to which the Basis Risk (other than location Basis Risk) has also been hedged in a manner satisfactory to the Administrative Agent.

GAAP shall mean generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.

GAAS shall mean generally accepted auditing standards as set forth from time to time by the American Institute of Certified Public Accountants for the conduct of audits.

Governmental Authority shall mean any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

Guaranty Obligation has the meaning specified in the definition of “Contingent Obligation”.

Hedged Eligible Inventory shall mean, at the time of determination thereof, all of the Borrower's Eligible Inventory valued on a marked-to-market basis, pursuant to a methodology acceptable to the Administrative Agent, and adjusted to reflect differentials and pricing information provided by Platts (or another published industry index acceptable to the Administrative Agent) with respect to which outright price risk shall have been hedged in a manner satisfactory to the Administrative Agent and, (a) in the case of such hedges placed through a recognized commodities exchange, subject to the execution of a tri-party Security Agreement with the Collateral Agent and the related commodities broker in form and substance acceptable to the Administrative Agent granting a first priority perfected security interest in the related commodities or futures hedge account to the Collateral Agent (subject only to Permitted Liens), and (b) in the case of such hedges purchased on an over-the-counter basis, subject to the execution of other documentation reasonably acceptable to the Administrative Agent granting a first priority perfected security interest in the related over-the-counter hedges to the Collateral Agent (subject only to Permitted Liens). No hedge contracts entered into by, or on behalf of, the Borrower shall contain any provision preventing the assignment of such contracts to the Collateral Agent (or requiring the consent of any Person other than the applicable counterparty to

 

 

 

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permit such assignment unless such consent shall have been obtained) and shall not include provisions that allow the cancellation of the contract upon the bankruptcy, either voluntary or involuntary, or insolvency of Borrower, unless (i) such right of cancellation applies to both parties of the contract and (ii) the contract provides for means to calculate the mark-to-market liquidation value of such contract and the payment of such amount to the party it is owed by the other party to such contract.

IFRS ” shall mean the generally accepted guidelines, principles and rules for the preparation of financial statements set forth from time to time by the International Accounting Standards Board, which are applicable to the circumstances as of the date of determination.

Indebtedness of any Person shall mean, without duplication, (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business on ordinary terms); (c) all non‑contingent reimbursement or payment obligations with respect to Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property but in such event not in excess of the fair market value of such property); (f) all obligations with respect to capital leases; (g) all net obligations with respect to Swap Contracts and Commodity Contracts; (h) all indebtedness referred to in clauses (a) through (g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness but only to the extent of the fair market value of such property; and (i) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (g) above.

Indemnified Liabilities has the meaning specified in Section 12.05 of this Agreement.

Indemnified Person has the meaning specified in Section 12.05 of this Agreement.

Indemnified Taxes shall mean Taxes other than Excluded Taxes.

Insolvency Proceeding shall mean (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding‑up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; undertaken under U.S. Federal, state, or foreign law, including the Bankruptcy Code.

Intercreditor Agreements shall mean the Swap Lender Intercreditor Agreement and the Combined Facilities Intercreditor Agreement.

 

 

 

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Interest Period shall mean with respect to any Eurodollar Rate Loan, each period of one, two or three months, in each case commencing on the date such Loan is made or converted from a Loan or Loans of another Type, or the last day of the next preceding Interest Period with respect to such Loan, and ending on the last day of such period, in each case as a Borrower may select as provided in Section 3.03 of this Agreement; provided , however , that no Interest Period shall extend beyond the Expiration Date.

In The Money Positions shall mean, with respect to Swap Contracts and Commodity Contracts entered into by the Borrowers with counterparties permitted in the calculation of the Collateral Pool, all forward positions in respect of such Swap Contracts and Commodity Contracts which have a net positive value as of the date of calculation, having been marked-to-market based on an industry accepted pricing methodology acceptable to the Administrative Agent, and which Swap Contracts and Commodity Contracts would be considered to be “in the money” based on the standard industry characterization of such contracts.

Inventory shall have the meaning ascribed to such term in the Uniform Commercial Code of the State of New York.

Investment Grade means, with respect to any Person, the long term senior unsecured noncredit enhanced credit rating of which is BBB- or higher by S&P, if rated by S&P and Baa3 or higher by Moody's, if rated by Moody's.

IRS shall mean the Internal Revenue Service, and any Governmental Authority succeeding to any of its principal functions under the Code.

Issue shall mean, with respect to any Letter of Credit, to issue, amend, extend the expiry of, or renew or increase the amount of, such Letter of Credit; and the terms “ Issued ” “ Issuing ” and “ Issuance ” have corresponding meanings.

Joint Venture shall mean a corporation, partnership, joint venture or other similar legal arrangement (whether created by contract or conducted through a separate legal entity) now or hereafter formed by the Borrower or any of its Subsidiaries with another Person in order to conduct a common venture or enterprise with such Person.

L/C Amendment Application shall mean, with respect to each Letter of Credit Issuer, the application form for amendment of outstanding standby or commercial documentary letters of credit as shall at any time be in use by such Letter of Credit Issuer.

L/C Application shall mean, with respect to each Letter of Credit Issuer, the application form for issuances of standby or commercial documentary letters of credit as shall at any time be in use by such Letter of Credit Issuer.

L/C Commission has the meaning specified in Section 4.07 of this Agreement.

L/C Obligations shall mean at any time the sum of (a) the maximum aggregate undrawn Face Amount of all Letters of Credit then outstanding, plus (b) the amount of all unreimbursed drawings under all Letters of Credit.

 

 

 

 

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L/C-Related Documents shall mean the Letters of Credit, the L/C Applications, the L/C Amendment Applications and any other document relating to any Letter of Credit, including any of the Letter of Credit Issuers' standard form documents for letter of credit issuances.

Lenders shall mean (a) on the date hereof, the lenders listed on the signature pages hereof, including but not limited to the Daylight Overdraft Bank and the Swing Line Lender, and (b) thereafter, the lenders from time to time holding Loans or participations in Letters of Credit after giving effect to any assignments thereof permitted by Section 12.08(a) of this Agreement or as a result of an increase in the Maximum Considered Amount pursuant to Section 2.04(b) of this Agreement, including but not limited to the Daylight Overdraft Bank and the Swing Line Lender.

Lender's Aggregate Accommodations shall mean, for each Lender, (a) with respect to any Loans on any date, such Lender's aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Loans occurring on such date; and (b) with respect to any outstanding L/C Obligations on any date, the amount of such Lender's L/C Obligations on such date after giving effect to any Issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions, in the maximum amount available for drawing under Letters of Credit taking effect on such date.

Lenders' Swap Liability shall mean, on aggregate basis but without duplication, as of the date of calculation, the sum of all amounts due, if positive, from the Borrower to Swap Lenders as counterparties in connection with, and as determined pursuant to, all Swap Contracts between the Borrower and Swap Lenders (whether the obligation of the Borrower thereunder is direct or contingent) or among the Borrower, the Swap Lenders and any other party, in each case marked-to-market pursuant to methodology acceptable to the Administrative Agent; provided , however , that the Lenders' Swap Liability shall not include any amounts in excess of the aggregate Close-Out Amounts (which Close-Out Amounts, pursuant to the Swap Lender Intercreditor Agreement, will not exceed as of the Closing Date the individual or aggregate amount limits set forth on Schedule C attached hereto as) for all Swap Lenders or, with respect to any Swap Lender, any amounts in excess of such Swap Lender's individual Close-Out Amount. The value of such obligations under the related Swap Contracts shall be marked-to-market daily based upon a pricing methodology determined by the Borrower and each Swap Lender and approved by the Administrative Agent in its sole discretion. For the avoidance of doubt, Lenders' Swap Liability shall not include any cash in the possession or under the control of or letters of credit issued to any Swap Lender as collateral under any Master Agreement to the extent that such inclusion would result in double counting of such liability to the related Swap Lender.

Letter of Credit shall mean (a) any Performance Letter of Credit or Trade Letter of Credit (including without limitation any Performance Letter of Credit or Trade Letter of Credit that is a Long Term Letters of Credit) Issued by a Letter of Credit Issuer pursuant to Article IV of this Agreement and (b) the Existing Letters of Credit.

Letters of Credit Issued for Hedged Products Not Yet Delivered shall mean any Letters of Credit Issued for Products Not Yet Delivered with respect to which the underlying

 

 

 

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related Product is Hedged Eligible Inventory. The collateral amounts resulting from this calculation shall not be duplicative of amounts included in the calculation of any other Collateral Pool line item for any reason.

Letters of Credit Issued for Pre-Sold/Fully Hedged Products Not Yet Delivered shall mean any Letters of Credit Issued for Products Not Yet Delivered with respect to which the underlying related Products are either (a) allocated to delivery to a customer pursuant to a contract for sale or (b) Fully Hedged Eligible Inventory. The collateral amounts resulting from this calculation shall not be duplicative of amounts included in the calculation of any other Collateral Pool line item for any reason.

Letters of Credit Issued for Products Not Yet Delivered shall mean an amount equal to the Face Amount of any Facility B Letter of Credit and any Trade Letter of Credit that in each case are (i) related to the physical purchase of Products and/or (ii) covering the Borrower's marked-to-market obligations on any open forward contract or open over-the-counter transaction with respect to which the expiration date of such Facility B Letter of Credit or Letter of Credit has not occurred, minus (1) the value (determined by means of a commercially reasonable method agreed to by the Borrower and the Administrative Agent) of any costs or other liabilities incurred under such Facility B Letter of Credit or Letter of Credit for the purchase of the related Products by the Borrower under such Facility B Letter of Credit or Letter of Credit with respect to which title to such Products has passed to the Borrower as of the date of calculation thereof minus (2) any marked-to-market loss liability on any open forward contract or open over-the-counter transaction and minus (3) any liability pertaining to an exchange payable and any other amounts owed to the beneficiary of such Facility B Letter of Credit or Trade Letter of Credit.

Letter of Credit Issuer shall mean, with respect to each Letter of Credit, BNP Paribas, together with its successors and assigns in such capacity, and any other Lender, acceptable to the Borrower and the Administrative Agent, that the Administrative Agent may designate by notice to the Lenders. There shall at all times be no more than three (3) Letter of Credit Issuers hereunder, unless the Administrative shall agree to permit a greater number, at which time the Administrative Agent shall promptly notify the Lenders in writing.

Letter of Credit Issuer-Related Persons shall mean each Letter of Credit Issuer, together with its respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

Letter of Credit Request shall mean a request by the Borrower for an Issuance in the form of Exhibit D hereto.

Leverage Ratio shall mean, as of the date of any determination thereof with respect to the Borrower the ratio of (a) total consolidated liabilities determined in accordance with GAAP and adjusted on an Economic Basis (excluding Subordinated Indebtedness), to (b) Adjusted Tangible Net Worth.

Lien shall mean any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential

 

 

 

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arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a capital lease, any financing lease having substantially the same economic effect as any of the foregoing, or the filing of any financing statement (or the equivalent or analogous item under Panamanian or any other jurisdiction's law) naming the owner of the asset to which such lien relates as debtor, under the Uniform Commercial Code or any comparable law).

Loan shall mean any Revolving Loan, any Daylight Overdraft Loan, or any Swing Line Loan.

Loan Documents shall mean this Agreement, the Notes, the Security Agreements, the Intercreditor Agreements, the financing statements, the L/C‑Related Documents, and all other documents and instruments delivered by the Borrower in connection with the Uncommitted Facility, in each case together with any amendments, restatements, supplements, or other modifications thereof.

Long Position shall mean the aggregate quantity measured in Barrels of Product owned by the Borrower resulting from the following long positions:

 

(a)all Product of the Borrower;

 

(b)all imbalances (whether in storage or in pipelines or otherwise) of Product due to the Borrower; and

(c)    all Commodity Contracts of the Borrower for the purchase or positive exchange of Product which, with respect only to options, shall be calculated on a Delta Equivalent Basis that equates to a contracted purchase by the Borrower of Product (regardless if financially settled).

Long Term Letter of Credit shall mean a Trade Letter of Credit or a Performance Letter of Credit with a tenor of more than 90 but less than 364 days from its date of Issuance, provided that such Letter of Credit may contain an automatic renewal provision that extends its maturity beyond these dates with the consent of the applicable Letter of Credit Issuer.

 

Long Term Letter of Credit Sublimit shall mean an amount equal to $35,000,000.

 

Margin Stock shall mean “margin stock” as such term is defined in Regulation T, U or X of the FRB.

Mark to Market Report shall mean a report, certified by a Responsible Officer of the Borrower and substantially in the form of Exhibit E hereto, delivered to the Administrative Agent and the Lenders as a component of the Collateral Pool Report in accordance with the requirements of Section 8.02(d) of this Agreement, which shall have attached thereto schedules in form and substance (as to accuracy and completeness) acceptable to the Administrative Agent, which report shall include without limitation (i) a comprehensive mark-to-market report of the Borrower's positions with respect to physical and paper Products for all current and future periods, (ii) relevant information regarding all instruments (including contracts for spot and

 

 

 

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future delivery of physical Products, exchanges and derivatives including swaps and options) that create either an obligation of the Borrower to purchase or an obligation of the Borrower to sell Products or that otherwise generate price exposure, and (iii) such other information as the Administrative Agent may reasonably request.

Master Agreement shall mean a Master Agreement in a form promulgated by the International Swap Dealers Association, Inc., and any other similar agreement for the periodic purchase and sale of Products approved by the Administrative Agent in its discretion.

Material Adverse Effect shall mean any event, development or circumstance that, individually or in the aggregate, has had or could reasonably be expected to have a material adverse effect on (a) the business, assets, property, operations, liabilities (actual or contingent), or condition (financial or otherwise) of the Borrower, (b) the ability of the Borrower to perform any of its material obligations under any Loan Document, (c) the legality, validity, binding effect or enforceability against the Borrower of any material provision of any Loan Document, or (d) the rights and remedies of, or benefits available to, (i) the Administrative Agent, the Lenders, the Letter of Credit Issuers, or the Swap Lenders under any one or more of the Loan Documents, or (ii) the Facility B Lenders with respect to Facility B, except to the extent directly caused or expressly permitted by any of the foregoing Persons described in clause (i) or (ii) hereof.

Material Adverse Political Development shall mean any event, development or circumstance, that in the reasonable opinion of the Required Lenders could reasonably be expected to materially adversely affect the ownership by the Borrower of, or any Lien on, the Collateral or any significant portion thereof, resulting from (a) any material governmental action by a Governmental Authority which is a moratorium on debt payments, or the implementation of transfer, convertibility or other similar monetary restrictions, (b) any other material action of any Governmental Authority, including the loss, condemnation, confiscation, compulsory sale, expropriation or nationalization of all or a material portion of the Borrower's assets, or the assumption of custody or control of all or a material portion of such assets, or of the business or operations of the Borrower or its voting share capital, (c) war, insurrection, riots, civil or political violence or other similar circumstances involving the Republic of Panama or (d) any change in any treaty to which the Republic of Panama is a party, any requirement of law of the Republic of Panama, or any other governmental action by any competent Governmental Authority of the Republic of Panama or decision of any court of competent jurisdiction. In each case, with respect to the foregoing clauses (a) through (d), if in any such case, in the reasonable opinion of the Required Lenders, such event or circumstance could reasonably be expected to (x) materially adversely affect the ownership by the Borrower of, or any Lien on, the collateral or any significant portion thereof, or (y) result in a Material Adverse Effect.

Maturity Date shall mean, (a) with respect to a Revolving Loan, the earliest to occur of (i) the date 180 days from the date such Revolving Loan is made, (ii) the date that written demand is made for payment by the Administrative Agent upon the request of the Required Lenders, or (iii) the Expiration Date; (b) with respect to a Swing Line Loan, the applicable Swing Line Maturity Date; and (c) with respect to a Daylight Overdraft Loan, the Business Day on which such Loan is made.

 

 

 

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Maximum Availability Amount shall mean, as of any date of determination, an amount initially equal to $350,000,000, subject to increase or decrease pursuant to Section 2.04(a) or 2.05 of this Agreement.

Maximum Considered Amount shall mean, as of any date of determination, an amount initially equal to $350,000,000, subject to increase pursuant to Section 2.04(b) of this Agreement. The Maximum Considered Amount shall equal the sum of the Maximum Considered Limits of all Lenders, as in effect from time to time.

Maximum Considered Limit shall mean, for each Lender, the maximum amount of such Lender's Aggregate Accommodations that such Lender will consider accommodating hereunder, which amount shall initially be provided on Schedule 1.01 hereto, as the same may be increased from time to time pursuant to the terms of this Agreement.

Maximum Lender Pro Rata Share Limit shall mean, for each Lender at any time, such Lender's Pro Rata Share of the Maximum Availability Amount in effect from time to time.

Moody's shall mean Moody's Investors Service.

Multiemployer Plan shall mean a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes, is making, or is obligated to make contributions or, during the preceding three calendar years, has made, or been obligated to make, contributions.

Net Basis Position shall mean the aggregate net quantity of Products, measured in Barrels, purchased or sold under a Commodity Contract that is hedged by a sale or purchase under a Commodity Contract at a different delivery location, for delivery during a different time period, or for different grades of the same Products, taking into account the hedging impact from any storage and/or transportation contract.

 

Net Cash Proceeds shall mean the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of the Borrower or any of its Subsidiaries in connection with the issuance or incurrence of Indebtedness, the sale of assets, or the receipt of insurance proceeds, in each case after deducting therefrom only (a) reasonable fees, commissions, and expenses related thereto and required to be paid by any Borrower or any Subsidiary of a Borrower in connection with such issuance or incurrence or sale, and (b) taxes paid or payable to any taxing authorities by the Borrower or any such Subsidiary in connection with such issuance or incurrence, sale, or receipt of proceeds, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable, and are properly attributable to such transaction.

Net Liquidity Value in Eligible Brokerage Accounts shall mean (a) with respect to Borrower's commodities futures accounts held with a broker, the net liquidating value (as determined from time to time by the applicable futures broker in accordance with customary industry procedures reasonably acceptable to the Administrative Agent) of that portion of the Borrower's commodities futures account (i) held with brokers acceptable to the Administrative

 

 

 

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Agent in its sole discretion, (ii) held in the applicable brokers' NYMEX member account, (iii) in which the Collateral Agent has been granted a first priority perfected security interest pursuant to a control agreement, in form and substance reasonably acceptable to the Administrative Agent, among the Collateral Agent, the Borrower, and the applicable brokers, subject only to Permitted Liens, and (iv) which has had deducted from such portion any amounts borrowed by the Borrower under any margin finance lines offered by the related broker which may be outstanding, and (b) with respect to Borrower's commodities futures accounts held for its own NYMEX member account without a broker, (i) the net liquidating value (as determined from time to time by the Borrower in accordance with customary industry procedures reasonably acceptable to the Administrative Agent) of that portion of the Borrower's NYMEX member account consisting of Commodities Contracts relating to Products, and (ii) in which the Collateral Agent has been granted a first priority perfected security interest pursuant to documentation in form and substance acceptable to the Administrative Agent, subject only to Permitted Liens.

Net Long Position shall mean at any time, the absolute value by which Long Positions at such time exceed Short Positions at such time.

Net Outright Position shall mean, with respect to the Borrower's overall portfolio, at any time on an aggregate basis, the absolute value of the Net Long Position or Net Short Position of such Product, as applicable, at such time.

Net Short Position shall mean at any time, the absolute value of Long Positions at such time minus the absolute value of Short Positions at such time, if a negative number.

 

Net Working Capital shall mean, with respect to the Borrower, as determined from time to time, (a) consolidated current assets as determined in accordance with GAAP (or, in the case of any determinations of consolidated current assets of the Borrower based on its annual financial statements, IFRS) and adjusted on an Economic Basis, minus (b) consolidated current liabilities, as determined in accordance with GAAP (or, in the case of any determinations of consolidated current liabilities of the Borrower based on its annual financial statements, IFRS) and adjusted on an Economic Basis.

Non-Defaulting Lender shall mean, at any time, each Lender that is not a Defaulting Lender at such time.

Non-U.S. Person shall have the meaning ascribed to such term in Section 5.07(f) of this Agreement.

Note shall mean any of the promissory notes executed by the Borrower pursuant to Section 3.02(b) of this Agreement, substantially in the form of Exhibit F hereto, and all promissory notes delivered in substitution or exchange therefor, in each case as the same shall be modified and supplemented and in effect from time to time.

Notice of Maximum Availability Amount Election has the meaning specified in Section 2.04(a) of this Agreement.

NYMEX shall mean The New York Mercantile Exchange, Inc.

 

 

 

 

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Obligations shall mean (a) all Credit Extensions, fees, advances, debts, liabilities, obligations, indemnities, costs, expenses, compliance guidelines, and duties arising under this Agreement or any Loan Document (including, without limitation, all fees and disbursements of counsel to the Administrative Agent, to the Lenders, or to the Letter of Credit Issuers that are required to be paid by the Borrower pursuant to the terms of the Loan Documents or otherwise) owing by the Borrower to the Administrative Agent, any Letter of Credit Issuer, any Lender, or any Indemnified Person, including but not limited to the unpaid principal amount of, and interest (including, without limitation, interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post‑filing or post‑petition interest is allowed in such proceeding) on the Loans, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising including without limitation overdraft costs arising as a result of transfers of funds made through the automated clearinghouse system and all obligations of the Borrower under Loans and arising from Letters of Credit, and (b) all indebtedness, liabilities and obligations owing by Borrower to any Swap Lender under a Swap Contract, whether due or to become due, absolute or contingent, or now existing or hereafter arising. For purposes of determining the amount of the Borrower's Obligations under a Swap Contract, the amount of such Obligation shall be an amount equal to the Close-Out Amount with respect to such Swap Contract.

Organizational Documents shall mean, for any Person, each constitution, certificate of incorporation, by-laws, shareholder agreements, or similar agreements or instruments relating to the rights of the equity holders of the Borrower, as applicable, and all applicable resolutions of the equity holders or Board of Directors thereof, and any other constituent documents in respect thereof.

Other Taxes shall mean any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Documents.

Out Of The Money Positions shall mean, with respect to Swap Contracts and Commodity Contracts entered into by the Borrower with counterparties permitted in the calculation of the Collateral Pool, all forward positions in respect of such Swap Contracts and Commodity Contracts which have a net zero value or negative value as of the date of calculation, having been marked-to-market based on an industry accepted pricing methodology acceptable to the Administrative Agent, and which Swap Contracts and Commodity Contracts would be considered to be “out of the money” based on the standard industry characterization of such contracts.

Parent shall mean Tesoro Corporation, a Delaware corporation.

Parent TSA Guaranty shall mean each of (i) that certain Continuing Unconditional Guaranty, dated as of September 18, 2007, made by the Parent in favor of PTP, and (ii) that certain Continuing Unconditional Guaranty, dated as of September 18, 2007, made by the Parent in favor of Castor Petroleum Ltd., now known as Gunvor SA.

 

 

 

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Participant has the meaning specified in Section 12.08(b) .

PBGC shall mean the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to any of its principal functions under ERISA.

Pension Plan shall mean a pension plan (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, subject to Title IV of ERISA which the Borrower sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five (5) plan years.

Performance L/C Sublimit shall mean an amount equal to $35,000,000.

Performance Letter of Credit shall mean any stand-by Letter of Credit with an expiration date up to 364 days from its date of initial Issuance (a) Issued to support the Borrower's margin, bonding, or tariff requirements or to secure the Borrower's obligations under Swap Contracts, transportation of Products on pipelines, or performance by the Borrower related to Products (other than the obligation to pay for the purchase of Products), in each case in the ordinary course of business, or (b) Issued as otherwise categorized by the Required Lenders in their sole discretion.

Permitted Liens shall mean (a) Liens in favor of the Collateral Agent, (b) statutory inchoate liens (except for Liens for the benefit of warehousemen, terminal operators or landlords), (c) Liens for the benefit of warehousemen, terminal operators, pipeline operators, storage owners, or landlords arising in the ordinary course of the Borrower's business, (d) deposits of cash or cash equivalents securing the performance of bids, tenders, statutory or regulatory obligations, or securing letters of credit which in turn secure such performance, in each case made in the ordinary course of business, (e)  rights of collecting banks having rights of setoff, revocation, refund or chargeback with respect to money or instruments of the Borrower or on deposit with or in the possession of such banks, (f)  Liens expressly permitted pursuant to any Intercreditor Agreement, (g) Liens under Master Agreements which support and are limited to securing the rights and obligations of the counterparties under such agreement to net and setoff their respective obligations under such Master Agreement, and (h) Liens arising in favor of financial institutions that maintain securities accounts, commodities accounts, or brokerage accounts for the benefit of the Borrower so long as any such securities accounts, commodities accounts, or brokerage accounts are subject to account control agreements acceptable to the Administrative Agent.

Permitted Short-Term Investments means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody's; (iii) commercial paper maturing no more than one year from the date of creation thereof and having,

 

 

 

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at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates of deposit or bankers' acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000, and (c) has the highest rating obtainable from either S&P or Moody's.

Permitted Uses shall mean those purposes set forth in Section 2.02 of this Agreement with respect to Loans and Letters of Credit, as applicable.

Person shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

Plan shall mean an employee benefit plan (as defined in Section 3(3) of ERISA) which the Borrower sponsors or maintains or to which the Borrower makes, is making, or is obligated to make contributions and includes any Pension Plan.

Platts shall mean Platts, a division of The McGraw-Hill Companies.

Position Limit Report shall mean a report, certified by a Responsible Officer of the Borrower and substantially in the form of Exhibit G hereto, delivered to the Administrative Agent and the Lenders as a component of the Collateral Pool Report in accordance with the requirements of Section 8.02(d) of this Agreement, which shall have attached thereto schedules in form and substance (as to accuracy and completeness) acceptable to the Administrative Agent.

Principal Office shall mean, as to the Administrative Agent or any Letter of Credit Issuer, the principal office of its New York Branch located in New York City, or such other office or offices as such Administrative Agent or Letter of Credit Issuer may from time to time notify the Borrower.

Products shall mean crude oil and fuel oil used in connection with crude oil for blending and hedging purposes and such other products as may be approved by the Required Lenders from time to time.

Prohibited Amendment shall have the meaning given to such term in the Combined Facilities Intercreditor Agreement.

Pro Rata Share shall mean (a) at any time on or prior to a Conversion to Approving Lenders Funding Date, for any Lender, a fraction, the numerator of which is such Lender's Maximum Considered Limit and the denominator of which is the Maximum Considered Amount, and (b) at any time after a Conversion to Approving Lenders Funding Date, for any Lender, a fraction, the numerator of which is the amount of Lender's Aggregate Accommodations attributable to such Lender on such date and the denominator of which is the

 

 

 

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aggregate amount of Lender's Aggregate Accommodations attributable to all Lenders (including all Declining Lenders) having Loans or L/C Obligations outstanding as of such date of calculation.

PTP shall mean Petroterminal de Panama, S.A.

PTP/Castor Storage Agreement shall mean that certain Second Transportation and Storage Agreement, dated as of September 18, 2007, by and between PTP and Castor Petroleum Ltd., now known as Gunvor SA, as amended by that First Amendment to Second Transportation and Storage Agreement, dated as of November 28, 2008, together with any amendments, restatements, supplements (including without limitation any affirmations of exhibits), or other modifications thereof.

Regulations A, D, U and X shall mean, respectively, Regulations A, D, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.

Regulatory Change shall mean, with respect to any Lender, any change after the date hereof in Federal, state or foreign law or regulations (including Regulation D) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks including any Lender or any Letter of Credit Issuer of or under any Federal, state or foreign law or regulations (whether or not havi


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