exv10w2



 





(Multicurrency—Cross Border)




ISDA®

International Swap Dealers Association. Inc.

MASTER AGREEMENT

dated as of

March 17, 2006




And
Amended and Restated as of January 3, 2008




between




	 	 	 	 	 
	J. ARON & COMPANY, a general
	 	 	 	CALUMET LUBRICANTS CO.,
	partnership organized under the laws of

	 	and
	 	LIMITED PARTNERSHIP, a limited
	the State of New York (“Aron”)

	 	 	 	partnership organized under the laws of
	 

	 	 	 	the State of Indiana (“Counterparty”)





have entered and/or anticipate entering into one or more transactions (each a “Transaction”)
that are or will be governed by this Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged
between the parties confirming those Transactions.



Accordingly, the parties agree as follows:—




1. Interpretation



(a)
Definitions. The terms defined in Section 14 and in the Schedule will have the meanings
therein specified for the purpose of this Master Agreement.



(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and
the other provisions of this Master Agreement, the Schedule will prevail. In the event of
any inconsistency between the provisions of any Confirmation and this Master Agreement
(including the Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.



(c) Single Agreement. All Transactions are entered into in reliance on the fact that this
Master Agreement and all Confirmations form a single agreement between the parties
(collectively referred to as this “Agreement”), and the parties would not otherwise enter
into any Transactions.




2. Obligations



(a) General Conditions.





(i) Each party will make each payment or delivery specified in each Confirmation to be
made by it, subject to the other provisions of this Agreement.




(ii) Payments under this Agreement will be made on the due date for value on that date
in the place of the account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds and in the manner customary
for payments in the required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.




(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the
condition precedent that no Event of Default or Potential Event of Default with respect
to the other party has occurred
and is continuing, (2) the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3) each other applicable
condition precedent specified in this Agreement.



Copyright© 1992 by International Swap Dealers Association, Inc.





 









 







(b) Change of Account. Either party may change its account for receiving a payment or delivery
by giving notice to the other party at least five Local Business Days prior to the scheduled
date for the payment or delivery to which such change applies unless such other party gives
timely notice of a reasonable objection to such change.



(c) Netting. If on any date amounts would otherwise be
payable:—





(i) in the same currency; and




(ii) in respect of the same Transaction,


by each party to the other, then, on such date, each party’s obligation to make payment of any
such amount will be automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.



The parties may elect in respect of two or more Transactions that a net amount will be determined
in respect of all amounts payable on the same date in the same currency in respect of such
Transactions, regardless of whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii) above will not, or will cease to, apply to
such Transactions from such date). This election may be made separately for different groups of
Transactions and will apply separately to each pairing of Offices through which the parties make
and receive payments or deliveries.




(d) Deduction or Withholding for Tax.





(i) Gross-Up. All payments under this Agreement will be made without any deduction or
withholding for or on account of any Tax unless such deduction or withholding is required
by any applicable law, as modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or withhold, then that
party (“X”) will:—




(1) promptly notify the other party (“Y”) of such requirement;




(2) pay to the relevant authorities the full amount required to be deducted or
withheld (including the full amount required to be deducted or withheld from
any additional amount paid by X to Y under this Section 2(d)) promptly upon
the earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;




(3) promptly forward to Y an official receipt (or a certified copy), or other
documentation reasonably acceptable to Y, evidencing such payment to such
authorities; and




(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to
which Y is otherwise entitled under this Agreement, such additional amount as
is necessary to ensure that the net amount actually received by Y (free and
clear of Indemnifiable Taxes, whether assessed against X or Y) will equal the
full amount Y would have received had no such deduction or withholding been
required. However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:—




(A) the failure by Y to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d); or




(B) the failure of a representation made by Y pursuant to Section 3(f) to be
accurate and true unless such failure would not have occurred but for (I)
any action taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or brought
with respect to a party to this Agreement) or (II) a Change in Tax Law.



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(ii) Liability. If:—




(1) X is required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, to make any deduction or withholding
in respect of which X would not be required to pay an additional amount to Y
under Section 2(d)(i)(4);




(2) X does not so deduct or withhold; and




(3) a liability resulting from such Tax is assessed directly against X,




then, except to the extent Y has satisfied or then satisfies the liability resulting from
such Tax, Y will promptly pay to X the amount of such liability (including any related
liability for interest, but including any related liability for penalties only if Y has
failed to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d)).


(e) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that defaults in the performance
of any payment obligation will, to the extent permitted by law and subject to Section 6(c), be
required to pay interest (before as well as after judgment) on the overdue amount to the other
party on demand in the same currency as such overdue amount, for the period from (and including)
the original due date for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding and the actual number of
days elapsed. If, prior to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on demand if and to the
extent provided for in the relevant Confirmation or elsewhere in this Agreement.




3. Representations



Each party represents to the other party (which representations will be deemed to be repeated by
each party on each date on which a Transaction is entered into and, in the case of the
representations in Section 3(f), at all times until the termination of this Agreement) that:—




(a) Basic Representations.





(i) Status. It is duly organised and validly existing under the laws of the jurisdiction
of its organisation or incorporation and, if relevant under such laws, in good standing;




(ii) Powers. It has the power to execute this Agreement and any other documentation
relating to this Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;




(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any of its assets;




(iv) Consents. All governmental and other consents that are required to have been obtained
by it with respect to this Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all conditions of any such
consents have been complied with; and




(v) Obligations Binding. Its obligations under this Agreement and any Credit Support
Document to which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights
generally and subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in equity or at
law)).


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(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its
knowledge, Termination Event with respect to it has occurred and is continuing and no such
event or circumstance would occur as a result of its entering into or performing its
obligations under this Agreement or any Credit Support Document to which it is a party.



(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or
any of its Affiliates any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that is likely to affect
the legality, validity or enforceability against it of this Agreement or any Credit Support
Document to which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.



(d) Accuracy of Specified Information. All applicable information that is furnished in writing by
or on behalf of it to the other party and is identified for the purpose of this Section 3(d)
in the Schedule is, as of the date of the information, true, accurate and complete in every
material respect.



(e) Payer Tax Representation. Each representation specified in the Schedule as being made by it for
the purpose of this Section 3(e) is accurate and true.



(f) Payee Tax Representations. Each representation specified in the Schedule as being made by it
for the purpose of this Section 3(f) is accurate and true.




4. Agreements



Each party agrees with the other that, so long as either party has or may have any obligation
under this Agreement or under any Credit Support Document to which it is a party:—



(a) Furnish Specified Information. It will deliver to the other party or, in certain cases
under subparagraph (iii) below, to such government or taxing authority as the other party
reasonably directs:—





(i) any forms, documents or certificates relating to taxation specified in the Schedule or
any Confirmation;




(ii) any other documents specified in the Schedule or any Confirmation; and




(iii) upon reasonable demand by such other party, any form or document that may be required
or reasonably requested in writing in order to allow such other party or its Credit Support
Provider to make a payment under this Agreement or any applicable Credit Support Document
without any deduction or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to be executed and to
be delivered with any reasonably required certification,


in each case by the date specified in the Schedule or such Confirmation or, if none is specified,
as soon as reasonably practicable.



(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and
effect all consents of any governmental or other authority that are required to be obtained
by it with respect to this Agreement or any Credit Support Document to which it is a party
and will use all reasonable efforts to obtain any that may become necessary in the future.



(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders
to which it may be subject if failure so to comply would materially impair its ability to
perform its obligations under this Agreement or any Credit Support Document to which it is a
party.



(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section
3(f) to be accurate and true promptly upon learning of such failure.



(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed
upon it or in respect of its execution or performance of this Agreement by a jurisdiction in
which it is incorporated,


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organised, managed and controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”)
and will indemnify the other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party’s execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.




5. Events of Default and Termination Events



(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any of the
following events constitutes an event of default (an “Event of Default”) with respect to such
party:—





(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under
this Agreement or delivery under Section 2(a)(i) or 2(e) required to be made by it if such
failure is not remedied on or before the third Local Business Day after notice of such
failure is given to the party;




(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or
obligation (other than an obligation to make any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by
the party in accordance with this Agreement if such failure is not remedied on or before
the thirtieth day after notice of such failure is given to the party;




(iii) Credit Support Default.




(1) Failure by the party or any Credit Support Provider of such party to comply with
or perform any agreement or obligation to be complied with or performed by it in
accordance with any Credit Support Document if such failure is continuing after
any applicable grace period has elapsed;




(2) the expiration or termination of such Credit Support Document or the failing or
ceasing of such Credit Support Document to be in full force and effect for the
purpose of this Agreement (in either case other than in accordance with its terms)
prior to the satisfaction of all obligations of such party under each Transaction
to which such Credit Support Document relates without the written consent of the
other party; or




(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or
rejects, in whole or in part, or challenges the validity of, such Credit Support
Document;




(iv) Misrepresentation. A representation (other than a representation under Section 3(e)
or (f)) made or repeated or deemed to have been made or repeated by the party or any
Credit Support Provider of such party in this Agreement or any Credit Support Document
proves to have been incorrect or misleading in any material respect when made or repeated
or deemed to have been made or repeated;




(v) Default under Specified Transaction. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving effect to any
applicable notice requirement or grace period, in making any payment or delivery due on the
last payment, delivery or exchange date of, or any payment on early termination of, a
Specified Transaction (or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3) disaffirms, disclaims,
repudiates or rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act on its behalf);




(vi) Cross Default. If “Cross Default” is specified in the Schedule as applying to the
party, the occurrence or existence of (1) a default, event of default or other similar
condition or event (however


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described) in respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or instruments
relating to Specified Indebtedness of any of them (individually or collectively) in an
aggregate amount of not less than the applicable Threshold Amount (as specified in the
Schedule) which has resulted in such Specified Indebtedness becoming, or becoming capable
at such time of being declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable or (2) a default by such party, such
Credit Support Provider or such Specified Entity (individually or collectively) in making
one or more payments on the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after giving effect to
any applicable notice requirement or grace period);




(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party:—




(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2)
becomes insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due; (3) makes a general
assignment, arrangement or composition with or for the benefit of its creditors; (4)
institutes or has instituted against it a proceeding seeking a judgment of insolvency
or bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or the making of an order
for its winding-up or liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or presentation thereof; (5)
has a resolution passed for its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for it or for all or
substantially all its assets; (7) has a secured party take possession of all or
substantially all its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or substantially all
its assets and such secured party maintains possession, or any such process is not
dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
(8) causes or is subject to any event with respect to it which, under the applicable
laws of any jurisdiction, has an analogous effect to any of the events specified in
clauses (1) to (7) (inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;
or




(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially
all its assets to, another entity and, at the time of such consolidation, amalgamation,
merger or transfer:—




(1) the resulting, surviving or transferee entity fails to assume all the obligations
of such party or such Credit Support Provider under this Agreement or any Credit
Support Document to which it or its predecessor was a party by operation of law
or pursuant to an agreement reasonably satisfactory to the other party to this
Agreement; or




(2) the benefits of any Credit Support Document fail to extend (without the consent of
the other party) to the performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.


(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any event specified
below constitutes an Illegality if the event is specified in (i) below, a Tax Event if the event is
specified in (ii) below or a Tax Event upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event



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Upon Merger if the event is specified pursuant to (iv) below or an Additional Termination Event if
the event is specified pursuant to (v) below:—





(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date
on which a Transaction is entered into, or due to the promulgation of, or any change
in, the interpretation by any court, tribunal or regulatory authority with competent
jurisdiction of any applicable law after such date, it becomes unlawful (other than
as a result of a breach by the party of Section 4(b)) for such party (which will be
the Affected Party):—




(1) to perform any absolute or contingent obligation to make a payment or delivery or
to receive a payment or delivery in respect of such Transaction or to comply with
any other material provision of this Agreement relating to such Transaction; or




(2) to perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support Provider)
has under any Credit Support Document relating to such Transaction;




(ii) Tax Event. Due to (x) any action taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a party to this
Agreement) or (y) a Change in Tax Law, the party (which will be the Affected Party) will,
or there is a substantial likelihood that it will, on the next succeeding Scheduled Payment
Date (1) be required to pay to the other party an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect
of such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or
(B));




(iii) Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding
Scheduled Payment Date will either (1) be required to pay an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has been deducted or withheld for or on account
of any Indemnifiable Tax in respect of which the other party is not required to pay
an additional amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in
either case as a result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets to, another entity
(which will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);




(iv) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule
as applying to the party, such party (“X”), any Credit Support Provider of X or any
applicable Specified Entity of X consolidates or amalgamates with, or merges with or into,
or transfers all or substantially all its assets to, another entity and such action does
not constitute an event described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be, immediately prior to such
action (and, in such event, X or its successor or transferee, as appropriate, will be the
Affected Party); or




(v) Additional Termination Event. If any “Additional Termination Event” is specified in
the Schedule or any Confirmation as applying, the occurrence of such event (and, in such
event, the Affected Party or Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).


(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute
or give rise to an Event of Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of Default.



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6. Early Termination



(a) Right to Terminate Following Event of Default. If at any time an Event of Default with
respect to a party (the “Defaulting Party”) has occurred and is then continuing, the other
party (the “Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting
Party specifying the relevant Event of Default, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all outstanding Transactions.
If, however, “Automatic Early Termination” is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions will
occur immediately upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(l), (3), (5), (6) or, to the extent analogous thereto, (8),
and as of the time immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).




(b) Right to Terminate Following Termination Event.





(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming
aware of it, notify the other party, specifying the nature of that Termination Event and
each Affected Transaction and will also give such other information about that Termination
Event as the other party may reasonably require.




(ii) Transfer to Avoid Termination Event. If either an Illegality under Section 5(b)(i)(l)
or a Tax Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party, the Affected Party will, as a
condition to its right to designate an Early Termination Date under Section 6(b)(iv), use
all reasonable efforts (which will not require such party to incur a loss, excluding
immaterial, incidental expenses) to transfer within 20 days after it gives notice under
Section 6(b)(i) all its rights and obligations under this Agreement in respect of the
Affected Transactions to another of its Offices or Affiliates so that such Termination
Event ceases to exist.




If the Affected Party is not able to make such a transfer it will give notice to the other
party to that effect within such 20 day period, whereupon the other party may effect such
a transfer within 30 days after notice is given under Section 6(b)(i).




Any such transfer by a party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other party, which consent will not be
withheld if such other party’s policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.




(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(l) or a Tax Event
occurs and there are two Affected Parties, each party will use all reasonable efforts to
reach agreement within 30 days after notice thereof is given under Section 6(b)(i) on
action to avoid that Termination Event.




(iv) Right to Terminate. If:—




(1) a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the
case may be, has not been effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice under Section 6(b)(i); or




(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an
Additional Termination Event occurs, or a Tax Event Upon Merger occurs and the
Burdened Party is not the Affected Party,




either party in the case of an Illegality, the Burdened Party in the case of a Tax Event
Upon Merger, any Affected Party in the case of a Tax Event or an Additional Termination
Event if there is more than one Affected Party, or the party which is not the Affected
Party in the case of a Credit Event Upon Merger or an Additional Termination Event if
there is only one Affected Party may, by not more than 20 days notice to the other party
and provided that the relevant Termination Event is then


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continuing, designate a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.



(c) Effect of Designation.





(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the
Early Termination Date will occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.




(ii) Upon the occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated
Transactions will be required to be made, but without prejudice to the other provisions of
this Agreement. The amount if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).



(d) Calculations.





(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if any, contemplated by
Section 6(e) and will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and specifying any amount
payable under Section 6(e)) and (2) giving details of the relevant account to which any
amount payable to it is to be paid. In the absence of written confirmation from the source
of a quotation obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence and accuracy of such
quotation.




(ii) Payment Date. An amount calculated as being due in respect of any Early Termination
Date under Section 6(e) will be payable on the day that notice of the amount payable is
effective (in the case of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (in the case of an Early Termination
Date which is designated as a result of a Termination Event). Such amount will be paid
together with (to the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and including) the relevant
Early Termination Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding and the actual
number of days elapsed.


(e) Payments on Early Termination. If an Early Termination Date occurs, the following
provisions shall apply based on the parties’ election in the Schedule of a payment measure,
either “Market Quotation” or “Loss”, and a payment method, either the “First Method” or the
“Second Method”. If the parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that “Market Quotation” or the “Second Method”, as the case may
be, shall apply. The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.





(i) Events of Default. If the Early Termination Date results from an Event of Default:—




(1) First Method and Market Quotation. If the First Method and Market Quotation
apply, the Defaulting Party will pay to the Non-defaulting Party the excess, if a
positive number, of (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting
Party over (B) the Termination Currency Equivalent of the Unpaid Amounts owing to
the Defaulting Party.




(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party
will pay to the Non-defaulting Party, if a positive number, the Non-defaulting
Party’s Loss in respect of this Agreement.




(3) Second Method and Market Quotation. If the Second Method and Market Quotation
apply, an amount will be payable equal to (A) the sum of the Settlement Amount
(determined by the


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Non-defaulting Party) in respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If that amount is a
positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.




(4) Second Method and Loss. If the Second Method and Loss apply, an amount will be payable
equal to the Non-defaulting Party’s Loss in respect of this Agreement. If that amount is a
positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.




(ii) Termination Events. If the Early Termination Date results from a Termination Event:—




(1) One Affected Party. If there is one Affected Party, the amount payable will be
determined in accordance with Section 6(e)(i)(3), if Market Quotation applies, or
Section 6(e)(i)(4), if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed to be references to
the Affected Party and the party which is not the Affected Party, respectively, and,
if Loss applies and fewer than all the Transactions are being terminated, Loss shall
be calculated in respect of all Terminated Transactions.




(2) Two Affected Parties. If there are two Affected Parties:—




(A) if Market Quotation applies, each party will determine a Settlement Amount
in respect of the Terminated Transactions, and an amount will be payable equal to
(I) the sum of (a) one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount (“X”) and the Settlement Amount of
the party with the lower Settlement Amount (“Y”) and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and




(B) if Loss applies, each party will determine its Loss in respect of this Agreement
(or, if fewer than all the Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal to one-half of the
difference between the Loss of the party with the higher Loss (“X”) and the Loss
of the party with the lower Loss (“Y”).




If the amount payable is a positive number, Y will pay it to X; if it is a negative number,
X will pay the absolute value of that amount to Y.




(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because
“Automatic Early Termination” applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and permitted by law to reflect
any payments or deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).




(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount recoverable under
this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable
for the loss of bargain and the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.



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7. Transfer



Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this
Agreement
may be transferred (whether by way of security or otherwise) by either party without the prior
written consent of the other party, except that:—



(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation
with, or merger with or into, or transfer of all or substantially all its assets to, another entity
(but without prejudice to any other right or remedy under this Agreement); and



(b) a party may make such a transfer of all or any part of its interest in any amount payable to it
from a Defaulting Party under Section 6(e).




Any purported transfer that is not in compliance with this Section will be void.




8. Contractual Currency



(a)
Payment in the Contractual Currency. Each payment under this Agreement will be made in the
relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To the
extent
permitted by applicable law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency other than the
Contractual
Currency, except to the extent such tender results in the actual receipt by the party to which
payment is owed,
acting in a reasonable manner and in good faith in converting the currency so tendered into this
Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable in respect of this
Agreement.
If for any reason the amount in the Contractual Currency so received falls short of the amount in
the
Contractual Currency payable in respect of this Agreement, the party required to make the payment
will, to
the extent permitted by applicable law, immediately pay such additional amount in the Contractual
Currency
as may be necessary to compensate for the shortfall. If for any reason the amount in the
Contractual Currency
so received exceeds the amount in the Contractual Currency payable in respect of this Agreement,
the party
receiving the payment will refund promptly the amount of such excess.



(b)
Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a
currency other than the Contractual Currency is rendered (i) for the payment of any amount owing in
respect of this Agreement, (ii) for the payment of any amount relating to any early termination in respect
of this Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount
described in (i) or (ii) above, the party seeking recovery, after recovery in full of the aggregate amount to
which such
Party is entitled pursuant to the judgment or order, will be entitled to receive immediately
from the other party
the amount of any shortfall of the Contractual Currency received by such party as a consequence of
sums paid
in such other currency and will refund promptly to the other party any excess of the
Contractual Currency
received by such party as a consequence of sums paid in such other currency if such shortfall or
such excess
arises or results from any variation between the rate of exchange at which the Contractual Currency
is
converted into the currency of the judgment or order for the purposes of such judgment or order and
the rate
of exchange at which such party is able, acting in a reasonable manner and in good faith in
converting the
currency received into the Contractual Currency, to purchase the Contractual Currency with the
amount of the
currency of the judgment or order actually received by such party. The term “rate of exchange”
includes,
without limitation, any premiums and costs of exchange payable in connection with the purchase
of or
conversion into the Contractual Currency.



(c)
Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute
separate and independent obligations from the other obligations in this Agreement, will be
enforceable as
separate and independent causes of action, will apply notwithstanding any indulgence granted
by the party
to which any payment is owed and will not be affected by judgment being obtained or claim or
proof being
made for any other sums payable in respect of this Agreement.



(d)
Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to
demonstrate
that it would have suffered a loss had an actual exchange or purchase been made.




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9. Miscellaneous



(a) Entire
Agreement. This Agreement constitutes the entire agreement and understanding of the
parties
with respect to its subject matter and supersedes all oral communication and prior writings with
respect
thereto.



(b)
Amendments. No amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission) and executed by each
of the
parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging
system.



(c)
Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations
of the parties under this Agreement will survive the termination of any Transaction.



(d) Remedies
Cumulative. Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any rights, powers,
remedies
and privileges provided by law.




(e)
Counterparts and Confirmations.





(i) This Agreement (and each amendment, modification and waiver in respect of it) may be
executed and delivered in counterparts (including by facsimile transmission), each of which
will be deemed an original.




(ii) The
parties intend that they are legally bound by the terms of each Transaction from the
moment
they agree to those terms (whether orally or otherwise). A Confirmation shall be entered into
as
soon as practicable and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of electronic messages
on
an electronic messaging system, which in each case will be sufficient for all purposes to
evidence
a binding supplement to this Agreement. The parties will specify therein or through another
effective
means that any such counterpart, telex or electronic message constitutes a Confirmation.


(f)
No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect
of this
Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any
right, power
or privilege will not be presumed to preclude any subsequent or further exercise, of that right,
power or
privilege or the exercise of any other right, power or privilege.




(g)
Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement.




10.
Offices; Multibranch Parties



(a) If
Section 10(a) is specified in the Schedule as applying, each party that enters into a
Transaction
through an Office other than its head or home office represents to the other party that,
notwithstanding the
place of booking office or jurisdiction of incorporation or organisation of such party, the
obligations of such
party are the same as if it had entered into the Transaction through its head or home office. This
representation
will be deemed to be repeated by such party on each date on which a Transaction is entered into.



(b) Neither party may change the Office through which it makes and receives payments or deliveries
for the purpose of a Transaction without the prior written consent of the other party.



(c) If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make
and receive payments or deliveries under any Transaction through any Office listed in the Schedule,
and the
Office through which it makes and receives payments or deliveries with respect to a Transaction
will be
specified in the relevant Confirmation.



11.
Expenses


A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other party
by
reason of the enforcement and protection of its rights under this Agreement or any Credit Support
Document



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to which the Defaulting Party is a party or by reason of the early termination of any Transaction,
including,
but not limited to, costs of collection.




12. Notices



(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in
any
manner set forth below (except that a notice or other communication under Section 5 or 6 may not be
given
by facsimile transmission or electronic messaging system) to the address or number or in accordance
with
the electronic messaging system details provided (see the Schedule) and will be deemed effective as
indicated:—





(i) if in writing and delivered in person or by courier, on the date it is delivered;




(ii) if sent by telex, on the date the recipient’s answerback is received;




(iii) if sent by facsimile transmission, on the date that transmission is received by a
responsible
employee of the recipient in legible form (it being agreed that the burden of proving receipt
will be
on the sender and will not be met by a transmission report generated by the sender’s facsimile
machine);




(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return
receipt
requested), on the date that mail is delivered or its delivery is attempted; or




(v) if sent by electronic messaging system, on the date that electronic message is received,


unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a
Local Business
Day or that communication is delivered (or attempted) or received, as applicable, after the close
of business
on a Local Business Day, in which case that communication shall be deemed given and effective on
the first
following day that is a Local Business Day.



(b) Change
of Addresses. Either party may by notice to the other change the address, telex or
facsimile
number or electronic messaging system details at which notices or other communications are to be
given to
it.




13.
Governing Law and Jurisdiction



(a)
Governing Law. This Agreement will be governed by and
construed in accordance with the law
specified in the Schedule.



(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—





(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be
governed by
English law, or to the non-exclusive jurisdiction of the courts of the State of New York and
the
United States District Court located in the Borough of Manhattan in New York City, if this
Agreement is expressed to be governed by the laws of the State of New York; and




(ii) waives any objection which it may have at any time to the laying of venue of any
Proceedings
brought in any such court, waives any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with respect to such Proceedings,
that
such court does not have any jurisdiction over such party.


Nothing in this Agreement precludes either party from bringing Proceedings in any other
jurisdiction
(outside, if this Agreement is expressed to be governed by English law, the Contracting States, as
defined
in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or
more
jurisdictions preclude the bringing of Proceedings in any other jurisdiction.




(c)
Service of Process. Each party irrevocably appoints the Process Agent (if any) specified
opposite
its name in the Schedule to receive, for it and on its behalf, service of process in any
Proceedings. If for any



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reason any party’s Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to the other party.
The parties irrevocably consent to service of process given in the manner provided for notices in
Section 12. Nothing in this Agreement will affect the right of either party to serve process in any
other manner permitted by law.



(d)
Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by
applicable law, with respect to itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit,
(ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance or
for recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v)
execution or enforcement of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such immunity in any Proceedings.




14. Definitions




As used in this Agreement:—




“Additional
Termination Event” has the meaning specified in Section 5(b).




“Affected
Party” has the meaning specified in Section 5(b).



“Affected
Transactions” means (a) with respect to any
Termination Event consisting of an Illegality,
Tax
Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination
Event and (b) with respect to any other Termination Event, all Transactions.



“Affiliate”
means, subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly or indirectly, the person
or any entity directly or indirectly under common control with the person. For this purpose,
“control” of any entity or person means ownership of a majority of the voting power of the entity
or person.




“Applicable
Rate” means:—



(a) in respect of obligations payable or deliverable (or which would have been but for Section
2(a)(iii))
by a Defaulting Party, the Default Rate;



(b) in
respect of an obligation to pay an amount under Section 6(e) of
either party from and after
the date
(determined in accordance with Section 6(d)(ii)) on which that amount is payable, the Default Rate;



(c) in
respect of all other obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and



(d) in all other cases, the Termination Rate.



“Burdened
Party” has the meaning specified in Section 5(b).



“Change
in Tax Law” means the enactment, promulgation, execution or ratification of, or any
change in or amendment to, any law (or in the application or official interpretation of any law)
that occurs on or after the date on which the relevant Transaction is entered into.



“consent”
includes a consent, approval, action, authorisation,
exemption, notice, filing,
registration or exchange control consent.



“Credit Event Upon Merger” has the meaning specified in Section 5(b).



“Credit Support Document” means any agreement or instrument that is specified as such in this Agreement.



“Credit Support Provider” has the meaning specified in the Schedule.



“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any
actual cost) to the relevant payee (as certified by it) if it were to fund or of funding the
relevant amount plus 1% per annum.



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“Defaulting
Party” has the meaning specified in Section 6(a).



“Early
Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).



“Event
of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.



“Illegality”
has the meaning specified in Section 5(b).



“Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of a
payment
under this Agreement but for a present or former connection between the jurisdiction of the
government or
taxation authority imposing such Tax and the recipient of such payment or a person related to such
recipient
(including, without limitation, a connection arising from such recipient or related person being or
having been
a citizen or resident of such jurisdiction, or being or having been organised, present or engaged
in a trade or
business in such jurisdiction, or having or having had a permanent establishment or fixed place of
business in
such jurisdiction, but excluding a connection arising solely from such recipient or related person
having
executed, delivered, performed its obligations or received a payment under, or enforced, this
Agreement or a
Credit Support Document).



“law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the
practice of
any relevant governmental revenue authority) and “lawful” and “unlawful” will be construed
accordingly.



“Local Business Day” means, subject to the Schedule, a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits) (a) in relation to
any
obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if not
so specified,
as otherwise agreed by the parties in writing or determined pursuant to provisions contained, or
incorporated
by reference, in this Agreement, (b) in relation to any other payment, in the place where the
relevant account
is located and, if different, in the principal financial centre, if any, of the currency of such
payment, (c) in
relation to any notice or other communication, including notice contemplated under Section 5(a)(i),
in the
city specified in the address for notice provided by the recipient and, in the case of a notice
contemplated
by Section 2(b), in the place where the relevant new account is to be located and (d) in relation
to
Section 5(a)(v)(2), in the relevant locations for performance with respect to such Specified
Transaction.



“Loss” means, with respect to this Agreement or one or more Terminated Transactions, as the case
may be, and
a party, the Termination Currency Equivalent of an amount that party
reasonably determines in good faith
to be
its total losses and costs (or gain, in which case expressed as a negative number) in connection
with this Agreement
or that Terminated Transaction or group of Terminated Transactions, as the case may be, including any
loss of
Bargain, cost of funding or, at the election of such parry but without duplication, loss or cost
incurred as a result
of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain
resulting from any of them). Loss includes losses and costs (or gains) in respect of any payment or
delivery
required to have been made (assuming satisfaction of each applicable condition precedent) on or
before the
relevant Early Termination Date and not made, except, so as to avoid duplication, if Section
6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party’s legal fees and out-of-pocket expenses
referred to under
Section 11. A party will determine its Loss as of the relevant Early Termination Date, or, if that
is not reasonably
Practicable, as of the earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its
Loss by reference to quotations of relevant rates or prices from one or more leading dealers in the
relevant
markets.



“Market Quotation” means, with respect to one or more Terminated Transactions and a party making
the
determination, an amount determined on the basis of quotations from Reference Market-makers. Each
quotation will be for an amount, if any, that would be paid to such party (expressed as a negative
number)
or by such party (expressed as a positive number) in consideration of an agreement between such
parry (taking
into account any existing Credit Support Document with respect to the obligations of such party)
and the
quoting Reference Market-maker to enter into a transaction (the “Replacement Transaction”) that
would
have the effect of preserving for such party the economic equivalent of any payment or delivery
(whether
the underlying obligation was absolute or contingent and assuming the satisfaction of each
applicable
condition precedent) by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group
of Terminated Transactions that would, but for the occurrence of the relevant Early Termination
Date, have



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been required after that date. For this purpose, Unpaid Amounts in respect of the Terminated
Transaction or
group of Terminated Transactions are to be excluded but, without limitation, any payment or
delivery that
would, but for the relevant Early Termination Date, have been required (assuming satisfaction of
each
applicable condition precedent) after that Early Termination Date is to be included. The Replacement
Transaction would be subject to such documentation as such party and the Reference Market-maker
may, in
good faith, agree. The party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of the same day and
time
(without regard to different time zones) on or as soon as reasonably practicable after the relevant
Early
Termination Date. The day and time as of which those quotations are to be obtained will be selected
in good
faith by the party obliged to make a determination under Section 6(e), and, if each party is so
obliged, after
consultation with the other. If more than three quotations are provided, the Market Quotation will
be the
arithmetic mean of the quotations, without regard to the quotations having the highest and lowest
values. If
exactly three such quotations are provided, the Market Quotation will be the quotation remaining
after
disregarding the highest and lowest quotations. For this purpose, if more than one quotation has
the same
highest value or lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations
are provided, it will be deemed that the Market Quotation in respect of such Terminated Transaction
or group
of Terminated Transactions cannot be determined.


“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any
actual cost)
to the Non-defaulting Party (as certified by it) if it were to fund the relevant amount.



“Non-defaulting Party” has the meaning specified in Section 6(a).



“Office” means a branch or office of a party, which may be such party’s head or home office.



“Potential Event of Default” means any event which, with the giving of notice or the lapse of time
or both,
would constitute an Event of Default.



“Reference Market-makers” means four leading dealers in the relevant market selected by the party
determining a Market Quotation in good faith (a) from among dealers of the highest credit standing
which
satisfy all the criteria that such party applies generally at the time in deciding whether to offer
or to make
an extension of credit and (b) to the extent practicable, from among such dealers having an office
in the same
city.



“Relevant
Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its seat, (b) where an Office
through
which the party is acting for purposes of this Agreement is located, (c) in which the party
executes this
Agreement and (d) in relation to any payment, from or through which such payment is made.



“Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section
2(a)(i)
with respect to a Transaction.



“Set-off” means set-off, offset, combination of accounts, right of retention or withholding or
similar right
or requirement to which the payer of an amount under Section 6 is entitled or subject (whether
arising under
this Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on,
such
payer.




“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of:—


(a) the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for
each
Terminated Transaction or group of Terminated Transactions for which a Market Quotation is
determined;
and



(b) such party’s Loss (whether positive or negative and without reference to any Unpaid Amounts)
for
each Terminated Transaction or group of Terminated Transactions for which a Market Quotation cannot
be
determined or would not (in the reasonable belief of the party making the determination) produce a
commercially reasonable result.



“Specified Entity” has the meaning specified in the Schedule.



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“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or
future,
contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.



“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an
agreement with respect
thereto) now existing or hereafter entered into between one party to this Agreement (or any
Credit Support
Provider of such party or any applicable Specified Entity of such party) and the other party to
this Agreement (or
any Credit Support Provider of such other party or any applicable Specified Entity of such
other party) which is
a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or
equity index swap, equity or equity index option, bond option, interest rate option, foreign
exchange transaction,
Cap transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap
transaction, currency option or any other similar transaction (including any option with
respect to any of these
transactions), (b) any combination of these transactions and (c) any other transaction
identified as a Specified
Transaction in this Agreement or the relevant confirmation.



“Stamp Tax” means any stamp, registration, documentation or similar tax.



“Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any
nature (including
interest, penalties and additions thereto) that is imposed by any government or other taxing
authority in
respect of any payment under this Agreement other than a stamp, registration, documentation or
similar tax.



“Tax Event” has the meaning specified in Section 5(b).



“Tax Event Upon Merger” has the meaning specified in Section 5(b).



“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting
from a
Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all
Transactions
(in either case) in effect immediately before the effectiveness of the notice designating that
Early Termination
Date (or, if “Automatic Early Termination” applies, immediately before that Early Termination
Date).



“Termination Currency” has the meaning specified in the Schedule.



“Termination Currency Equivalent” means, in respect of any amount denominated in the
Termination
Currency, such Termination Currency amount and, in respect of any amount denominated in a
currency other
than the Termination Currency (the “Other Currency”), the amount in the Termination Currency
determined
by the party making the relevant determination as being required to purchase such amount of
such Other
Currency as at the relevant Early Termination Date, or, if the relevant Market Quotation or
Loss (as the case
may be), is determined as of a later date, that later date, with the Termination Currency at
the rate equal to
the spot exchange rate of the foreign exchange agent (selected as provided below) for the
purchase of such
Other Currency with the Termination Currency at or about 11:00 a.m. (in the city in which such
foreign
exchange agent is located) on such date as would be customary for the determination of such a
rate for the
purchase of such Other Currency for value on the relevant Early Termination Date or that later
date. The
foreign exchange agent will, if only one party is obliged to make a determination under
Section 6(e), be
Selected in good faith by that party and otherwise will be agreed by the parties.



“Termination Event” means an Illegality, a Tax Event or a Tax Event Upon Merger or, if
specified to be
applicable, a Credit Event Upon Merger or an Additional Termination Event.



“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without
proof or
evidence of any actual cost) to each party (as certified by such party) if it were to fund or
of funding such
amounts.



“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the
aggregate of (a)
in respect of all Terminated Transactions, the amounts that became payable (or that would have
become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to such
Early Termination
Date and which remain unpaid as at such Early Termination Date and (b) in respect of each
Terminated
Transaction, for each obligation under Section 2(a)(i) which was (or would have been but for
Section 2(a)(iii)) required to be settled by delivery to such party on or prior to such Early
Termination Date
and which has not been so settled as at such Early Termination Date, an amount equal to the
fair market






ISDA
® 1992

17









 






value of that which was (or would have been) required to be delivered as of the originally
scheduled date
for delivery, in each case together with (to the extent permitted under applicable law) interest, in
the currency
of such amounts, from (and including) the date such amounts or obligations were or would have been
required
to have been paid or performed to (but excluding) such Early Termination Date, at the Applicable
Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the actual number of
days
elapsed. The fair market value of any obligation referred to in clause (b) above shall be
reasonably
determined by the party obliged to make the determination under
Section 6(e) or, if each party is so
obliged, it
shall be the average of the Termination Currency Equivalents of the fair market values reasonably
determined
by both parties.



IN WITNESS
WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.




	 	 	 	 	 	 	 	 	 	 	 
	J. ARON & COMPANY	 	CALUMET LUBRICANTS
CO., LIMITED
  
PARTNERSHIP
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Susan Rudov
	 	By:
	 	Calumet LP GP, LLC, its general
partner	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	Name: Susan Rudov	 	 	 	 	 	 	 	 
	 

	 	Title: Attorney In Fact
	 	By:
	 	Calumet Operating, LLC, its sole member	 	 	 	 
	 

	 	Date:	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Calumet Specialty Products Partners, L.P., its sole member	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Calumet GP, LLC, its general partner	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	BY:
	 	/s/ R. Patrick Murray II	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: R. Patrick Murray II	 	 
	 

	 	 	 	 	 	Title: VP & CFO	 	 
	 

	 	 	 	 	 	Date:	 	 








ISDA®1992



18









 




SCHEDULE



to the



ISDA MASTER AGREEMENT



dated as of



March 17, 2006



And Amended and Restated as of January 3, 2008


between


J. ARON & COMPANY,



a general partnership organized under the laws of the State of New York



(“Aron”),



And


CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP,




(“Counterparty”).




Part 1. Termination Provisions





	(a)	 	“Specified Entity”






	 	(i)	 	means, in relation to Aron, Goldman, Sachs & Co., Goldman Sachs Capital
Markets, L.P., Goldman Sachs International, Goldman Sachs (Japan) Ltd., Goldman Sachs
International Bank, Goldman Sachs (Asia) Finance, Goldman Sachs Financial Markets,
L.P., Goldman Sachs Paris Inc. et Cie, Goldman Sachs Mitsui Marine Derivative Products,
L.P., Goldman, Sachs & Co. oHG, J. Aron & Company (Singapore) Pte., and J. Aron &
Company (U.K.) for the purpose of Section 5(a)(v), and shall not apply for purposes of
Sections 5(a)(vi), 5(a)(vii) and 5(b)(iv); and
	 
	 	(ii)	 	means, in relation to Counterparty, for the purpose of Sections 5(a)(v),
5(a)(vi), 5(a)(vii) and 5(b)(iv),each of the Domestic Entities. For purposes hereof,
the “Domestic Entities” means (i) Calumet Specialty Products Partners, L.P., (ii)
Calumet LP GP, LLC, (iii) Calumet Operating, LLC and (iv) each Subsidiary of
Counterparty organized under the laws of any political subdivision of the United
States. For purposes of the foregoing, “Subsidiary” of a person shall mean a
corporation, partnership, joint venture, limited liability company or other business
entity of which a majority of the shares of capital stock having ordinary voting power
for the election of directors or other governing body (other than capital stock having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such person.






	(b)	 	The Parties agree to add new clauses (g), (h) and (i) to Section 3 as follows, with respect
to Counterparty only:






	 	“(g)	 	Each representation set forth in Section 6.08 of the PP&E Credit Agreement and
Section 9.1.8 of the ABL Credit Agreement is accurate and true in all respects.





 









 






	 	(h)	 	There is no event, condition or circumstance which exists, or with the passage
of time, could reasonably be expected to have a Material Adverse Effect.”
	 
	 	(i)	 	As of the Effective Date, and at all times from the Effective Date until the
Scheduled Maturity Date, the outstanding amount of funded Indebtedness under the PP&E
Credit Agreement is equal to or less than U.S. $510,000,000.






	(c)	 	“Specified Transaction”. The term “Specified Transaction” in Section 14 of the Agreement is
amended in its entirety as follows:
	 
	 	 	“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between one party to
this Agreement (or any Credit Support Provider of such party or any applicable Specified
Entity of such party) and the other party to this Agreement (or any Credit Support Provider
of such other party or any applicable Specified Entity of such other party) (i) which is a
rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap,
commodity option, commodity spot transaction, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option, weather swap, weather derivative,
weather option, credit protection transaction, credit swap, credit default swap, credit
default option, total return swap, credit spread transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction, securities lending transaction,
or forward purchase or sale of a security, commodity or other financial instrument or
interest (including any option with respect to any of these transactions) or (ii) which is a
type of transaction that is similar to any transaction referred to in clause (i) that is
currently, or in the future becomes, recurrently entered into the financial markets
(including terms and conditions incorporated by reference in such agreement) and that is a
forward, swap, future, option or other derivative on one or more rates, currencies,
commodities, equity securities or other equity instruments, debt securities or other debt
instruments, or economic indices or measures of economic risk or value, (b) any combination
of these transactions and (c) any other transaction identified as a Specified Transaction in
this agreement or the relevant confirmation.”
	 
	(c)	 	The “Cross Default” provisions of Section 5(a)(vi) will apply to Aron and will apply to
Counterparty, provided that (i) the phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) of such Section 5(a)(vi); and (ii) the following
language shall be added to the end thereof: “Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused
solely by error or omission of an administrative or operational nature; (ii) funds were
available to enable the party to make the payment when due; and (iii) the payment is made
within two Local Business Days of such party’s receipt of written notice of its failure to
pay.”
	 
	 	 	“Specified Indebtedness” will have the meaning specified in Section 14 of the Agreement. For
the purpose of Section 5(a)(vi)(1), any reference to Specified Indebtedness becoming, or
being declared, due and payable, shall in the case of Specified Indebtedness which is a
Hedging Transaction, be deemed to be a reference to Specified Indebtedness being terminated
by the other party to such Hedging Transaction. For purposes of determining whether the
aggregate amount of a Specified Indebtedness exceeds the applicable Threshold Amount with
respect to a Hedging Transaction for which a default, event of default or other similar
condition or event (however described) has occurred, the amount owing by the defaulting
party (“X”) in respect of such Hedging Transaction shall be its mark-to-market value,
reasonably determined by the other party to this Agreement as of the date on which such
determination is being made, provided that the





2









 






	 	 	amount owing by X in respect of such Hedging Transaction shall equal the Netted Close-out
Amount (as defined below) if such Hedging Transaction is governed by a master agreement.
	 
	 	 	“Hedging Transaction” means any Specified Transaction except that, for this purpose only and
with respect to Counterparty only, the words “and any other entity” shall be substituted for
the words “and the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party)” where they appear in
the definition of Specified Transaction.
	 
	 	 	“Netted Close-out Amount” means any amount payable or capable at such time of being declared
due and payable by X in respect of an Early Termination Date under any ISDA Master Agreement
or any other similar final netted amount payable by X under any applicable master agreement.
	 
	 	 	“Threshold Amount” means in relation to Aron, U.S. $50,000,000 (or its equivalent in another
currency) and in relation to Counterparty, U.S. $5,000,000 (or its equivalent in another
currency).
	 
	(d)	 	The “Credit Event Upon Merger” provisions of Section 5(b)(iv) will apply to Aron and will
apply to Counterparty provided, however, that “Credit Event Upon Merger” shall
not have its meaning as defined in Section 5(b)(iv), but shall mean, that (i) such Party
(“X”), any Credit Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges into, or transfers all or substantially all its assets to,
another entity (“Y”) or Y merges into X, any Credit Support Provider of X or any applicable
Specified Entity of X, (ii) such action does not constitute an event described in Section
5(a)(viii), and (iii) (A) Standard and Poor’s Ratings Group, a division of The McGraw-Hill
Companies Inc. or any successor organization (“S&P”) or Moody’s Investors Service, Inc. or any
successor organization (“Moody’s”) rates the creditworthiness of the resulting, surviving or
transferee entity immediately after such action below investment grade (investment grade being
at least BBB- for S&P and Baa3 for Moody’s), or (B) neither S&P nor Moody’s rates the
creditworthiness of the resulting, surviving or transferee entity immediately after such
action. For the purpose of the forgoing Termination Event, the Affected Party will be either
Party X or Party Y, as the case may be.
	 
	(e)	 	The “Automatic Early Termination” provision of Section 6(a) will not apply to Aron and will
not apply to Counterparty.
	 
	(f)	 	Payments on Early Termination. For the purpose of Section 6(e):






	 	(i)	 	Close-Out Amount will apply.
	 
	 	(ii)	 	The Second Method will apply.






	(g)	 	“Termination Currency” means United States Dollars.
	 
	(h)	 	The parties agree to amend the following subsections of Section 5(a) as follows:






	 	(i)	 	clause (i): in the third line of this clause, delete the word “third” and
insert the word “first;”
	 
	 	(ii)	 	clause (ii): in the fifth line of this clause, delete the word “thirtieth” and
insert the word “fifth;” and





3









 






	 	(iii)	 	clause (vii)(4): delete, following the word “liquidation” in line 9, the
clause beginning with “and, in the case of” and ending with the word “thereof” in line
13; and in Clause (vii)(7): delete, following the word “assets” in line 19, the clause
beginning with “and such secured party” and ending with the word “thereafter” in line
21, to eliminate the 30-day grace period.
	 
	 	(iv)	 	The parties also agree to add a new clause (ix) as follows:






	 	(ix)	 	Adequate Assurance. A party (“X”) fails to provide adequate
assurance of its ability to perform all of its outstanding obligations
hereunder to the other party (“Y”) on or before 48 hours after a request for
such assurance is made by Y when Y has reasonable grounds for insecurity






	(i)	 	Additional Events of Default with respect to Counterparty. Section 5(a) is hereby amended by
including the following as clauses (x), (xi), (xii), (xiii), (xiv) and (xv) and the occurrence
of one or more of the events or circumstances set forth in such clause (x), (xi), (xii),
(xiii), (xiv) or (xv) shall constitute additional Events of Default to which Counterparty
shall be the sole Defaulting Party:






	 	“(x)	 	Each of the Events of Default (as such term is defined in the
PP&E Credit Agreement) (together with the relevant provisions of any other
Section or Sections to which such Events of Default refer, including
definitions) of the PP&E Credit Agreement is hereby incorporated herein by this
reference and made a part of this Agreement to the same extent as if the PP&E
Credit Agreement were set forth in full herein, provided that any reference in
such Events of Default to the “Lenders”, “Required Lenders” or the
“Administrative Agent” shall be deemed to be a reference to Aron. The
occurrence at any time of any such Event of Default under the PP&E Credit
Agreement will constitute an Event of Default with respect to Counterparty for
the purposes of Section 5(a) of the Agreement. Except with respect to (i) an
Event of Default under Section 9.01(b) of the PP&E Credit Agreement due to
failure of a Loan Party (as defined in the PP&E Credit Agreement) to perform or
observe any term, covenant or agreement contained in Sections 8.01 (Liens) and
8.05 (Dispositions) of the PP&E Credit Agreement and (ii) an Event of Default
under Section 9.01(c) of the PP&E Credit Agreement due to failure of a Loan
Party to perform or observe Section 7.07 (Maintenance of Insurance) of the PP&E
Credit Agreement, if the Required Lenders, or the Lenders, as appropriate,
amend, waive, suspend, supplement or modify any such Event of Default, such
Event of Default shall be deemed amended, waived, suspended, supplemented or
modified hereunder without need for any act by Aron. If the Required Lenders,
or the Lenders, as appropriate, amend, waive, suspend or modify any covenant
contained in the PP&E Credit Agreement (other than Section 7.07 (Maintenance of
Insurance), Section 8.01 (Liens) and Section 8.05 (Dispositions) of the PP&E
Credit Agreement), then such covenant shall be deemed so amended, waived,
suspended, supplemented or modified hereunder without need for any act by Aron.
For the avoidance of doubt, if the Required Lenders, or the Lenders, as
appropriate, amend, waive, suspend, supplement or modify Section 7.07
(Maintenance of Insurance), Section 8.01 (Liens) or Section 8.05 (Dispositions)
of the PP&E Credit Agreement, such covenant will be deemed to be incorporated
herein as it existed immediately prior to such amendment, waiver, suspension,





4









 






	 	 	 	supplement or modification. If for any reason such PP&E Credit Agreement
should for any reason terminate, such Events of Default will be incorporated
herein as they existed immediately prior to such event;
	 
	 	(xi)	 	Failure by Counterparty to deliver the Mandatory Additional
Collateral as and when required under Part 7(j)(a);
	 
	 	(xii)	 	Counterparty’s breach of the Volume Limitations and such breach
is not remedied (whether by unwinding or liquidating one or more Covered
Transactions or otherwise) within two (2) Local Business Days;
	 
	 	(xiii)	 	Failure by Counterparty to comply with any of the other covenants or
agreements set forth in Part 7; and
	 
	 	(xiv)	 	The occurrence of an Involuntary Disposition Prepayment Event in
excess of US$50,000,000,000.






	(j)	 	Additional Termination Event will apply. It will constitute an Additional Termination Event
hereunder upon the occurrence of any of the following events:






	 	(i)	 	Concurrent with the Effective Date, the failure of the
Counterparty to provide the Aron Letter of Credit;
	 
	 	(ii)	 	The occurrence of a Letter of Credit Default;
	 
	 	(iii)	 	Any of the following occurs with respect to Counterparty’s
obligations to Aron under this Agreement:






	 	(A)	 	such obligations cease to be secured by a first
priority lien on the PP&E Collateral and a second priority lien on the
ABL Collateral pursuant to the Collateral Documents and the
Intercreditor Agreement;
	 
	 	(B)	 	such obligations cease to be equally and
ratably secured and rank at least pari passu with Counterparty’s
obligations to the holders of the Secured Obligations holding a first
priority security interest in the PP&E Collateral;
	 
	 	(C)	 	such obligations cease to be guaranteed
pursuant to the Guaranty at any time for any reason.






	 	(iv)	 	The PP&E Credit Agreement is refinanced or replaced by another
credit facility or amended and/or amended and restated to increase the funded
Indebtedness (from such amount as of the Effective Date) or Commitments or to
add borrowing tranches (whether pursuant to Section 11.01(b)(ii) of the PP&E
Credit Agreement or otherwise); provided, however, that such event
shall not constitute an Additional Termination Event in the following
circumstances: (i) if the terms of such replacement credit facility amendment
or amendment and restatement regarding hedge security and collateral are
identical to or, with respect to Aron, better than the terms, including without
limitation the then outstanding loan balances and amounts of other obligations,
of such replaced credit facility (as determined by Aron in its reasonable
discretion) or (ii) if the terms of such





5









 






	 	 	 	replacement credit facility amendment or amendment and restatement regarding
hedge security and collateral are, with respect to Aron, worse than the
terms of such replaced credit facility (as determined by Aron), so long as
such terms are acceptable to Aron in its sole discretion.





          For the purpose of each of the foregoing Termination Events, Counterparty shall be the sole
Affected Party.





	(k)	 	Early Termination. Notwithstanding anything to the contrary in Section 6(a) or Section 6(b),
the parties agree that, except with respect to Transactions (if any) that are subject to
Automatic Early Termination under Section 6(a), the Non-defaulting Party or the party that is
not the Affected Party (in a case where a Termination Event under Section 5(b)(iv), or an
Additional Termination Event for which there is a single Affected Party, has occurred) is not
required to terminate the Transactions on a single day, but rather may terminate the
Transactions over a commercially reasonable period of time (not to exceed ten days) (the
“Early Termination Period”). The last day of the Early Termination Period shall be the Early
Termination Date for purposes of Section 6; provided, however, that interest shall accrue on
the Transactions terminated during the Early Termination Period prior to the Early Termination
Date at the Non-default Rate.





Part 2. Tax Representations





	(a)	 	Payer Tax Representations. For the purposes of Section 3(e), Aron and Counterparty make the
following representation:
	 
	 	 	It is not required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than interest under Section
2(e), 6(d)(ii), or 6(e) of this Agreement) to be made by it to the other party under this
Agreement. In making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement,
and the accuracy and effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the satisfaction of the agreement
of the other party contained in Section 4(d) of this Agreement, provided that it shall not
be a breach of this representation where reliance is placed on clause (ii) and the other
party does not deliver a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
	 
	(b)	 	Payee Tax Representations. For the purposes of Section 3(f), Counterparty makes the
following representations:






	 	(i)	 	It is not acting as an agent or intermediary for any foreign
person with respect to the payments received or to be received by it in
connection with this Agreement.
	 
	 	(ii)	 	It is a United States person within the meaning of Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended.





6









 





Part 3. Agreement to Deliver Documents





	(a)	 	For the purpose of Section 4(a), Tax forms, documents, or certificates to be delivered are:




Tax forms, documents, or certificates to be delivered are:




	 	 	 	 	 
	Party required to	 	 	 	 
	deliver document	 	Forms/Documents/Certificates	 	Date by which to be delivered
	Aron and
Counterparty

	 	United States Internal
Revenue Service Form W-9,
or any successor form.
	 	(i) On a date which is
before the first Scheduled
Payment Date under this
Agreement, (ii) promptly
upon reasonable demand by
the other party, and (iii)
promptly upon learning that
any such form previously
provided by the other party
has become obsolete,
incorrect, or ineffective.







	(b)	 	Other documents to be delivered are:





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Covered by
	Party required	 	 	 	Date by which to be	 	Section 3(d)
	to deliver	 	Form/Document/Certificate	 	delivered	 	Representation
	Aron and
Counterparty

	 	Evidence of authority of signatories
	 	Upon or promptly
following execution
of this Agreement
	 	Yes
	 
	 	 	 	 	 	 
	Counterparty

	 	Any Credit Support Document

specified in Part 4(f) herein
	 	Upon execution of
this Agreement and
from time to time
thereafter as
required under Part
7 below
	 	No
	 
	 	 	 	 	 	 
	Aron

	 	Any Credit Support Document

specified in Part 4(f) herein
	 	Promptly after
execution of this
Agreement
	 	No
	 
	 	 	 	 	 	 
	Counterparty

	 	A copy of the resolution of each
Credit Support Provider’s board of
directors (or other managers of
such entity) approving the entering
into of the applicable Credit
Support Document and a copy of each
Credit Support Provider’s
constituent documents, each
certified by an appropriately
authorized officer of the Credit
Support Provider to the
	 	Upon execution of
this Agreement and
with respect to
Counterparty only,
from time to time
thereafter as
required under Part
7 below
	 	Yes






7









 






	 	 	 	 	 	 	 
	 	 	 	 	 	 	Covered by
	Party required	 	 	 	Date by which to be	 	Section 3(d)
	to deliver	 	Form/Document/Certificate	 	delivered	 	Representation
	 

	 	effect that
such documents are up to date and
in full force and effect and that
Aron or Counterparty, as applicable
may continue to rely thereon.	 	 	 	 
	 
	 	 	 	 	 	 
	Aron and
Counterparty

	 	Most recent annual audited and
quarterly financial statements of
the party or, with respect to Aron,
its Credit Support Provider
	 	Promptly following

reasonable demand

by the other party
	 	Yes
	 
	 	 	 	 	 	 
	Counterparty

	 	Such documents, reports and
certificates as the Counterparty
shall be required to provide to the
Administrative Agent under the PP&E
Credit Agreement and the Agent
under the ABL Credit Agreement
	 	At such times such
documents, reports
or certificates, as
the case may be,
are required to be
delivered by the
Counterparty under
the PP&E Credit
Agreement and the
ABL Credit
Agreement
	 	Yes
	 
	 	 	 	 	 	 
	Counterparty

	 	Each other document required under

Part 7 below
	 	From time to time
as required under
Part 7 below
	 	Yes, unless

otherwise expressly

stated in Part 7

below
	 
	 	 	 	 	 	 
	Counterparty

	 	Certified resolutions of its board
of directors or other governing
body
	 	Upon execution of
this Agreement
	 	Yes





Aron and Counterparty agree that at such time as (i) Aron is granted access to the Intralinks
workspace on which the lenders under the PP&E Credit Agreement obtain documents and other notices,
and (ii) the form, document or certificate required above is added to such Intralinks workspace,
then such form, document or certificate shall be deemed delivered to Aron.




Part 4. Miscellaneous





	(a)	 	Addresses for Notices. For the purpose of Section 12(a):






	 	(i)	 	Address for notices or communications to Aron:





	 	 	 	 	 
	 

	 	Address:
	 	J. Aron & Company
	 

	 	 	 	85 Broad Street
	 

	 	 	 	New York, New York 10004






8









 






	 	 	 	 	 
	 

	 	Attention:
	 	Energy Operations
	 
	 	 	 	 
	 

	 	Telephone:
	 	(212) 357-0326
	 
	 	 	 	 
	 

	 	Facsimile:
	 	(212) 493-9849







	 	(ii)	 	Address for notices or communications to Counterparty:




Address: 2780 Waterfront Pkwy. E. Dr., Suite 200



       Indianapolis, IN 46214



Attention: R. Patrick Murray, II



Telephone: 317-328-5660



Facsimile: 317-328-5676





	(b)	 	Process Agent. For the purpose of Section 13(c):
	 
	 	 	Aron appoints as its Process Agent, not applicable.
	 
	 	 	Counterparty appoints as its Process Agent: in the Borough of Manhattan, City, County and
State of New York:




C. T. Corporation System

111 Eighth Avenue

13th Floor

New York, New York 10011





	(c)	 	Offices. The provisions of Section 10(a) will apply to this Agreement.
	 
	(d)	 	Multibranch Party. For the purpose of Section 10(c):
	 
	 	 	Aron is not a Multibranch Party.
	 
	 	 	Counterparty is not a Multibranch Party.
	 
	(e)	 	Calculation Agent. The Calculation Agent is Aron.
	 
	(f)	 	Credit Support Document. Any guaranty or other form of credit support provided on behalf of
Counterparty at any time shall constitute a Credit Support Document with respect to the
obligations of Counterparty. Details of any other Credit Support Document, each of which is
incorporated by reference in, and made part of, this Agreement and each Confirmation (unless
provided otherwise in a Confirmation) as if set forth in full in this Agreement or such
Confirmation:






	 	(i)	 	Guaranty by The Goldman Sachs Group, Inc. (“Goldman Group”), dated as of March
17, 2006 in favor of Counterparty as beneficiary thereof shall constitute a Credit
Support Document with respect to the obligations of Aron.
	 
	 	(ii)	 	The Collateral Documents and the Security Documents shall constitute Credit
Support Documents with respect to the obligations of Counterparty.





9









 






	 	(iii)	 	The Intercreditor Agreement shall constitute a Credit Support Document with
respect to the obligations of Counterparty.
	 
	 	(iv)	 	The Aron Letter of Credit shall constitute a Credit Support Document with
respect to the obligations of Counterparty.






	(g)	 	Credit Support Provider.
	 
	 	 	Credit Support Provider means in relation to Aron, Goldman Group.
	 
	 	 	Credit Support Provider means in relation to Counterparty, the Guarantors and any party that
at any time provides a guaranty or other form of credit support on behalf of Counterparty.
	 
	(h)	 	Governing Law. Section 13(a) is hereby replaced with the following:






	 	(a)	 	Governing Law. This Agreement and each Transaction entered into hereunder will
be governed by, and construed and enforced in accordance with, the law of the State of
New York without reference to its choice of law doctrine.






	(i)	 	Jurisdiction. Section 13(b) is hereby amended by:






	 	(i)	 	deleting in the second line of subparagraph (i) thereof the word “non-”; and
	 
	 	(ii)	 	deleting the final paragraph thereof.






	(j)	 	Netting of Payments. Subparagraph (ii) of Section 2(c) will not apply to Transactions.
Notwithstanding anything to the contrary in Section 2(c), unless otherwise expressly agreed by
the parties, the netting provided for in Section 2(c) will not apply separately to any
pairings of branches or Offices through which the parties make and receive payments or
deliveries.





Part 5. Other Provisions





	(a)	 	Accuracy of Specified Information. Section 3(d) is hereby amended by adding in the third
line thereof after the word “respect” and before the period, the phrase “or, in the case of
audited or unaudited financial statements, a fair presentation of the financial condition of
the relevant person.”
	 
	(b)	 	Scope of Agreement. Any transaction outstanding between the parties at the date this
Agreement comes into force or entered into by the parties at or after the date this Agreement
comes into force that is: (1) an FX Transaction or a Currency Option Transaction as defined in
the 1998 FX and Currency Option Definitions (the “FX Definitions”), as published by the
International Swaps and Derivatives Association, Inc. (“ISDA”), the Emerging Markets Traders
Association, and the Foreign Exchange Committee, unless otherwise specified in the relevant
confirmation, and (2) a transaction between the parties of the type set forth in the
definition of “Specified Transaction” herein unless otherwise specified in the relevant
confirmation relating to such Specified Transaction or unless otherwise agreed by the parties,
will constitute a “Transaction” for the purposes of this Agreement. Transactions of the type
set forth in (1) above will be deemed to incorporate the FX Definitions.




10









 












	(c)	 	Additional Representations. The parties agree to amend Section 3 by adding new Sections
3(g), (h), (i), and (j) as follows:






	 	(g)	 	Eligible Contract Participant. It is an “eligible contract participant” as
defined in the U.S. Commodity Exchange Act.
	 
	 	(h)	 	Non-Reliance. It is acting for its own account, and it has made its own
independent decisions to enter into that Transaction and as to whether that Transaction
is appropriate or proper for it based upon its own judgment and upon advice from such
advisers as it has deemed necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a recommendation to enter into
that Transaction; it being understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. No communication (written or oral)
received from the other party shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
	 
	 	(i)	 	Assessment and Understanding. It is capable of assessing the merits of and
understanding (on its own behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that Transaction.
	 
	 	(j)	 	Status of Parties. The other party is not acting as a fiduciary for or an
adviser to it in respect of that Transaction.






	(d)	 	Transfer. The following amendments are hereby made to Section 7:






	 	(i)	 	In the third line, insert the words “which consent will not be arbitrarily
withheld or delayed,” immediately before the word “except”; and
	 
	 	(ii)	 	in clause (a), insert the words “or reorganization, incorporation,
reincorporation, or reconstitution into or as,” immediately before the word “another.”






	(e)	 	Consent to Recording. Each party consents to the recording of telephone conversations
between the trading, marketing and other relevant personnel of the parties, with or without
the use of a warning tone, and their Affiliates in connection with this Agreement or any
potential Transaction.
	 
	(f)	 	Definitions. The following amendments are hereby made to Section 14:






	 	(i)	 	For purposes of (a) the Exposure Fee and (b) amounts owed to Aron by
Counterparty under Section 6 of the Agreement and Part 7(f) of the Agreement, as
applicable, upon an Early Termination Date as a result of the occurrence of (i) an
event listed in Part 1(i) (Additional Events of Default with respect to Counterparty),
(ii) an event listed in Part 1(j) (Additional Termination Events) or (iii) any other
Event of Default for which Counterparty is the sole Defaulting Party (each of (i), (ii)
and (iii), subject to any applicable cure periods, referred to herein as a “Trigger
Event”), the definition of “Default Rate” in Section 14 is hereby amended by deleting
it in its entirety and replacing it with the following:
	 
	 	 	 	“Default Rate” means (i) from the date of the Trigger Event until the date which is
one (1) month after such Trigger Event, the Initial Default Rate and (ii) from the
date beginning one (1) month after such Trigger Event until payment of any amount




11









 






	 	 	 	calculated to be due by Counterparty to Aron under Section 6 of the Agreement upon
an Early Termination Date as resulting from a Trigger Event, the Modified Default
Rate; provided, that each of the Initial Default Rate and the Modified
Default Rate shall be subject to the Default Rate Cap, and provided further, that
the Default Rate shall be no longer apply immediately upon the date that a Trigger
Event is no longer in effect or is otherwise cured, until such time as a Trigger
Event occurs subsequently.
	 
	 	 	 	For purposes of the foregoing, the following terms shall have the following
meanings,
	 
	 	 	 	“Default Rate Cap” means twenty-five percent (25%) of any amount calculated to be
due by Counterparty to Aron under Section 6 of the Agreement as a result of a
Trigger Event.
	 
	 	 	 	“Initial Default Rate” means a monthly rate equal to LIBOR plus 8%.
	 
	 	 	 	“LIBOR” means the rate (expressed as a percentage per annum) for overnight deposits
in Dollars that appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
relevant date. If Telerate Page 3750 does not include such a rate or is unavailable
on the relevant date, then Aron shall advise Counterparty of the London Interbank
Offered Rate for overnight deposits on the relevant date
	 
	 	 	 	“Modified Default Rate” means a rate equal to the Initial Default Rate, escalated
monthly by 2%.
	 
	 	(ii)	 	The definition of “Termination Currency Equivalent” in Section 14 is hereby
amended by deleting in its entirety the text after the first three lines thereof and
replacing it with the following:
	 
	 	 	 	“by the party making the relevant determination in any commercially reasonable
manner as being required to purchase such amount of such Other Currency as at the
relevant Early Termination Date, or, if the relevant amount determined in accordance
with Section 6(e) is determined as of a later date, that later date, for value on
the date the payment or settlement payment is due.”
	 
	 	(iii)	 	“Close-out Amount” means, with respect to each Terminated Transaction or each
group of Terminated Transactions and a Determining Party, the amount of the losses or
costs of the Determining Party that are or would be incurred under then prevailing
circumstances (expressed as a negative number) in replacing, or in providing for the
Determining Party the economic equivalent of, (a) the material terms of that Terminated
Transaction or group of Terminated Transactions that would, but for the occurrence of
the relevant Early Termination Date, have been required after that date (assuming
satisfaction of the conditions precedent in Section 2(a)(iii)) and (b) the option
rights of the parties in respect of that Terminated Transaction or group of Terminated
Transactions.
	 
	 	 	 	Any Close-out Amount will be determined by the Determining Party (or its agent),
which will act in good faith and use commercially reasonable procedures in order to
produce a commercially reasonable result. The Determining Party may determine a
Close-out Amount for any group of Terminated Transactions or any individual
Terminated Transaction but, in the aggregate, for not less than all Terminated
Transactions. Each Close-out Amount will be determined as of the Early Termination
Date or, if that would




12









 






	 	 	 	not be commercially reasonable, as of the date or dates following the Early
Termination Date as would be commercially reasonable.
	 
	 	 	 	Unpaid Amounts in respect of a Terminated Transaction or group of Terminated
Transactions and legal fees and out-of-pocket expenses referred to in Section 11 are
to be excluded in all determinations of Close-out Amounts.
	 
	 	 	 	In determining a Close-out Amount, the Determining Party may consider any relevant
information, including, without limitation, one or more of the following types of
information:-






(i) quotations (either firm or indicative) for replacement transactions supplied by
one or more third parties that may take into account the creditworthiness of the
Determining Party at the time the quotation is provided and the terms of any
relevant documentation, including credit support documentation, between the
Determining Party and the third party providing the quotation;




(ii) information consisting of relevant market data in the relevant market supplied
by one or more third parties including, without limitation, relevant rates, prices,
yields, yield curves, volatilities, spreads, correlations or other relevant market
data in the relevant market; or




(iii) information of the types described in clause (i) or (ii) above from internal
sources (including any of the Determining Party’s Affiliates) if that information is
of the same type used by the Determining Party in the regular course of its business
for the valuation of similar transactions.




The Determining Party will consider, taking into account the standards and
procedures described in this definition, quotations pursuant to clause (i) above or
relevant market data pursuant to clause (ii) above unless the Determining Party
reasonably believes in good faith that such quotations or relevant market data are
not readily available or would produce a result that would not satisfy those
standards. When considering information described in clause (i), (ii) or (iii)
above, the Determining Party may include costs of funding, to the extent costs of
funding are not and would not be a component of the other information being
utilized. Third parties supplying quotations pursuant to clause (i) above or market
data pursuant to clause (ii) above may include, without limitation, dealers in the
relevant markets, end-users of the relevant product, information vendors, brokers
and other sources of market information.




Without duplication of amounts calculated based information described in clause (i),
(ii) or (iii) above, or other relevant information, and when it is commercially
reasonable to do so, the Determining Party may in addition consider in calculating a
Close-out Amount any loss or cost incurred in connection with its terminating,
liquidating or re-establishing any hedge related to a Terminated Transaction or
group of Terminated Transactions (or any gain resulting from any of them).




Commercially reasonable procedures used in determining a Close-out Amount may
include the following:-



13









 






(1) application to relevant market data from third parties pursuant to clause (ii)
above or information from internal sources pursuant to clause (iii) above of pricing
or other valuation models that are, at the time of the determination of the
Close-out Amount, used by the Determining Party in the regular course of its
business in pricing or valuing transactions between the Determining Party and
unrelated third parties that are similar to the Terminated Transaction or group of
Terminated Transactions; and




(2) application of different valuation methods to Terminated Transactions or groups
of Terminated Transactions depending on the type, complexity, size or number of the
Terminated Transactions or group of Terminated Transactions.




	(g)	 	Set-off. The parties agree to amend Section 6 by adding a new Section 6(f) as follows:
	 
	 	 	“(f) Upon the occurrence of an Event of Default or Termination Event under Section 5(b)(iv)
with respect to a party (“X”), the other party (“Y”) will have the right (but not be
obliged) without prior notice to X or any other person to set-off or apply any matured
payment obligation of X owed to Y (or any Affiliate of Y) (whether or not arising under this
Agreement, and regardless of the currency, place of payment or booking office of the
obligation) against any obligation of Y (or any Affiliate of Y) owed to X (whether or not
arising under this Agreement, and regardless of the currency, place of payment or booking
office of the obligation). Y will give notice to the other party of any set-off effected
under this Section 6(f). X will give notice to the other party of any setoff effected under
this Section 6(f).
	 
	 	 	Amounts (or the relevant portion of such amounts) subject to set-off may be converted by Y
into the Termination Currency at the rate of exchange at which such party would be able,
acting in a reasonable manner and in good faith, to purchase the relevant amount of such
currency.
	 
	 	 	If any obligation is unascertained, Y may in good faith estimate that obligation and set-off
in respect of the estimate, subject to the relevant party accounting to the other when the
obligation is ascertained.
	 
	 	 	Nothing in this Section 6(f) shall be effective to create a charge or other security
interest. This Section 6(f) shall be without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to which any party is at any time
otherwise entitled (whether by operation of law, contract or otherwise).”
	 
	(h)	 	Definitions. This Agreement, each Confirmation and each Transaction is subject to the 2005
ISDA Commodity Derivatives Definitions, as published by ISDA (together, the “Definitions”),
and will be governed in all respects by the Definitions (except that references to “Swap
Transactions” in the Definitions will be deemed to be references to “Transactions”). The
Definitions are incorporated by reference in, and made part of, this Agreement and each
Confirmation as if set forth in full in this Agreement and such Confirmations. In the event
of any inconsistency between the provisions of this Agreement and the Definitions, this
Agreement will prevail. Subject to Section 1(b), in the event of any inconsistency between
the provisions of any Confirmation, this Agreement, and the Definitions, such Confirmation
will prevail for the purpose of the relevant Transaction.
	 
	(i)	 	Waiver of Trial by Jury. Each party hereby irrevocably waives any and all right to trial by
jury in any Proceeding.




14









 












	(j)	 	Confirmations. Counterparty shall be deemed to have agreed to the terms contained in any
Confirmation (as amended and revised) sent by Aron to Counterparty unless Counterparty objects
to such terms within three (3) Business Days of receipt.





Part 6. Disruption Fallbacks





	(a)	 	The following “Disruption Fallbacks” specified in Section 7.5(c) of the Definitions shall
apply, in the following order, except as otherwise specified in the relevant Confirmation:






	 	(i)	 	“Fallback Reference Dealers”;
	 
	 	(ii)	 	“Postponement”, with two (2) Commodity Business Days as the Maximum Days of Disruption;
	 
	 	(iii)	 	“Fallback Reference Price”;
	 
	 	(iv)	 	“Negotiated Fallback”; and
	 
	 	(v)	 	“Calculation Agent Determination”.






	(b)	 	Section 7.5(e) of the Commodity Definitions is hereby deleted in its entirety.
	 
	(c)	 	Section 6.2(b) of the Commodity Definitions is hereby amended by deleting the words “, as
determined on the Trade Date of the Transaction as of the time of execution of the Transaction”.





Part 7. Covered Transaction Provisions





	(a)	 	Preliminary Statements. Counterparty wishes to enter into certain Crack Spread Hedge
Agreements with Aron from time to time, and Aron has agreed to provide pricing to Counterparty
for such transactions, all on and subject to the terms and conditions set forth herein. To
induce Aron to enter into this Agreement, Counterparty has agreed to provide credit support to
Aron in the form of mortgages, guaranties and other security documents as set forth in this
Agreement. Accordingly, Aron and Counterparty hereby agree to the following terms and
conditions.
	 
	(b)	 	Certain Definitions. Certain terms used in this Agreement have the meanings assigned to them
in clause (n) below.
	 
	(c)	 	Scope of Master Agreement. This Agreement shall apply to all Covered Transactions and shall
not apply to any other Transactions entered into between Aron and Counterparty.
	 
	(d)	 	Certain Conditions for Entering into Covered Transactions. The parties acknowledge and agree
that subject to the Maximum Total Capacity, Aron and Counterparty may enter into Covered
Transactions with each other at any time and from time to time during the Trading Period (if
each of Aron and Counterparty mutually agree in their sole discretion to do so), provided that
each of the following conditions are satisfied (or if not satisfied, waived by Aron in its
sole discretion) both prior to and after giving effect to such Transaction:






15











 






	 	(1)	 	the Covered Transactions Mark-to-Market Amount does not exceed the sum of (i)
the Required LC Amount and (ii) the Optional Additional Collateral by more than U.S.
$50,000,000; provided, that the foregoing condition shall apply only with
respect to Transactions that have or fix a price for a term including the period
between January 2011 and the Scheduled Maturity Date, or any portion thereof’
	 
	 	(2)	 	the Consolidated Leverage Ratio is equal to or less than 4.00 to 1.00 (or 3.75
to 1.0 after June 30, 2009);
	 
	 	(3)	 	the Volume Limitations are not exceeded;
	 
	 	(4)	 	no Transaction has, or fixes a price for, a term including any month later than
sixty (60) calendar months from the first day of the month immediately following the
month such Transaction is entered into;
	 
	 	(5)	 	with respect to Transactions accepted by Aron from third-party dealers pursuant
to the terms of any tri-party arrangement between Aron, Counterparty and another
counterparty, the following conditions shall apply: (i) the volume of such Transactions
accepted by Aron does not exceed (A) 15,000 U.S. Barrels per day of Crack Spread Hedges
for the current calendar month and the twenty-three (23) calendar months immediately
following the month such Transaction is entered into and (B) 10,000 U.S. Barrels per
day of Crack Spread Hedges thereafter; (ii) the limitations and other requirements set
forth in such tri-party arrangement (including relevant timeframes for accepting
Transactions) shall have been satisfied or waived by Aron in its sole discretion and
(iii) for Transactions relating to the period referenced in (i)(B) of this clause (5),
if at any time Counterparty determines to enter into a Crack Spread Hedge Agreement
with a third party other than Aron, Counterparty shall have (1) notified Simon Collier
or Aimee Carroll, or their respective designees provided to Counterparty in writing, of
such determination by telephone at (212) 902-0776 or in person prior to entering into
such Crack Spread Hedge Agreement with such third party and (2) provided Aron with a
reasonable timeframe after such notification for providing pricing with respect to such
Crack Spread Hedge Agreement (such timeframe not to exceed fifteen (15) minutes from
the time of notification by Counterparty to Aron); provided, that such
notification shall be deemed effective only to the extent made by Counterparty to Aron
on a Local Business Day between the hours of 10:00 A.M. and 2:30 P.M. Eastern
Prevailing Time; provided, further, that subject to the timeframe set forth
therein, with respect to clause (2), Aron shall make reasonable efforts to provide
pricing as expeditiously as possible after notification by Counterparty to Aron. In
the event that Aron provides the pricing equivalent to such third party for such Crack
Spread Hedge Agreement, Counterparty shall enter into the Crack Spread Hedge Agreement
with Aron.
	 
	 	 	 	For the avoidance of doubt, failure to satisfy the conditions set forth in this
clause (5) shall not otherwise prevent Aron and Counterparty from entering into
Covered Transactions pursuant to this Agreement;
	 
	 	(6)	 	each representation of Counterparty set forth herein is true and correct on
such date as if made on and as of such date; and
	 
	 	(7)	 	no Event of Default or Potential Event of Default has occurred and is then continuing.




16









 












	 	 	Except with respect to the Initial Transactions, Aron and Counterparty agree not to enter
into any Transaction under this Agreement that includes a swap that, evaluated in isolation
from any other components of such Transaction (including options, other swaps, floors,
collars and the like), is not based on “costless” swap prices prevailing at the time of such
Transaction. For the avoidance of doubt, it is understood that Counterparty may from time
to time request Aron to enter into one or more Transactions under this Agreement with swap
prices above or below the “costless” swap prices prevailing at the time such Transaction is
entered into and if such adjustment to such swap prices results from an embedded option
(sold or purchased) included in such Transaction then such Transactions (and other similar
transactions) are expressly permitted under this Agreement. For the purpose of determining
whether a Transaction is based on “costless” swap prices, Aron will exclude any adjustment
to the strike price of such Transaction arising from the application of the Facility Fee.
	 
	(e)	 	Voluntary Termination. Upon not less than sixty (60) days’ prior written notice to Aron,
Counterparty may terminate the Trading Period (and, accordingly, terminate the ability of the
parties to enter into further Covered Transactions hereunder and the obligations of Aron under
clause (d) above) without any penalty or other damage payment to Aron other than as set forth
in this Part 7(e) (such termination, the “Voluntary Trading Period Termination”, and the
effective date of such termination, the “Voluntary Trading Period Termination Date”), provided
that:






	 	(1)	 	Counterparty shall assign and novate its rights and obligations arising under
the Covered Transactions hereunder in whole or in part to one or more counterparties
acceptable to J. Aron with prior written notice to J. Aron; provided, that in
connection with such assignment and novation, in no event shall J. Aron be responsible
for the payment of any amounts to Counterparty or the party to whom the assignment and
novation is made in consideration of or in relation to the assignment and novation
specifically, or
	 
	 	(2)	 	Counterparty shall enter into an agreement with J. Aron to terminate and
settle, in whole or in part, this Agreement and the Covered Transactions hereunder.






	(f)	 	Secured Trading Line Fees. Counterparty hereby agrees to pay to Aron the following fees:






	 	(1)	 	Facility Fees. Except with respect to the Initial Transactions, Counterparty
shall pay Aron a fee (the “Facility Fee”) equal to U.S. $0.10 per Barrel for each
Covered Transaction which is accepted by Aron pursuant to the terms of any tri-party
agreement entered into between Aron, Counterparty and another counterparty;
provided, that (i) in the case of the Initial Transactions, the Facility Fee
shall be equal to U.S. $0.05 per Barrel and (ii) in the case of Covered Transactions
which are swap transactions, Counterparty may elect to pay Aron such Facility Fee over
the term of such Transaction by entering into an amendment with Aron to such
Transaction to amend the strike price by an amount equal to U.S. $0.10 in favor of
Aron, such amendment to be acceptable to Aron in its sole discretion.
	 
	 	 	 	“Initial Transactions” means the transactions set forth on Exhibit 1 which may be
accepted by Aron subject to (i) the terms of tri-party agreements to be entered into
between Aron, Counterparty and such other counterparties identified on Exhibit 1,
such agreements to be mutually agreed among Aron, Counterparty and such third party
and (ii) confirmations between (a) Counterparty and such other counterparties
identified on




17









 






	 	 	 	Exhibit 1, (b) Aron and Counterparty and (c) Aron and such other counterparties
identified on Exhibit 1, each of which are acceptable to Aron; provided that such
transactions shall constitute Initial Transactions only to the extent such
transactions are assigned to Aron within sixty (60) days of the March 17, 2006.
	 
	 	(2)	 	Exposure Fees. On the first Local Business Day of each month following the
Exposure Fee Accrual Period, Counterparty shall pay to Aron an exposure fee (the
“Exposure Fees”) in an amount equal to:






	 	(x)	 	the Daily Average Covered Transactions Mark-to-Market Amount
for such Exposure Fee Accrual Period; multiplied by
	 
	 	(y)	 	the Default Rate.






	 	 	 	As used herein:
	 
	 	 	 	      “Daily Average Covered Transactions Mark-to-Market Amount” means, for any
Exposure Fee Accrual Period, the average, for each Local Business Day during such
Exposure Fee Accrual Period, of the greater of (1) the Covered Transactions
Mark-to-Market Amount for such Local Business Day and (2) zero.
	 
	 	 	 	      “Exposure Fee Accrual Period” means each period, beginning on the date of a
Trigger Event and ending on the date on which Counterparty indefeasibly pays in full
all amounts owing to Aron pursuant to Section 6 of the Agreement.
	 
	 	(3)	 	Fees Non-Refundable. All Exposure Fees, once paid, are non-refundable.






	(g)	 	Volume Limitations. Counterparty hereby agrees that it shall not enter into, or have
outstanding, any Crack Spread Hedge Agreements other than Crack Spread Hedge Agreements
entered into with the purpose and effect of hedging price risk on fuels expected to be
produced and sold by the Counterparty, provided that at all times:






	 	(1)	 	the Net Contract Volume for each single day (determined, in the case of Crack
Spread Hedge Agreements that are not settled on a daily basis, by a daily proration
acceptable to Aron) is greater than zero and less than the Maximum Total Capacity; and
	 
	 	(2)	 	the Net Volume for each single future month (determined, in the case of Crack
Spread Hedge Agreements that are not settled on a monthly basis, by a monthly proration
acceptable to Aron) is greater than zero and less than or equal to 80% of
Counterparty’s estimated fuels production for such month.





     The restrictions set forth in this clause (g) are referred to herein as the “Volume
Limitations”.




	(h)	 	Volume Reports. Counterparty hereby agrees to deliver to Aron, promptly following (but in any
event no later than 60 days after) June 30 in each year (commencing with June 30, 2006, a
report as of such June 30 certified by an appropriately authorized officer of Counterparty,
each such report, a “Volume Report”) setting forth in reasonable detail the volumes of fuel
covered by each Crack Spread Hedge Agreement to which Counterparty is a party, broken out
monthly and separately identifying Net Volumes and Net Contract Volumes for Counterparty for
such month, volumes for Long Price Hedges and Short Price Hedges for such month (each broken
out for Crack Spread Hedge Agreements under this Agreement and Crack Spread Hedge Agreements
not




18









 






	 	 	under this Agreement) and volumes of estimated fuels for such month, all in form, scope and
detail satisfactory to Aron and setting forth such supporting detail as Aron may request.
Each Volume Report shall be addressed to Aron and shall be accompanied by a certificate of a
Financial Officer of Counterparty to the effect that such Volume Report is a true and
correct copy thereof. In addition, Counterparty shall from time to time deliver to Aron all
other information, reports and data which Aron has requested in connection with the Volume
Reports.
	 
	(i)	 	Certain Conditions Precedent. No Covered Transaction, or any extension or renewal thereof,
may be entered into, and the obligations of Aron under clause (d) of this Part 7 shall not
become effective, until the date on which Aron shall have received, reviewed or completed each
of the following, each satisfactory to it in form and substance:






	 	(1)	 	Executed Counterparts. From Counterparty,






	 	(a)	 	an executed counterpart of this Agreement (including the
Schedule to this Agreement) signed on behalf of Counterparty, and
	 
	 	(b)	 	executed copies of the PP&E Credit Agreement, the ABL Credit
Agreement, the Security Agreement (as defined in the PP&E Credit Agreement),
the other Loan Documents and all other documents relating to the PP&E Credit
Agreement, the ABL Credit Agreement and any other financing arrangements, in
form and substance satisfactory to Aron and certified as true, correct and
complete copies by a Financial Officer of Counterparty,
	 
	 	(c)	 	executed and notarized copies of all Mortgage Instruments,
Mortgage Policies and other documents required to be delivered to the
Administrative Agent under Section 5.01(d) of the PP&E Credit Agreement and the
Agent under Section 6.1(d) of the ABL Credit Agreement,
	 
	 	(d)	 	(i) copies of insurance policies or certificates of insurance
evidencing liability, casualty insurance and business interruption insurance
meeting the requirements set forth in Section 5.01(e) of the PP&E Credit
Agreement, which shall be satisfactory to Aron, including, but not limited to,
naming Aron as additional insured and loss payee, and (ii) a certificate, dated
the Effective Date, of a Financial Officer of Counterparty setting forth the
insurance obtained by it in accordance with the requirements of this Part 7 and
stating that such insurance is in full force and effect and that all premiums
then due and payable thereon have been paid, and
	 
	 	(e)	 	executed copies of each Material Agreements. For purposes of
the foregoing, “Material Agreements” means any agreement or arrangement to
which Counterparty or any Domestic Entity is a party (i) that is deemed to be a
material contract under any securities law applicable to Counterparty or any
Domestic Entity, including the Securities Act of 1933, as amended.






	 	(2)	 	Part 3 Documents. Each document referred to in Part 3 that is required to be
delivered upon execution of this Agreement.
	 
	 	(3)	 	Opinion of Counsel to Counterparty. A reliance letter (addressed to Aron and
dated the Effective Date) of Fulbright & Jaworski L.L.P., counsel for Counterparty and
the Credit Support Providers, in form and substance satisfactory to Aron, with respect
to (i) the




19









 






	 		 	opinion letter, dated as of January 3, 2008 and delivered by Fulbright & Jaworski
L.L.P. to Bank of America, N.A., as Agent for each of the lenders party to the PP&E
Credit Agreement and (ii) the opinion letter, dated as of January 3, 2008 and
delivered by Fulbright & Jaworski L.L.P. to Bank of America, N.A., as Agent for each
of the lenders party to the ABL Credit Agreement.
	 
	 	(4)	 	Corporate and Partnership Documents. Such documents and certificates as Aron
may reasonably request relating to the organization, existence and good standing of
Counterparty, each Credit Support Provider and of Counterparty’s general partner, the
authorization of the transactions contemplated hereby and any other legal matters
relating to Counterparty and the Credit Support Providers and Counterparty’s general
partner, this Agreement, the other Secured Trading Line Documents or the transactions
contemplated hereby and thereby as Aron may reasonably request, all in form and
substance satisfactory to Aron.
	 
	 	(5)	 	Officer’s Certificate. A certificate, dated the Effective Date and signed by a
Financial Officer of each Counterparty, acting for and on behalf of each Counterparty,
confirming that each representation of Counterparty set forth herein and in Section 3
of the Agreement, incorporated by reference herein in each case with respect to each of
the documents referred to in Part 3, is true and correct on such date as if made on and
as of such date and that no Event of Default or Potential Event of Default has occurred
and is then continuing.
	 
	 	(6)	 	UCC, Tax Lien and Judgment Searches. Reports, dated as of a date substantially
contemporaneous with the PP&E Credit Agreement and reasonably satisfactory to Aron
listing the results of Uniform Commercial Code filing, tax lien, and judgment searches
prepared by one or more firms satisfactory to Aron with respect to each Counterparty in
each jurisdiction in which it maintains its principal place of business or in which any
of the PP Collateral is located.
	 
	 	(7)	 	Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement) required by the Credit Support Documents or under
law or reasonably requested by Aron to be filed, registered or recorded in order to
create in favor of Aron a perfected Lien on the collateral described therein, and each
such document shall be in proper form for filing, registration or recordation. In
addition, Counterparty shall have taken such other action as Aron shall have requested
in order to perfect the security interests created under the Collateral Documents and
the Security Documents.
	 
	 	(8)	 	Operational and Environmental Reports. Aron shall have received the following
reports, each in form and substance satisfactory to the Aron: (i) an operational report
prepared in connection with the PP&E Credit Agreement by Purvin & Gertz with respect to
the Refinery Properties and (ii) and environmental report prepared in connection with
the PP&E Credit Agreement by Arcadis covering the Refinery Properties and such other
Real Properties as requested by Aron.
	 
	 	(9)	 	Solvency. A Solvency Certificate of Counterparty and each other initial Credit
Support Provider dated as of the Effective Date.
	 
	 	(10)	 	Fees. Such other fees and expenses as Counterparty shall have agreed in
writing to pay to Aron in connection herewith.




20









 






	 	(11)	 	Other Documents. Such other documents as Aron may reasonably request.






	(j)	 	Additional Collateral.






	 	(a)	 	Mandatory Additional Collateral. If on any date the
Consolidated Leverage Ratio is greater than or equal to 4:00 to 1.0 (or 3.75 to
1.0 after June 30, 2009), then, upon request from Aron, Counterparty shall, at
its own cost and expense, promptly (and in any event within one Local Business
Day after the date of such request) deliver to Aron Eligible Collateral having
an aggregate Value equal to the excess, if any, of the Covered Transactions
Mark-to-Market Amount over the sum of the following: (i) the Required LC
Amount; (ii) the Optional Additional Collateral, if any; and (iii)
U.S.$25,000,000 (such collateral, the “Mandatory Additional Collateral”).
	 
	 	(b)	 	Optional Additional Collateral. If on any date, the Covered
Transactions Mark-to-Market Amount exceeds U.S. $100,000,000, Counterparty may
elect to deliver to Aron Eligible Collateral in order to facilitate additional
Covered Transactions under this Agreement (such collateral, the “Optional
Additional Collateral”), subject to Counterparty and Aron entering into a
Credit Support Annex, the terms of which shall be satisfactory to Aron in its
sole discretion.






	(k)	 	Additional Covenants.






	 	(a)	 	Counterparty covenants and agrees, for the benefit of Aron, to:






	 	(1)	 	deliver to Aron all of the statements, certificates, notices
and other information delivered to any Lender or Required Lender or the
Administrative Agent under Sections 7.01, 7.02 and 7.03 of the PP&E Credit
Agreement; provided, that concurrent with the deliverables required
pursuant to Section 7.02(b), Counterparty shall deliver to Aron a certificate
of a Financial Officer of Counterparty stating the current outstanding amount
of funded Indebtedness under the PP&E Credit Agreement as of such date;
	 
	 	(2)	 	except as set forth in clause (k)(1), perform, comply with and
be bound by each of its covenants, agreements and obligations contained in
Articles 7 and 8 of the PP&E Credit Agreement (other than (i) Sections 7.11,
7.12, 8.10 and 8.16 and (ii) those subsections referred to in clause (1)
above);
	 
	 	(3)	 	notify Aron of each proposed amendment, modification and
supplement to, and waiver of any provision under, the PP&E Credit Agreement,
the ABL Credit Agreement and the other Loan Documents; and
	 
	 	(4)	 	provide Aron with annual updates relating to each Material
Contract, including, but not limited to amendments, waivers, modifications or
additional Material Contracts.






	 	(b)	 	Counterparty covenants and agrees, for the benefit of Aron, that it shall not,
without the consent of Aron, (A) amend, change, waive, discharge or terminate either
Section 9.03 of the PP&E Credit Agreement or Section 9 of the Security
Agreement so as to alter the manner of application of any payment of proceeds of
Collateral so as to provide for





21









 





	 	 	 	distributions in respect of the obligations under the Crack Spread Hedge Agreement
to any such Approved Counterparty on a basis less favorable than ratably with the
principal obligations under the Term Loans, (B) change the definition of “Approved
Counterparties” set forth in Section 1.01 of the PP&E Credit Agreement in a manner
adverse to any such Approved Counterparty, (C) change the definition of “Secured
Obligations” set forth in the Security Agreement so as to exclude any obligations of
the applicable Consolidated Party(ies) existing under any Secured Crack Spread Hedge
Agreement to which any such Approved Counterparty is a party that would have been
included prior to such change or (D) amend, change, waive discharge or terminate
Section 11.01(a)(v) of the PP&E Credit Agreement. Notwithstanding anything
herein to the contrary, for purposes of this clause (b) of Part 7(k), the terms
“Collateral”, “Crack Spread Hedge Agreement”, “Approved Counterparty”, “Term Loans”,
“Consolidated Party(ies)”, “Security Agreement”, “Secured Crack Spread Hedge
Agreement” shall have the meanings ascribed to such terms in the PP&E Credit
Agreement.






	 	 	Without limiting the generality of the foregoing, the provisions of the PP&E Credit
Agreement referred to in clauses (a)(2) and (b)(1) above, together with related definitions
and ancillary provisions and schedules and exhibits, are hereby incorporated herein by
reference, as if set forth herein in full, mutatis mutandis; provided that, as incorporated
herein (unless the context otherwise requires):






	 	(i)	 	each reference therein to “this Agreement”, “the Loans”, “the Term Loans”, “the
Commitments”, “the Obligations”, “the Credit-Linked Letters of Credit” or “the Loans”
or any other like term shall be deemed to be a reference to this Agreement and the
Transactions hereunder, as the case may be;
	 
	 	(ii)	 	each reference therein to any “Administrative Agent”, any “Lender” or the
“Required Lenders” or the “Secured Parties” or the “PP&E Secured Parties” or any other
like term shall be deemed to be a reference to Aron hereunder;
	 
	 	(iii)	 	each reference therein to the “Loan Documents” or the like shall be deemed to
be a reference to the Secured Trading Line Documents; and
	 
	 	(iv)	 	each reference therein to the “Collateral” or the like shall be deemed to be a
reference to the Collateral as defined herein.






	(l)	 	Guarantors. Without limiting the provisions of Section 7.13 of the PP&E Credit Agreement, if
any domestic Subsidiary is created or acquired after the Effective Date by Counterparty,
Counterparty shall promptly cause such Subsidiary to become a Guarantor under the Guaranty
(and, accordingly, a Credit Support Provider of Counterparty hereunder), and to take such
actions and execute and deliver to Aron such documents with respect to such Subsidiary that
are consistent with the actions taken and documents delivered with respect to Counterparty
pursuant to clause (i) of this Part 7.
	 
	(m)	 	Further Assurances. Counterparty shall from time to time execute and deliver, or cause to be
executed and delivered by Counterparty, such additional mortgages, deeds of trust, chattel
mortgages, security agreements, financing statements, reports, instruments, legal opinions,
certificates or documents, all in form and substance satisfactory to Aron, and take all such
actions as may be requested hereunder or as Aron may reasonably request, in each case for the
purposes of implementing or further effectuating the provisions of this Agreement and the
other Secured Trading Line Documents, or of more fully perfecting or renewing the rights of
Aron with respect




22









 






	 	 	to the Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by Counterparty
or any Subsidiary Guarantor which may be deemed to be part of the Collateral) pursuant
hereto or thereto. Upon the exercise by Aron of any power, right, privilege or remedy
pursuant to this Agreement or the other Secured Trading Line Documents that requires any
consent, approval, recording qualification or authorization of any governmental authority,
the Counterparty shall execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that Aron may be
required to obtain from the Counterparty or any of the Subsidiary Guarantors for such
governmental consent, approval, recording, qualification or authorization.
	 
	(n)	 	Certain Definitions. The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
The word “will” shall be construed to have the same meaning and effect as the word “shall”.
The term “date hereof” refers to the date of this Agreement first above written. Unless the
context requires otherwise (1) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, supplemented or otherwise modified (subject
to any restrictions on such amendments, restatements, supplements or modifications set forth
therein or herein), (2) references to any law, constitution, statute, treaty, regulation, rule
or ordinance, including any section or other part thereof (each, for purposes of this
paragraph, a “law”), shall refer to that law as amended from time to time and shall include
any successor law, (3) any reference herein to any Person shall be construed to include such
Person’s successors and permitted assigns, (4) the words “herein”, “hereof” and “hereunder”,
and words of similar import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof and (5) all references herein to Sections, Parts,
Annexes, Schedules and Exhibits shall be construed to refer to Sections and Parts of, and
Annexes, Schedules and Exhibits to, this Agreement.
	 
	 	 	As used herein, the following terms have the meanings given to them below:
	 
	 	 	           “ABL Collateral” means the “Working Capital Collateral” as defined in the
Intercreditor Agreement.
	 
	 	 	           “ABL Credit Agreement” means that certain Credit Agreement, dated as of January 3,
2008, among the Counterparty, Calumet Shreveport, LLC, Calumet Shreveport Lubricants &
Waxes, LLC, and Calumet Shreveport Fuels, LLC, as Borrowers, Certain Financial Institutions
party thereto, as Lenders and Bank of America, N.A., as Agent and Banc of America Securities
LLC, as Sole Lead Arranger and Sole Book Manager, after giving immediate effect to any
amendments, modifications or supplements thereto, or waiver thereof, after the date the ABL
Credit Agreement becomes effective, without necessity for any act by Aron.
	 
	 	 	           “Aron Letter of Credit” one or more Letters of Credit naming Aron (or an Affiliate
thereof designated by Aron) as beneficiary in an initial stated amount of $50,000,000.
	 
	 	 	           “Cash” means the lawful currency of the United States of America..
	 
	 	 	           “Calumet Company” means Counterparty and each of its Subsidiaries.




23









 






	 	 	           “Collateral” means, collectively, the PP&E Collateral, the ABL Collateral and all other
collateral pledged by Counterparty and the Credit Support Providers to Aron under the
Secured Trading Line Documents.
	 
	 	 	           “Collateral Documents” has the meaning set forth in the PP&E Credit Agreement.
	 
	 	 	           “Consolidated Leverage Ratio” has the meaning set forth in the PP&E Credit Agreement.
	 
	 	 	           “Covered Transaction” means, individually and in the aggregate, all Transactions which
are Specified Crack Spread Transactions entered into between Aron and Counterparty (so long
as the conditions set forth in clauses (d) and (i) of Part 7 of this Agreement are satisfied
(and with respect to clause (i) of Part 7, both prior to and after giving effect to such
Transaction); provided, however, that Aron may, in its sole discretion, elect to
include a Transaction which is not a Covered Transaction evidenced by long form
Confirmations within the scope of this Agreement under terms, including extraordinary credit
terms to be set by Aron, to be agreed by Aron and Counterparty.
	 
	 	 	           “Covered Transactions Mark-to-Market Amount” means the aggregate mark-to-market
position of all Covered Transactions as determined by the Calculation Agent in a
commercially reasonable manner at the close of each Local Business Day. If such position is
in favor of Aron, the Covered Transactions Mark-to-Market Amount will be stated as a
positive number. If such position is in favor of Counterparty (to be construed in the
aggregate), the Covered Transactions Mark-to-Market Amount will be stated as a negative
number.
	 
	 	 	           “Crack Spreads” means the spread created by the purchase of crude oil for delivery in
the future and the sale of gasoline and/or diesel, jet fuel and heating oil under contract
for future delivery.
	 
	 	 	           “Crack Spread Hedge” means a cash-settled commodity transaction (including an option,
swap, floor, cap, collar, forward sale or forward purchase) which is provided for the
purpose of managing its risk with respect to the spread created by the purchase by a party
of crude oil for delivery in the future and the sale by such party of gasoline and/or
diesel, jet fuel and heating oil under contract for future delivery (regardless of whether
such transaction is effected by means of a futures contract or an over-the-counter hedging
agreement).
	 
	 	 	           “Crack Spread Hedge Agreement” means any agreement (including each Confirmation)
evidencing a Crack Spread Hedge.
	 
	 	 	           “Credit Support Provider” means, collectively:






	 	(a)	 	each Counterparty; and
	 
	 	(b)	 	each Calumet Company (other than Counterparty) that is a
mortgagor under a Mortgage Instrument or a Guarantor under the Guaranty.






	 	 	           “Daily Average Covered Transactions Mark-to-Market Amount” has the meaning set forth
in Part 7(f)(3).
	 
	 	 	           “Effective Date” means January 3, 2008.




24









 






	 	 	 	“Eligible Collateral” means Cash or Letters of Credit.






	 	 	           “Eligible Financial Institution” means a U.S. commercial bank or a foreign bank with a
U.S. branch with such bank having a credit rating of at least A- from S&P or A3 from
Moody’s.






	 	 	 	“Exposure Fee” has the meaning set forth in Part 7(f)(3) of this Agreement.
	 
	 	 	 	“Exposure Fee Accrual Period” has the meaning set forth in Part 7(f)(3) of this
Agreement.
	 
	 	 	 	“Facility Fee” has the meaning set forth in Part 7(f)(2) of this Agreement.
	 
	 	 	 	“Facility Termination Date” means the earlier of:






	 	(a)	 	the Scheduled Maturity Date; and
	 
	 	(b)	 	the first day following the Voluntary Trading Period
Termination Date (if any) on which no Covered Transaction is outstanding.






          ”Financial Officer” means, as to any Counterparty or any of the Credit Support
Providers, the chief financial officer, treasurer or other officer thereof acceptable to
Aron.




          “Guarantors” means “Guarantor” as defined in the PP&E Credit Agreement and “Guarantor”
as defined in the ABL Credit Agreement.




          “Guaranty” has the meaning set forth in the PP&E Credit Agreement.




          “Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of
January 3, 2008, among the Counterparty, as the Company and as a Grantor and certain
affiliates of the Company, as Grantor, and Bank of America, N.A., as the Working Capital
Agent and Bank of America, N.A., as the Term Loan Agent and Bank of America, N.A., as the
Control Agent which is attached as Annex A hereto, without giving effect to any amendments,
modifications or supplements thereto, or waiver or termination thereof, after the date the
Intercreditor Agreement becomes effective; provided that if Aron (in its sole discretion)
consents to such amendment, modification, supplement or waiver of the Intercreditor
Agreement on or after the date the Intercreditor Agreement becomes effective, then the term
“Intercreditor Agreement” shall refer to the Intercreditor Agreement as so amended,
modified, supplemented or waived.




          “Involuntary Disposition Prepayment Event has the meaning set forth in the PP&E Credit
Agreement.




          “Letters of Credit” means one or more irrevocable, transferable standby letters of
credit which are in a form and substance acceptable to Aron in its sole discretion and are
issued by an Eligible Financial Institution for the account of Counterparty or one of its
Affiliates and for the benefit of Aron. Costs of the Aron Letter of Credit shall be borne by
Counterparty. For purposes of determining the amount of the Aron Letter of Credit, the
amount of such Aron Letter of Credit shall equal its face value at the time of valuation
unless it expires within twenty (20) days of such time, in which case its value shall be
zero and Aron shall be entitled to draw down the Letter of Credit up to its full face amount
to hold as Credit Support.



25









 






          “Letter of Credit Default” means, with respect to any Letter of Credit, the related
issuing bank (a) becomes subject to any event analogous to an event specified in Section
5(a)(vii) of this Agreement, (b) fails to comply with or perform its obligations under such
Letter of Credit if such failure shall continue after the lapse of any applicable grace
period, (c) shall disaffirm, disclaim, repudiate or reject, in whole or in part, or
challenge the validity of such Letter of Credit or (d) ceases to be an Eligible Financial
Institution.




          “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real property, and any financing
lease having substantially the same economic effect as any of the foregoing).




          “Loan Documents” means the “Loan Documents” as defined in the PP&E Credit Agreement .




          “Mandatory Additional Collateral” has the meaning set forth in Part 7(j)(a) of this
Agreement.




          “Material Adverse Effect” means “Material Adverse Effect” as defined in the PP&E Credit
Agreement; provided that references to “Loan Documents” shall be deemed to be
references to this Agreement.




          “Maximum Total Capacity” means (i) 25 thousand U.S. Barrels per day of Crack Spread
Hedges for the current calendar month and the subsequent twenty-three (23) calendar months,
or (ii) 20 thousand U.S. Barrels per day of Crack Spread Hedges for the period thereafter.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Net Contract Volume” means, for each month as at any date of determination, an amount
(which may be less than zero) equal to:




	 	(x)	 	the aggregate notional quantity or volume of Crack Spreads for
that month under all outstanding Short Price Hedges under this Agreement; minus






          (y) the aggregate notional quantity or volume of Crack Spreads for that month under all
outstanding Long Price Hedges under this Agreement.




          “Net Volume” means, for each month as at any date of determination, an amount (which
may be less than zero) equal to:




	 	(x)	 	the aggregate notional quantity or volume of Crack Spreads for
that month under all outstanding Short Price Hedges; minus
	 
	 	(y)	 	the aggregate notional quantity or volume of Crack Spreads for
that month under all outstanding Long Price Hedges.






          “Optional Additional Collateral” has the meaning set forth in Part 7(j)(b) of this
Agreement.



26









 






          “Person” means an individual, corporation (including a business trust), partnership,
limited liability company, limited liability partnership, joint venture, association, joint
stock company, trust (including any beneficiary thereof), unincorporated association or
government or any agency or political subdivision thereof.




          “Platts” means Platts Oilgram Price Report.




          “PP&E Collateral” means the Term Loan Collateral” as defined in the Intercreditor
Agreement.




          “PP&E Credit Agreement” means that certain Credit Agreement, dated as of January 3,
2008, among the Counterparty, as Borrower, The Subsidiaries of the Borrower from time to
time party thereto, as Guarantors, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent and Credit-Linked L/C Issuer and Banc of America
Securities LLC, as Sole Lead Arranger and Sole Book Manager, without giving effect to any
termination thereof, but after giving immediate effect to any amendments, modifications or
supplements thereto without necessity for any further act by Aron, after the date the PP&E
Credit Agreement becomes effective, other than (i) such amendments, modifications, waivers
or supplements to Section 7.07 (Maintenance of Insurance), Section 8.01 (Liens) or Section
8.05 (Dispositions) of the PP&E Credit Agreement and (ii) such amendments, modifications,
waivers or supplements that release any material part of the PP&E Collateral,; provided,
that if Aron (in its sole discretion) consents to such amendment, modification, supplement
or waiver of the PP&E Credit Agreement described in (i) and (ii) above on or after the date
the PP&E Credit Agreement becomes effective, then the term “PP&E Credit Agreement” shall
refer to the PP&E Credit Agreement as so amended, modified, supplemented or waived; and
provided, further, that PP&E Credit Agreement shall refer to such agreement after giving
immediate effect to any waivers of Events of Default thereunder, except with respect to (i)
an Event of Default under Section 9.01(b) of the PP&E Credit Agreement due to failure of a
Loan Party (as defined in the PP&E Credit Agreement) to perform or observe any term,
covenant or agreement contained in Sections 8.01 (Liens) and 8.05 (Dispositions) of the PP&E
Credit Agreement and (ii) an Event of Default under Section 9.01(c) of the PP&E Credit
Agreement due to failure of a Loan Party to perform or observe Section 7.07 (Maintenance of
Insurance) of the PP&E Credit Agreement.




          “Price Hedge” means each Crack Spread Hedge Agreement. A Price Hedge is referred to
herein as a “Long Price Hedge” if Counterparty would benefit from an increase in Crack
Spreads thereunder and as a “Short Price Hedge” if Counterparty would benefit from a
decrease in Crack Spreads thereunder.




          “Real Properties” has the meaning set forth in the PP&E Credit Agreement.




          “Refinery Properties” has the meaning set forth in the PP&E Credit Agreement.




          “Required LC Amount” means U.S. $50,000,000.




          “Security Agreement” means that certain Security and Pledge Agreement, dated as of
January 3, 2008, among the Counterparty, as Borrower, the Domestic Subsidiaries and other
affiliates of the Borrower from time to time party thereto, as Guarantor and Obligors and
Bank of America, N.A., in its capacity as Administrative Agent for the holders of the
Secured Obligations, without giving effect to any amendments, modifications or supplements
thereto, or waiver or termination thereof, after the date the Security Agreement becomes
effective; provided that if Aron (in its sole discretion) consents to such amendment,
modification, supplement or waiver of



27









 







the Security Agreement on or after the date the Security Agreement becomes effective, then
the term “Security Agreement” shall refer to the Security Agreement as so amended, modified,
supplemented or waived.




          “Scheduled Maturity Date” means January 3, 2015, provided that the Scheduled Maturity
Date may be extended at any time and from time to time to December 31 in any subsequent year
if Aron and Counterparty so agree (it being understood that no party shall be obligated to
agree to any such extension of the Scheduled Maturity Date, and may withhold its consent to
any such extension in its sole discretion).




          “Secured Obligations” has the meaning set forth in the Security Agreement.




          “Secured Trading Line Documents” means this Agreement (including the Schedule) and all
Confirmations of Covered Transactions and the Credit Support Documents.




          “Security Documents” has the meaning set forth in the ABL Credit Agreement.




          “Solvency Certificate” means a certificate of Counterparty or one if its Affiliates (as
applicable), addressed to Aron, certifying that, as of the date of such certificate,
Counterparty or such Affiliate (as applicable) is Solvent.




          “Solvent” means that, as of any date of determination as to any Person, (a) the amount
of the “present fair saleable value” of the assets of such Person will, as of such date,
exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such
date, as such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such Person will be able to
pay its debts as they mature. For purposes of this definition, (1) “debt” means liability
on a “claim”, and (2) “claim” means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to payment, whether or
not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.




          “Specified Crack Spread Transaction” means any Transaction between Aron and
Counterparty that satisfies (in the good faith judgment of the Calculation Agent) each of
the following conditions:




	 	(a)	 	such Transaction is a Crack Spread Hedge;
	 
	 	(b)	 	the effective date of such Transaction falls during the Trading
Period; and
	 
	 	(c)	 	no part of the term of such Transaction falls after the
Scheduled Maturity Date.






          “Standard & Poor’s” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.




          “Subsidiary” has the meaning set forth in the PP&E Credit Agreement.



28









 






          “Term” means the period beginning on the Effective Date and ending on the Scheduled
Maturity Date.




          “Trading Period” means the period from and including the Effective Date to but
excluding the earlier of (a) the Scheduled Maturity Date and (b) the Voluntary Trading
Period Termination Date.




          “Value” means, as of any date of determination:




	 	(a)	 	with respect to Cash, the amount thereof;
	 
	 	(b)	 	with respect to a Letter of Credit, the amount then available
to be drawn by Aron under the terms of such Letter of Credit when the
conditions for drawing thereunder (if any) are satisfied;
	 
	 	(c)	 	with respect to any other property, U.S.$0.






          “Volume Limitations” has the meaning set forth in Part 7(g) of this Agreement.




          “Volume Reports” has the meaning set forth in Part 7(h) of this Agreement.




          “Voluntary Trading Period Termination” has the meaning set forth in Part 7(e) of this
Agreement.




          “Voluntary Trading Period Termination Date” has the meaning set forth in Part 7(e) of
this Agreement.



[signature page follows]




29









 







IN WITNESS WHEREOF, the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.




	 	 	 	 	 	 	 	 	 
	J. ARON & COMPANY	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: CALUMET LP GP, LLC, Its General Partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 
	Name:

	 	 	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	 	 	Date:	 	 	 	 






30









 





EXHIBIT 1




INITIAL TRANSACTIONS




31









 





ANNEX A




INTERCREDITOR AGREEMENT





32












 

  



			
	(Bilateral Form)
	 	(ISDA Agreements Subject to New York Law Only)






ISDA®


International Swaps and Derivatives Association, Inc.


CREDIT SUPPORT ANNEX


to the Schedule to the


 



dated as of                                                            


between



J.
Aron & Company and Calumet Lubricants Co., Limited Partnership



	 	 	 
	(“Party A”)	(“Party B”)







This Annex supplements, forms part of, and is subject to, the above-referenced Agreement, is
part of its Schedule and is a Credit Support Document under this Agreement with respect to each
party.



Accordingly, the parties agree as follows:—




Paragraph 1. Interpretation




(a) Definitions and Inconsistency. Capitalized terms not otherwise defined herein or elsewhere
in this Agreement have the meanings specified pursuant to Paragraph 12, and all references in
this Annex to Paragraphs are to Paragraphs of this Annex. In the event of any inconsistency
between this Annex and the other provisions of this Schedule, this Annex will prevail, and in
the event of any inconsistency between Paragraph 13 and the other provisions of this Annex,
Paragraph 13 will prevail.



(b) Secured Party and Pledgor. All references in this Annex to the “Secured Party” will be to
either party when acting in that capacity and all corresponding references to the “Pledgor”
will be to the other party when acting in that capacity; provided, however, that if Other
Posted Support is held by a party to this Annex, all references herein to that party as the
Secured Party with respect to that Other Posted Support will be to that party as the
beneficiary thereof and will not subject that support or that party as the beneficiary thereof
to provisions of law generally relating to security interests and secured parties.



Paragraph 2. Security Interest




Each party, as the Pledgor, hereby pledges to the other party, as the Secured Party, as
security for its Obligations, and grants to the Secured Party a first priority continuing
security interest in, lien on and right of Set-off against all Posted Collateral Transferred to
or received by the Secured Party hereunder. Upon the Transfer by the Secured Party to the
Pledgor of Posted Collateral, the security interest and lien granted hereunder on that Posted
Collateral will be released immediately and, to the extent possible, without any further action
by either party.



Copyright © 1994 by International Swaps and Derivatives Association, Inc.




 









 





Paragraph 3. Credit Support Obligations




(a) Delivery Amount. Subject to Paragraphs 4 and 5, upon a demand made by the Secured Party on or
promptly following a Valuation Date, if the Delivery Amount for that Valuation Date equals or
exceeds the
Pledgor’s Minimum Transfer Amount, then the Pledgor will Transfer to the Secured Party Eligible
Credit Support
having a Value as of the date of Transfer at least equal to the applicable Delivery Amount (rounded
pursuant to
Paragraph 13). Unless otherwise specified in Paragraph 13, the “Delivery Amount” applicable to the
Pledgor for
any Valuation Date will equal the amount by which:




(i) the Credit Support Amount




exceeds




(ii) the Value as of that Valuation Date of all Posted Credit Support held by the Secured
Party.



(b) Return
Amount. Subject to Paragraphs 4 and 5, upon a demand made by the Pledgor on or promptly
following a Valuation Date, if the Return Amount for that Valuation Date equals or exceeds the
Secured Party’s
Minimum Transfer Amount, then the Secured Party will Transfer to the Pledgor Posted Credit Support
specified
by the Pledgor in that demand having a Value as of the date of Transfer as close as practicable to
the applicable
Return Amount (rounded pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the
“Return
Amount” applicable to the Secured Party for any Valuation Date will equal the amount by which:




(i) the Value as of that Valuation Date of all Posted Credit Support held by the Secured
Party




exceeds




(ii) the Credit Support Amount.



“Credit Support Amount” means, unless otherwise specified in Paragraph 13, for any Valuation Date
(i) the Secured Party’s Exposure for that Valuation Date plus (ii) the aggregate of all
Independent Amounts applicable to the Pledgor, if any, minus (iii) all Independent Amounts
applicable to the Secured Party, if any, minus (iv) the Pledgor’s Threshold; provided, however,
that the Credit Support Amount will be deemed to be zero whenever the calculation of Credit
Support Amount yields a number less than zero.



Paragraph 4. Conditions Precedent, Transfer Timing, Calculations and Substitutions




(a) Conditions Precedent. Each Transfer obligation of the Pledgor under Paragraphs 3 and 5 and of
the Secured Party under Paragraphs 3, 4(d)(ii), 5 and 6(d) is subject to the conditions precedent
that:




(i) no Event of Default, Potential Event of Default or Specified Condition has occurred and
is continuing with respect to the other party; and




(ii) no Early Termination Date for which any unsatisfied payment obligations exist has
occurred or been designated as the result of an Event of Default or Specified Condition with
respect to the other party.



(b) Transfer Timing. Subject to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand
for the Transfer of Eligible Credit Support or Posted Credit Support is made by the Notification
Time, then the relevant Transfer will be made not later than the close of business on the next
Local Business Day; if a demand is made after the Notification Time, then the relevant Transfer
will be made not later than the close of business on the second Local Business Day thereafter.



(c) Calculations. All calculations of Value and Exposure for purposes of Paragraphs 3 and 6(d)
will be made by the Valuation Agent as of the Valuation Time. The Valuation Agent will notify each
party (or the other party, if the Valuation Agent is a party) of its calculations not later than
the Notification Time on the Local Business Day following the applicable Valuation Date (or in the
case of Paragraph 6(d), following the date of calculation).



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(d) Substitutions.





(i) Unless
otherwise specified in Paragraph 13, upon notice to the Secured Party specifying
the items of Posted Credit Support to be exchanged, the Pledgor may, on any Local Business
Day, Transfer to the Secured Party substitute Eligible Credit Support (the “Substitute
Credit Support”); and




(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the Pledgor the items of
Posted Credit Support specified by the Pledgor in its notice not later than the Local
Business Day following the date on which the Secured Party receives the Substitute Credit
Support, unless otherwise specified in Paragraph 13 (the “Substitution Date”); provided that
the Secured Party will only be obligated to Transfer Posted Credit Support with a Value as
of the date of Transfer of that Posted Credit Support equal to the Value as of that date of
the Substitute Credit Support.



Paragraph 5. Dispute Resolution




If a party (a “Disputing Party”) disputes (I) the Valuation Agent’s calculation of a Delivery
Amount or a Return Amount or (II) the Value of any Transfer of Eligible Credit Support or Posted
Credit Support, then (1) the Disputing Party will notify the other party and the Valuation Agent
(if the Valuation Agent is not the other party) not later than the close of business on the Local
Business Day following (X) the date that the demand is made under Paragraph 3 in the case of (I)
above or (Y) the date of Transfer in the case of (II) above, (2) subject to Paragraph 4(a), the
appropriate party will Transfer the undisputed amount to the other party not later than the close
of business on the Local Business Day following (X) the date that the demand is made under
Paragraph 3 in the case of (I) above or (Y) the date of Transfer in the case of (II) above, (3) the
parties will consult with each other in an attempt to resolve the dispute and (4) if they fail to
resolve the dispute by the Resolution Time, then:




(i) In the case of a dispute involving a Delivery Amount or Return Amount, unless otherwise
specified in Paragraph 13, the Valuation Agent will recalculate the Exposure and the Value
as of the Recalculation Date by:




(A) utilizing any calculations of Exposure for the Transactions (or Swap Transactions)
that the parties have agreed are not in dispute;




(B) calculating the Exposure for the Transactions (or Swap Transactions) in dispute by
seeking four actual quotations at mid-market from Reference Market-makers for purposes of
calculating Market Quotation, and taking the arithmetic average of those obtained;
provided that if four quotations are not available for a particular Transaction (or Swap
Transaction), then fewer than four quotations may be used for that Transaction (or Swap
Transaction); and if no quotations are available for a particular Transaction (or Swap
Transaction), then the Valuation Agent’s original calculations will be used for that
Transaction (or Swap Transaction); and




(C) utilizing the procedures specified in Paragraph 13 for calculating the Value, if
disputed, of Posted Credit Support.




(ii) In the case of a dispute involving the Value of any Transfer of Eligible Credit Support
or Posted Credit Support, the Valuation Agent will recalculate the Value as of the date of
Transfer pursuant to Paragraph 13.



Following a recalculation pursuant to this Paragraph, the Valuation Agent will notify each party
(or the other party, if the Valuation Agent is a party) not later than the Notification Time on
the Local Business Day following the Resolution Time. The appropriate party will, upon demand
following that notice by the Valuation Agent or a resolution pursuant to (3) above and subject to
Paragraphs 4(a) and 4(b), make the appropriate Transfer.



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Paragraph 6. Holding and Using Posted Collateral




(a) Care
of Posted Collateral. Without limiting the Secured Party’s rights under Paragraph 6(c), the
Secured Party will exercise reasonable care to assure the safe custody of all Posted Collateral to
the extent required by applicable law, and in any event the Secured Party will be deemed to have
exercised reasonable care if it exercises at least the same degree of care as it would exercise
with respect to its own property. Except as specified in the preceding sentence, the Secured Party
will have no duty with respect to Posted Collateral, including, without limitation, any duty to
collect any Distributions, or enforce or preserve any rights pertaining thereto.



(b) Eligibility to Hold Posted Collateral; Custodians.





(i) General. Subject to the satisfaction of any conditions specified in Paragraph 13 for
holding Posted Collateral, the Secured Party will be entitled to hold Posted Collateral or
to appoint an agent (a “Custodian”) to hold Posted Collateral for the Secured Party. Upon
notice by the Secured Party to the Pledgor of the appointment of a Custodian, the Pledgor’s
obligations to make any Transfer will be discharged by making the Transfer to that
Custodian. The holding of Posted Collateral by a Custodian will be deemed to be the holding
of that Posted Collateral by the Secured Party for which the Custodian is acting.




(ii) Failure to Satisfy Conditions. If the Secured Party or its Custodian fails to satisfy
any conditions for holding Posted Collateral, then upon a demand made by the Pledgor, the
Secured Party will, not later than five Local Business Days after the demand, Transfer or
cause its Custodian to Transfer all Posted Collateral held by it to a Custodian that
satisfies those conditions or to the Secured Party if it satisfies those conditions.




(iii) Liability. The Secured Party will be liable for the acts or omissions of its Custodian
to the same extent that the Secured Party would be liable hereunder for its own acts or
omissions.



(c) Use of Posted Collateral. Unless otherwise specified in Paragraph 13 and without limiting the
rights and
obligations of the parties under Paragraphs 3, 4(d)(ii), 5, 6(d) and 8, if the Secured Party is
not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early Termination Date has
occurred or been
designated as the result of an Event of Default or Specified Condition with respect to the Secured
Party, then the
Secured Party will, notwithstanding Section 9-207 of the New York Uniform Commercial Code, have
the right
to:




(i) sell, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or
otherwise use in its business any Posted Collateral it holds, free from any claim or right of
any nature whatsoever of the Pledgor, including any equity or right of redemption by the
Pledgor; and




(ii) register any Posted Collateral in the name of the Secured Party, its Custodian or a
nominee for either.



For purposes of the obligation to Transfer Eligible Credit Support or Posted Credit Support
pursuant to Paragraphs 3 and 5 and any rights or remedies authorized under this Agreement, the
Secured Party will be deemed to continue to hold all Posted Collateral and to receive
Distributions made thereon, regardless of whether the Secured Party has exercised any rights with
respect to any Posted Collateral pursuant to (i) or (ii) above.



(d) Distributions and Interest Amount.





(i) Distributions. Subject to Paragraph 4(a), if the Secured Party receives or is deemed to
receive Distributions on a Local Business Day, it will Transfer to the Pledgor not later than
the following Local Business Day any Distributions it receives or is deemed to receive to the
extent that a Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be deemed to be a
Valuation Date for this purpose).



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(ii) Interest Amount. Unless otherwise specified in Paragraph 13 and subject to
Paragraph 4(a), in lieu of any interest, dividends or other amounts paid or deemed to have
been paid with respect to Posted Collateral in the form of Cash (all of which may be retained
by the Secured Party), the Secured Party will Transfer to the Pledgor at the times specified
in Paragraph 13 the Interest Amount to the extent that a Delivery Amount would not be created
or increased by that Transfer, as calculated by the Valuation Agent (and the date of
calculation will be deemed to be a Valuation Date for this purpose). The Interest Amount or
portion thereof not Transferred pursuant to this Paragraph will constitute Posted Collateral
in the form of Cash and will be subject to the security interest granted under Paragraph 2.



Paragraph 7. Events of Default




For purposes of Section 5(a)(iii)(l) of this Agreement, an Event of Default will exist with respect
to a party if:




(i) that party fails (or fails to cause its Custodian) to make, when due, any Transfer of
Eligible Collateral, Posted Collateral or the Interest Amount, as applicable, required to be
made by it and that failure continues for two Local Business Days after notice of that
failure is given to that party;




(ii) that party fails to comply with any restriction or prohibition specified in this Annex
with respect to any of the rights specified in Paragraph 6(c) and that failure continues for
five Local Business Days after notice of that failure is given to that party; or




(iii) that party fails to comply with or perform any agreement or obligation other than
those specified in Paragraphs 7(i) and 7(ii) and that failure continues for 30 days after
notice of that failure is given to that party.



Paragraph 8. Certain Rights and Remedies




(a) Secured Party’s Rights and Remedies. If at any time (1) an Event of Default or Specified
Condition with respect to the Pledgor has occurred and is continuing or (2) an Early Termination
Date has occurred or been designated as the result of an Event of Default or Specified Condition
with respect to the Pledgor, then, unless the Pledgor has paid in full all of its Obligations that
are then due, the Secured Party may exercise one or more of the following rights and remedies:




(i) all rights and remedies available to a secured party under applicable law with respect
to Posted Collateral held by the Secured Party;




(ii) any other rights and remedies available to the Secured Party under the terms of Other
Posted Support, if any;




(iii) the right to Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent of any Posted Collateral
held by the Secured Party (or any obligation of the Secured Party to Transfer that Posted
Collateral); and




(iv) the right to liquidate any Posted Collateral held by the Secured Party through one or
more public or private sales or other dispositions with such notice, if any, as may be
required under applicable law, free from any claim or right of any nature whatsoever of the
Pledgor, including any equity or right of redemption by the Pledgor (with the Secured Party
having the right to purchase any or all of the Posted Collateral to be sold) and to apply the
proceeds (or the Cash equivalent thereof) from the liquidation of the Posted Collateral to
any amounts payable by the Pledgor with respect to any Obligations in that order as the
Secured Party may elect.



Each party acknowledges and agrees that Posted Collateral in the form of securities may decline
speedily in value and is of a type customarily sold on a recognized market, and, accordingly, the
Pledgor is not entitled to prior notice of any sale of that Posted Collateral by the Secured
Party, except any notice that is required under applicable law and cannot be waived.



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(b) Pledgor’s Rights and Remedies. If at any time an Early Termination Date has occurred or
been designated as the result of an Event of Default or Specified Condition with respect to the
Secured Party, then (except in the case of an Early Termination Date relating to less than all Transactions (or
Swap Transactions) where the Secured Party has paid in full all of its obligations that are then due under
Section 6(e) of this Agreement):




(i) the Pledgor may exercise all rights and remedies available to a pledgor under applicable
law with respect to Posted Collateral held by the Secured Party;




(ii) the Pledgor may exercise any other rights and remedies available to the Pledgor under
the terms of Other Posted Support, if any;




(iii) the Secured Party will be obligated immediately to Transfer all Posted Collateral and
the Interest Amount to the Pledgor; and




(iv) to the extent that Posted Collateral or the Interest Amount is not so Transferred
pursuant to (iii) above, the Pledgor may:




(A) Set-off any amounts payable by the Pledgor with respect to any Obligations against any
Posted Collateral or the Cash equivalent of any Posted Collateral held by the Secured
Party (or any obligation of the Secured Party to Transfer that Posted Collateral); and




(B) to the extent that the Pledgor does not Set-off under (iv)(A) above, withhold payment
of any remaining amounts payable by the Pledgor with respect to any Obligations, up to the
Value of any remaining Posted Collateral held by the Secured Party, until that Posted
Collateral is Transferred to the Pledgor.



(c) Deficiencies and Excess Proceeds. The Secured Party will Transfer to the Pledgor any proceeds
and Posted Credit Support remaining after liquidation, Set-off and/or application under Paragraphs
8(a) and 8(b) after satisfaction in full of all amounts payable by the Pledgor with respect to any
Obligations; the Pledgor in all events will remain liable for any amounts remaining unpaid after
any liquidation, Set-off and/or application under Paragraphs 8(a) and 8(b).



(d) Final Returns. When no amounts are or thereafter may become payable by the Pledgor with
respect to any Obligations (except for any potential liability under Section 2(d) of this
Agreement), the Secured Party will Transfer to the Pledgor all Posted Credit Support and the
Interest Amount, if any.



Paragraph 9. Representations




Each party represents to the other party (which representations will be deemed to be repeated as
of each date on which it, as the Pledgor, Transfers Eligible Collateral) that:




(i) it has the power to grant a security interest in and lien on any Eligible Collateral it
Transfers as the Pledgor and has taken all necessary actions to authorize the granting of
that security interest and lien;




(ii) it is the sole owner of or otherwise has the right to Transfer all Eligible Collateral
it Transfers to the Secured Party hereunder, free and clear of any security interest, lien,
encumbrance or other restrictions other than the security interest and lien granted under
Paragraph 2;




(iii) upon the Transfer of any Eligible Collateral to the Secured Party under the terms of
this Annex, the Secured Party will have a valid and perfected first priority security
interest therein (assuming that any central clearing corporation or any third-party financial
intermediary or other entity not within the control of the Pledgor involved in the Transfer
of that Eligible Collateral gives the notices and takes the action required of it under
applicable law for perfection of that interest); and




(iv) the performance by it of its obligations under this Annex will not result in the
creation of any security interest, lien or other encumbrance on any Posted Collateral other
than the security interest and lien granted under Paragraph 2.



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Paragraph 10. Expenses




(a) General. Except as otherwise provided in Paragraphs 10(b) and 10(c), each party will pay its
own costs and expenses in connection with performing its obligations under this Annex and neither
party will be liable for any costs and expenses incurred by the other party in connection
herewith.



(b) Posted
Credit Support. The Pledgor will promptly pay when due all taxes, assessments or charges
of any nature that are imposed with respect to Posted Credit Support held by the Secured Party upon
becoming aware of the same, regardless of whether any portion of that Posted Credit Support is
subsequently disposed of under Paragraph 6(c), except for those taxes, assessments and charges that
result from the exercise of the Secured Party’s rights under Paragraph 6(c).



(c) Liquidation/Application of Posted Credit Support. All reasonable costs and expenses incurred
by or on behalf of the Secured Party or the Pledgor in connection with the liquidation and/or
application of any Posted Credit Support under Paragraph 8 will be payable, on demand and pursuant
to the Expenses Section of this Agreement, by the Defaulting Party or, if there is no Defaulting
Party, equally by the parties.



Paragraph 11. Miscellaneous




(a) Default Interest. A Secured Party that fails to make, when due, any Transfer of Posted
Collateral or the Interest Amount will be obligated to pay the Pledgor (to the extent permitted
under applicable law) an amount equal to interest at the Default Rate multiplied by the Value of
the items of property that were required to be Transferred, from (and including) the date that
Posted Collateral or Interest Amount was required to be Transferred to (but excluding) the date of
Transfer of that Posted Collateral or Interest Amount. This interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.



(b) Further Assurances. Promptly following a demand made by a party, the other party will execute,
deliver, file and record any financing statement, specific assignment or other document and take
any other action that may be necessary or desirable and reasonably requested by that party to
create, preserve, perfect or validate any security interest or lien granted under Paragraph 2, to
enable that party to exercise or enforce its rights under this Annex with respect to Posted Credit
Support or an Interest Amount or to effect or document a release of a security interest on Posted
Collateral or an Interest Amount.



(c) Further Protection. The Pledgor will promptly give notice to the Secured Party of, and defend
against, any suit, action, proceeding or lien that involves Posted Credit Support Transferred by
the Pledgor or that could adversely affect the security interest and lien granted by it under
Paragraph 2, unless that suit, action, proceeding or lien results from the exercise of the Secured
Party’s rights under Paragraph 6(c).



(d) Good Faith and Commercially Reasonable Manner. Performance of all obligations under this
Annex, including, but not limited to, all calculations, valuations and determinations made by
either party, will be made in good faith and in a commercially reasonable manner.



(e) Demands and Notices. All demands and notices made by a party under this Annex will be made as
specified in the Notices Section of this Agreement, except as otherwise provided in Paragraph 13.



(f) Specifications of Certain Matters. Anything referred to in this Annex as being specified in
Paragraph 13 also may be specified in one or more Confirmations or other documents and this Annex
will be construed accordingly.



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Paragraph 12. Definitions




As used in
this Annex:—




“Cash”
means the lawful currency of the United States of America.



“Credit Support Amount” has the meaning specified in Paragraph 3.



“Custodian”
has the meaning specified in Paragraphs 6(b)(i) and 13.



“Delivery Amount” has the meaning specified in Paragraph 3(a).



“Disputing Party” has the meaning specified in Paragraph 5.



“Distributions” means with respect to Posted Collateral other than Cash, all principal, interest
and other payments and distributions of cash or other property with respect thereto, regardless
of whether the Secured Party has disposed of that Posted Collateral under Paragraph 6(c).
Distributions will not include any item of property acquired by the Secured Party upon any
disposition or liquidation of Posted Collateral or, with respect to any Posted Collateral in the
form of Cash, any distributions on that collateral, unless otherwise specified herein.



“Eligible Collateral” means, with respect to a party, the items, if any, specified as such for
that party in Paragraph 13.



“Eligible Credit Support” means Eligible Collateral and Other Eligible Support.



“Exposure” means for any Valuation Date or other date for which Exposure is calculated and subject
to Paragraph 5 in the case of a dispute, the amount, if any, that would be payable to a party that
is the Secured Party by the other party (expressed as a positive number) or by a party that is the
Secured Party to the other party (expressed as a negative number) pursuant to Section
6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap Transactions) were being
terminated as of the relevant Valuation Time; provided that Market Quotation will be determined by
the Valuation Agent using its estimates at mid-market of the amounts that would be paid for
Replacement Transactions (as that term is defined in the definition of “Market Quotation”).



“Independent Amount” means, with respect to a party, the amount specified as such for that party
in Paragraph 13; if no amount is specified, zero.



“Interest Amount” means, with respect to an Interest Period, the aggregate sum of the amounts of
interest calculated for each day in that Interest Period on the principal amount of Posted
Collateral in the form of Cash held by the Secured Party on that day, determined by the Secured
Party for each such day as follows:




(x) the amount of that Cash on that day; multiplied by




(y) the
Interest Rate in effect for that day; divided by

(z) 360.



“Interest Period” means the period from (and including) the last Local Business Day on which an
Interest Amount was Transferred (or, if no Interest Amount has yet been Transferred, the Local
Business Day on which Posted Collateral in the form of Cash was Transferred to or received by the
Secured Party) to (but excluding) the Local Business Day on which the current Interest Amount is
to be Transferred.



“Interest
Rate” means the rate specified in Paragraph 13.



“Local Business Day”, unless otherwise specified in Paragraph 13, has the meaning specified in
the Definitions Section of this Agreement, except that references to a payment in clause (b)
thereof will be deemed to include a Transfer under this Annex.



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“Minimum Transfer Amount” means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.



“Notification
Time” has the meaning specified in Paragraph 13.



“Obligations” means, with respect to a party, all present and future obligations of that party
under this Agreement and any additional obligations specified for that party in Paragraph 13.



“Other Eligible Support” means, with respect to a party, the items, if any, specified as such for
that party in Paragraph 13.



“Other Posted Support” means all Other Eligible Support Transferred to the Secured Party that
remains in effect for the benefit of that Secured Party.



“Pledgor” means either party, when that party (i) receives a demand for or is required to Transfer
Eligible Credit Support under Paragraph 3(a) or (ii) has Transferred Eligible Credit Support under
Paragraph 3(a).



“Posted Collateral” means all Eligible Collateral, other property, Distributions, and all proceeds
thereof that have been Transferred to or received by the Secured Party under this Annex and not
Transferred to the Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest Amount or portion thereof not Transferred pursuant to
Paragraph 6(d)(ii) will constitute Posted Collateral in the form of Cash.



“Posted Credit Support” means Posted Collateral and Other Posted Support.



“Recalculation Date” means the Valuation Date that gives rise to the dispute under Paragraph 5;
provided, however, that if a subsequent Valuation Date occurs under Paragraph 3 prior to die
resolution of the dispute, then the “Recalculation Date” means the most recent Valuation Date
under Paragraph 3.



“Resolution Time” has the meaning specified in Paragraph 13.



“Return Amount” has the meaning specified in Paragraph 3(b).



“Secured Party” means either party, when that party (i) makes a demand for or is entitled to
receive Eligible Credit Support under Paragraph 3(a) or (ii) holds or is deemed to hold Posted
Credit Support.



“Specified Condition” means, with respect to a party, any event specified as such for that party in
Paragraph 13.



“Substitute Credit Support” has the meaning specified in Paragraph 4(d)(i).



“Substitution Date” has the meaning specified in Paragraph 4(d)(ii).



“Threshold” means, with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.



“Transfer” means, with respect to any Eligible Credit Support, Posted Credit Support or Interest
Amount, and in accordance with the instructions of the Secured Party, Pledgor or Custodian, as
applicable:




(i) in the case of Cash, payment or delivery by wire transfer into one or more bank accounts
specified by the recipient;




(ii) in the case of certificated securities that cannot be paid or delivered by book-entry,
payment or delivery in appropriate physical form to the recipient or its account accompanied
by any duly executed instruments of transfer, assignments in blank, transfer tax stamps and
any other documents necessary to constitute a legally valid transfer to the recipient;




(iii) in the case of securities that can be paid or delivered by book-entry, the giving of
written instructions to the relevant depository institution or other entity specified by the
recipient, together with a written copy thereof to the recipient, sufficient if complied with
to result in a legally effective transfer of the relevant interest to the recipient; and




(iv) in the case of Other Eligible Support or Other Posted Support, as specified in Paragraph 13.



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“Valuation Agent” has the meaning specified in Paragraph 13.



“Valuation Date” means each date specified in or otherwise determined pursuant to Paragraph 13.



“Valuation Percentage” means, for any item of Eligible Collateral, the percentage specified in
Paragraph 13.



“Valuation Time” has the meaning specified in Paragraph 13.



“Value” means for any Valuation Date or other date for which Value is calculated and subject to
Paragraph 5 in the case of a dispute, with respect to:




(i) Eligible Collateral or Posted Collateral that is:




(A) Cash, the amount thereof; and




(B) a security, the bid price obtained by the Valuation Agent multiplied by the applicable
Valuation Percentage, if any;




(ii) Posted Collateral that consists of items that are not specified as Eligible Collateral,
zero; and




(iii) Other Eligible Support and Other Posted Support, as specified in Paragraph 13.



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CREDIT SUPPORT ANNEX




to the Schedule to the

Master Agreement

dated as of March 17, 2006,




And Amended and Restated as of January 3, 2007




between




J. ARON & COMPANY (“Aron”)




and




CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP

(“Counterparty”).




Paragraph 13. Elections and Variables



(a) Security Interest for “Obligations”. The term “Obligations” as used in this Annex includes
the following additional obligations:





	 	 	With respect to Aron.: Not applicable.
	 
	 	 	With respect to Counterparty: Not applicable.




(b) Credit Support Obligations.





	 	(i)	 	This Annex is amended to delete the definition of (and all references to) “Credit
Support Amount” therein. This Annex is further amended by restating Paragraph 3
thereof to read in its entirety as follows
	 
	 	 	 	“Paragraph 3. Credit Support Obligations






	 	(A)	 	“Delivery Amount”.





- 1 -









 






	 	(i)	 	With respect to Mandatory Additional Collateral. Subject
to Paragraphs 4 and 5, within two (2) Local Business Days of request
by Aron under clause (j)(a) of Part 7, then Counterparty shall
Transfer to Aron Eligible Collateral or Other Eligible Support
(collectively, “Eligible Credit Support”) having an aggregate Value
as of the date of Transfer at least equal to the excess, if any, of
the Covered Transactions Mark-to-Market Amount over the sum of the
following: (i) the Required LC Amount; (ii) the Optional Additional
Collateral, if any; and (iii) U.S.$25,000,000.
	 
	 	(ii)	 	With respect to Optional Additional
Collateral. Subject to Paragraphs 4 and 5, at Counterparty’s
election, Counterparty shall Transfer to Aron Eligible Credit Support in
an amount sufficient order to facilitate additional Covered Transactions
under Part 7(d)(1).






	 	(B)	 	“Return Amount”






	 	(i)	 	With respect to Mandatory Additional Collateral. If on
any date the ratio of Consolidated Funded Indebtedness to Consolidated EBITDA is
less than or equal to 3:75 to 1.0, then Aron will, within two (2)
Local Business Days after receiving demand therefore (such demand to
be accompanied by a certificate of a Financial Officer of
Counterparty attesting to the ratio of Consolidated Funded
Indebtedness to Consolidated EBITDA), Transfer to Counterparty Posted
Credit Support specified by Counterparty in a demand having a Value
equal to the Delivery Amount provided by Counterparty in Paragraph 3,
Clause (A)(i).
	 
	 	(ii)	 	With respect to Optional Additional Collateral. Not applicable.




For purposes of this Credit Support Annex, terms used herein but not otherwise defined shall
have the meanings ascribed to such terms in the ISDA Master Agreement, dated as of March 17,
2006, between Aron and Counterparty.”





(ii) Eligible Collateral. The following items will qualify as “Eligible Collateral”
for the party specified:



- 2 -









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Counterparty	 	Valuation
	 	 	 	 	 	 	 	 	 	 	Percentage
	 	(A	)	 	Cash
	 	 	þ	 	 	 	100	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	(B	)	 	Letters of credit from an Eligible Financial
Institution in the form
set forth in Annex A
hereto or such other
form acceptable to Aron
	 	 	þ	 	 	 	100	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	(C	)	 	Negotiable debt obligations issued by
the U.S. Treasury
Department having an
original maturity at
issuance of not more
than one year (“Treasury
Bills”) and maturing not
more than 180 days from
the date of Transfer by
the Pledgor to the
Secured Party
	 	 	þ	 	 	 	98.5	%







(iii) Other Eligible Support. Any other mutually acceptable collateral will
qualify as “Other Eligible Support” for either party.




(iv) Thresholds.




(A) “Independent Amount” means with respect to Counterparty: US$0.00




(B) “Threshold” means with respect to Counterparty: Not Applicable




(C) “Minimum Transfer Amount” means with respect to Counterparty:
US$25,000.




(D) Rounding. The Delivery Amount and the Return Amount will be rounded up and down
to the nearest integral multiple of US$10,000, respectively.




	(c) 	Valuation and Timing.






(i) “Value” with respect to Eligible Credit Support shall be the “Value” thereof
determined in accordance with the definition of such term in Part 7.




(ii) “Valuation Agent” means, for the purposes of Paragraphs 3 and 5, the party making
the demand under Paragraph 3, and for the purposes of Paragraph 6(d), the Secured Party
receiving or deemed to receive the Distributions or the Interest Amount, as applicable;
provided however, that in all cases, if an Event of Default has occurred and is continuing
with respect to the party designated as the Valuation Agent, then in such case, and for so
long as the Event of Default continues, the Non-defaulting Party (either Aron or
Counterpary) will be the Valuation Agent.



- 3 -









 






(ii) “Valuation Date” means each New York Business Day (as defined below) which, if
treated as a Valuation Date, would result in a Delivery Amount or a Return Amount. A notice
of the Valuation Agent’s calculations may be combined with a demand for a Delivery Amount or
a Return Amount.




(iii) “Valuation Time” means the close of business in New York City on the Valuation Date;
provided that the calculations of Value and Exposure will be made as of approximately the
same time on the same date.




(iv) “Notification Time” means 12:00 noon, New York time, on a New York Business Day.
Notwithstanding Paragraph 4(b), if on any New York Business Day a demand for Transfer of
Eligible Credit Support or Posted Credit Support is made by the Notification Time, then the
relevant Transfer will be made by the close of business on that New York Business Day and,
if any such demand is made after the Notification Time, the relevant Transfer will be made
by the close of business on the next New York Business Day.




(v) “New York Business Day” means a Local Business Day in New York City.


(d) Conditions Precedent and Secured Party’s Rights and Remedies. The following Termination
Event(s) will be a “Specified Condition” for the party specified (that party being the Affected
Party if the Termination Event occurs with respect to that party):




	 	 	 	 	 	 	 	 	 
	 	 	Aron	 	Counterparty
	Illegality
	 	 	þ	 	 	 	þ	 
	 
	 	 	 	 	 	 	 	 
	Tax Event
	 	 	o	 	 	 	o	 
	 
	 	 	 	 	 	 	 	 
	Tax Event Upon Merger
	 	 	o	 	 	 	o	 
	 
	 	 	 	 	 	 	 	 
	Credit Event Upon Merger
	 	 	þ	 	 	 	þ	 
	 
	 	 	 	 	 	 	 	 
	Additional Termination Event(s):
	 	 	o	 	 	 	o	 





(e) Substitution.





(i) “Substitution Date” has the meaning specified in Paragraph 4(d)(ii).




(ii) Consent. If specified here as applicable, then the Pledgor must obtain the
Secured Party’s consent for any substitution pursuant to Paragraph 4(d): Inapplicable.


(f) Dispute Resolution.





(i) “Resolution Time” means 1:00 p.m., New York time, on the Local Business Day



- 4 -









 






following the date on which notice of the dispute is given under Paragraph 5.




(ii) “Value”. For purposes of Paragraphs 5(i)(c) and 5(ii), disputes over Value will
be resolved by the Valuation Agent seeking three mid-market quotes as of the relevant
Valuation Date or date of Transfer from parties that regularly act as dealers in the
securities or other property in question. The Value will be the arithmetic mean of the
quotes received by the Valuation Agent.




(iii) “Alternative”. The provisions of Paragraph 5 will apply; provided, however, that
pending the resolution of the dispute, Transfer of the undisputed Value of Eligible Credit
Support or Posted Credit Support involved in the relevant demand will be due as provided in
paragraph 5 if the demand is given by the Notification Time but will be due on the Second
Local Business Day after the demand if the demand is given after the Notification Time. The
parties agree that the mechanisms herein providing for resolution of disputes shall not be
used if the amount in dispute does not exceed US$500,000.


(g) Holding and Using Posted Collateral.





(i) Eligibility to Hold Posted Collateral; Custodians. Aron and its Custodian
will be entitled to hold Posted Collateral pursuant to Paragraph 6(b); provided that
the following conditions applicable to it are satisfied:




(1) Aron is not a Defaulting Party and there is no Specified Condition that has
occurred or is continuing with respect to Aron.




(2) Posted Collateral may be held only in the United States.



Initially, the Custodian for Aron is Goldman Sachs & Co.




(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will apply to each
party.


(h) Distributions and Interest Amount.





(i) Interest Rate. The “Interest Rate” will be the Federal Funds (Effective) rate minus 25
basis points as displayed on Telerate page 120. Notwithstanding anything herein to the
contrary, each calendar month shall be an “Interest Period.”




(ii) Transfer of Interest Amount. The Transfer of the Interest Amount will be made on
the third New York Business Day following the end of each Interest Period and on
termination pursuant to Section 6 of this Agreement.




(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii) will
apply.



(i)
Additional Representations. none.




- 5 -









 




(j) Other Eligible Support and Other Posted Support. Not applicable.



(k) Demands and Notices.



All demands, specifications and notices under this Annex will be made pursuant to the Notices
Section of this Agreement, unless otherwise specified here:




	 	 	 	 	 
	 

	 	Aron:
	 	as specified in Part 4 of the Schedule to the Agreement.
	 
	 	 	 	 
	 

	 	Counterparty:
	 	as specified in Part 4 of the Schedule to the Agreement.





(1) Addresses for Transfers.




	 	 	 	 	 
	 

	 	Aron:
	 	as notified in writing from time to time.
	 
	 	 	 	 
	 

	 	Counterparty:
	 	as notified in writing from time to time.





(m) Other Provisions.





(i) In Paragraph 4(d)(ii), the phrase “(or less than, but as close as practicable
to)” shall be inserted in the second-to-last line after the words “equal to.”




(ii) Paragraph 7 is amended as follows: In clause (iii), the words “under this Annex”
are inserted on line 1 after the words “or obligation” and the reference to “30 days” shall
be “15 days.”




(iii) Paragraph 8(a) is amended as follows: In the second line, the words “Early
Termination Period has commenced or an” are inserted before the term “Early Termination
Date,” and on the fourth-from-last line, the words “or commodities” are inserted after the
phrase “in the form of securities.”




(iv) Paragraph 1(b) is deleted and replaced by the following:




     “(b) Secured Party and Pledgor. All references in this Annex to the
‘Secured Party’ will be to Aron and all corresponding references to the ‘Pledgor’ will
be to Counterparty; provided, however, that if Other Posted Support is held by a party
to this Annex, all references herein to that party as the Secured Party with respect to
that Other Posted Support will be to that party as the beneficiary thereof and will not
subject that support or that party as beneficiary thereof to provisions of law generally
relating to security interest and secured parties.”




(v) Modifications to Paragraph 12. The following definitions of “Pledgor”
and “Secured



- 6 -









 




Party” are substituted for the definitions of those terms contained in Paragraph 12 of this Annex:





     ‘Pledgor’ means Counterparty, when that party (i) receives a demand for or is required to
Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has Transferred Eligible Credit
Support under Paragraph 3(a).




     ‘Secured Party’ means Aron, when that party (i) makes a demand for or is entitled to
receive Eligible Credit Support under Paragraph 3(a) or (ii) holds or is deemed to hold Posted
Collateral.”


(vi) Counterparty,
Aron and Goldman, Sachs & Co. (“GS&Co.”) hereby agree that Posted Credit Support
may be held by GS&Co. as agent and securities intermediary on behalf of Aron. Counterparty
acknowledges and GS&Co. agrees that GS&Co. will take only such actions with respect to such Posted
Credit Support as Aron shall direct (including, but not limited to, instructions from Aron
directing transfer of Posted Credit Support in circumstances prescribed by the provisions of this
Annex), and in no event shall any consent of Counterparty be required for the taking of any such
action by GS&Co.





- 7 -











 





	 	 	 
	 

	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP
	 
	 	 
	J. ARON & COMPANY

	 	By:      CALUMET LP GP, LLC, Its General Partner
	 
	 	 
	 

	 	By:      Calumet Operating, LLC, its sole member
	 
	 	 
	 

	 	By:     
Calumet Specialty Products Partners, L.P., its sole member
	 
	 	 
	 

	 	By:      Calumet GP, LLC, its general partner
	 
	 	 





	 	 	 	 	 	 	 	 	 	 	 
	/s/ Susan Rudov	 	 	 	By:		/s/ R. Patrick Murray II	 	 
	 	 	 	 	 	 	 	 	 
	Name :

	 	Susan Rudov
	 	 	 	Name:		/s/ R. Patrick Murray II	 	 
	Title:

	 	Attorney In Fact
	 	 	 	Title:		VP & CFO	 	 
	Date:

	 	 	 	 	 	Date:	 	 	 	 






-8-









 





Annex A




(Form of Letter of Credit Attached)




-9-









 





Form of Letter of Credit 




IRREVOCABLE STANDBY LETTER OF CREDIT




[Insert Issuing Bank Letterhead]




[DATE], 2006



IRREVOCABLE STANDBY LETTER OF CREDIT NO.[—]



[Insert Name of Party B]



[Insert Party B Address]



Ladies and Gentlemen:




          At the request, on the instructions and for the account of Calumet Lubricants Co., Limited
Partnership, a limited liability company organized under the laws of the State of Delaware (the
“Company”), we hereby establish this Irrevocable Standby Letter of Credit No.                    , for a sum not exceeding                                      
   (the “Stated Amount”) in
your favor, effective immediately and expiring at 4:00 p.m., New York City time on                                         , [insert month and year], or any automatic extension period provided for in the
next paragraph (the dates referred to in the foregoing clauses (i) and (ii) being hereinafter
referred to as the “Expiration Date”).




          This Letter of Credit shall be automatically extended without amendment from the current
expiry date for a period of one year and from each successive future expiry date for additional
one year periods unless we notify you in writing, registered mail, return receipt requested, or
overnight courier service (to the above addressee or the transferee at the address set forth in
such Annex B) at least 90 days prior to the then current expiry date, that we elect not to
extend this Letter of Credit, provided however, that the Expiration Date shall not be extended
beyond
                                         (the “Final Expiry Date”). If any expiry date for this Letter of Credit
falls on a day which is not a business day, this Letter of Credit shall expire on the next
succeeding business day. The term “business day” means any day other than a Saturday, Sunday or
legal holiday in the State of New York or a day on which banks in New York, New York are
authorized or required to be closed. Upon your request, we agree to deliver a notice confirming
the automatic extended expiration date.




          Multiple and partial drawings are permitted hereunder, provided however, that the
aggregate drawing amount does not exceed the Letter of Credit Amount, and each such partial
drawing shall reduce the then available balance of the Letter of
Credit.




1









 





          Subject to the foregoing and the further provisions of this Letter of Credit, a demand for
payment may be made by you by presentation to us at 1000 West Temple Street, 7th Floor,
Mail Code: CA9-705-07-05, Los Angeles, CA 90012-1514, Attn: Standby
Letter of Credit Dept;, of your
drawing certificate in the form of Annex A attached hereto. Such certificate, which forms
an integral part of this Letter of Credit, shall have all blanks appropriately filled in and shall
be signed by one of your officers (each an “Authorized Office”), and delivered along with this
Letter of Credit to us.




          Demand for payment may be made by you under this Letter of Credit prior to the Expiration
Date hereof at our address set forth above on any business day. If demand for payment is made by
you hereunder on a business day on or prior to 1:00 p.m., New York time, and your drawing
certificate conforms to the terms and conditions hereof, payment shall be made to you on the next
immediately succeeding business day. If demand for payment is made by you hereunder on a business
day after 1:00 p.m., New York time, and your drawing certificate conforms to the terms and
conditions hereof, payment shall be made to you on the second immediately succeeding business day.




          Demands for payment hereunder honored by us shall not, in the aggregate, exceed the Stated
Amount in effect at the time, and each such drawing shall reduce
pro tanto the Stated
Amount of this Letter of Credit.




          Upon the earliest of (i) the honoring by us of the final drawing of all amounts available
hereunder, and (ii) the Expiration Date hereof, this Letter of Credit shall automatically
terminate.




          This Letter of Credit sets forth in full the terms of our undertaking, and this undertaking
shall not in any way be modified, amended, amplified or limited by reference to any document,
instrument or agreement referred to herein or in which this Letter of Credit is referred to or to
which this Letter of Credit relates, and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement.




          This Letter of Credit is transferable in whole, but not in part, in connection with an
assignment of your entire right, title and interest in and to, and all of your obligations under,
the ISDA Master Agreement, dated as of March [      ], 2006, by and between J. Aron & Company
and the Company and each confirmation and cover sheet issued
thereunder, the “Agreement”) upon
delivery to us of this Letter of Credit accompanied by a properly completed Notice of Transfer in
the form of Annex B attached hereto. This Letter of Credit will not be transferred to any
entity or person who is subject to sanctions issued by the U.S. Department of Commerce or to whom
such transfer is prohibited by the Foreign Assets Control Regulations or any other United States
regulations or laws. Upon such presentation and payment of our transfer charges in the amount of
$500.00, we shall forthwith endorse such transfer on the reverse hereof to the transferee
designated in such Notice. Upon any transfer of this Letter of
Credit, all references herein, and in
any annex hereto, to “you” and to the “Beneficiary” shall refer to the transferee designated in the
notice delivered to us in the form of Annex B.




          We shall not be responsible for the content or verification of any statement
presented pursuant to this Letter of Credit nor the authorization of any signer of any such
statement.




2









 





          Upon the payment to you or your account of the amount specified in the drawing
certificate, we shall be fully discharged on our obligation under this Letter of Credit with
respect to such drawing, and we shall not thereafter be obligated to make any further payments
under this Letter of Credit in respect of such drawing to you or to any other person.




          All
charges related to this Letter of Credit are for the Company’s account.




          This Letter of Credit shall be governed by, and construed in accordance with, the terms of
the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber
of Commerce Publication No. 500 (the “Uniform Customs”). If this credit expires during an
interruption of business as described in Article 17 of said Uniform Customs, the bank hereby
specifically agrees to effect payment if the credit is drawn against within 10 days after the
resumption of our business. As to matters not governed by the Uniform Customs, this Letter of
Credit shall be governed by and construed in accordance with Article 5 of the Uniform
Commercial Code as in effect in the State of New York.




          Communications with respect to this Letter of Credit shall be in writing and be
addressed to us at [                                         ], specifically referring to the number of this Letter of
Credit.




Very truly yours,



[                                         ]




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 




3









 





Annex A




DRAWING CERTIFICATE



 [Insert Name of Issuing Bank]



 [Insert Address of Issuing Bank]



 Ladies and Gentlemen:




          [                                        
] (the “Beneficiary”) hereby certifies to
[                                        
] (the “Bank”), with reference to the Bank’s Irrevocable Standby
Letter of Credit No.
[     ] dated
                                        
(the “Letter of Credit”) in favor of
                     or the transferee of the Letter of Credit,) that:




     1. Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings given to such terms in the Letter of Credit.



     2. The Beneficiary is making a demand for payment under the Letter of Credit of the
sum of $[      ], which amount does not exceed either (i) the current Stated Amount of the Letter
of Credit, or (ii) the undrawn portion of the Letter of Credit.



     3. An Event of Default, Additional Event of Default, Additional Termination Event or
Letter of Credit Default (as defined in the Agreement) has occurred and is continuing with
respect to the Company.



     4. A copy of this certificate has, concurrently with the delivery hereof to the Bank,
been sent by telecopy and by email to the chief financial officer and to the chief executive
officer of the Company, using the telecopy and email information last provided to the Beneficiary by
the Company.



     5. You are hereby directed to pay the amount so demanded to: [Insert wire transfer
instruction with respect to bank account of the beneficiary of the Letter of Credit]



          IN
WITNESS WHEREOF, the Beneficiary has executed and delivered this Certificate as of the [      ] day of [month], [year].




Very truly yours,



[                                         ]




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




4









 





Annex B




NOTICE OF TRANSFER




[Insert Name of Issuing Bank]




[Insert Address of Issuing Bank]




Attention: Letter of Credit Unit




Ladies and Gentlemen:



          [                                        ]
(the “Transferor”) hereby provides this Notice of
Transfer to
[                                        ]
(the “Bank”), with reference to the Bank’s Irrevocable
Standby Letter of Credit No.
                    
dated
                    (the
“Letter of Credit”;) in favor of                     
or the transferee of the Letter of Credit, that:




          1. Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings given to such terms in the Letter of Credit.



2. Transferor has transferred its entire right, title and interest in and to the Letter of Credit,
which is attached hereto, to [—— ] (the “Transferee”), and you are hereby requested to endorse
the Letter of Credit to the Transferee as the new Beneficiary thereof. Transferor, by execution and
delivery of this Notice of Transfer, hereby certifies that the transfer of the Letter of Credit has
been made in connection and coincident with the assignment to the Transferee by Transferor of
Transferor’s entire right, title and interest in and to, and all of its obligations under, the
Agreement.



3. By this transfer all our rights as the transferor, including all rights to make drawings under
the Letter of Credit, go to the transferee. The transferee shall have sole rights as beneficiary,
whether existing now or in the future, including sole rights to agree to any amendments,
including increases or extensions or other changes. All amendments will be sent directly to the
transferee without the necessity of consent by or notice to us.



We enclose the original letter of credit and any amendments. Please indicate your acceptance of our
request for the transfer by endorsing the letter of credit and sending it to the transferee with
your customary notice of transfer.




For your transfer fee of $500.00





	*	 	Enclosed is our check for $                                                            
	 
	*	 	You may debit my/our Account No.                                        





5









 




We also agree to pay you on demand any expenses which may be incurred by you in
connection with this transfer.




     The signature and title at the right
conform with those shown in our files
as authorized to sign for the
beneficiary. Policies governing
signature authorization as required
for withdrawals from customer accounts
shall also be applied to the
authorization of signatures on this
form. The authorization of the
Beneficiary’s signature and title on
this form also acts to certify that
the authorizing financial institution
(i) is regulated by a U.S. federal
banking agency; (ii) has implemented
anti-money laundering policies and
procedures that comply with applicable
requirements of law, including a
Customer Identification Program (CIP)
in accordance with Section 326 of the
USA PATRIOT Act; (iii) has approved
the Beneficiary under its anti-money
laundering compliance program; and
(iv) acknowledges that Bank of
America, N.A. is relying on the
foregoing certifications pursuant to 31
C.F.R. Section 103.121 (b)(6).




	 	 	 
	 

NAME OF BANK

	 	 
	 
	 	 
	 

AUTHORIZED SIGNATURE AND TITLE

	 	 
	 
	 	 
	 

PHONE NUMBER

	 	 
	 
	 

NAME OF TRANSFEROR

	 	 
	 
	 	 
	 

NAME OF AUTHORIZED SIGNER AND TITLE

	 	 
	 
	 	 
	 

AUTHORIZED SIGNATURE

	 	 







6