exhibit103sixthamendment






Exhibit 10.3  13554436v9  SIXTH AMENDMENT TO SUPPLY AND OFFTAKE AGREEMENT  THIS SIXTH AMENDMENT TO SUPPLY AND OFFTAKE AGREEMENT (this “Sixth  Amendment”) is entered into as of the Sixth Amendment Closing Date (as defined below) by and  among Macquarie Energy North America Trading Inc., a Delaware corporation (“Macquarie”),  Calumet Shreveport Refining, LLC, a Delaware limited liability company (the “Company”), and  the other undersigned parties hereto.  RECITALS  A. Macquarie and the Company entered into that certain Supply and Offtake  Agreement dated June 19, 2017 (as amended by the Assumption Agreement, the First Amendment  thereto, the Second Amendment thereto, the Third Amendment thereto, the Fourth Amendment  thereto, the Fifth Amendment thereto and as otherwise amended, restated, supplement or modified  from time to time, the “Supply and Offtake Agreement”).  B. Macquarie and the Company have agreed to amend certain provisions of the Supply  and Offtake Agreement, to enter into certain agreements and to provide certain other  accommodations in connection therewith, and each of Macquarie and the Company is willing to  enter into such amendments and agreements and to provide such accommodations, as more  particularly described herein, subject to the terms and conditions of this Sixth Amendment.  C. Capitalized terms used but not defined in this Sixth Amendment have the meanings  set forth therefor in the Supply and Offtake Agreement.  AGREEMENTS AND AMENDMENTS  NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of  which are acknowledged, the undersigned parties hereby agree as follows:   Amendments to Supply and Offtake Agreement.  (a) Article 1.1, Definitions, of the Supply and Offtake Agreement is hereby  amended by adding the following new definitions in their proper alphabetical order:  “Daily SOFR” means, on any day, overnight SOFR on the day that is two  (2) U.S. Government Securities Business Days prior to such day, as such rate is  published by the Term SOFR Administrator; provided that if as of 5:00 p.m. (New  York City time) on any such day such rate has not been published by the Term  SOFR Administrator, then Daily SOFR will be overnight SOFR as published by  the Term SOFR Administrator on the first preceding U.S. Government Securities  Business Day for which such rate was published by the Term SOFR Administrator.  “Sixth Amendment” means the Sixth Amendment to Supply and Offtake  Agreement dated as of the Sixth Amendment Closing Date by and among  Macquarie, Calumet Shreveport Refining, LLC, Parent and Calumet Refining.  “Sixth Amendment Closing Date” means November 2, 2022.   





 






   2  13554436v9  “SOFR” means a rate equal to the secured overnight financing rate as  administered by the SOFR Administrator.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a  successor administrator of the secured overnight financing rate).  “Term SOFR Administrator” means CME Group Benchmark  Administration Limited (CBA) (or a successor administrator of Daily SOFR).  “U.S. Government Securities Business Day” means any day except for (a)  a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial  Markets Association recommends that the fixed income departments of its  members be closed for the entire day for purposes of trading in United States  government securities.  (b) Article 1.1, Definitions, of the Supply and Offtake Agreement is hereby  amended by deleting the following defined term in its entirety from the Supply and Offtake  Agreement: “LIBOR”.  Each occurrence of the foregoing term in the Supply and Offtake  Agreement is hereby deleted and of no further force and effect.  (c) Article 1.1, Definitions, of the Supply and Offtake Agreement is hereby  amended by deleting the following defined terms in their entirety and replacing them with  the following definition:  “Default Interest Rate” means the lesser of (i) Daily SOFR plus four  hundred sixty five (465) basis points and (ii) the maximum rate of interest permitted  by Applicable Law.”  “Senior Notes” means, collectively, (a) $550,000,000 aggregate principal  amount of 11.00% unsecured senior notes due 2025 issued pursuant to the 2019  Senior Notes Indenture (as defined in the definition of Senior Notes Indentures),  (b) $325,000,000 aggregate principal amount of 8.125% unsecured senior notes due  2027 issued pursuant to the 2022 Senior Notes Indenture (as defined in the  definition of Senior Notes Indentures), and (c) any subsequent offering of senior  unsecured notes, without regard to principal amount, having a maturity date that is  at or after April 15, 2021, in each case issued by Parent and Calumet Finance.  “Senior Notes Indentures” means, collectively, (a) that certain Indenture,  dated as of October 11, 2019, by and among Parent and Calumet Finance, as issuers,  the “Guarantors” (as defined therein) and Wilmington Trust, National Association,  as trustee (the “2019 Senior Notes Indenture”), (b) that certain Indenture, dated as  of January 20, 2022, by and among Parent and Calumet Finance, as issuers, the  “Guarantors” (as defined therein) and Wilmington Trust, National Association, as  trustee (the “2022 Senior Notes Indenture”), and (c) any note purchase agreement,  indenture or other agreement evidencing any other Senior Notes or any refinancing  of the foregoing permitted by the terms of the Senior Notes Documents, the Hedge  Intercreditor Agreement and such other Finance Documents.  





 






   3  13554436v9  “Senior Secured Notes” means (a) up to $200,000,000 aggregate principal  amount of 9.25% senior secured notes due 2024 issued by Parent and Calumet  Finance pursuant to the Senior Secured Notes Indenture, and (b) any subsequent  offering of senior secured notes, without regard to principal amount, having a  maturity date that is at or after April 15, 2021, in each case issued by Parent and  Calumet Finance.  “Senior Secured Notes Indenture” means that certain Indenture, dated as of  August 5, 2020, by and among Parent and Calumet Finance, as issuers, the  “Guarantors” (as defined therein) and Wilmington Trust, National Association as  trustee.   (d) Article 1.1, Definitions, of the Supply and Offtake Agreement is hereby  amended by amending the definition of “Financing Agreement” to replace the reference to  “Subsidiaries” in the last line thereof with a reference to “Restricted Subsidiaries”.  (e) Section 3.1, Term, of the Supply and Offtake Agreement is hereby amended  by replacing the reference to “June 30, 2023” in the second sentence of such section with  a reference to “June 30, 2026”.  (f) Section 3.2, Early Termination Rights, of the Supply and Offtake  Agreement is hereby amended by replacing the reference to “June 30, 2022” in the fifth  line of sub clause (a) of such section with a reference to “September 30, 2025”.  (g) Section 16.1, Insurance Coverages, of the Supply and Offtake Agreement  is hereby amended by amending and restating clause (f) thereof with the following  language:  (f)  Umbrella/excess liability coverage providing coverage with respect to the  coverage required under Sections 16.1(c), Section 16.1(d)(ii) and Section 16.1(e)  in a minimum amount of $175,000,000 per occurrence and in the aggregate;  provided that, if at any time after the Sixth Amendment Closing Date, Macquarie  determines after review of such liability coverage that the minimum amount of such  liability coverage should be increased, in its reasonable commercial judgment, then,  in such case, if, for any period of time that the Company does not increase such  liability coverage to such increased minimum amount, after receiving written  request of Macquarie to do so by a date certain as set forth in such request, and  Macquarie obtains such increased portion of such liability coverage under its own  applicable insurance policies resulting in an increase in Macquarie’s insurance  premiums thereunder for having obtained such increase in liability coverage, then  the Company shall reimburse Macquarie for such increase in premiums promptly  upon written request of Macquarie, and, in any event, within five (5) Business Days  of such request.  No action by Macquarie to obtain such additional liability  coverage shall be deemed (i) a waiver of the Company’s obligation to obtain any  such additional liability coverage or (ii) an agreement or obligation of Macquarie  to obtain such additional liability coverage.  For the avoidance of doubt, such  reimbursement obligations shall constitute Transaction Obligations hereunder until  paid by the Company.  





 






   4  13554436v9  (h) Section 16.1, Insurance Coverages, of the Supply and Offtake Agreement  is hereby amended by amending and restating clause (g) thereof with the following  language:  (g)  Stock throughput coverage providing coverage with respect to Crude Oil and  Products in a minimum aggregate amount of $100,000,000.  (i) Section 16.2, Additional Insurance Requirements, of the Supply and  Offtake Agreement is hereby amended by (i) amending and restating clauses (a) and (b)  thereof with the following language and (ii) adding the following new clause (f) to the end  of such section:  (a)   The foregoing policies in Section 16.1 and the policies described in Section  16.2(e), in each case, shall include or provide that the underwriters waive all rights  of subrogation against Macquarie and the insurance is primary without contribution  from Macquarie’s insurance.  The foregoing policies in Section 16.1 and the  policies described in Section 16.2(e) shall, in each case, include (i) Macquarie as  additional insured (other than for insurance under Schedule 16.1(g)) and (ii)  Macquarie as loss payee under Sections 16.1(b) and (g) and 16.2(e) only.  (b)  The Company shall cause its insurance carriers or its authorized insurance  broker to furnish Macquarie with insurance certificates, in Acord form or  equivalent, and copies of the applicable insurance policies evidencing the existence  of the coverages and the endorsements required above and in Section 16.2(e) below;  provided that, notwithstanding the foregoing, the Company shall provide an  insurance certificate, in Acord form, with respect to the insurance coverage under  Section 16.1(g) within five days of the Sixth Amendment Closing Date.  The  Company shall provide thirty (30) days’ written notice prior to cancellation or  material modification of insurance becoming effective.  The Company also shall  provide renewal certificates and updated copies of each applicable insurance policy  prior to expiration of any such policy.  (f)  Within five days after the end of each fiscal quarter, commencing with the fiscal  quarter ending December 31, 2022, the Company shall provide a written statement  to Macquarie, in form and substance reasonably satisfactory to Macquarie,  confirming that the applicable foregoing insurance policies are in full force and  effect and that such policies are in compliance with the requirements of this  Agreement, including this Article 16 hereof, detailing any changes made to such  insurance policies since the last written statement was delivered, and providing a  representation that the Company is in compliance with all of the insurance  requirements under and with respect to this Agreement and the other Transaction  Documents.   (j) Article 18, Representations, Warranties and Covenants, of the Supply and  Offtake Agreement is hereby amended by amending and restating Section 18.4 thereof with  the following language:  "[Reserved]"  





 






   5  13554436v9  (k) Article 18, Representations, Warranties and Covenants, of the Supply and  Offtake Agreement is hereby amended by adding a new clause (o) at the end of Section  18.2 thereof to read as follows:  (o)  The Company shall provide a written update to Macquarie immediately  upon obtaining knowledge thereof, and in any event within one (1) Business Day,  in respect of any breach or default that has occurred under any Financing  Agreement and the current status thereof.   (l) Article 18, Representations, Warranties and Covenants, of the Supply and  Offtake Agreement is hereby amended by adding the following new Section 18.7 to the  end of such Article 18:  "Section 18.7 SOFR Covenants.  To the extent interest rates based on  SOFR for any reason are no longer available in the market, are unable to be  determined or otherwise become illegal in any way, Macquarie, using its  commercially reasonable judgment, will, in consultation with the Company,  determine a per annum rate of interest reasonably equivalent to SOFR plus the  agreed applicable margin, until such time as Macquarie determines that SOFR is  again available, if at all, for determining interest rates."  (m) Section 19.2, Remedies, of the Supply and Offtake Agreement is hereby  amended by deleting the first sentence of clause (b) of such section in its entirety and  replacing it with the following language:  Termination/Settlement Amount.  Notwithstanding any other provision of  this Agreement, if an Event of Default has occurred and is continuing with respect  to the Defaulting Party, the Non-Defaulting Party shall have the right, immediately  and at any time(s) thereafter, to terminate this Agreement (and any other contract  or agreement that may then be outstanding among the Parties that relates  specifically to this Agreement, including any Transaction Document) and, subject  to Section 19.2(c), to liquidate and terminate any or all rights and obligations under  this Agreement and such other Transaction Documents; provided that, in the event  Macquarie is the Non-Defaulting Party, this Agreement shall not be deemed to have  terminated in full until Macquarie shall have (A) disposed of all Crude Oil and  Products owned or maintained by Macquarie in which Macquarie has lien or other  rights in connection herewith, (B) exercised in full all of its rights and remedies  with respect to the Hydrocarbon Credit Support and (C) received evidence  satisfactory to Macquarie that the Company has met all of its obligations and  requirements under Section 20.1(a) and such obligations and requirements shall  have otherwise been satisfied in full; provided further that the parties agree that  solely for purposes of this sub clause (C), any reference to “Termination Date” as  set forth in Section 20.1(a) shall be a reference to any applicable date(s) with respect  to the completion of such foregoing obligations and requirements under this Section  19.2(b).         





 






   6  13554436v9  (n) Section 19.2, Remedies, of the Supply and Offtake Agreement is hereby  amended by deleting the last sentence of clause (c) of such section in its entirety and  replacing it with the following language:  “In calculating the Settlement Amount, the Non-Defaulting Party shall  discount to present value (in any commercially reasonable manner based on  prevailing SOFR rates for the applicable period and currency) any amount which  would be due at a later date and shall add interest (at a rate determined in the same  manner) to any amount due prior to the date of the calculation.”   Conditions Precedent.  This Sixth Amendment shall be effective on the date when  the following conditions precedent have been satisfied:  (a) Macquarie and the Company shall each have received this Sixth  Amendment duly executed by Macquarie, the Company, Parent and Calumet Refining;  (b) Macquarie shall have received, on or prior to the Sixth Amendment Closing  Date, payment of all fees, expenses and other amounts due, payable and required to be  reimbursed or paid by the Company hereunder, under the Fees and Adjustments Letter or  any other Transaction Document on or prior to such date;   (c) Macquarie shall have received an omnibus officer certificate in respect of  the Parent, Calumet Refining and the Company certifying as to incumbency, due  authorization, board approval and resolutions of such Persons and certifying as to true and  accurate copies of such Person’s organizational documents;  (d) Macquarie shall have received an opinion of counsel of the Company, in  form and substance satisfactory to Macquarie, covering such matters as Macquarie shall  reasonably request, including: good standing; existence and due qualification; power and  authority; due authorization and execution; enforceability of the Transaction Documents;  and no breach or violation of the Existing Financing Agreements; and  (e) Macquarie and the Company shall each have received such other documents  and deliveries from each other as each may reasonably request.   Representations, Warranties and Covenants.  Each of Macquarie, the Company and  Calumet Refining represents and warrants to each other that (i) it possesses all requisite  power and authority to execute, deliver and comply with the terms of this Sixth  Amendment, (ii) no other consent of any Person (other than, in respect of the Company, a  consent of the Parent in respect of its Guaranty, which is set forth herein) is required for  this Sixth Amendment to be effective, and (iii) the execution and delivery of this Sixth  Amendment does not violate its respective organizational documents.   Ratification of Guaranty.  Parent hereby acknowledges and ratifies and reaffirms its  guaranty of the Guaranteed Obligations under and as defined in the Guaranty, and all of its  obligations under and in respect thereof, in favor of Macquarie, and agrees that such  Guaranty remains in full force and effect and continues to be the legal, valid, and binding  obligation of Parent enforceable in accordance with its terms (as the same are modified by  this Sixth Amendment).  Parent confirms and agrees that neither the execution of this Sixth  





 






   7  13554436v9  Amendment nor the consummation of the transactions described herein shall in any way  affect, impair or limit the covenants, liabilities, obligations and duties of Parent under the  Guaranty.     Scope of Amendment; Reaffirmation.    (a) All references hereafter to the Supply and Offtake Agreement shall refer to  the Supply and Offtake Agreement as amended by this Sixth Amendment.  Except as  modified by this Sixth Amendment and by other amendments to the Transaction  Documents, the Transaction Documents are unchanged and continue in full force and  effect.  However, in the event of any inconsistency between the terms of the Supply and  Offtake Agreement (as amended by this Sixth Amendment) and any other Transaction  Document (as amended), the terms of the Supply and Offtake Agreement shall control  (except solely with respect to any fees, amounts and payments set forth in the Fees and  Adjustments Letter, as amended from time to time, as to which the Fees and Adjustments  Letter shall control) and such other document (other than the Fees and Adjustments Letter)  shall be deemed to be amended to conform to the terms of the Supply and Offtake  Agreement.    (b) Each of Macquarie, the Company and Calumet Refining hereby reaffirms  its obligations under the Transaction Documents to which it is a party and agrees that all  Transaction Documents to which it is a party remain in full force and effect and continue  to be its legal, valid, and binding obligations enforceable in accordance with their terms (as  the same are modified by this Sixth Amendment).  Calumet Refining, by its execution of  this Sixth Amendment, hereby ratifies and affirms the Fifth Amendment for all purposes.   Miscellaneous.  (a) Form.  Each agreement, document, instrument or other writing to be  furnished to Macquarie and the Company, as applicable, under any provision of this Sixth  Amendment must be in form and substance satisfactory to the parties hereto and their  counsel.  (b) Headings.  The headings and captions used in this Sixth Amendment are for  convenience only and will not be used to construe the meaning or intent of the terms of this  Sixth Amendment, the Supply and Offtake Agreement, or the other Transaction  Documents.  (c) Successors and Permitted Assigns.  This Sixth Amendment is binding upon,  and inures to the benefit of the parties to this Sixth Amendment and their respective  successors and permitted assigns.  Unless otherwise provided in the Transaction  Documents, all covenants, agreements, indemnities, representations and warranties made  in any of the Transaction Documents survive and continue in effect as long as the  Transaction Obligations are outstanding.  Nothing expressed or implied in this Sixth  Amendment is intended to create any rights, obligations or benefits under the Supply and  Offtake Agreement, as amended hereby, in any person other than the parties thereto and  hereto and their respective successors and permitted assigns.  





 






   8  13554436v9  (d) Invalidity.  If any Article, Section or provision of this Sixth Amendment  shall be determined to be null and void, voidable or invalid by a court of competent  jurisdiction, then for such period that the same is void or invalid, it shall be deemed to be  deleted from the Supply and Offtake Agreement, as amended hereby, and the remaining  portions of the Supply and Offtake Agreement, as amended hereby, shall remain in full  force and effect.  (e) Multiple Counterparts.  This Sixth Amendment may be executed in one or  more counterparts by the parties hereto and initially delivered by facsimile transmission,  pdf or otherwise, with original signature pages to follow, and all such counterparts shall  together constitute one and the same instrument.  (f) GOVERNING LAW.  THIS SIXTH AMENDMENT SHALL BE  GOVERNED BY, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE  STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS  PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF  ANOTHER STATE.  (g) FINAL AGREEMENT.  THE TERMS OF THIS SIXTH AMENDMENT,  THE SUPPLY AND OFFTAKE AGREEMENT AND THE OTHER TRANSACTION  DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES  HERETO AND THERETO WITH RESPECT TO THE MATTERS SET FORTH  HEREIN AND THEREIN, AND NO REPRESENTATIONS OR WARRANTIES SHALL  BE IMPLIED OR PROVISIONS ADDED IN THE ABSENCE OF A WRITTEN  AGREEMENT TO SUCH EFFECT BETWEEN THE PARTIES HERETO OR  THERETO.  THIS SIXTH AMENDMENT, THE SUPPLY AND OFFTAKE  AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS MAY NOT BE  CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR  SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO  UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.  No promise,  representation or inducement has been made by any party hereto or thereto that is not  embodied in the Supply and Offtake Agreement, as amended by this Sixth Amendment, or  the other Transaction Documents, and no party hereto or thereto shall be bound by or liable  for any alleged representation, promise or inducement not so set forth herein or therein.    [SIGNATURES ON FOLLOWING PAGES.]   





 






  Sixth Amendment to Supply and Offtake Agreement  IN WITNESS WHEREOF, this Sixth Amendment is executed effective as of the Sixth  Amendment Closing Date.      MACQUARIE ENERGY NORTH AMERICA  TRADING INC.      By: /s/ Ozzie Pagan        Name: Ozzie Pagan  Title: Executive Director          By: /s/ Tara Teeter        Name: Tara Teeter  Title: Division Director      





 






  Sixth Amendment to Supply and Offtake Agreement  CALUMET SHREVEPORT REFINING, LLC    By: Calumet Refining, LLC, its sole member  By: Calumet Operating, LLC, its sole member  By: Calumet Specialty Products Partners, L.P.,  its sole member  By: Calumet GP, LLC, its general  partner  By: /s/ Vincent Donargo     Name: Vincent Donargo  Title: Executive Vice President and  Chief Financial Officer        Agreed and accepted by Calumet Refining, LLC solely for  purposes of evidencing its assent to Articles III and V(b) of  this Sixth Amendment:    CALUMET REFINING, LLC    By: Calumet Operating, LLC, its sole member   By: Calumet Specialty Products Partners, L.P., its     sole member   By: Calumet GP, LLC, its general partner         By: /s/ Vincent Donargo        Name: Vincent Donargo    Title: Executive Vice President and Chief       Financial Officer       





 






  Sixth Amendment to Supply and Offtake Agreement  Agreed and accepted by Parent solely for purposes of  evidencing its assent to Article IV of this Sixth Amendment:      CALUMET SPECIALTY PRODUCTS PARTNERS,  L.P.    By: Calumet GP, LLC, its general partner      By: /s/ Vincent Donargo       Name: Vincent Donargo  Title:  Executive Vice President and Chief      Financial Officer