exv10w5



 





Exhibit 10.5




EXECUTION COPY




SIXTH AMENDMENT

TO CREDIT AGREEMENT




     THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of January 3,
2008, is by and among CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an Indiana limited partnership
(the “Company”), CALUMET SHREVEPORT, LLC, an Indiana limited liability company
(“Calumet Shreveport”), CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC, an Indiana limited
liability company (“CSLW”), CALUMET SHREVEPORT FUELS, LLC, an Indiana limited liability
company (“CSF”), CALUMET SPECIALTY PRODUCTS PARTNERS, L.P., a Delaware limited partnership
(“CSPP”), CALUMET LP GP, LLC, a Delaware limited liability company (“CLPGP”),
CALUMET OPERATING, LLC, a Delaware limited liability company (“Operating”), and CALUMET
SALES COMPANY INCORPORATED, a Delaware corporation (“Calumet Sales” and together with the
Company, Calumet Shreveport, CSLW, CSF, CSPP, CLPGP and Operating, collectively, the “Existing
Borrowers” and each individually an “Existing Borrower”), each of the parties
identified as a New Borrower on the signature pages hereto (the “New Borrowers” and
together with the Existing Borrowers, the “Borrowers” and each individually a
“Borrower”), the financial institutions identified on the signature pages hereto as the
Existing Lenders (collectively, the “Existing Lenders”), the financial institutions
identified on the signature pages hereto as New Lenders (collectively, the “New Lenders”,
and together with the Existing Lenders, the “Lenders”) and BANK OF AMERICA, N.A., as agent
for the Lenders (the “Agent”).



W I T N E S S E T H:




     WHEREAS, pursuant to that certain Credit Agreement dated as of December 9, 2005 among the
Borrowers, the Existing Lenders and the Agent (as previously amended, the “Existing Credit
Agreement”), the Existing Lenders have extended commitments to make certain credit facilities
available to the Borrowers;



     WHEREAS, the Company has requested that the Existing Lenders agree to amend certain provisions
of the Existing Credit Agreement;



     WHEREAS, the Agent and the Existing Lenders are willing to make such amendments upon the terms
and conditions contained in this Amendment;



     WHEREAS, one of the requested amendments is an increase in the Revolver Commitment (the
“Commitment Increase”);



     WHEREAS, the New Lenders have agreed to become parties to the Amended Credit Agreement and the
other Loan Documents as a “Lender” and to provide a portion of the Commitment Increase;



     WHEREAS, the New Borrowers desire to become Borrowers under the Amended Credit Agreement and
the other Loan Documents;



 









 





     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the agreements herein contained, the parties hereby
agree as follows:



PART I

DEFINITIONS





     SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment, including its
preamble and recitals, have the following meanings:




     “Amended Credit Agreement” means the Existing Credit Agreement as
amended hereby.




     “Amendment No. 6 Effective Date” is defined in Subpart
4.1.




     SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble and
recitals, have the meanings provided in the Amended Credit Agreement.



PART II

AMENDMENTS TO EXISTING CREDIT AGREEMENT




     Effective on (and subject to the occurrence of) the Amendment No. 6 Effective Date, the
Existing Credit Agreement is hereby amended in accordance with this Part II. Except as so
amended, the Existing Credit Agreement shall continue in full force and effect.




     SUBPART 2.1. Credit Agreement Replaced. The Existing Credit Agreement,
including the Schedules and Exhibits thereto, is hereby amended and replaced in its entirety
to read in its entirety in the form as attached hereto as Exhibit A.



PART III

ASSIGNMENTS AND ASSUMPTIONS





     SUBPART 3.1. Assignment and Assumption. The Existing Lenders hereby sell and
assign, without recourse, to the New Lenders, and the New Lenders hereby purchase and
assume, without recourse, from the Existing Lenders, effective as of the Amendment No. 6
Effective Date, such interests in the Existing Lenders’ rights and obligations under the
Existing Credit Agreement and the other Loan Documents (including, without limitation, the
Commitments of the Existing Lenders on the Amendment No. 6 Effective Date and the Loans
owing to the Existing Lenders which are outstanding on the Amendment No. 6 Effective Date)
as shall be necessary in order to give effect to the reallocations of the Revolver
Commitments, effected by the amendment to Schedule 1.1 to the Existing Credit
Agreement pursuant to Subpart 2.1 hereof, whereupon each of the New Lenders shall be a party
to the Amended Credit Agreement and have all of the rights



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and obligations of a Lender
thereunder and under the other Loan Documents. Each Existing Lender hereby represents and
warrants (a) that it is the lawful owner of the
interests being assigned hereby, free and clear of any lien or other adverse claim and (b)
that it is legally authorized to enter into this Amendment and this Amendment is the legal,
valid and binding obligation of such Existing Lender, enforceable against it in accordance
with its terms. The New Lenders shall make payment in exchange for such interests in the
Existing Lenders’ rights and obligations under the Existing Credit Agreement and the
other Loan Documents on the Amendment No. 6 Effective Date in the amounts and in accordance
with the percentages set forth in Schedule 1.1, as amended hereby, and the
instructions of the Agent. Each New Lender (a) represents and warrants that it is legally
authorized to enter into this Amendment and this Amendment is the legal, valid and binding
obligation of such New Lender, enforceable against it in accordance with its terms; (b)
confirms that it has received a copy of the Existing Credit Agreement, this Amendment and
all of the Exhibits and Schedules thereto, together with copies of the financial statements
and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment; (c) agrees that it will, independently
and without reliance upon the Existing Lenders, the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Amended Credit Agreement,
the other Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; and (d) agrees that it will be bound by the provisions of the Amended Credit
Agreement and will perform in accordance with its terms all the obligations which by the
terms of the Amended Credit Agreement are required to be performed by it as a Lender. Each
Existing Lender shall, to the extent of the interests assigned hereby, relinquish its rights
and be released from its obligations under the Existing Credit Agreement. The processing
fee described in the Amended Credit Agreement shall not be required in connection with the
foregoing assignments.




     SUBPART 3.2. Credit Party Agreement. Each of the Obligors agrees that, as of
the Amendment No. 6 Effective Date, each New Lender shall (i) be a party to the Amended
Credit Agreement and the other Loan Documents, (ii) be a “Lender” for all purposes of the
Amended Credit Agreement and the other Loan Documents, and (iii) have the rights and
obligations of a Lender under the Amended Credit Agreement and the other Loan Documents.




     SUBPART 3.3. Notices. The applicable address, facsimile number and electronic
mail address of each New Lender for purposes of Section 14.4 of the Amended Credit Agreement
are as set forth on the signature pages to this Amendment or to such other address,
facsimile number and electronic mail address as shall be designated by any New Lender in a
notice to the Agent.



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PART IV

CONDITIONS TO EFFECTIVENESS




     SUBPART 4.1. Amendment No. 6 Effective Date. This Amendment shall become
effective when all of the conditions set forth in this Part IV shall have been
satisfied (the “Amendment No. 6 Effective Date”), and thereafter this Amendment
shall be known, and may be referred to, as the “Sixth Amendment.”



     SUBPART 4.2. Execution of Counterparts of Amendment. The Agent shall have
received counterparts (or other evidence of execution, including telephonic message,
satisfactory to the Agent) of this Amendment, which collectively shall have been duly
executed on behalf of each of the Borrowers, each of the Existing Lenders and each of the
New Lenders.



     SUBPART 4.3 Loan Documents, Organization Documents, Etc. The Agent shall have
received each of the following, each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each properly executed by a Senior
Officer of the signing Obligor or the General Partner, each dated as of the Amendment No. 6
Effective Date (or, in the case of certificates of governmental officials, a recent date
before the Amendment No. 6 Effective Date) and each in form and substance satisfactory to
Agent and each of the Lenders:



     (a) a replacement Note executed by each Borrower in favor of each Lender requesting a
Note;



     (b) copies of the Organization Documents of each Obligor certified to be true and
complete as of a recent date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization, as applicable, and certified by a
secretary or assistant secretary of such Obligor to be true and correct as of the Amendment
No. 6 Effective Date;



     (c) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Senior Officers of each Obligor or the General Partner as Agent may
require evidencing the identity, authority and capacity of each Senior Officer thereof
authorized to act as a Senior Officer in connection with this Amendment and the other Loan
Documents to which such Obligor is a party. Agent may rely on such certificates until
otherwise notified by the applicable Obligor in writing; and



     (d) such documents and certifications as Agent may reasonably require to evidence that
each Obligor is duly organized or formed, as applicable, and is validly existing, in good
standing and qualified to engage in business in (A) the jurisdiction of its incorporation or
organization, as applicable, and (B) each jurisdiction where its ownership, lease or
operation of Properties or the conduct of its business requires such qualification, except
to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



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     SUBPART 4.4. Opinions of Counsel. Agent shall have received, in each case dated as
of the Amendment No. 6 Effective Date and in form and substance reasonably satisfactory to Agent:




     (a) a legal opinion of Fulbright and Jaworski LLP, general counsel for Obligors;




     (b) a legal opinion of Barnes & Thornburg, special Indiana and Illinois counsel for the
Obligors;




     (c) a legal opinion of Cook, Yancey, King & Galloway, special Louisiana counsel for the
Obligors; and




     (d) a legal opinion of Buchanan Ingersol & Rooney PC, special Pennsylvania counsel for
the Obligors.



     SUBPART 4.5. Financial Statements. Agent shall have received:




     (a) the Audited Company Financial Statements and the Audited PENRECO Financial
Statements; and




     (b) (A) unaudited consolidated financial statements of the Consolidated Parties
for the nine month period ended September 30, 2007, including balance sheets and
statements of income or operations, partners’ capital and cash flows and (B) balance
sheets and statements of income or operations of PENRECO and its Subsidiaries for
the fiscal quarter ended September 30, 2007;




     (c) a pro forma consolidated income statement and balance sheet of the
Consolidated Parties as of September 30, 2007, giving effect to all elements of the
PENRECO Transaction to be effected on or before the Amendment No. 6 Effective Date,
in the form as filed on Form 8-K with the Securities and Exchange Commission, such
filing prior to the date hereof being deemed to satisfy the foregoing condition; and




     (d) pro forma forecasts prepared by management of the Borrower, giving effect
to all elements of the PENRECO Transaction to be effected on or before the Amendment
No. 6 Effective Date, of consolidated balance sheets and statements of income or
operations and cash flows of the Companies (A) on a quarterly basis for fiscal year
2008 and (B) on an annual basis for fiscal years 2009 through 2012.



     SUBPART 4.6. Personal Property Collateral. Agent shall have received:




     (a) UCC financing statements for each appropriate jurisdiction as is necessary, in
Agent’s sole discretion, to perfect Agent’s security interest in the Collateral;



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     (b) evidence that all certificates evidencing any certificated Equity Interests pledged
to Agent pursuant to the Security Agreement, together with duly executed in blank, undated
stock powers attached thereto (unless, with respect to the pledged Equity Interests of any
Foreign Subsidiary, such stock powers are deemed unnecessary by Agent in its reasonable
discretion under the law of the jurisdiction of incorporation of such Person) have been
delivered to the Control Agent;




     (c) duly executed notices for filing with the United States Patent and Trademark Office
or United States Copyright Office, as applicable, of the grant of security interest in
patents, trademarks and/or copyrights, each in the form required by the Security Agreement
as are necessary, in Agent’s reasonable discretion, to perfect Agent’s security interest in
the Collateral; and




     (d) evidence that all instruments and chattel paper in the possession of any of
Obligors, together with allonges or assignments as may be necessary or appropriate to
perfect Agent’s security interest in the Collateral, have been delivered to the Control
Agent.



     SUBPART 4.7. Real Property Collateral. Agent shall have received, in form and
substance reasonably satisfactory to Agent:




     (i) fully executed and notarized Mortgage Instruments (or appropriate amendments to any
existing Mortgage Instruments) encumbering the fee interest and/or leasehold interest of any
Obligor in each of the Refinery Properties, the Terminal Property and each of the other Real
Properties designated on Schedule 9.1.19(a) as a “Mortgaged Property” (each a
“Mortgaged Property” and collectively the “Mortgaged Properties”);




     (ii) ALTA mortgagee title insurance policies (or appropriate endorsements to any such
existing title insurance policies) issued by Stewart Title Guaranty Company (or such other
title company as shall be acceptable to the Administrative Agent in its sole discretion)
(the “Mortgage Policies”) with respect to each of the Mortgaged Properties (other
than the leased Real Estate referred to in items 7, 8 and 10 of Schedule 9.1.19(a) of the
Credit Agreement and the Mortgaged Property located in Karns City, Pennsylvania (which shall
be delivered as provided in Section 10.1.18 of the Amended Credit Agreement)), assuring the
Administrative Agent that each of the Mortgage Instruments creates (or continues to be) a
valid and enforceable first priority mortgage lien on the applicable Mortgaged Property,
free and clear of all defects and encumbrances except Permitted Liens, which Mortgage
Policies (or endorsements) shall otherwise be in form and substance reasonably satisfactory
to the Administrative Agent and shall include such endorsements as are reasonably requested
by the Administrative Agent;




     (iii) evidence as to (A) whether any Mortgaged Property is in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards (a
“Flood Hazard Property”) and (B) if any such Mortgaged Property is a Flood Hazard
Property, (1) whether the community in which such Mortgaged Property is located is
participating in the National Flood Insurance Program, (2) the applicable



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Obligor’s written
acknowledgment of receipt of written notification from Agent (a) as to the fact that such
Mortgaged Property is a Flood Hazard Property and (b) as to whether the community in which
each such Flood Hazard Property is located is participating in the National Flood Insurance
Program and (3) copies of insurance policies or certificates of insurance of the
Consolidated Parties evidencing flood insurance satisfactory to Agent and naming Agent as
sole loss payee on behalf of the Lenders.



     SUBPART 4.8. Evidence of Insurance. Agent shall have received copies of insurance
policies or certificates of insurance of Obligors evidencing liability and casualty insurance
meeting the requirements set forth in the Loan Documents, including naming Agent or Control Agent
as additional insured (in the case of liability insurance) or lender’s loss payee (in the case of
hazard insurance) on behalf of Agent, for the benefit of the Lenders.



     SUBPART 4.9. Officer’s Certificates. Agent shall have received a certificate or
certificates executed by a Senior Officer of each Borrower or the General Partner as of the
Amendment No. 6 Effective Date, in form and substance satisfactory to Agent, stating that (A)
the conditions specified in this Part 4 have been satisfied, (B) each Obligor is in compliance with
all existing financial obligations, (C) all governmental, shareholder and third party consents and
approvals, if any, with respect to the Loan Documents and the transactions contemplated thereby
have been obtained (and attaching copies thereof), (D) no action, suit, investigation or proceeding
is pending or threatened in any court or before any arbitrator or governmental instrumentality that
purports to affect any Obligor or any transaction contemplated by the Loan Documents, if such
action, suit, investigation or proceeding could reasonably be expected to have a Material Adverse
Effect and (E) no change in the business, operations or financial condition of PENRECO has occurred
since December 31, 2006 that, individually or taken as a whole, has resulted in a Substantial
Adverse Effect.



     SUBPART 4.10. Solvency. Agent shall have received a certificate executed by a Senior
Officer of each Borrower or the General Partner as of the Amendment No. 6 Effective Date, after
giving effect to the Transaction, in form and substance satisfactory to Agent, certifying that each
of the Obligors is Solvent.



     SUBPART 4.11. Fees. Any fees required to be paid by the Borrowers to Agent, the
Arranger or any of the Lenders pursuant to the Sixth Amendment Fee Letter or otherwise on or before
the Amendment No. 6 Effective Date shall have been paid.



     SUBPART 4.12. Attorney Costs. The Borrowers shall have paid all reasonable fees,
charges and disbursements of counsel of Agent to the extent invoiced prior to or on the Amendment
No. 6 Effective Date, plus such additional amounts of such fees, charges and disbursements
as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to
be incurred by it through the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrowers and Agent).



     SUBPART 4.13. Existing Indebtedness. Agent shall have received evidence, in form and
substance satisfactory to Agent, that the Existing PP&E Credit Agreement has been or concurrently
with the Amendment No. 6 Effective Date is being terminated and all Liens



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securing obligations
under the Existing PP&E Credit Agreement have been or concurrently with the Amendment No. 6
Effective Date are being released.



     SUBPART 4.14. PP&E Credit Agreement. (i) All conditions precedent to the closing and
initial extensions of credit under the PP&E Credit Agreement shall have been, or concurrently with
the Amendment No. 6 Effective Date shall be, satisfied, (ii) the PP&E Credit Agreement shall make
available to the PP&E Borrowers not less than $435 million of term loan and letter of credit
facilities, and (iii) Agent shall be satisfied that the initial extensions of credit under the PP&E
Credit Agreement shall have occurred, or will occur concurrently with the closing of this
Amendment. Agent shall have received a copy, certified by the chief financial officer of the
Company as true and complete, of the PP&E Credit Agreement as originally executed and delivered,
together with all exhibits and schedules thereto.



     SUBPART 4.15. [Reserved].



     SUBPART 4.16. Priority of Liens. Agent shall have received satisfactory evidence
that (A) Agent, on behalf of the Lenders, holds (1) a perfected Lien on all Collateral and (2) a
first priority, perfected lien on all Priority Collateral (in each case subject to clause (B)
below) and
(B) none of the Collateral is subject to any other Liens other than Permitted Liens and Liens
on Indebtedness to be repaid on the Amendment No. 6 Effective Date and to be released on or
promptly after the Amendment No. 6 Effective Date.



     SUBPART 4.17. Accuracy of Representations and Warranties. The representations and
warranties of the Company and each other Obligor contained in Section 9 of the Amended Credit
Agreement or any other Loan Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct on and as of the Amendment
No. 6 Effective Date after giving effect to the PENRECO Acquisition.



     SUBPART 4.18. No Default. No Default shall exist and be continuing as of the
Amendment No. 6 Effective Date either prior to or after giving effect to this Amendment.



     SUBAPRT 4.19. Due Diligence. The Agent shall have completed, to its satisfaction in
all respects, business, legal, tax, financial, accounting and environmental due diligence
investigation of the PENRECO Acquisition and all agreements related thereto. No material adverse
change in the financial condition of any Obligor or in the quality, quantity or value of any
Collateral shall have occurred since December 31, 2006.



     SUBPART 4.20. Borrowing Base Certificate; Opening Availability. Agent and each
Lender shall have received a Borrowing Base Certificate prepared as of November 30, 2007. Upon
giving effect to the initial funding of Loans and issuance of Letters of Credit, the payment by
Borrowers of all reasonable fees and expenses incurred in connection herewith, and the transactions
contemplated herein to take place on the Amendment No. 6 Effective Date, Availability shall be at
least $50,000,000.



     SUBPART 4.21. Consummation of PENRECO Acquisition. (i) The PENRECO Acquisition shall
have been consummated in accordance with the terms of the PENRECO Acquisition Agreement and
Applicable Law, and all material conditions precedent to the obligations of the Parent thereunder
shall have been satisfied, and (ii) all governmental,



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shareholder and material third party consents
and approvals necessary in connection with the PENRECO Acquisition shall have been obtained and
shall be in force and effect. The PENRECO Acquisition Agreement shall not have been altered,
amended or otherwise changed or supplemented in any material respect or any material condition
therein waived, without the prior written consent of the Administrative Agent, except for such
amendments or waivers as are not materially adverse to the Lenders. The Administrative Agent shall
have received a copy, certified by a Responsible Officer of the Borrower as true and complete, of
the PENRECO Acquisition Agreement as originally executed and delivered, together with all exhibits,
schedules and amendments thereto.



     SUBPART 4.22. Assignment Agreement(s). Agent shall have received an Assignment and
Acceptance agreement executed by Wells Fargo Foothill, LLC and Bank of America, N.A. dated as of
the Amendment No. 6 Effective Date.



     SUBPART 4.23. Intercreditor Agreement. Agent shall have received a copy of the
Intercreditor Agreement, properly executed by each of the parties thereto, in form and substance
satisfactory to Agent and each of the Lenders.



     SUBPART 4.24. Field Examination and Appraisal. Agent shall have received a
satisfactory field exam with respect to the assets of the Consolidated Parties (including PENRECO)
and an appraisal of the inventory of the Consolidated Parties (excluding PENRECO, it being agreed
that the appraisal of PENRECO’s assets will be completed in January, 2008 and until such time as
the appraisal is complete, PENRECO’s inventory will not constitute Eligible Inventory).



     SUBPART 4.25. Deemed Approval. Each Lender that has signed this Amendment shall be
deemed to have consented to, approved or accepted or to be satisfied with, each document or other
matter required thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless Agent shall have received notice from such Lender prior to the proposed Amendment No.
6 Effective Date specifying its objection thereto.



     SUBPART 4.26. Limited Waiver of Conditions Precedent. If Agent, Issuing Bank or
Lenders fund any Loans, arrange for issuance of any Letters of Credit or grant any other
accommodation when any conditions precedent are not satisfied (regardless of whether the lack of
satisfaction was known or unknown at the time), it shall not operate as a waiver of (a) the right
of Agent, Issuing Bank and Lenders to insist upon satisfaction of all conditions precedent with
respect to any subsequent funding, issuance or grant; nor (b) any Default or Event of Default due
to such failure of conditions or otherwise.



PART V

JOINDER PROVISIONS




     SUBPART 5.1. Understandings Regarding Section 10.1.13. Notwithstanding the
provisions of Section 10.1.13 of the Amended Credit Agreement requiring the execution and delivery
to the Agent of a joinder agreement, each of the parties hereto agrees that the terms of



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this Part
V shall be effective to cause each New Borrower to become a Borrower under the Credit Agreement,
and an Obligor under the Security Agreement.



     SUBPART 5.2. Borrower under Loan Documents. Each New Borrower hereby acknowledges,
agrees and confirms that, by its execution of this Amendment, the New Borrower will be deemed to be
a party to the Credit Agreement and a “Borrower” for all purposes of the Credit Agreement and the
other Loan Documents, and shall have all of the obligations of a Borrower thereunder as if it has
executed the Credit Agreement and the other Loan Documents. Each New Borrower hereby ratifies, as
of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Credit Agreement and in the other Loan Documents, including without limitation (i)
all of the representations and warranties of the Borrowers set forth in Section 9 of the Credit
Agreement, as supplemented from time to time in accordance with the terms thereof, and (ii) all of
the affirmative and negative covenants set forth in Sections 10.1 and 10.2 of the Credit Agreement.



     SUBPART 5.3. Obligor under Security Agreement. Each New Borrower hereby
acknowledges, agrees and confirms that, by its execution of this Amendment, the New Borrower will
be deemed to be a party to the Security Agreement, and shall have all the obligations of an
“Obligor” (as such term is defined in the Security Agreement) thereunder as if it had executed the
Security Agreement. Each New Borrower hereby ratifies, as of the date hereof, and agrees to be
bound by, all of the terms, provisions and conditions contained in the Security Agreement.
Without limiting the generality of the foregoing terms of this Section 5.3, each New Borrower
hereby grants to the Agent, for the benefit of the holders of the Secured Obligations (as defined
in the Security Agreement), a continuing security interest in, and a right of set off against any
and all right, title and interest of the New Borrower in and to the Collateral (as such term is
defined in Section 2 of the Security Agreement) of the New Borrower.



     SUBPART 5.4. Receipt of Documents. Each New Borrower acknowledges and confirms that
it has received a copy of the Credit Agreement and the schedules and exhibits thereto and the
Security Agreement and the schedules and exhibits thereto.



     SUBPART 5.5. Obligations. Each Existing Borrower confirms that all of its and the
other Obligors’ obligations under the Loan Documents are, and upon each New Borrower becoming a
Borrower shall continue to be, in full force and effect. Each Borrower further confirms that
immediately upon each New Borrower becoming a Borrower the term “Obligations”, as used in the
Credit Agreement and the other Loan Documents, shall include all obligations of each New Borrower
under the Credit Agreement and under each other Loan Document.



     SUBPART 5.6. Further Assurances. Each of the Existing Borrowers and the New
Borrowers agrees that at any time and from time to time, upon the written request of the Agent, it
will execute and deliver such further documents and do such further acts and things as the Agent
may reasonably request in order to effect the purposes of this Agreement.



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PART VI

MISCELLANEOUS




     SUBPART 6.1 Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.



     SUBPART 6.2. Instrument Pursuant to Amended Credit Agreement. This Amendment
is an Other Agreement executed pursuant to the Amended Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in accordance
with the terms and provisions of the Amended Credit Agreement.



     SUBPART 6.3. References in Other Agreements. At such time as this Amendment
shall become effective pursuant to the terms of Subpart 4.1, all references in the
Other Agreements to the “Credit Agreement” shall be deemed to refer to the Existing Credit
Agreement as amended by this Amendment.



     SUBPART 6.4. Representations and Warranties of the Borrowers. Each Borrower
hereby represents and warrants that (a) it has the requisite power and authority to execute,
deliver and perform this Amendment, (b) it is duly authorized to, and has been authorized by
all necessary action, to execute, deliver and perform this Amendment, (c) the
representations and warranties contained in Section 9 of the Existing Credit
Agreement (as amended by this Amendment) are true and correct in all material respects on
and as of the date hereof as though made on and as of such date and after giving effect to
the amendments contained herein (except for those which expressly relate to an earlier date)
and (d) no Default or Event of Default exists under the Existing Credit Agreement on and as
of the date hereof after giving effect to the amendments contained herein.



     SUBPART 6.5. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. Delivery of executed
counterparts of this Amendment by telecopy shall be effective as an original and shall
constitute a representation that an original will be delivered.



     SUBPART 6.6. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SUBPART 6.7. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.



     SUBPART 6.8. Costs and Expenses. The Borrowers agree to pay all reasonable
out of pocket costs and expenses of the Agent in connection with the preparation, execution
and delivery of this Amendment, including without limitation the reasonable fees and
expenses of Moore & Van Allen, PLLC.



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     SUBPART 6.9. No Other Modification. Except to the extent specifically provided
to the contrary in this Amendment, all terms and conditions of the Existing Credit Agreement
and the Other Agreements shall remain in full force and effect, without modification or
limitation.



     SUBPART 6.10. Intercreditor Agreement. Each of the Lenders hereby
acknowledges that it has received and reviewed the Intercreditor Agreement (as defined in
the Amended Credit Agreement) and agrees to be bound by the terms thereof. Each Lender
hereby (i) acknowledges that Bank of America is acting under the Intercreditor Agreement in
multiple capacities as Agent, the PP&E Agent and the Control Agent and (ii) waives any
conflict of interest, now contemplated or arising hereafter, in connection therewith and
agrees not to assert against Bank of America any claims, causes of action, damages or
liabilities of whatever kind or nature relating thereto. Each Lender hereby authorizes and
directs Bank of America to enter into the Intercreditor Agreement on behalf of such Lender
and agrees that Bank of America, in its various capacities thereunder, may take such actions
on its behalf as is contemplated by the terms of the Intercreditor Agreement.



     SUBPART 6.11. Release. Each Borrower and each other Obligor hereby releases,
discharges and extinguishes any and all claims that each Borrower, and each other Obligor,
may have against the Agent in its representative capacity, or against the Lenders, arising
as a result of any breach of duty, or any breach of the Existing Agreement, by the Agent or
the Lenders in connection with the performance of their respective obligations under the
Existing Credit Agreement, provided however that the foregoing shall not release, discharge
or extinguish any right, claim or cause of action that each Borrower and each Obligor may
have in connection with (i) deposits (time, demand or other deposits) that are held by the
Agent or any of the Lenders, (ii) checks in process, (iii) rights to refunds for fee or
other overcharges prior to the date hereof, (iv)
claims not known prior to the date hereof, (v) claims in connection with services rendered
pursuant to cash management, hedging, investment advice or any other services of the Agent
or any of the Lenders set forth in agreements other than the Existing Credit Agreement, and
(vi) claims for willful misconduct occurring after the date of this Amendment.



     SUBPART 6.12. No Novation. Notwithstanding the fact that the Existing Credit
Agreement is amended and replaced in its entirety pursuant Subpart 2.1, this Agreement
merely amends and replaces the Existing Credit Agreement and is not intended to be or
operate as a novation or an accord and satisfaction of the Existing Credit Agreement or the
obligations evidenced thereby or provided for thereunder.



[remainder of page intentionally left blank]





- 12 -











 





     Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	EXISTING BORROWERS:	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	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	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	/s/ R. Patrick Murray II	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	R.
Patrick Murray II

	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Title:	 	Vice-President and Chief Financial
Officer	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET SHREVEPORT, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Name:	 	R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President and Chief Financial
Officer
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Name:	 	R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President and
Chief Financial Officer
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET SHREVEPORT FUELS, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Name:	 	R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President and Chief Financial
Officer
	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Calumet GP, LLC, its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Name:	 	R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President and
Chief Financial Officer
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET LP GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Calumet Operating, LLC, its sole member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Calumet Specialty Products Partners, L.P., its sole
member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Calumet GP, LLC, its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	/s/ R. Patrick Murray II
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	R. Patrick Murray II
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	Vice-President and
Chief Financial Officer
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET OPERATING, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	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:	 	Vice-President and
Chief Financial Officer	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	CALUMET SALES COMPANY INCORPORATED	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Name:	 	R. Patrick Murray II
	 	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President and
Chief Financial Officer
	 	 	 	 	 	 	 















 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	NEW BORROWERS:	 	CALUMET PENRECO, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By: Calumet Lubricants Co., Limited Partnership, its sole
member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	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	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	/s/ R. Patrick Murray II	 	 
	 

	 	 	 	 	 	 	 	 
	 	 

	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	R. Patrick Murray II
	 	 
	 

	 	 	 	 	 	 	 	 
	 	 

	 	 
	 

	 	 	 	 	 	 	 	Title:	 	Vice-President and Chief Financial
Officer	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 






2











 





	 	 	 	 	 	 	 
	AGENT AND EXISTING LENDERS:	 	BANK OF AMERICA, N.A.,

as Agent and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Hance VanBeber	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Hance VanBeber	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Sr. Vice-President	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agent and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Santiago Giraldo	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Santiago Giraldo	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joe Curdy	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Joe Curdy	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Director	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BUSINESS CREDIT, INC.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jason Hanes	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Jason Hanes	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President	 	 
	 

	 	 	 	 	 	 











 









 






	 	 	 	 	 	 	 
	 	 	SIEMENS FINANCIAL SERVICES, INC.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Picillo	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Mark Picillo	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Vice-President	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	NEW LENDERS:	 	NORTH FORK BUSINESS CAPITAL CORPORATION	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By:	 	/s/ Todd Kemme	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	Name:	 	Todd Kemme	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	Title:	 	Vice-President	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address:	 	 	 	 
	 
	 	 	 	5430 LBJ Freeway, Suite 1540
	 	 	 	 
	 
	 	 	 	Dallas, Texas 75240
	 	 	 	 
	 
	 	 	 	Attn:  Todd Kemme
	 	 	 	 
	 
	 	 	 	Telecopy:  972-770-2671	 	 	 	 







 











 





	 	 	 	 	 
	 	 	REGIONS BANK
	 
	 	 	 	 
	 
	 	By:	 	/s/ Michael Fogarty
	 
	 	 	 
	 
	 	Name:	 	Michael Fogarty
	 
	 	 	 
	 
	 	Title:	 	Senior Vice-President
	 
	 	 	 
	 
	 	 	 	 
	 
	 	Address:	 	 
	 
	 	5001 Spring Valley Rd.
	 
	 	Suite 153-W
	 
	 	Dallas, Texas  75244
	 
	 	Attn:  Michael Fogarty
	 
	 	Telecopy:  (972) 383-7505






 









 






	 	 	 	 	 
	 	 	FIFTH THIRD BANK
	 
	 	 	 	 
	 
	 	By:	 	/s/ Peter T. Hale
	 
	 	 	 	 
	 
	 	Name:	 	Peter T. Hale
	 
	 	 	 	 
	 
	 	Title:	 	Officer
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	Address:	 	 
	 
	 	251 N. Illinois St., Suite 1200
	 
	 	Indianapolis, IN 46204
	 
	 	Attn: David O’Neal
	 
	 	Telecopy: (317) 383-2320






 









 






	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:	 	/s/ William L. Prindle Jr.
	 

	 	 	 	 
	 

	 	Name:	 	William L. Prindle Jr.
	 

	 	 	 	 
	 

	 	Title:	 	Vice-President
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	4720 Piedmont Row. Dr.
	 

	 	 	 	Suite 300
	 

	 	 	 	Charlotte, NC 28210
	 

	 	 	 	Attn: Alex Council
	 

	 	 	 	Telecopy: (704) 643-7918






 









 






	 	 	 	 	 
	 	 	LLOYDS TSB COMMERCIAL FINANCE LIMITED
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jeremy Harrison
	 

	 	 	 	 
	 

	 	Name:	 	Jeremy Harrison
	 

	 	 	 	 
	 

	 	Title:	 	ABL Director
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	1251 Avenue of the Americas
	 

	 	 	 	39th Floor
	 

	 	 	 	New York, New York 10020
	 

	 	 	 	Attn: Jeremy Harrison
	 

	 	 	 	Telecopy: (212) 930-5098







 












 





EXHIBIT A

to Sixth Amendment to Credit Agreement




 





CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP,




CALUMET SHREVEPORT, LLC,




CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC,




CALUMET SHREVEPORT FUELS, LLC,




CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.,




CALUMET LP GP, LLC,




CALUMET OPERATING, LLC,




CALUMET SALES COMPANY INCORPORATED, and




CALUMET PENRECO, LLC,

as Borrowers




 






CREDIT AGREEMENT




Dated as of December 9, 2005




$375,000,000




 






CERTAIN FINANCIAL INSTITUTIONS,

as Lenders,




BANK OF AMERICA, N.A.,

as Agent,




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,




and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Documentation Agent





BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Sole Book Manager




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1 DEFINITIONS; RULES OF CONSTRUCTION
	 	 	1	 
	1.1 Definitions
	 	 	1	 
	1.2 Accounting Terms
	 	 	43	 
	1.2.1 Generally
	 	 	43	 
	1.2.2 Changes in GAAP
	 	 	43	 
	1.2.3 Effect of Dispositions and Acquisitions
	 	 	44	 
	1.2.4 Consolidation of Variable Interest Entities
	 	 	44	 
	1.3 Certain Matters of Construction
	 	 	44	 
	SECTION 2 CREDIT FACILITIES
	 	 	45	 
	2.1 Revolver Commitment
	 	 	45	 
	2.1.1 Revolver Loans
	 	 	45	 
	2.1.2 Revolver Notes
	 	 	46	 
	2.1.3 Use of Proceeds
	 	 	46	 
	2 .1.4 Voluntary Reduction or Termination of Revolver Commitments
	 	 	46	 
	2 .1.5 Overadvances
	 	 	47	 
	2.1.6 Protective Advances
	 	 	47	 
	2.2 Incremental Availability
	 	 	47	 
	2.3 Letter of Credit Facility
	 	 	48	 
	2.3.1 Issuance of Letters of Credit
	 	 	48	 
	2.3.2 Reimbursement; Participations
	 	 	50	 
	2.3.3 Cash Collateral
	 	 	51	 
	SECTION 3 INTEREST, FEES AND CHARGES
	 	 	51	 
	3.1 Interest
	 	 	51	 
	3.1.1 Rates and Payment of Interest
	 	 	51	 
	3.1.2 Application of Adjusted LIBOR to Outstanding Loans
	 	 	52	 
	3.1.3 Interest Periods
	 	 	52	 
	3.1.4 Interest Rate Not Ascertainable
	 	 	53	 
	3.2 Fees
	 	 	53	 
	3.2.1 Upfront Fee
	 	 	53	 
	3.2.2 Unused Line Fee
	 	 	53	 
	3.2.3 LC Facility Fees
	 	 	53	 
	3.2.4 Other Fees
	 	 	54	 
	3.3 Computation of Interest, Fees, Yield Protection
	 	 	54	 
	3.4 Reimbursement Obligations
	 	 	54	 
	3.5 Illegality
	 	 	55	 
	3.6 Increased Costs
	 	 	55	 
	3.6.1 Increased Costs Generally
	 	 	55	 
	3.6.2 Capital Requirements
	 	 	56	 
	3.6.3 Certificates for Reimbursement
	 	 	56	 
	3.6.4 Delay in Requests
	 	 	56	 
	3.6.5 Reserves on LIBOR Loans
	 	 	56	 
	3.7 Capital Adequacy
	 	 	57	 
	3.8 Mitigation
	 	 	57	 
	3.8.1 Designation of a Different Lending Office
	 	 	57	 






 









 






	 	 	 	 	 
	 	 	Page
	3.8.2 Replacement of Lenders
	 	 	57	 
	3.9 Funding Losses
	 	 	57	 
	3.10 Maximum Interest
	 	 	58	 
	SECTION 4 LOAN ADMINISTRATION
	 	 	58	 
	4.1 Manner of Borrowing and Funding Revolver Loans
	 	 	58	 
	4.1.1 Notice of Borrowing
	 	 	58	 
	4.1.2 Fundings by Lenders
	 	 	59	 
	4.1.3 Swingline Loans; Settlement
	 	 	59	 
	4.1.4 Telephonic Notices
	 	 	60	 
	4.1.5 Electronic Notices
	 	 	60	 
	4.2 Defaulting Lender
	 	 	61	 
	4.3 Number and Amount of LIBOR Loans; Determination of Rate
	 	 	61	 
	4.4 Borrower Agent
	 	 	61	 
	4.4.1
	 	 	61	 
	4.4.2
	 	 	61	 
	4.4.3
	 	 	61	 
	4.5 One Obligation
	 	 	62	 
	4.6 Effect of Termination
	 	 	62	 
	SECTION 5 PAYMENTS
	 	 	62	 
	5.1 General Payment Provisions
	 	 	62	 
	5.2 Repayment of Revolver Loans
	 	 	62	 
	5.3 Reserved
	 	 	63	 
	5.4 Payment of Other Obligations
	 	 	63	 
	5.5 Marshaling; Payments Set Aside
	 	 	63	 
	5.6 Post-Default Allocation of Payments
	 	 	63	 
	5.6.1 Allocation
	 	 	63	 
	5.6.2 Erroneous Application
	 	 	64	 
	5.7 Application of Payments
	 	 	64	 
	5.8 Loan Account; Account Stated
	 	 	65	 
	5.8.1 Loan Account
	 	 	65	 
	5.8.2 Entries Binding
	 	 	65	 
	5.9 Taxes
	 	 	65	 
	5.10 [Reserved]
	 	 	67	 
	5.11 Nature and Extent of Each Borrower’s Liability
	 	 	67	 
	5.11.1 Joint and Several Liability
	 	 	67	 
	5.11.2 Waivers
	 	 	68	 
	5.11.3 Extent of Liability; Contribution
	 	 	69	 
	5.11.4 Joint Enterprise
	 	 	69	 
	5.11.5 Subordination
	 	 	70	 
	SECTION 6 CONDITIONS PRECEDENT
	 	 	70	 
	6.1 Conditions Precedent to Initial Loans
	 	 	70	 
	6.2 Conditions Precedent to All Credit Extensions
	 	 	70	 
	6.3 Limited Waiver of Conditions Precedent
	 	 	71	 
	SECTION 7 RESERVED
	 	 	71	 
	SECTION 8 COLLATERAL ADMINISTRATION
	 	 	71	 
	8.1 Borrowing Base Certificates
	 	 	71	 






 









 






	 	 	 	 	 
	 	 	Page
	8.2 Administration of Accounts
	 	 	71	 
	8.2.1 Records and Schedules of Accounts
	 	 	71	 
	8.2.2 Taxes
	 	 	72	 
	8.2.3 Account Verification
	 	 	72	 
	8.2.4 Maintenance of Dominion Account
	 	 	72	 
	8.2.5 Proceeds of Collateral
	 	 	72	 
	8.2.6 Bank Products
	 	 	72	 
	8.3 Administration of Inventory
	 	 	73	 
	8.3.1 Records and Reports of Inventory
	 	 	73	 
	8.3.2 Returns of Inventory
	 	 	73	 
	8.3.3 Acquisition, Sale and Maintenance
	 	 	73	 
	8.4 Administration of Equipment
	 	 	73	 
	8.4.1 Records and Schedules of Equipment
	 	 	73	 
	8.4.2 Condition of Equipment
	 	 	74	 
	8.5 Administration of Deposit Accounts
	 	 	74	 
	8.6 General Provisions
	 	 	74	 
	8.6.1 Location of Collateral
	 	 	74	 
	8.6.2 Insurance of Collateral; Condemnation Proceeds
	 	 	74	 
	8.6.3 Protection of Collateral
	 	 	75	 
	8.6.4 Defense of Title to Collateral
	 	 	75	 
	8.7 Power of Attorney
	 	 	75	 
	SECTION 9 REPRESENTATIONS AND WARRANTIES
	 	 	76	 
	9.1 General Representations and Warranties
	 	 	76	 
	9.1.1 Existence, Qualification and Power; Compliance with Applicable
Laws
	 	 	76	 
	9.1.2 Authorization; No Contravention
	 	 	76	 
	9.1.3 Governmental Authorization and Approvals; Other Consents
	 	 	77	 
	9.1.4 Binding Effect
	 	 	77	 
	9.1.5 Financial Statements; No Material Adverse Effect
	 	 	77	 
	9.1.6 Litigation
	 	 	79	 
	9.1.7 No Default
	 	 	79	 
	9.1.8 Ownership of Property; Liens
	 	 	79	 
	9.1.9 Environmental Compliance
	 	 	79	 
	9.1.10 Insurance
	 	 	80	 
	9.1.11 Taxes
	 	 	80	 
	9.1.12 ERISA Compliance
	 	 	81	 
	9.1.13 Capital Structure/Subsidiaries
	 	 	82	 
	9.1.14 Margin Regulations; Investment Company Act
	 	 	82	 
	9.1.15 Disclosure
	 	 	83	 
	9.1.16 Compliance with Laws
	 	 	83	 
	9.1.17 Intellectual Property
	 	 	83	 
	9.1.18 Solvency
	 	 	83	 
	9.1.19 Business Locations
	 	 	84	 
	9.1.20 Brokers’ Fees
	 	 	84	 
	9.1.21 Labor Matters
	 	 	84	 
	9.1.22 Nature of Business
	 	 	84	 
	9.1.23 Representations and Warranties from Other Loan Documents
	 	 	84	 






 









 






	 	 	 	 	 
	 	 	Page
	9.1.24 Security Documents
	 	 	84	 
	9.1.25 Real Properties
	 	 	85	 
	9.1.26 Surety Obligations
	 	 	85	 
	9.1.27 Trade Relations
	 	 	85	 
	9.1.28 Accounts
	 	 	85	 
	9.1.29 [Reserved]
	 	 	86	 
	9.1.30 [Reserved]
	 	 	86	 
	9.1.31 No Conflict with MLP Partnership Agreement
	 	 	86	 
	9.1.31 Representations and Warranties in PENRECO Purchase Agreement
	 	 	86	 
	9.2 Complete Disclosure
	 	 	86	 
	SECTION 10 COVENANTS AND CONTINUING AGREEMENTS
	 	 	86	 
	10.1 Affirmative Covenants
	 	 	86	 
	10.1.1 Financial Statements
	 	 	87	 
	10.1.2 Certificates; Other Information
	 	 	88	 
	10.1.3 Notices and Information
	 	 	90	 
	10.1.4 Payment of Obligations
	 	 	92	 
	10.1.5
Preservation of Existence, Licenses, Etc.
	 	 	92	 
	10.1.6 Maintenance of Properties
	 	 	92	 
	10.1.7 Maintenance of Insurance
	 	 	93	 
	10.1.8 Compliance with Laws and Material Contractual Obligations
	 	 	93	 
	10.1.9 Books and Records
	 	 	93	 
	10.1.10 Inspection Rights
	 	 	93	 
	10.1.11 Use of Proceeds
	 	 	94	 
	10.1.12 Reserved
	 	 	94	 
	10.1.13 Additional Borrowers or Guarantors
	 	 	94	 
	10.1.14 Pledged Assets
	 	 	95	 
	10.1.15 Landlord and Storage Agreements
	 	 	96	 
	10.1.16 Clean Down of Distribution Revolver Loans
	 	 	96	 
	10.2 Negative Covenants
	 	 	96	 
	10.2.1 Liens
	 	 	96	 
	10.2.2 Investments
	 	 	99	 
	10.2.3 Indebtedness
	 	 	102	 
	10.2.4 Fundamental Changes
	 	 	105	 
	10.2.5 Dispositions
	 	 	105	 
	10.2.6 Restricted Payments
	 	 	106	 
	10.2.7
Change in Nature of Business; Name, Etc.
	 	 	108	 
	10.2.8 Transactions with Affiliates and Insiders
	 	 	108	 
	10.2.9 Burdensome Agreements
	 	 	109	 
	10.2.10 Use of Proceeds
	 	 	109	 
	10.2.11 Consolidated Capital Expenditures
	 	 	110	 
	10.2.12
Prepayment of Other Indebtedness, Amendment of Documents, Etc.
	 	 	110	 
	10.2.13 Organization Documents; Fiscal Year; Accounting Practices
	 	 	111	 
	10.2.14 Ownership of Subsidiaries
	 	 	111	 
	10.2.15 Tax Consolidation
	 	 	112	 
	10.2.16 Payables Practices
	 	 	112	 
	10.2.17 Amendment of Related Documents
	 	 	112	 






 









 






	 	 	 	 	 
	 	 	Page
	10.3 Financial Covenants
	 	 	112	 
	10.3.1 Fixed Charge Coverage Ratio
	 	 	112	 
	10.3.2 Consolidated Leverage Ratio
	 	 	112	 
	Section 11 EVENTS OF DEFAULT; REMEDIES ON DEFAULT
	 	 	113	 
	11.1 Events of Default
	 	 	113	 
	11.2 Remedies upon Default
	 	 	116	 
	11.3 License
	 	 	116	 
	11.4 Setoff
	 	 	117	 
	11.5 Remedies Cumulative; No Waiver
	 	 	117	 
	11.5.1 Cumulative Rights
	 	 	117	 
	11.5.2 Waivers
	 	 	117	 
	SECTION 12 AGENT
	 	 	118	 
	12.1 Appointment, Authority and Duties of Agent
	 	 	118	 
	12.1.1 Appointment and Authority
	 	 	118	 
	12.1.2 Duties
	 	 	118	 
	12.1.3 Agent Professionals
	 	 	119	 
	12.1.4 Instructions of Required Lenders
	 	 	119	 
	12.2 Agreements Regarding Collateral and Field Examination Reports
	 	 	119	 
	12.2.1 Lien Releases; Care of Collateral
	 	 	119	 
	12.2.2 Possession of Collateral
	 	 	119	 
	12.2.3 Reports
	 	 	120	 
	12.3 Reliance By Agent
	 	 	120	 
	12.4 Action Upon Default
	 	 	120	 
	12.5 Ratable Sharing
	 	 	120	 
	12.6 Indemnification of Agent Indemnitees
	 	 	121	 
	12.6.1 Indemnification
	 	 	121	 
	12.6.2 Proceedings
	 	 	121	 
	12.7 Limitation on Responsibilities of Agent
	 	 	121	 
	12.8 Successor Agent and Co-Agents
	 	 	122	 
	12.8.1 Resignation; Successor Agent
	 	 	122	 
	12.8.2 Separate Collateral Agent
	 	 	122	 
	12.9 Due Diligence and Non-Reliance
	 	 	122	 
	12.10 Reserved
	 	 	123	 
	12.11 Remittance of Payments and Collections
	 	 	123	 
	12.11.1 Remittances Generally
	 	 	123	 
	12.11.2 Failure to Pay
	 	 	123	 
	12.11.3 Recovery of Payments
	 	 	123	 
	12.12 Agent in its Individual Capacity
	 	 	124	 
	12.13 Agent Titles
	 	 	124	 
	12.14 Intercreditor Agreement
	 	 	124	 
	12.15 No Third Party Beneficiaries
	 	 	124	 
	SECTION 13 BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
	 	 	125	 
	13.1 Successors and Assigns
	 	 	125	 
	13.2 Participations
	 	 	125	 
	13.2.1 Permitted Participants; Effect
	 	 	125	 
	13.2.2 Voting Rights
	 	 	125	 






 









 






	 	 	 	 	 
	 	 	Page
	13.2.3 Benefit of Set-Off
	 	 	125	 
	13.3 Assignments
	 	 	126	 
	13.3.1 Permitted Assignments
	 	 	126	 
	13.3.2 Effect; Effective Date
	 	 	126	 
	13.4 Tax Treatment
	 	 	126	 
	13.5 Representation of Lenders
	 	 	126	 
	SECTION 14 MISCELLANEOUS
	 	 	127	 
	14.1 Consents, Amendments and Waivers
	 	 	127	 
	14.1.1 Amendment
	 	 	127	 
	14.1.2 Limitations
	 	 	128	 
	14.1.3 Payment for Consents
	 	 	129	 
	14.2 General Indemnity
	 	 	129	 
	14.3 Reimbursement by Lenders
	 	 	130	 
	14.4 Notices and Communications
	 	 	130	 
	14.4.1 Notices Generally
	 	 	130	 
	14.4.2 Electronic Communications
	 	 	131	 
	14.4.3 The Platform
	 	 	131	 
	14.4.4
Change of Address, Etc.
	 	 	132	 
	14.4.5 Reliance by Agent, Issuing Bank and Lenders
	 	 	132	 
	14.4.6 Non-Conforming Communications
	 	 	132	 
	14.5 Performance of Borrowers’ Obligations
	 	 	132	 
	14.6 Credit Inquiries
	 	 	133	 
	14.7 Severability
	 	 	133	 
	14.8 Cumulative Effect; Conflict of Terms
	 	 	133	 
	14.9 Counterparts; Facsimile Signatures; Entire Agreement
	 	 	133	 
	14.10 Time of the Essence
	 	 	133	 
	14.11 Obligations of Lenders
	 	 	133	 
	14.12 Confidentiality
	 	 	134	 
	14.13 [Reserved]
	 	 	135	 
	14.14 GOVERNING LAW
	 	 	135	 
	14.15 SUBMISSION TO JURISDICTION; WAIVER OF VENUE OBJECTION; SERVICE OF PROCESS
	 	 	135	 
	14.15.1 SUBMISSION TO JURISDICTION
	 	 	135	 
	14.15.2 WAIVER OF VENUE OBJECTION
	 	 	136	 
	14.15.3 SERVICE OF PROCESS
	 	 	136	 
	14.16 Waivers by Borrowers
	 	 	136	 
	14.17 Patriot Act Notice
	 	 	136	 
	14.18 Replacement of Certain Lenders
	 	 	137	 
	14.19 Subordination of Intercompany Indebtedness
	 	 	138	 
	14.20 No Advisory or Fiduciary Relationship
	 	 	138	 
	14.21 ENTIRE AGREEMENT
	 	 	138	 






 









 





LIST OF EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A

	 	General Revolver Note
	Exhibit B

	 	Distribution Revolver Note
	Exhibit C

	 	Compliance Certificate
	Exhibit D

	 	Assignment and Acceptance
	Exhibit E

	 	Assignment Notice
	Exhibit F

	 	Loan Notice
	Exhibit G

	 	Borrowing Base Certificate






	 	 	 
	Schedule 1.01 Scheduled Financial Information
	Schedule 1.03 Immaterial Subsidiaries
	Schedule 1.1 A Commitments of Lenders
	Schedule 1.1 B Pipeline Delivery Points
	Schedule 8.5 Deposit Accounts
	Schedule 8.6.1 Business Locations
	Schedule 9.1.3 Required Consents, Authorizations, Notices and Filings
	Schedule 9.1.5 Supplement to Interim Financial Statements
	Schedule 9.1.10

	 	Insurance
	Schedule 9.1.11

	 	Taxes
	Schedule 9.1.13(a)

	 	Corporate Structure
	Schedule 9.1.13(b)

	 	Subsidiaries, Equity Interests in the Company
	Schedule 9.1.13(c)

	 	Equity Investments
	Schedule 9.1.17

	 	Intellectual Property Matters
	Schedule 9.1.19(a)

	 	Real Properties
	Schedule 9.1.19(b)

	 	Collateral Locations
	Schedule 9.1.19(c)

	 	Chief Executive Offices; Jurisdictions of Incorporation; Principal
Places of Business
	Schedule 9.1.19(d)

	 	Corporate, Fictitious or Trade Names
	Schedule 9.1.21

	 	Labor Matters
	Schedule 10.2.1

	 	Existing Liens
	Schedule 10.2.2

	 	Existing Investments
	Schedule 10.2.3

	 	Existing Indebtedness







 











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (this “Agreement”) is dated as of December 9, 2005, among
CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an Indiana limited partnership (the
“Company”), CALUMET SHREVEPORT, LLC, an Indiana limited liability company (“Calumet
Shreveport”), CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC, an Indiana limited liability company
(“CSLW”), CALUMET SHREVEPORT FUELS, LLC, an Indiana limited liability company
(“CSF”), CALUMET SPECIALTY PRODUCTS PARTNERS, L.P., a Delaware limited partnership
(“CSPP”), CALUMET LP GP, LLC, a Delaware limited liability company (“CLP”), CALUMET
OPERATING, LLC, a Delaware limited liability company (“Operating”), CALUMET SALES COMPANY
INCORPORATED, a Delaware corporation (“Calumet Sales”), and CALUMET PENRECO, LLC, a
Delaware limited liability company (“Calumet Penreco”), and each other Person which may
become a Borrower hereunder pursuant to Section 10.1.13 (together with the Company, Calumet
Shreveport, CSLW, CSF, CSPP, CLP, Operating, Calumet Sales and Calumet Penreco, collectively, the
“Borrowers” and each individually a “Borrower”), the financial institutions party
to this Agreement from time to time as lenders (collectively, “Lenders”), and BANK OF
AMERICA, N.A., a national banking association, as agent for the Lenders (“Agent”).



RECITALS:




     Borrowers have requested that Lenders make available a credit facility, to be used by
Borrowers to finance their mutual and collective business enterprise. Lenders are willing to
provide such credit facility on the terms and conditions set forth in this Agreement.



     NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:



SECTION 1 DEFINITIONS; RULES OF CONSTRUCTION





     1.1 Definitions. As used herein, the following terms have the meanings set
forth below:




     Account — as defined in the UCC, including all rights to payment for goods sold
or leased, or for services rendered.




     Account Debtor — a Person who is obligated under an Account, Chattel Paper or
General Intangible.




     Accounts Formula Amount — 85% of the net amount of Eligible Accounts. “Net
amount” means the face amount of an Account, minus any returns, rebates,
discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales,
excise or other taxes) that have been or could be claimed by the Account Debtor or any other
Person.



 









 






     Acquisition — with respect to any Person, the acquisition by such Person, in a
single transaction or in a series of related transactions, of all of the Equity Interests or
all or substantially all of the Property, or a business unit or product line, of another
Person, whether or not involving a merger or consolidation with such other Person and
whether for cash, property, services, assumption of Indebtedness, securities or otherwise.




     Adjusted LIBOR — for any Interest Period, with respect to LIBOR Loans, the per
annum rate of interest determined pursuant to the following formula:



	 	 	 	 	 	 	 	 	 
	 

	 	LIBOR
	 	=
	1.00 	Offshore Base Rate
 

 -   Eurodollar Reserve Percentage
	 	 







     Where,




     “Offshore Base Rate” means the rate per annum appearing on Telerate Page
3750, or if such page is unavailable, the Reuters Screen LIBO Page (or any successor
page of either, as applicable), as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if the Reuters Screen LIBO Page is used and more than one rate is
shown on such page, the applicable rate shall be the arithmetic mean thereof. If for
any reason none of the foregoing rates is available, the Offshore Base Rate shall be
the rate per annum determined by Agent as the rate of interest at which Dollar
deposits in the approximate amount of the applicable LIBOR Loan would be offered to
major banks in the offshore Dollar market at or about 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term comparable to
such Interest Period.




     “Eurodollar Reserve Percentage” means the reserve percentage (expressed
as a decimal, rounded upward to the next 1/8th of 1%) applicable to member
banks under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”).




     Administrative Questionnaire — an Administrative Questionnaire in a form
supplied by the Agent.




     Affiliate — with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.




     Agent — as defined in the first paragraph of this Agreement.




     Agent Indemnitees — Agent and its Related Parties.



2









 






     Agent Professionals — attorneys, accountants, appraisers, auditors, business
valuation experts, environmental engineers or consultants, turnaround consultants, and other
professionals and experts retained by Agent.




     Agreement — as defined in the first paragraph.




     Allocable Amount — as defined in Section 5.11.3.




     Amendment No. 6 Effective Date — January ___, 2008.




     Applicable Law — all laws, rules, regulations and governmental guidelines
applicable to the Person, conduct, transaction, agreement or matter in question, including
all applicable statutory law, common law and equitable principles, and all provisions of
constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental
Authorities.




     Applicable Margin — with respect to any Type of Loan, the margin set forth
below, as determined by the Consolidated Leverage Ratio for the last Fiscal Quarter:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	Base Rate	 	LIBOR
	Level	 	Leverage Ratio	 	Revolving Loans	 	Revolving Loans
	I

	 	< 2.25 to 1.0
	 	 	0.00	%	 	 	1.25	%
	II

	 	> 2.25 to 1.0 but

< 2.75 to 1.0
	 	 	0.00	%	 	 	1.50	%
	III

	 	> 2.75 to 1.0 but

< 3.25 to 1.0
	 	 	0.25	%	 	 	1.75	%
	IV

	 	> 3.25 to 1.0
	 	 	0.50	%	 	 	2.00	%







The margins shall be subject to increase or decrease upon receipt by Agent pursuant to the
financial statements and corresponding Compliance Certificate for the last Fiscal Quarter
provided or issued in accordance with Section 10.1.1, which change shall be effective on the
first Business Day of the calendar month following receipt of such statements. If, by the
first Business Day of a month, any financial statements and Compliance Certificate due in
the preceding month have not been received, then the margins shall be determined as if Level
IV were applicable, from such day until the first Business Day of the calendar month
following actual receipt. For the final Fiscal Quarter of any Fiscal Year, Borrowers may
provide unaudited financial statements (subject only to year-end adjustments) for the
purpose of determining the margins, but if, upon delivery of the final, audited financial
statements, it is determined that higher margins should have applied, then the proper
margins shall be applied retroactively and Borrowers shall pay to Agent, for the Pro Rata
benefit of Lenders, on the first Business Day after delivery of such audited financial
statements, the difference between the amount of interest and fees that would have accrued
using the proper margins and the amount actually paid. Notwithstanding anything to the
contrary contained in this definition, the determination of the Applicable Margin for any
period shall be subject to the provisions of Section 3.4.



3









 






     Approved Bank — as defined in the definition of “Cash Equivalents”.




     Approved Fund — any Person (other than a natural person) that is engaged in
making, holding or investing in extensions of credit in its ordinary course of business and
is administered or managed by a Lender, an entity that administers or manages a Lender, or
an Affiliate of either.




     Arranger — Banc of America Securities LLC, in its capacity as sole lead
arranger and sole book manager.




     Assignment and Acceptance — an assignment agreement between a Lender and
Eligible Assignee, in the form of Exhibit D.




     Assignment of Claims Act — the Assignment of Claims Act of 1940, as amended (31
U.S.C. § 3727 et seq.);




     Attributable Indebtedness — on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease.




     Audited Company Financial Statements — the audited consolidated balance sheet
of the Consolidated Parties for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, partners’ capital and cash flows for such
fiscal year of the Consolidated Parties, including the notes thereto.




     Audited PENRECO Financial Statements — the audited consolidated balance sheet
of PENRECO for the fiscal year ended December 31, 2006, and the related consolidated
statements of income or operations, partners’ capital and cash flows for such fiscal year of
PENRECO and its Subsidiaries, including the notes thereto.




     Availability — determined as of any date, the amount that Borrowers are
entitled to borrow as Revolver Loans, being the Borrowing Base minus the principal balance
of all Revolver Loans.




     Availability Reserve — the sum (without duplication) of (a) the Inventory
Reserve; (b) the Rent and Costs Reserve; (c) the LC Reserve; (d) the Bank Product Reserve;
(e) all accrued Royalties, whether or not then due and payable by a Borrower; (f) the
aggregate amount of liabilities secured by Liens upon Collateral that are senior to Agent’s
Liens (but imposition of any such reserve shall not waive an Event of Default arising
therefrom); (g) the First Purchaser Reserve; and (h) such additional reserves, in such



4









 







amounts and with respect to such matters, as Agent in its reasonable discretion
exercised in good faith may elect to impose from time to time.




     Bank of America — Bank of America, N.A., a national banking association, and
its successors and assigns.




     Bank of America Indemnitees — Bank of America and its Related Parties.




     Bank Product — (a) Cash Management Services extended to any Borrower or
Subsidiary by Bank of America or any of its Affiliates and (b) Interest Rate Swaps as
permitted by Section 10.2.3(d) extended to any Borrower or Subsidiary by any Lender or any
of its Affiliates; provided, however, that for any of the foregoing to be
included as an “Obligation” for purposes of a distribution under Section 5.6.1, the
applicable Secured Party and Obligor must have previously provided written notice to Agent
of (A) the existence of such Bank Product, (B) the maximum dollar amount of obligations
arising thereunder to be included as a Bank Product Reserve (“Bank Product Amount”),
and (C) the methodology to be used by such parties in determining the Bank Product
Indebtedness owing from time to time. The Bank Product Amount may be changed from time to
time upon written notice to Agent by the Secured Party and Obligor. No Bank Product Amount
may be established or increased at any time that a Default or Event of Default exists, or if
a reserve in such amount would cause an Overadvance.




     Bank Product Amount — as defined in the definition of Bank Product.




     Bank Product Indebtedness — Indebtedness and other obligations of an Obligor
relating to Bank Products.




     Bank Product Reserve — the aggregate amount of reserves established by Agent
from time to time in its discretion in respect of Bank Product Indebtedness, which shall be
at least equal to the sum of all Bank Product Amounts.




     Bankruptcy Code — Title 11 of the United States Code.




     Base Rate — the rate of interest announced by Bank of America from time to time
as its prime rate. Such rate is a reference rate only and Bank of America may make loans or
other extensions of credit at, above or below it. Any change in the prime rate announced by
Bank of America shall take effect at the opening of business on the effective day specified
in the public announcement of the change.




     Base Rate Loan — any Loan that bears interest based on the Base Rate.




     Base Rate Revolver Loan — a Revolver Loan that bears interest based on the Base
Rate.




     Borrowed Money — with respect to any Obligor, without duplication, its (a)
Indebtedness that (i) arises from the lending of money by any Person to such Obligor, (ii)



5









 







is evidenced by notes, drafts, bonds, debentures, credit documents or similar
instruments, (iii) accrues interest or is a type upon which interest charges are customarily
paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued
or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement
obligations with respect to letters of credit; and (d) guaranties of any Indebtedness of the
foregoing types owing by another Person.




     Borrower or Borrowers — as defined in the first paragraph of this
Agreement.




     Borrower Agent — as defined in Section 4.4.




     Borrowing — a group of Loans of one Type that are made on the same day or are
converted into Loans of one Type on the same day.




     Borrowing Base — on any date of determination, an amount equal to the lesser of
(a) the aggregate amount of Revolver Commitments, minus the Availability Reserve; or
(b) the sum of the Accounts Formula Amount, plus the Inventory Formula Amount,
minus the Availability Reserve.




     Borrowing Base Certificate — a certificate, in substantially the form of
Exhibit G hereto, by which Borrowers certify calculation of the Borrowing Base.




     Business Day — any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact closed in, the
States of North Carolina or Texas or any other state where Agent’s Office is located and, if
such day relates to any LIBOR Loan, means any such day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank eurodollar market.




     Byproduct Inventory — Inventory that is not (i) currently usable in the
Borrowers’ manufacturing processes within the next thirty (30) days or (ii) salable through
Borrowers’ readily available sales channels at prices no less than seventy-five percent
(75%) of the net book value of such Inventory.




     Calculation Date — the date of the applicable Specified Transaction which gives
rise to the requirement to calculate the Consolidated Leverage Ratio and/or the Consolidated
Interest Coverage Ratio on a Pro Forma Basis.




     Calculation Period — in respect of any Calculation Date, the period of four
fiscal quarters of the Consolidated Parties ended as of the last day of the most recent
fiscal quarter of the Consolidated Parties preceding such Calculation Date for which Agent
shall have received the Required Financial Information.




     Calumet Sales — as defined in the first paragraph of this Agreement.




     Calumet Shreveport — as defined in the first paragraph of this Agreement.



6









 






     Capital Adequacy Regulation — any law, rule, regulation, guideline, request or
directive of any central bank or other Governmental Authority, whether or not having the
force of law, regarding capital adequacy of a bank or any Person controlling a bank.




     Capital Expenditures — expenditures made or liabilities incurred by a Borrower
or Subsidiary for the acquisition of any fixed assets, or any improvements, replacements,
substitutions or additions thereto with a useful life of more than one year, including the
principal portion of Capital Leases.




     Capital Lease — any lease of any Property (whether real, personal or mixed)
that is required to be accounted for as a capital lease for financial reporting purposes in
accordance with GAAP.




     Cash Collateral — cash, and any interest or other income earned thereon, that
is delivered to Agent to Cash Collateralize any Obligations.




     Cash Collateralize — the delivery of cash to Agent, as security for the payment
of Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the
aggregate LC Obligations, and (b) with respect to any inchoate or contingent Obligations
(including Obligations arising under Bank Products), Agent’s good faith estimate of the
amount due or to become due, including all fees and other amounts relating to such
Obligations. “Cash Collateralization” has a correlative meaning.




     Cash Dominion Trigger Event  — the occurrence of any of the following: (a)
Availability falls below $35,000,000, or (b) a Default or Event of Default.




     Cash Equivalents — as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than twelve months from the date of acquisition, (b) Dollar
denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of $500,000,000
or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank
being an “Approved Bank”), in each case with maturities of not more than 270 days
from the date of acquisition and (unless issued by a Lender) not subject to offset rights,
(c) with respect to any Foreign Subsidiary, (1) time deposits and customary short term
investments with one of the three largest banks doing business in the jurisdiction in which
the Foreign Subsidiary is conducting business, and (2) other short term investments
customarily used by multinational corporations in the country in which the Foreign
Subsidiary is conducting business for the purpose of cash management, which investments have
the preservation of capital as their primary objective, (d) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s
and maturing within six



7









 







months of the date of acquisition, (e) repurchase agreements entered into by any Person
with a bank or trust company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States in which such Person shall have a perfected first
priority security interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase obligations
and (f) Investments, classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940, as amended, which
are not subject to offset and are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to Investments
whose primary objective is the preservation of capital and whose investments are limited to
“cash equivalents” as defined under GAAP.




     Cash Management Services — any services provided from time to time by Bank of
America or any of its Affiliates to any Borrower or Subsidiary in connection with operating,
collections, payroll, trust, or other depository or disbursement accounts, including
automatic clearinghouse, controlled disbursement, depository, electronic funds transfer,
information reporting, lockbox, stop payment, overdraft and/or wire transfer services.




     CERCLA — the Comprehensive Environmental Response Compensation and Liability
Act (42 U.S.C. § 9601 et seq.).




     Change in Law — the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any Governmental
Authority.




     Change of Control — the occurrence of any of the following events:




     (a) the Existing Partners shall fail to own beneficially, directly or indirectly, at
least 30% of the outstanding Voting Stock of the MLP Parent;




     (b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934) other than the Existing Partners becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 30% or more of the outstanding Voting Stock of the MLP
Parent;




     (c) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the MLP Parent cease to be



8









 







composed of individuals (A) who were members of that board or equivalent governing body
on the first day of such period, (B) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (A) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body or (C) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (A) and (B)
above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body (excluding, in the case of both clause (B) and clause
(C), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual contested
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors) or equivalent governing body;




     (d) any Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the MLP Parent, or
control over the Voting Stock of the MLP Parent entitled to vote for members of the board of
directors or equivalent governing body of the MLP Parent on a fully-diluted basis (and
taking into account all such securities that such Person or group has the right to acquire
pursuant to any option right) representing 30% or more of the combined voting power of such
securities;




     (e) the MLP Parent shall fail to own, directly or indirectly, 100% of the outstanding
Equity Interests of each of the Company, the General Partner and the Limited Partner; or




     (f) the occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, the PP&E Credit Agreement.




     Chattel Paper — as defined in the UCC.




     Claims — all liabilities, obligations, losses, damages, penalties, judgments,
proceedings, costs and expenses of any kind (including remedial response costs, reasonable
attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the
Obligations, resignation or replacement of Agent, or replacement of any Lender) incurred by
or asserted against any Indemnitee in any way relating to (a) any Loan Documents or
transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee
in connection with any Loan Documents, (c) the existence or perfection of any Liens, or
realization upon any Collateral, (d) exercise of any rights or remedies under any Loan
Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms
of any Loan Document, in each case including all costs and expenses relating to any
investigation, litigation, arbitration or other proceeding (including any proceeding under
any Debtor Relief Law or appellate proceedings), whether or not the applicable Indemnitee is
a party thereto.



9









 






     Closing Date — December 9, 2005.




     CLP — as defined in the first paragraph of this Agreement.




     Code — the Internal Revenue Code of 1986, as amended.




     Collateral — a collective reference to all real and personal Property required
to be, or actually, pledged to Agent (for the benefit of the Lenders) pursuant to and in
accordance with Section 10.1.14 or otherwise, including, without limitation, the Priority
Collateral and the PP&E Priority Collateral. For the purposes of clarification, it is
understood and agreed that Collateral shall not include any Excluded Property.




     Commercial Tort Claim — as defined in the UCC.




     Commitment — for any Lender, the aggregate amount of such Lender’s Revolver
Commitment. Commitments means the aggregate amount of all Revolver Commitments.




     Commitment Termination Date — the earliest to occur of (a) the Revolver
Termination Date; (b) the date on which Borrowers terminate the Revolver Commitments
pursuant to Section 2.1.4; or (c) the date on which the Revolver Commitments are terminated
pursuant to Section 11.2.




     Commodity Swaps — Swap Contracts (excluding any Crack Spread Hedge Agreements)
entered into for the purpose of protecting the Consolidated Parties and their Subsidiaries
from fluctuations in the price of commodities used in the Ordinary Course of Business,
including crude oil.




     Company — as defined in the first paragraph of this Agreement.




     Compliance Certificate — a Compliance Certificate to be provided by Borrowers
to Agent pursuant to this Agreement, in the form of Exhibit C, and all supporting schedules.




     Consolidated Capital Expenditures — for any period, for the Consolidated
Parties on a consolidated basis, all capital expenditures made during such period, as
determined in accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include Eligible Reinvestments made with the proceeds of any
permitted Disposition or Involuntary Disposition.




     Consolidated Cash Taxes — for any period, for the Consolidated Parties on a
consolidated basis, all Taxes (excluding sales and excise taxes charged to and expected to
be paid by customers of the Company, and (ii) property taxes) paid in cash during such
period.




10












 






     Consolidated EBITDA — for any period, for the Consolidated Parties on a
consolidated basis, an amount equal to Consolidated Net Income plus, without
duplication (a) the following to the extent deducted in calculating such Consolidated Net
Income: (i) Consolidated Interest Charges, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Consolidated Parties, (iii) depreciation and
amortization expense, (iv) all unrealized items decreasing Consolidated Net Income, (v)
unrealized losses resulting from mark to market accounting for hedging activities, (vi)
other non-recurring expenses of the Consolidated Parties reducing such Consolidated Net
Income which do not represent a cash item in such period, and (vii) all non-recurring
restructuring charges associated with the PENRECO Acquisition, minus (b) the
following to the extent included in calculating such Consolidated Net Income: (i) Federal,
state, local and foreign income tax credits, (ii)all unrealized items increasing
Consolidated Net Income, (iii) unrealized gains resulting from mark to market accounting for
hedging activities, and (iv) non-recurring expenses of the Consolidated Parties and
unrealized items that in each case reduced the calculation of Consolidated Net Income
hereunder for a prior period and which represent a cash item in the current applicable
period. Notwithstanding the foregoing, for purposes of calculating the Consolidated
Leverage Ratio on March 31, 2008, June 30, 2008 and September 30, 2008, respectively,
Consolidated EBITDA for the four fiscal quarter period ending on each such date shall be
actual Consolidated EBITDA for the Consolidated Parties for such period plus the amount set
forth on Schedule 1.01 opposite each such fiscal quarter period.




     Consolidated Funded Indebtedness — as of any date of determination, for the
Consolidated Parties on a consolidated basis, without duplication, the sum of (a) the
principal portion of all obligations for borrowed money, (b) the principal portion of all
obligations evidenced by bonds, debentures, notes or similar instruments, or upon which
interest payments are customarily made, (c) the principal portion of all obligations under
conditional sale or other title retention agreements relating to Property purchased by the
Consolidated Parties (other than customary reservations or retentions of title under
agreements with suppliers entered into in the Ordinary Course of Business), (d) the
principal portion of all obligations issued or assumed as the deferred purchase price of
Property or services purchased by the Consolidated Parties (other than trade debt incurred
in the Ordinary Course of Business and due within six months of the incurrence thereof)
which would appear as liabilities on a balance sheet of the Consolidated Parties, (e) the
Attributable Indebtedness with respect to Capital Leases (excluding (i) any lease of
catalyst necessary for the operation of the refinery assets of the Consolidated Parties in
the Ordinary Course of Business and (ii) any commodity leases for catalyst elements
necessary for the operation of the refinery assets of the Consolidated Parties in the
Ordinary Course of Business and not for the purpose of speculation) and Synthetic Lease
Obligations, (f) all unreimbursed drafts drawn under letters of credit and banker’s
acceptances, (g) the principal component or liquidation preference of all Equity Interests
issued by a Consolidated Party and which by the terms thereof could at any time prior to the
Revolver Termination Date be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, mandatory redemption or other acceleration, (h) the
outstanding principal amount of all obligations of such Persons under Securitization
Transactions (all such Indebtedness of the types described in the forgoing clauses (a)



11









 







through (h), as to any Person, “Funded Indebtedness”), (i) all Funded
Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, Property owned or acquired by the Consolidated Parties,
whether or not the obligations secured thereby have been assumed, (j) all Guarantees with
respect to Funded Indebtedness of another Person and (k) the Funded Indebtedness of any
partnership or unincorporated joint venture in which a Consolidated Party is a general
partner or a joint venturer to the extent such Indebtedness is recourse to a Consolidated
Party. To the extent that the rights and remedies of the obligee of any Indebtedness are
limited to certain property and are otherwise non-recourse to such Person, the amount of
such Indebtedness shall be limited to the value of the Person’s interest in such property
(valued at the higher of book value or market value as of such date of determination).




     Consolidated Interest Charges — for any period for the Consolidated Parties on
a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees,
charges and related expenses of the Consolidated Parties in connection with borrowed money
(including capitalized interest, the interest component under Capital Leases and the implied
interest component of Synthetic Lease Obligations) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in accordance with
GAAP, and (b) the portion of rent expense of the Consolidated Parties with respect to such
period under capital leases that is treated as interest in accordance with GAAP.




     Consolidated Interest Coverage Ratio — as of the last day of any Fiscal Quarter
of the Consolidated Parties, the ratio for the four Fiscal Quarter period ending on such
date of (a) Consolidated EBITDA to (b) Consolidated Interest Charges.




     Consolidated Leverage Ratio — as of the last day of any fiscal quarter of the
Consolidated Parties, the ratio of (a) Consolidated Funded Indebtedness as of such date to
(b) Consolidated EBITDA for the four fiscal quarter period ending on such date.




     Consolidated Net Income — for any period, for the Consolidated Parties on a
consolidated basis, net income (excluding extraordinary items) after interest expense,
income taxes and depreciation and amortization, all as determined in accordance with GAAP.




     Consolidated Parties — the MLP Parent and the Subsidiaries of the MLP Parent,
and Consolidated Party means any one of them.




     Contingent Obligation — any obligation of a Person arising from a guaranty,
indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend
or other obligation (“primary obligations”) of another obligor (“primary
obligor”) in any manner, whether directly or indirectly, including any obligation of
such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an
obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments
regardless of nonperformance by any other party to an agreement; and (c) arrangement (i)



12









 







to purchase any primary obligation or security therefor, (ii) to supply funds for the
purchase or payment of any primary obligation, (iii) to maintain or assure working capital,
equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or
services for the purpose of assuring the ability of the primary obligor to perform a primary
obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation
against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to
be the stated or determinable amount of the primary obligation (or, if less, the maximum
amount for which such Person may be liable under the instrument evidencing the Contingent
Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability
with respect thereto.




     Contractual Obligation — as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its Property is bound.




     Control — the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.




     Control Agent — as defined in the Intercreditor Agreement.




     Crack Spread Hedge Agreement — any Swap Contract of the Company provided for
the purpose of managing its risk with respect to the spread created by the purchase by such
Obligor of crude oil for delivery in the future and the sale by such Obligor of gasoline and
heating oil under contract for future delivery, regardless of whether such Swap Contract is
effected by means of a futures contract or an over-the-counter hedging agreement.




     Credit-Linked Deposit Account — the Deposit Account established by the PP&E
Agent in its name and under its sole and exclusive control at its offices in Charlotte,
North Carolina, designated as the “Bank of America, N.A. as Administrative Agent Calumet
Lubricants Credit-Linked Deposit Account” that shall be used solely for the purposes set
forth in subsections (ii) and (iii) of Section 2.03(c) of the PP&E
Credit Agreement as in effect on the Amendment No. 6 Effective Date, together with any
replacement or similar account created to serve such purpose.




     CSF — as defined in the first paragraph of this Agreement.




     CSLW — as defined in the first paragraph of this Agreement.




     CSPP – as defined in the first paragraph of this Agreement.




     Debtor Relief Laws — the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor



13









 







relief Laws of the United States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.




     Default — any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of a stated grace period, or both, would be an
Event of Default. It is understood and agreed that the institution of any proceeding under
any Debtor Relief Law relating to any Consolidated Party or to all or any material part of
its Property without the consent of such Person shall constitute an immediate Default that
with the passage of the 60-calendar day period referred to in Section 11.1(f) would be an
Event of Default.




     Default Rate — for any Obligation (including, to the extent permitted by law,
interest not paid when due), 2% plus the interest rate otherwise applicable thereto.




     Defaulting Lender — any Lender that (a) has failed to fund any portion of the
Loans or participations in LC Obligations required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute, or
(c) has been deemed insolvent or become the subject of a bankruptcy or proceeding under any
Debtor Relief Law.




     Deposit Account — as defined in the UCC.




     Deposit Account Control Agreements — the Deposit Account control agreements to
be executed by each depository institution of a Borrower in favor of Agent, for the benefit
of Secured Parties, as security for the Obligations and in favor of the PP&E Agent, for the
benefit of the PP&E Secured Parties.




     Disposition — any disposition (including pursuant to a Sale and Leaseback
Transaction) of any or all of the Property (including without limitation the Equity
Interests of a Subsidiary) of any Consolidated Party whether by sale, lease, licensing,
transfer or otherwise; provided, however, that the term “Disposition” shall
be deemed to (a) include any “Disposition” (or any comparable term) under, and as defined
in, the PP&E Credit Agreement and (b) exclude any Equity Issuance.




     Distribution Revolver Loan — as defined in Section 2.1.




     Distribution Revolver Committed Amount –$50,000,000.




     Distribution Revolver Note — a promissory note to be executed by Borrowers in
favor of a Lender in the form of Exhibit B, which shall evidence the Distribution Revolver
Loans made by such Lender.




     Document — as defined in the UCC.



14









 






     Dollars — lawful money of the United States.




     Dominion Account — a special account established by Borrowers at Bank of
America or another bank acceptable to Agent, over which Agent has exclusive control for
withdrawal purposes.




     Eligible Account — an Account owing to a Borrower that arises in the Ordinary
Course of Business from the sale of goods or rendition of services, is payable in Dollars
and is deemed by Agent, in its reasonable discretion exercised in good faith, to be an
Eligible Account. Without limiting the foregoing, no Account shall be an Eligible Account
if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days
after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor
are not Eligible Accounts under the foregoing clause; (c) when aggregated with other
Accounts owing by the Account Debtor and all Affiliates of the Account Debtor, it exceeds
20% of the aggregate Eligible Accounts (or such higher percentage as Agent may establish for
the Account Debtor from time to time); (d) it does not conform with a covenant or
representation herein; (e) it is owing by a creditor or supplier, or is otherwise subject to
a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve,
defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount
thereof); (f) any proceeding under any Debtor Relief Law has been commenced by or against
the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing
business, is liquidating, dissolving or winding up its affaires, or is not Solvent; (g) the
Account Debtor is organized or has its principal offices or assets outside the United States
or Canada, other than (i) those on letter of credit terms or covered by international trade
insurance, in either case, acceptable to Agent in its discretion and (ii) those owing from
European Account Debtors which Accounts are otherwise approved by and acceptable to Agent in
its discretion; (h) it is owing by a Government Authority, unless the Account Debtor is the
United States or any department, agency or instrumentality thereof and the Account has been
assigned to Agent in compliance with the Assignment of Claims Act; provided,
however, that up to $10,000,000 of such Accounts may be deemed eligible if they
otherwise constitute Eligible Accounts notwithstanding the failure of the Borrowers to
comply with the Assignment of Claims Act with respect to such Accounts, provided,
further, that Agent may, in its reasonable discretion exercised in good faith,
require compliance with the Assignment of Claims Act with respect to such Accounts; (i) it
is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to
any other Lien (except a Permitted Lien); (j) the goods giving rise to it have not been
delivered to the Account Debtor or to the transportation agent of the Account Debtor and
accepted by the Account Debtor, the services giving rise to it have not been accepted by the
Account Debtor, or it otherwise does not represent a final sale; (k) it is evidenced by
Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) its payment
has been extended, the Account Debtor has made a partial payment (provided, that up
to $3,000,000 of Accounts with respect to which Account Debtors have made partial payment
shall not be deemed to be ineligible if such Accounts otherwise constitute Eligible
Accounts), or it arises from a sale on a cash-on-delivery basis; (m) it arises from a sale
to an Affiliate, or from a sale on a bill-and-hold, guaranteed sale, sale-or-return,



15









 







sale-on-approval, consignment, or other repurchase or return basis; (n) it represents a
progress billing or retainage; (o) it includes a billing for interest, fees or late charges,
but ineligibility shall be limited to the extent of such billing; (p) it arises from a
retail sale to a Person who is purchasing for personal, family or household purposes; or (q)
it represents Taxes charged to an Account Debtor of a Borrower, collected by such Borrower
on behalf of the appropriate taxing authority for remittance when due to such authority (but
only to the extent of such Taxes so collected and remitted).




     Eligible Assignee — a Person that is (a) a Lender, U.S.-based Affiliate of a
Lender or Approved Fund; (b) any other financial institution approved by Agent and Borrower
Agent (which approval by Borrower Agent shall not be unreasonably withheld or delayed), that
is organized under the laws of the United States or any state or district thereof, has total
assets in excess of $5 billion, extends asset-based lending facilities in its ordinary
course of business and whose becoming an assignee would not constitute a prohibited
transaction under Section 4975 of ERISA or any other Applicable Law; and (c) during any
Event of Default, any Person acceptable to Agent in its discretion.




     Eligible Category A Inventory — crude and other feedstock and residuals
acceptable to the Agent with readily available market values as reported by Platt’s Oilgram
for Gulf Coast Deliveries, finished fuel and work-in-process fuel Inventory owned by a
Borrower which is Eligible Inventory.




     Eligible Category B Inventory — finished lubes, finished specialty Inventory,
work-in-process lubes, work-in-process specialty Inventory, catfeed and asphalt owned by a
Borrower which is Eligible Inventory.




     Eligible Inventory — Inventory owned by a Borrower that Agent, in its
reasonable discretion exercised in good faith, deems to be Eligible Inventory. Without
limiting the foregoing, no Inventory shall be Eligible Inventory unless it (a) is not
packaging or shipping materials, labels, samples, display items, bags, replacement parts or
manufacturing supplies; (b) is not held on consignment, nor subject to any deposit,
downpayment, guaranteed sale, sale-or-return, sale-on-approval or repurchase arrangement;
(c) is in new and saleable condition and is not damaged, defective, shopworn or otherwise
unfit for sale; (d) is not slow-moving, obsolete, defective or unmerchantable, and does not
constitute returned or repossessed goods; (e) meets all standards imposed by any
Governmental Authority; (f) conforms with the covenants and representations herein; (g) is
subject to Agent’s duly perfected, first priority Lien, and no other Lien except a Permitted
Lien; (h) is within the continental United States or Canada, is not in transit (subject to
the following sentence), other than Inventory in transit in pipelines to one of the
locations listed on Schedule 1.1B (or other locations identified to Agent in writing and
acceptable to Agent in its discretion) if the operator of such pipeline has delivered to
Agent a Lien Waiver or an appropriate Rent and Costs Reserve has been established and is not
consigned to any Person; (i) is not subject to any warehouse receipt or negotiable Document;
(j) is not subject to any License or other arrangement that restricts such Borrower’s or
Agent’s right to manufacture or dispose of such Inventory, unless Agent has received an
appropriate Lien Waiver; (k) is not located on leased



16









 







premises or in the possession of a Person other than a Borrower unless the lessor or
such Person has delivered to Agent a Lien Waiver or an appropriate Rent and Costs Reserve
has been established; provided, that no such Inventory will be deemed to constitute
Eligible Inventory if the aggregate Value of Inventory at the same location or in possession
of the same Person is less than $100,000; (l) is not located at Barksdale Air Force Base;
and (m) is not Byproduct Inventory. Notwithstanding the foregoing, Inventory owned by a
Borrower which is in transit which otherwise constitutes Eligible Inventory may be deemed to
be Eligible Inventory if such Inventory (w) is subject only to a Document showing Agent as
consignee, which has been delivered to Agent or its agent, (x) is handled by a freight
forwarder that has delivered a Lien Waiver to Agent, (y) is covered by a documentary Letter
of Credit requiring the seller to present shipping and title documents to Issuing Bank as a
condition to payment or (z) was purchased on open account and the seller has forwarded the
shipping and title documents to Agent or a freight forwarder.




     Eligible Reinvestment — (a) any acquisition (whether or not constituting a
capital expenditure, but not constituting an Acquisition) of assets or any business (or any
substantial part thereof) used or useful in the same or similar line of business as the
Company and its Subsidiaries were engaged in on the Closing Date (or any reasonable
extensions or expansions thereof) and (b) any Permitted Acquisition.




     Enforcement Action — any action to enforce any Obligations or Loan Documents or
to realize upon any Collateral (whether by judicial action, self-help, notification of
Account Debtors, exercise of setoff or recoupment, or otherwise).




     Environmental Laws — any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees or other legally binding
governmental restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to hazardous
substances or wastes, air emissions and discharges to waste or public systems.




     Environmental Liability — any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities),
of the Company, any other Obligor or any of their respective Subsidiaries directly or
indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Environmental Release or
threatened Environmental Release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.




     Environmental Notice — a written notice from any Governmental Authority or
other Person of any possible noncompliance with, investigation of a possible violation of,
litigation relating to, or potential fine or liability under any Environmental Law, or with
respect to any Environmental Release, environmental pollution or Hazardous Materials,



17









 







including any complaint, summons, citation, order, claim, demand or request for
correction, remediation or otherwise.




     Environmental Release — a release as defined in CERCLA or under any other
Environmental Law.




     Equipment — as defined in the UCC, including all machinery, apparatus,
equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal
Property (other than Inventory), and all parts, accessories and special tools therefor, and
accessions thereto.




     Equity Interest — (a) in the case of a corporation, capital stock, (b) in the
case of an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c) in the case of a
partnership, partnership interests (whether general or limited), (d) in the case of a
limited liability company, membership interests and (e) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.




     Equity
Issuance — any issuance by any Consolidated Party to any Person of (a) shares or units of its Equity Interests, (b) any shares or units of its Equity Interests
pursuant to the exercise of options or warrants, (c) any shares or units of its Equity
Interests pursuant to the conversion of any debt securities to equity or the conversion of
any class equity securities to any other class of equity securities or (d) any options or
warrants relating to its Equity Interests. The term “Equity Issuance” shall not be deemed
to include any Disposition.




     ERISA — the Employee Retirement Income Security Act of 1974.




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




     ERISA Event — (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate a Pension Plan in a
distress termination (within the meaning of Section 4041(c) of ERISA), or the commencement
of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event
or condition which constitutes grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any liability under Title IV



18









 







of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.




     Event of Default — as defined in Section 11.




     Excluded Disposition — with respect to any Consolidated Party, any Disposition
consisting of (a) the sale, lease, license, transfer or other disposition of Property in the
ordinary course of such Consolidated Party’s business, (b) the sale, lease, license,
transfer or other disposition of obsolete or worn out Equipment, (c) any sale, lease,
license, transfer or other disposition of Property by such Consolidated Party to any
Obligor, provided that Obligors shall cause to be executed and delivered such
documents, instruments and certificates as Agent may request so as to cause Obligors to be
in compliance with the terms of Section 10.1.14 after giving effect to such transaction, (d)
any Involuntary Disposition by such Consolidated Party, (e) any Disposition by such
Consolidated Party constituting a Permitted Investment and (f) if such Consolidated Party is
not an Obligor, any sale, lease, license, transfer or other disposition of Property by such
Consolidated Party to any Consolidated Party that is not an Obligor; provided,
however, that the term “Excluded Disposition” shall not include any Disposition to
the extent that any portion of the proceeds of such Disposition would be required by the
PP&E Credit Agreement to be applied to the prepayment of any PP&E Obligations.




     Excluded Property — with respect to any Obligor, including any Person that
becomes an Obligor after the Closing Date as contemplated by Section 10.1.13, (a) any leased
real or personal Property which is located outside of the United States, (b) any owned real
or personal Property which is located outside of the United States and which has a net book
value of less than $1,000,000, provided that the aggregate net book value of all
real or personal Property of all of the Obligors excluded pursuant to this clause (b) shall
not exceed $2,000,000, (c) any other owned real Property located in the United States which
has a net book value of less than $750,000, provided that the aggregate net book
value of all real Property of all of the Obligors excluded pursuant to this clause (c) shall
not exceed $2,000,000, (d) the leased Real Estate located in Indianapolis, Indiana and The
Woodlands, Texas and described on Schedule 9.19(a) and any other leased Real Estate that is
a lease of office space being used for administrative or similar corporate support services
and that is not part of (i) any Refinery Property or (ii) any domestic operating facility
acquired by the Consolidated Parties in connection with the Proposed Acquisition, (e) any
leased personal Property, (f) any owned personal Property (including motor vehicles) in
respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial
Code or (ii) effected by appropriate evidence of the Lien being filed in either the United
States Copyright Office or the United States Patent and Trademark Office, and (g) any
Property which, subject to the terms of Section 10.2.9, is subject to a Lien of the type
described in Section 10.2.1(i) pursuant to documents which prohibit such Obligor from
granting any other Liens in such Property; provided, however, that
notwithstanding the foregoing, the term “Excluded Property” shall not include any Property
of any Consolidated Party that secures any PP&E Obligations.



19









 






     Excluded Taxes — with respect to Agent, any Lender, the Issuing Bank or any
other recipient of any payment to be made by or on account of any obligation of the
Borrowers hereunder, (a) Taxes imposed on or measured by its overall net income (however
denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any Lender, in
which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the
United States or any similar Tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrowers under Section 14.18), any withholding Tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section
5.9(e), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrowers with respect to such withholding Tax pursuant to
Section 5.9(a).




     Existing Partners — The Heritage Group, the Fehsenfeld and Grube Families and
their respective Affiliates.




     Existing PP&E Credit Agreement – that certain Credit Agreement dated as of
December 9, 2005 among the Company, as borrower, certain of the Affiliates of the Company,
as guarantors, the lenders party thereto and Bank of America, N.A., as administrative agent.




     Extraordinary Expenses — all costs, expenses or advances that Agent may incur
during a Default or Event of Default, or during the pendency of any proceeding under any
Debtor Relief Law of an Obligor, including those relating to (a) any audit, inspection,
repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising
for sale, sale, collection, or other preservation of or realization upon any Collateral; (b)
any action, arbitration or other proceeding (whether instituted by or against Agent, any
Lender, any Obligor, any representative of creditors of an Obligor or any other Person) in
any way relating to any Collateral (including the validity, perfection, priority or
avoidability of Agent’s Liens with respect to any Collateral), any Loan Documents, or the
validity, allowance or amount of any Obligations, including any lender liability or other
Claims asserted against Agent or any Lender; (c) the exercise, protection or enforcement of
any rights or remedies of Agent in, or the monitoring of, any proceeding under any Debtor
Relief Law; (d) settlement or satisfaction of any taxes, charges or Liens with respect to
any Collateral; (e) any Enforcement Action; (f) negotiation and documentation of any
modification, waiver, workout, restructuring or forbearance with respect to any Loan
Documents or Obligations; or (g) Protective Advances. Such costs, expenses and advances
include transfer fees, taxes, storage fees, insurance costs, permit fees, utility
reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions,
auctioneers’ fees and commissions, accountants’




20












 






fees, environmental study fees, wages and salaries paid to employees of any Obligor or
independent contractors in liquidating any Collateral, and travel expenses.




     Fee Letter — that certain letter agreement dated as of October 21, 2005 among
the Company, the Agent and the Arranger.




     First Purchaser Reserve — the aggregate amount of reserves established by Agent
from time to time in its discretion in respect of amounts owed by a Borrower to a vendor of
crude oil with a potential priming lien where such Borrower is the “first purchaser”
directly from the wellhead.




     Fiscal Quarter — each period of three months, commencing on the first day of a
Fiscal Year.




     Fiscal Year — the fiscal year of the Consolidated Parties for accounting and
tax purposes, ending on December 31 of each year.




     Fixed Charge Coverage Ratio — the ratio, determined for the most recent four
Fiscal Quarters, of (a) Consolidated EBITDA minus Consolidated Capital Expenditures
(excluding Consolidated Capital Expenditures financed by Persons other than a Lender)
minus Consolidated Cash Taxes, to (b) Fixed Charges.




     Fixed Charges — for any period and without duplication, the sum of (a)
Consolidated Interest Charges (other than payment-in-kind interest), plus (b) the
sum, for the Consolidated Parties on a consolidated basis, of principal payments on Borrowed
Money scheduled to be paid during such period, plus (c) any dividends or
distributions made by the MLP Parent to the holders of its Equity Interests during such
period, plus (d) the sum of all management fees and consulting fees made by any
Consolidated Party to any Existing Partner or other Affiliate which is not a Consolidated
Party during such period, other than (i) any such payment made for reimbursement of
Consolidated Party expenses which is otherwise included in the calculation of Consolidated
Net Income, or (ii) other such payments otherwise included in the calculation of
Consolidated Net Income, plus (e) the aggregate amount of any prepayment premiums
paid by the Consolidated Parties during such period in connection with the repayment of
Indebtedness.




     FLSA — the Fair Labor Standards Act of 1938.




     Foreign Lender — any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrowers are resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.




     Foreign Plan — any employee benefit plan or arrangement maintained or
contributed to by any Obligor or Subsidiary that is not subject to the laws of the United
States of America, or any employee benefit plan or arrangement mandated by a



21









 







government other than the United States of America for employees of any Obligor or
Subsidiary.




     Foreign Subsidiary — a Subsidiary that is a “controlled foreign corporation”
under Section 957 of the Internal Revenue Code, such that a guaranty by such Subsidiary of
the Obligations or a Lien on the assets of such Subsidiary to secure the Obligations would
result in material tax liability to Borrowers.




     FRB — the Board of Governors of the Federal Reserve System of the United
States.




     Full Payment — with respect to any Obligations, (a) the full and indefeasible
cash payment thereof, including any interest, fees and other charges accruing during any
proceeding under any Debtor Relief Law (whether or not allowed in the proceeding); (b) if
such Obligations are LC Obligations or inchoate or contingent in nature, Cash
Collateralization thereof; and (c) a release of any Claims of Obligors against Agent,
Lenders and Issuing Bank arising on or before the payment date. No Loans shall be deemed to
have been paid in full until all Commitments related to such Loans have expired or been
terminated.




     GAAP — generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant
segment of the accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.




     General Intangibles — as defined in the UCC, including choses in action, causes
of action, company or other business records, inventions, blueprints, designs, patents,
patent applications, trademarks, trademark applications, trade names, trade secrets, service
marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer
lists, permits, tax refund claims, computer programs, operational manuals, internet
addresses and domain names, insurance refunds and premium rebates, all rights to
indemnification, and all other intangible Property of any kind.




     General Partner – CLP.




     General Revolver Loan — as defined in Section 2.1.




     General Revolver Note — a promissory note to be executed by Borrowers in favor
of a Lender in the form of Exhibit A, which shall evidence the General Revolver Loans made
by such Lender.




     Goods — as defined in the UCC.



22









 






     Governmental Approvals — all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.




     Governmental Authority — the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra-national bodies such as the European
Union or the European Central Bank).




     Guarantee — as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation payable or performable by another Person (the “primary obligor”) in any
manner, whether directly or indirectly, and including any obligation of such Person, direct
or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation, (ii) to purchase or lease Property, securities or
services for the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose
of assuring in any other manner the obligee in respect of such Indebtedness or other
obligation of the payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing
any Indebtedness or other obligation of any other Person, whether or not such Indebtedness
or other obligation is assumed by such Person (or any right, contingent or otherwise, of any
holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.




     Guarantor — each Person who guarantees payment or performance of any
Obligations.




     Guarantor Payment — as defined in Section 5.11.3.




     Guaranty — each guaranty agreement executed by a Guarantor in favor of Agent.




     Hazardous Materials — all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.



23









 






     Immaterial Subsidiary – any Subsidiary of the MLP Parent which (a) for the most
recent fiscal year of the Consolidated Parties had less than $5,000 of revenues and (b) as
of the end of such fiscal year was the owner of less than $5,000 of assets, all as shown on
the consolidated financial statements of the Borrower for such fiscal year. A list of the
Immaterial Subsidiaries as of the Amendment No. 6 Effective Date is set forth on Schedule
1.03 attached hereto.




     Incremental Revolving Facility – as defined in Section 2.2.




     Indebtedness — with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into in the
Ordinary Course of Business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such Person (other than trade
debt incurred in the Ordinary Course of Business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or under commodities
agreements, (f) the Attributable Indebtedness of such Person with respect to Capital Leases
and Synthetic Lease Obligations, (g) all net obligations of such Person under Swap
Contracts, (h) all direct and contingent reimbursement obligations in respect of letters of
credit (other than trade letters of credit) and bankers’ acceptances, including, without
duplication, all unreimbursed drafts drawn thereunder (less the amount of any cash
collateral securing any such letters of credit or and bankers’ acceptances), (i) the
principal component or liquidation preference of all Equity Interests issued by a
Consolidated Party and which by the terms thereof could at any time prior to the Revolver
Termination Date be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, mandatory redemption or other acceleration, (j) the
outstanding principal amount of all obligations of such Persons under Securitization
Transactions, (k) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (l) all Guarantees
of such Person with respect to Indebtedness of another Person and (m) the Indebtedness of
any partnership or unincorporated joint venture in which such Person is a general partner or
a joint venturer to the extent such Indebtedness is recourse to such Person. The amount of
any net obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. To the extent that the rights and remedies of
the obligee of any Indebtedness are limited to certain property and are otherwise
non-recourse to such Person, the amount of such Indebtedness shall be limited to the value
of the Person’s interest in such property (valued at the higher of book value or market
value as of such date of determination).



24









 






     Indemnified Taxes — Taxes other than Excluded Taxes.




     Indemnitees — Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees
and Bank of America Indemnitees.




     Instrument — as defined in the UCC.




     Intellectual Property — all intellectual and similar Property of a Person,
including inventions, designs, patents, patent applications, copyrights, trademarks, service
marks, trade names, trade secrets, confidential or proprietary information, customer lists,
know-how, software and databases; all embodiments or fixations thereof and all related
documentation, registrations and franchises; all books and records describing or used in
connection with the foregoing; and all licenses or other rights to use any of the foregoing.




     Intellectual Property Claim — any claim or assertion (whether in writing, by
suit or otherwise) that a Consolidated Party’s ownership, use, marketing, sale or
distribution of any Inventory, Equipment, Intellectual Property or other Property violates
another Person’s Intellectual Property.




     Intercreditor Agreement — the Intercreditor Agreement dated as of the Amendment
No. 6 Effective Date by and between Agent, the PP&E Agent, the Control Agent and the
Obligors.




     Interest Period — as defined in Section 3.1.3.




     Interest Rate Swaps — Swap Contracts entered into for the purpose of protecting
the Consolidated Parties and their Subsidiaries from fluctuations in interest rates.




     Inventory — as defined in the UCC, including all goods intended for sale,
lease, display or demonstration; all work in process; and all raw materials, and other
materials and supplies of any kind that are or could be used in connection with the
manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such
goods, or otherwise used or consumed in a Borrower’s business (but excluding Equipment).




     Inventory Formula Amount — the lesser of (a) the sum of (i) 75% of the Value of
Eligible Category A Inventory plus (ii) 65% of the Value of Eligible Category B
Inventory; or (b) 85% of the NOLV Percentage of the Value of Eligible Category A Inventory
and Eligible Category B Inventory; provided, however, that Agent, subject to
Section 14.1.1(a)(ii)(C), may adjust such advance percentages from time to time in its
reasonable discretion exercised in good faith.




     Inventory Reserve — reserves established by Agent in its reasonable discretion
exercised in good faith to reflect factors that may negatively impact the Value of
Inventory, including change in salability, obsolescence, seasonality, theft, shrinkage,
imbalance, change in composition or mix, markdowns and vendor chargebacks.



25









 






     Investment — in any Person, means (a) any Acquisition of such Person or its
Property, (b) any other acquisition of Equity Interests, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other securities of such other
Person, (c) any deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment inventory and
supplies in the Ordinary Course of Business) or (d) any other capital contribution to or
investment in such Person, including any Guarantee incurred for the benefit of such Person
and any Disposition to such Person for consideration less than the fair market value of the
Property disposed in such transaction, but excluding any Restricted Payment to such Person.
Investments which are capital contributions or purchases of Equity Interests which have a
right to participate in the profits of the issuer thereof shall be valued at the amount (or,
in the case of any Investment made with Property other than cash, the book value of such
Property) actually contributed or paid (including cash and non-cash consideration and any
assumption of Indebtedness) to purchase such Equity Interests as of the date of such
contribution or payment. Investments which are loans, advances, extensions of credit or
Guarantees shall be valued at the principal amount of such loan, advance or extension of
credit outstanding as of the date of determination or, as applicable, the principal amount
of the loan or advance outstanding as of the date of determination actually guaranteed by
such Guarantees.




     Investment Property — as defined in the UCC.




     Involuntary Disposition — any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property.




     IRS — the United States Internal Revenue Service.




     Issuing Bank — Bank of America or an Affiliate of Bank of America.




     Issuing Bank Indemnitees — Issuing Bank and its Related Parties.




     LC Application — an application by Borrower Agent to Issuing Bank for issuance
of a Letter of Credit, in form and substance satisfactory to Issuing Bank.




     LC Conditions — the following conditions necessary for issuance of a Letter of
Credit: (a) each of the conditions set forth in Section 6; (b) after giving effect to such
issuance, (i) total LC Obligations do not exceed an amount equal to $300,000,000, (ii) total
LC Obligations plus the unpaid balance of General Revolver Loans plus the
unpaid balance of Distribution Revolver Loans do not exceed the Borrowing Base, (iii) no
Overadvance exists and, (iv) if no Revolver Loans are outstanding, the LC Obligations do not
exceed the Borrowing Base (without giving effect to the LC Reserve for purposes of this
calculation); (c) the expiration date of such Letter of Credit is (i) no more than 365 days
from issuance, in the case of standby Letters of Credit, (ii) no more than 120 days from
issuance, in the case of documentary Letters of Credit, and (iii) at least 20 Business Days
prior to the Revolver Termination Date; (d) the Letter of Credit and payments



26









 







thereunder are denominated in Dollars; and (e) the form of the proposed Letter of
Credit is satisfactory to Agent and Issuing Bank in their discretion.




     LC Documents — all documents, instruments and agreements (including LC
Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in
connection with issuance, amendment or renewal of, or payment under, any Letter of Credit.




     LC Obligations — the sum (without duplication) of (a) all amounts owing by
Borrowers for any drawings under Letters of Credit; (b) the aggregate undrawn amount of all
outstanding Letters of Credit; and (c) all fees and other amounts owing with respect to
Letters of Credit.




     LC Reserve — the aggregate of all LC Obligations, other than (a) those that
have been Cash Collateralized, and (b) if no Default or Event of Default exists, those
constituting charges owing to Issuing Bank.




     Lender Indemnitees — Lenders and their Related Parties.




     Lenders — as defined in the first paragraph of this Agreement, including Agent
in its capacity as a provider of Swingline Loans and any other Person who hereafter becomes
a “Lender” pursuant to an Assignment and Acceptance.




     Lending Office — the office or offices of such Lender described as such in such
Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from
time to time notify the Borrowers and Agent.




     Letter of Credit — any standby or documentary letter of credit issued by
Issuing Bank for the account of a Borrower, or any indemnity, guarantee, exposure
transmittal memorandum or similar form of credit support issued by Agent or Issuing Bank for
the benefit of a Borrower pursuant to Section 2.3.




     Letter-of-Credit Right — as defined in the UCC.




     LIBOR Loan — each set of LIBOR Revolver Loans having a common length and
commencement of Interest Period.




     LIBOR Revolver Loan — a Revolver Loan that bears interest based on Adjusted
LIBOR.




     License — any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution or
disposition of Collateral, any use of Property or any other conduct of its business.




     Licensor — any Person from whom an Obligor obtains a License for the right to
use any Intellectual Property.



27









 






     Lien — 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).




     Lien Waiver — an agreement, in form and substance reasonably satisfactory to
Agent, by which (a) for any material Collateral located on leased premises, the lessor
waives or subordinates any Lien it may have on the Collateral, and agrees to permit Agent to
enter upon the premises and remove the Collateral or to use the premises to store or dispose
of the Collateral; (b) for any Inventory held by a warehouseman, processor, freight
forwarder, shipper or customs broker such Person waives or subordinates any Lien it may have
on the Inventory, agrees to hold any Documents in its possession relating to the Inventory
as agent for Agent, and agrees to deliver the Inventory to Agent upon request; (c) for any
Collateral held by a bailee, such bailee acknowledges Agent’s Lien, waives or subordinates
any Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon
request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights,
the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens
with respect to the Collateral, including the right to dispose of it with the benefit of the
Intellectual Property, whether or not a default exists under any applicable License, but in
any event with such changes as may be approved by Agent.




     Limited Partner - Calumet Operating, LLC, a Delaware limited liability company
and direct Wholly Owned Subsidiary of the MLP Parent that holds a 90% limited partner
interest in the Company.




     Loan — a Revolver Loan.




     Loan Account — the loan account established by each Lender on its books
pursuant to Section 5.8.




     Loan Documents — this Agreement, Other Agreements and Security Documents.




     Loan Year — each calendar year commencing on the Closing Date and each
anniversary of the Closing Date.




     Material Adverse Effect — (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of the Consolidated Parties
taken as a whole; (b) a material impairment of the ability of any Obligor to perform its
obligations under any Loan Document to which it is a party; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Obligor of any
Loan Document to which it is a party.



28









 






     Material Contract — any agreement or arrangement to which a Borrower or
Subsidiary is party (other than the Loan Documents) (a) that is deemed to be a material
contract under any securities law applicable to such Obligor, including the Securities Act
of 1933, as amended, (b) for which breach, termination, nonperformance or failure to renew
could reasonably be expected to have a Material Adverse Effect, or (c) that relates to
Indebtedness of such Obligor in an aggregate amount of $5,000,000 or more.




     Material Operating Unit  — a unit of equipment that is integral to the
processing or refining of either crude oil or other feedstocks into other types of products,
and without which such processing or refining would not be possible.




     MLP General Partner – CLP or any other Person acting in the capacity as general
partner of the MLP Parent.




     MLP Parent — CSPP.




     MLP Partnership Agreement – the partnership agreement of the MLP Parent,
including all amendments thereto, as filed with the SEC in connection with the MLP Parent’s
disclosure obligations pursuant to the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.




     Moody’s — Moody’s Investors Service, Inc., and its successors and assigns.




     Mortgage Instrument — as defined in the Sixth Amendment.




     Mortgage Policies — as defined in the Sixth Amendment.




     Mortgaged Property — as defined in the Sixth Amendment.




     Multiemployer Plan — any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.




     Net Cash Proceeds — the aggregate cash or Cash Equivalents proceeds received by
any Obligor in respect of any Disposition or Involuntary Disposition, net of (a) direct
costs incurred in connection therewith (including legal, accounting and investment banking
fees, and sales commissions), (b) Taxes paid or payable as a result thereof and (c) in the
case of any Disposition, the amount necessary to retire any Indebtedness secured by a
Permitted Lien (ranking senior to any Lien of Agent) on the related Property; it being
understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash
Equivalents received upon the sale or other disposition of any non-cash consideration
received by any such Consolidated Party in any Disposition or Involuntary Disposition.



29









 






     NOLV Percentage — the net orderly liquidation value of Inventory, expressed as
a percentage, expected to be realized at an orderly, negotiated sale held within a
reasonable period of time, net of all related commissions, fees and expenses, as determined
from the most recent appraisal of Borrowers’ Inventory performed by an appraiser and on
terms satisfactory to Agent.




     Notes — each Revolver Note, Term Note or other promissory note executed by a
Borrower to evidence any Obligations.




     Notice of Borrowing — a loan notice to be provided by Borrower Agent to request
the funding of a Borrowing of Revolver Loans, in substantially the form attached hereto as
Exhibit E or such other form as reasonably requested by Agent.




     Notice of Conversion/Continuation — a loan notice to be provided by Borrower
Agent to request a conversion or continuation of any Loans as LIBOR Loans, in substantially
the form attached hereto as Exhibit E or such other form as reasonably requested by Agent.




     Obligations — all (a) principal of and premium, if any, on the Loans, (b) LC
Obligations and other obligations of Obligors with respect to Letters of Credit, (c)
interest, expenses, fees and other sums payable by Obligors under Loan Documents, (d)
obligations of Obligors under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank
Product Indebtedness, and (g) other Indebtedness, obligations and liabilities of any kind
owing by Obligors pursuant to the Loan Documents, whether now existing or hereafter arising,
whether evidenced by a note or other writing, whether allowed in any proceeding under any
Debtor Relief Law, whether arising from an extension of credit, issuance of a letter of
credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or
indirect, absolute or contingent, due or to become due, primary or secondary, or joint or
several.




     Obligor — each Borrower, Guarantor, or other Person that is liable for payment
of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any
Obligations. For the avoidance of doubt, the general partner of a limited partnership that
is a Consolidated Party shall not be deemed to be an Obligor solely due to its capacity as
general partner.




     Obligor Materials — materials and/or information provided by or on behalf of
Obligors under this Agreement.




     Operating – as defined in the first paragraph of this Agreement.




     Operating Lease — as applied to any Person, any lease (including leases which
may be terminated by the lessee at any time) of any Property (whether real, personal or
mixed) which is not a Capital Lease other than any such lease in which that Person is the
lessor.




30












 






     Ordinary Course of Business — with respect to any Person, the ordinary course
of business of such Person, consistent with past practices and undertaken in good faith (and
not for the purpose of evading any provision of a Loan Document).




     Organization Documents — (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement of formation
or organization and any agreement, instrument, filing or notice with respect thereto filed
in connection with its formation or organization with the applicable Governmental Authority
in the jurisdiction of its formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.




     OSHA — the Occupational Safety and Health Act of 1970, as amended.




     Other Agreement — each Note; LC Document; Fee Letter; the Sixth Amendment Fee
Letter, Lien Waiver; Intercreditor Agreement; Borrowing Base Certificate, Compliance
Certificate, financial statement or report delivered hereunder; or other document,
instrument or agreement (other than this Agreement or a Security Document) now or hereafter
delivered by an Obligor or other Person to Agent or a Lender in connection with any
transactions contemplated by the Loan Documents.




     Other Taxes — all present or future stamp or documentary Taxes or any other
excise or Property Taxes, charges or similar levies (other than Excluded Taxes) arising from
any payment made hereunder or under any other Loan Document or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.




     Overadvance — as defined in Section 2.1.5.




     Overadvance Loan — a Base Rate Revolver Loan made when an Overadvance exists or
is caused by the funding thereof.




     Participant — as defined in Section 13.2.




     Patriot Act — the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115
Stat. 272 (2001), as it may be amended.




     Payment Intangible — as defined in the UCC.




     Payment Item — each check, draft or other item of payment payable to a
Borrower, including those constituting proceeds of any Collateral.



31









 






     PBGC — the United States Pension Benefit Guaranty Corporation.




     PENRECO Acquisition — the acquisition of PENRECO by the MLP Parent pursuant to
the PENRECO Acquisition Agreement.




     PENRECO Acquisition Agreement — that certain Agreement with Respect to the Sale
of Partnership Interests in PENRECO dated as of October 19, 2007, by and among the MLP
Parent or its permitted assigns and the PENRECO Sellers, together with all exhibits and
schedules thereto.




     PENRECO Acquisition Documents — the PENRECO Acquisition Agreement and all other
agreements, instruments and documents executed and delivered in connection with the PENRECO
Acquisition Agreement.




     PENRECO Sellers — collectively, ConocoPhillips Company, a Delaware corporation,
and M.E. Zukerman Specialty Oil Corporation, a Delaware corporation.




     PENRECO Transaction — collectively, (a) the consummation of the PENRECO
Acquisition, (b) the entering into by the Obligors of the Loan Documents, the PP&E Credit
Agreement and the Related Documents to which they are or are intended to be a party, (c) the
refinancing of the outstanding Indebtedness of the MLP Parent and its Subsidiaries under the
Existing PP&E Credit Agreement and the termination of all commitments with respect thereto,
(d) all related financings, equity contributions and other transactions by the Borrowers
related thereto, and (e) the payment of the fees and expenses incurred in connection with
the consummation of the foregoing.




     Pension Plan — any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of
ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the
Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the
case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.




     Permitted Acquisition — an Acquisition permitted pursuant to the terms of
Section 10.2.2.




     Permitted Investments — as defined in Section 10.2.2.




     Permitted Lien — Liens in respect of Property of the Consolidated Parties
permitted to exist pursuant to the terms of Section 10.2.1.




     Person — any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



32









 






     Plan — any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by any Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.




     Platform — IntraLinks or another similar electronic system.




     PP&E Agent — Bank of America, in its capacity as administrative agent under the
PP&E Credit Agreement and the other PP&E Loan Documents.




     PP&E Borrowers — the Company and any other Person that becomes a borrower under
the PP&E Credit Agreement in accordance with the terms thereof.




     PP&E Cap Amount — an amount equal to (A) $560,000,000 minus (B) all
payments and prepayments of the principal amount of the PP&E Obligations made after the
Amendment No. 6 Effective Date.




     PP&E Commitment — has the meaning specified for the term “Commitment” in the
PP&E Credit Agreement.




     PP&E Credit Agreement — that certain Credit Agreement dated as of January ___,
2008, among the Company, as borrower thereunder, certain of the Affiliates of the Company,
as guarantors thereunder, the PP&E Lenders and the PP&E Agent.




     PP&E Proceeds Account —  that certain segregated deposit account of the Company
with Bank of America created to hold the proceeds of the PP&E Priority Collateral, together
with any replacement deposit account created to serve the same purpose.




     PP&E Lender and PP&E Lenders — have the meanings specified for the
terms “Lender” and “Lenders,” respectively, in the PP&E Credit Agreement.




     PP&E Loan Documents — has the meaning specified for the term “Loan Documents”
in the PP&E Credit Agreement.




     PP&E Obligations — has the meaning specified for the term “Secured Obligations”
in the PP&E Security Agreement.




     PP&E Priority Collateral — has the meaning specified for the term “Term Loan
Priority Collateral” in the Intercreditor Agreement.




     PP&E Secured Parties — the holders of the PP&E Obligations.




     PP&E Security Agreement — has the meaning specified for the term “Security
Agreement” in the PP&E Credit Agreement.



33









 






     Priority Collateral — all “Working Capital Priority Collateral” as defined in
the Intercreditor Agreement (other than Excluded Property), including, upon the payment in
full of the PP&E Obligations and the termination of the PP&E Commitment, all PP&E Priority
Collateral (other than Excluded Property).




     Pro Forma Basis — means, in connection with the calculation as of the
applicable Calculation Date (utilizing the principles set forth in Section 1.2) of
the Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio in respect
of a proposed transaction (a “Specified Transaction”) as of the date on which such
Specified Transaction is to be effected, the making of such calculation after giving effect
on a pro forma basis to:




     (a) the consummation of such Specified Transaction as of the first day of the
applicable Calculation Period;




     (b) the assumption, incurrence or issuance of any Indebtedness by any of the
Consolidated Parties (including any Person which became a Subsidiary pursuant to or
in connection with such Specified Transaction) in connection with such Specified
Transaction, as if such Indebtedness had been assumed, incurred or issued (and the
proceeds thereof applied) on the first day of such Calculation Period (with any such
Indebtedness bearing interest at a floating rate being deemed to have an implied
rate of interest for the applicable period equal to the rate which is or would be in
effect with respect to such Indebtedness as of the applicable Calculation Date);




     (c) the permanent repayment, retirement or redemption of any Indebtedness
(other than revolving Indebtedness, except to the extent accompanied by a permanent
commitment reduction) by any of the Consolidated Parties (including any Person which
became a Subsidiary pursuant to or in connection with such Specified Transaction) in
connection with such Specified Transaction, as if such Indebtedness had been repaid,
retired or redeemed on the first day of such Calculation Period;




     (d) other than in connection with such Specified Transaction, any assumption,
incurrence or issuance of any Indebtedness by any of the Consolidated Parties during
the period beginning with the first day of the applicable Calculation Period through
and including the applicable Calculation Date, as if such Indebtedness had been
assumed, incurred or issued (and the proceeds thereof applied) on the first day of
such Calculation Period (with any such Indebtedness bearing interest at a floating
rate being deemed to have an implied rate of interest for the applicable period
equal to the weighted average of the interest rates actually in effect with respect
to such Indebtedness during the portion of such period that such Indebtedness was
outstanding); and




     (e) other than in connection with such Specified Transaction, the permanent
repayment, retirement or redemption of any Indebtedness (other than



34









 







revolving Indebtedness, except to the extent accompanied by a permanent
commitment reduction) by any of the Consolidated Parties during the period beginning
with the first day of the applicable Calculation Period through and including the
applicable Calculation Date, as if such Indebtedness had been repaid, retired or
redeemed on the first day of such Calculation Period.




     Pro Forma Compliance Certificate — a certificate of a Senior Officer of the
Borrower Agent or its general partner delivered to Agent in connection with Specified
Transaction, such certificate to contain reasonably detailed calculations satisfactory to
Agent, upon giving effect to the applicable Specified Transaction on a Pro Forma Basis, of
the Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio for the
applicable Calculation Period.




     Pro Rata — with respect to any Lender, a percentage (expressed as a decimal,
rounded to the ninth decimal place) determined (a) while Revolver Commitments are
outstanding, by dividing the amount of such Lender’s Revolver Commitment by the aggregate
amount of all Revolver Commitments; and (b) at any other time, by dividing the amount of
such Lender’s Loans by the aggregate amount of all outstanding Loans.




     Property — any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.




     Proposed Acquisition — the acquisition by the MLP Parent and one or more of its
Subsidiaries of all or a part of three specialty hydrocarbon products processing and
distribution facilities in Europe and a specialty products processing facility in the United
States (all or a part of any of such assets, the “Proposed Target Assets”), either
directly or pursuant to the acquisition by the MLP Parent or one or more of its Subsidiaries
of all of the Equity Interests of the Person that is the owner of such Proposed Target
Assets as further described on pages S-4 and S-5 of the Prospectus Supplement of the MLP
Parent filed with the Securities and Exchange Commission on November 9, 2007.




     Proposed Acquisition Agreement — the acquisition agreement (including all
schedules and exhibits thereto) regarding the Proposed Target Assets.




     Proposed Acquisition Conditions – each of the following:




     (i) Consolidated Leverage Ratio. The Agent shall have received
satisfactory evidence that, after giving effect to both the PENRECO Acquisition and
the Proposed Acquisition on a Pro Forma Basis, the Consolidated Leverage Ratio for
the twelve month period ended on the last day of the most recent fiscal quarter
ended immediately prior to the closing date of the Proposed Acquisition was not
greater than 3.00 to 1.00;




     (ii) Availability. After giving effect to the Proposed Acquisition,
Availability shall be no less than $100,000,000 as of the closing date of the
Proposed Acquisition after giving effect to the Proposed Transaction;



35









 






     (iii) Loan Documents, etc. The Agent shall have received such joinder
agreements and/or guarantee agreements as Agent shall require executed by any new
Domestic Subsidiaries of the MLP Parent acquired in connection with, or formed to
hold assets acquired in connection with, the Proposed Acquisition, in each case
properly executed by a Senior Officer of the signing Person and all other items in
respect of the Equity Interests or Property acquired in such Proposed Acquisition
required to be delivered by the terms of Section 10.1.13 and/or Section 10.1.14;




     (iv) Continued Accuracy of Representations and Warranties. The
representations and warranties made by the Obligors in any Loan Document shall be
true and correct in all material respects at and as if made as of the date of such
Proposed Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date;




     (v) No Default or Event of Default. No Default or Event of Default
shall exist immediately prior to or immediately after the consummation of the
Proposed Acquisition;




     (vi) Due Diligence Matters. Agent shall have completed and received
all due diligence materials with respect to such Person as Agent may reasonably
request, in form and substance satisfactory to Agent in its discretion;




     (vii) Non-Hostile. In the case of an acquisition of the Equity
Interests of another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Proposed Acquisition; and




     (viii) Satisfactory Documentation. The Borrowers shall have delivered
to the Agent all Proposed Acquisition Documents in connection with the Proposed
Acquisition, which documents shall be satisfactory to the Agent.




     Proposed Acquisition Documents — the Proposed Acquisition Agreement and all
other agreements, instruments and documents executed and delivered in connection with the
Proposed Acquisition.




     Proposed Acquisition Effective Date — the first date upon which the Proposed
Acquisition Conditions have been satisfied or waived in accordance herewith.




     Proposed Target Assets — as specified in the definition of “Proposed
Acquisition.”




     Proposed Transaction — collectively, (a) the consummation of the Proposed
Acquisition, (b) the funding of all financings, equity contributions and other transactions
related thereto and (c) the payment of the fees and expenses incurred in connection with the
consummation of the foregoing.



36









 






     Protective Advances — as defined in Section 2.1.6.




     Purchase Money Lien — a Lien that secures Indebtedness permitted by Section
10.2.3(e) encumbering only the fixed assets acquired with such Indebtedness and constituting
a Capital Lease or a purchase money security interest under the UCC.




     Real Estate — at any time, a collective reference to each of the facilities and
real Properties owned, leased or operated by the Consolidated Parties at such time.




     Refinery Properties — a collective reference to each of the refinery facilities
owned and operated by the Consolidated Parties and located in Princeton, Louisiana, Cotton
Valley, Louisiana and Shreveport, Louisiana, respectively, and each of the specialty
hydrocarbon processing facilities located in Karns City, Pennsylvania and Dickinson, Texas
that are being acquired by the Borrowers in connection with the PENRECO Acquisition, and
“Refinery Property” means any such facility.




     Registered Public Accounting Firm — as specified in the applicable Securities
Laws and shall be independent of Obligors as prescribed by the Securities Laws.




     Regulation D — Regulation D of the FRB, as in effect from time to time and any
successor or other regulation or official interpretation of the FRB, and all official
rulings and interpretations thereunder or thereof.




     Reimbursement Date — as defined in Section 2.3.2.




     Related Documents – collectively, the PENRECO Acquisition Agreement and the
other PENRECO Acquisition Documents.




     Related Party — with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.




     Rent and Costs Reserve — the aggregate of (a) all past due rent and other
amounts owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic,
freight forwarder, shipper, pipeline or barge owner or operator, or other Person who
possesses or handles any Collateral or could assert a Lien on any Collateral; and (b) a
reserve at least equal to three months rent and other charges of any such Person, unless
such Person has executed a Lien Waiver.




     Report — as defined in Section 12.2.3.




     Reportable Event — any event set forth in Section 4043(b) of ERISA.




     Reporting Trigger Event — the occurrence of any of the following: (a)
Availability falls below $50,000,000 or (b) a Default or Event of Default.



37









 






     Required Financial Information — with respect to each fiscal period or quarter
of the Consolidated Parties, (a) the financial statements required to be delivered pursuant
to Section 10.1.1(a), (b) or (c) for such fiscal period or quarter, and (b) the certificate
of a Senior Officer of the Borrower Agent or its general partner required by Section
10.1.2(b) to be delivered with the financial statements described in clause (a) above.




     Required Lenders — Lenders (subject to Section 4.2) having (a) Revolver
Commitments in excess of 50% of the aggregate Revolver Commitments; and (b) if the Revolver
Commitments have terminated, Loans and participations in L/C Obligations in excess of 50% of
all outstanding Loans and L/C Obligations.




     Restricted Payment — with respect to any Person, any dividend or other
distribution (whether in cash, securities or other property) with respect to any Capital
Stock of such Person or any of its Subsidiaries, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of
any such Capital Stock, or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent of any thereof), or any option, warrant
or other right to acquire any such dividend or other distribution or payment.




     Revolver Commitment — for any Lender, its obligation to make Revolver Loans and
to participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1A
(as such Schedule may be amended or replaced from time to time), or as specified hereafter
in the most recent Assignment and Acceptance to which it is a party. “Revolver
Commitments” means the aggregate amount of such commitments of all Lenders, as such
amount may be increased from time to time in accordance with Section 2.2. The Revolver
Commitments as of the Amendment No. 6 Effective Date total $375,000,000.




     Revolver Loan – any General Revolver Loan, Distribution Revolver Loan,
Swingline Loan, Overadvance Loan or Protective Advance.




     Revolver Termination Date – January ___, 2013.




     Royalties — all royalties, fees, expense reimbursement and other amounts
payable by a Borrower under a License.




     S&P — Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors and assigns.




     Sale and Leaseback Transaction — any arrangement pursuant to which any
Consolidated Party, directly or indirectly, becomes liable as lessee, guarantor or other
surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (a) which such Consolidated Party has sold or transferred (or is to sell or
transfer) to a Person which is not a Consolidated Party or (b) which such Consolidated Party
intends to use for substantially the same purpose as any other Property which has



38









 







been sold or transferred (or is to be sold or transferred) by such Consolidated Party
to another Person which is not a Consolidated Party in connection with such lease.




     Sarbanes-Oxley — the Sarbanes-Oxley Act of 2002, as amended.




     Secured Crack Spread Hedge Agreement — any Crack Spread Hedge Agreement that is
permitted to be incurred pursuant to Section 10.2.3(d).




     Secured Parties — Agent, Issuing Bank, Lenders and providers of Bank Products.




     Securities Laws — the Securities Act of 1933, the Securities Exchange Act of
1934, as amended, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC or the
Public Company Accounting Oversight Board, as each of the foregoing may be amended and in
effect on any applicable date hereunder.




     Securitization Transaction — any financing transaction or series of financing
transactions (including factoring arrangements) pursuant to which a Person may sell, convey
or otherwise transfer, or grant a security interest in, accounts, payments, receivables,
rights to future lease payments or residuals or similar rights to payment to a third party
financial institution or a special purpose subsidiary or Affiliate of such Person and such
transaction involving a special purpose subsidiary or Affiliate is related to a second step
sale to or other financing of such property by a third party financial institution.




     Security Agreement — that certain Security and Pledge Agreement dated as of the
Closing Date among the Obligors party thereto from time to time and Agent.




     Security Documents — each Guarantee, each Mortgage Instrument, the Security
Agreement, all Deposit Account Control Agreements, and all other documents, instruments and
agreements now or hereafter securing (or given with the intent to secure) any Obligations.




     Senior Officer — with respect to any Person, the chief executive officer,
president, chief financial officer, treasurer or assistant treasurer of such Person. Any
document delivered hereunder that is signed by a Senior Officer of a Person shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Person and such Senior Officer shall be conclusively
presumed to have acted on behalf of such Person.




     Settlement Report — a report delivered by Agent to Lenders summarizing the
Revolver Loans and participations in LC Obligations outstanding as of a given settlement
date, allocated to Lenders on a Pro Rata basis in accordance with their Revolver
Commitments.



39









 






     Shreveport Initiatives – (a) the current expansion of the manufacturing
capacity of the refinery owned and operated by one or more of the Borrowers and located in
Shreveport, Louisiana to be completed in fiscal year 2008 and (b) any further expansion
thereof or optimization of the production thereof.




     Sixth Amendment – that certain Sixth Amendment and Credit Agreement dated as of
the Amendment No. 6 Effective Date by and among the Borrowers, the Lenders and the Agent.




     Sixth Amendment Fee Letter —  means that certain Amended and Restated Fee
letter dated November 27, 2007 among the Company, the Agent and the Arranger.




     Solvent or Solvency - with respect to any Person as of a particular
date, that on such date (a)such Person is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the Ordinary Course of
Business, (b) such Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in
their ordinary course, (c) such Person is not engaged in a business or a transaction, and is
not about to engage in a business or a transaction, for which such Person’s Property would
constitute unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (d) the fair value
of the Property of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person and (e) the present fair salable
value of the assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and matured. In
computing the amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected
to become an actual or matured liability.




     Specified Transaction — as defined in the definition of “Pro Forma Basis” as
set forth in this Section 1.1.




     Springing Dominion Account — (a) with respect to the Company, account number
3756295975 held at Bank of America established by Agent in its name and under its sole and
exclusive control at its offices in Dallas, Texas designated as “Calumet Lubricants Co.,
L.P.”, (b) with respect to CSF, account number 3756295988 held at Bank of America
established by Agent in its name and under its sole and exclusive control at its offices in
Dallas, Texas designated as “Calumet Shreveport Fuels, LLC”, (c) with respect to CSLW,
account number 3756295991 held at Bank of America established by Agent in its name and under
its sole and exclusive control at its offices in Dallas, Texas designated as “Calumet
Shreveport Lubricants & Waxes, LLC”, and (d) any other account established by Bank of
America to receive funds from a lockbox account or other account of any Obligor.



40









 






     Statutory Reserves — the percentage (expressed as a decimal) established by the
FRB as the then stated maximum rate for all reserves (including those imposed by Regulation
D, all basic, emergency, supplemental or other marginal reserve requirements, and any
transitional adjustments or other scheduled changes in reserve requirements) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency Liabilities, as
defined by the FRB (or any successor category of liabilities under Regulation D).




     Subordinated Indebtedness — Indebtedness incurred by a Borrower that is
expressly subordinate and junior in right of payment to Full Payment of all Obligations, and
is on terms (including maturity, interest, fees, repayment, covenants and subordination)
satisfactory to Agent.




     Subsidiary — with respect to any Person, means a corporation, partnership,
joint venture, limited liability company or other business entity of which a majority of the
            shares of Equity Interests having ordinary voting power for the election of directors or
other governing body (other than Equity Interests 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. Unless otherwise specified, all references herein to a “Subsidiary”
or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the MLP Parent.




     Substantial Adverse Effect – has the meaning for the term “Substantial Adverse
Effect” in the PENRECO Acquisition Agreement.




     Supporting Obligation — as defined in the UCC.




     Swap Contract — (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing (including any options to
enter into any of the foregoing), whether or not any such transaction is governed by or
subject to any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.




     Swap Termination Value — in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to



41









 







such Swap Contracts, (a) for any date on or after the date such Swap Contracts have
been closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in clause (a), the
amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).




     Swingline Loan — any Borrowing of Base Rate Revolver Loans funded with Agent’s
funds, until such Borrowing is settled among Lenders pursuant to Section 4.1.3.




     Synthetic Lease Obligation — the monetary obligation of a Person under (a)a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the
use or possession of Property creating obligations that do not appear on the balance sheet
of such Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to accounting treatment).




     Taxes — any taxes, levies, imposts, duties, fees, assessments, deductions,
withholdings or other charges of whatever nature, including income, receipts, excise,
property, sales, use, transfer, license, payroll, withholding, social security, franchise,
intangibles, stamp or recording taxes imposed by any Governmental Authority, and all
interest, penalties and similar liabilities relating thereto.




     Terminal Property — the terminal facility owned and operated by the Company and
located in Burhnam, Illinois.




     Threshold Amount — $15,000,000.




     Transferee — any actual or potential Eligible Assignee, Participant or other
Person acquiring an interest in any Obligations.




     Type — any type of a Loan (i.e., Base Rate Loan or LIBOR Loan) that has the
same interest option and, in the case of LIBOR Loans, the same Interest Period.




     UCC — the Uniform Commercial Code as in effect in the State of New York or,
when the laws of any other jurisdiction govern the perfection or enforcement of any Lien,
the Uniform Commercial Code of such jurisdiction.




     Unused Line Fee Percentage — for any Type of Loan, the per annum rate set forth
below, as determined based on the Utilization for the preceding month:



42









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Unused Line Fee
	Level	 	 	 	Utilization	 	Percentage
	I	 	 
	 	> 50%	 	 	0.250	%
	II	 	 
	 	> 25% and £ 50%	 	 	0.375	%
	III	 	 
	 	£ 25%	 	 	0.500	%







     Utilization — the percentage obtained by dividing the average daily balance of
Revolver Loans and stated amount of Letters of Credit during any month by the Revolver
Commitments in effect during such month.




     Value — (a) with respect to Eligible Category B Inventory and work-in-process
fuel Inventory, the value of Inventory determined by Agent in good faith on the basis of the
lower of cost or market, calculated on a first-in, first-out basis, and (b) with respect to
Eligible Category A Inventory comprised of crude and finished fuel Inventory, the market
value of such Inventory as determined by Platt’s Oilgram for Gulf Coast Deliveries.




     Voting Stock — with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of such a contingency.




     Wholly Owned Subsidiary — with respect to any Person, any other Person 100% of
whose Equity Interests are at the time owned by such Person directly or indirectly through
other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly,
by such Person.



     1.2 Accounting Terms.




     1.2.1 Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations, but excluding Borrowing Base calculations) required
to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements; provided,
however, that calculations of Attributable Indebtedness under any Synthetic Lease
Obligations or the implied interest component of any Synthetic Lease Obligations shall be
made by the Borrower in accordance with accepted financial practice and consistent with the
terms of such Synthetic Lease Obligations.




     1.2.2 Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either
the Borrowers or the Required Lenders shall so request, Agent, the Lenders and the Borrowers
shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the



43









 







Required
Lenders); provided that, until so amended, (i) such ratio or requirement
shall
continue to be computed in accordance with GAAP prior to such change therein and (ii)
the Borrowers shall provide to Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.




     1.2.3 Effect of Dispositions and Acquisitions. Notwithstanding the above, the
parties hereto acknowledge and agree that, for purposes of all calculations made of the
Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio (including
without limitation for purposes of the financial covenants set forth in Section 10.3 and the
definitions of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any
Disposition (A) income statement items (whether positive or negative) and capital
expenditures attributable to the Property disposed of shall be excluded and (B) Indebtedness
which is retired shall be excluded and deemed to have been retired as of the first day of
the applicable period and (ii) after consummation of any Acquisition (A) income statement
items (whether positive or negative) and capital expenditures attributable to the Person or
Property acquired shall, to the extent not otherwise included in such income statement items
for the Consolidated Parties in accordance with GAAP or in accordance with any defined terms
set forth in Section 1.1, be included to the extent relating to any period applicable in
such calculations, (B) to the extent not retired in connection with such Acquisition,
Indebtedness of the Person or Property acquired shall be deemed to have been incurred as of
the first day of the applicable period.




     1.2.4 Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Consolidated Parties or to the determination of any
amount for the Consolidated Parties on a consolidated basis or any similar reference shall,
in each case, be deemed to include each variable interest entity that the MLP Parent is
required to consolidate pursuant to FASB Interpretation No. 46 — Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable
interest entity were a Subsidiary as defined herein.



     1.3 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, “from” means “from
and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and
“include” shall mean “including, without limitation” and, for purposes of each Loan Document, the
parties agree that the rule of ejusdem generis shall not be applicable to limit any provision.
Section titles appear as a matter of convenience only and shall not affect the interpretation of
any Loan Document. All references to (a) laws or statutes include all related rules, regulations,
interpretations, amendments and successor provisions; (b) any document, instrument or agreement
include any amendments, waivers and other modifications, extensions or renewals (to the extent
permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a
section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise
requires, exhibits and schedules attached hereto, which are hereby



44









 







incorporated by reference; (e)
any Person include successors and assigns; (f) time of day mean
time of day at Agent’s notice address under Section 14.4.1; or (g) discretion of Agent,
Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations
of Value, fundings of Loans, issuances of Letters of Credit and payments of Obligations shall be in
Dollars and, unless the context otherwise requires, all determinations (including calculations of
Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be
made in light of the circumstances existing at such time. Borrowing Base calculations shall be
made in a manner consistent with historical methods of valuation and calculation, and otherwise
satisfactory to Agent (and not necessarily in accordance with GAAP). Borrowers shall have the
burden of establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing
Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed
against any party by reason of such party having, or being deemed to have, drafted the provision.
Whenever the phrase “to the best of Borrowers’ knowledge” or words of similar import are used in
any Loan Documents, such phrase means actual knowledge of a Senior Officer, or knowledge that a
Senior Officer would have obtained if he or she had engaged in good faith and diligent performance
of his or her duties, including reasonably specific inquiries of employees or agents and a good
faith attempt to ascertain the matter to which such phrase relates.



SECTION 2 CREDIT FACILITIES




     2.1 Revolver Commitment.




     2.1.1 Revolver Loans. Each Lender agrees, severally on a Pro Rata basis up to
its Revolver Commitment, on the terms set forth herein, to make Revolver Loans to Borrowers
from time to time through the Commitment Termination Date. In no event shall Lenders have
any obligation to honor a request for a Revolver Loan if the unpaid balance of Revolver
Loans outstanding at such time (including the requested Loan) would exceed the Borrowing
Base. Each Lender agrees, severally on a Pro Rata basis, on the terms set forth herein, to
make certain Revolver Loans (the “General Revolver Loans”) to Borrowers from time to
time through the Commitment Termination Date for the purposes set forth in Section 2.1.3.
In no event shall Lenders have any obligation to honor a request for a General Revolver Loan
if the unpaid balance of General Revolver Loans outstanding at such time (including the
requested Loan) plus total LC Obligations would exceed the aggregate Revolver
Commitments. Each Lender agrees, severally on a Pro Rata basis, on the terms set forth
herein, to make certain Revolver Loans (the “Distribution Revolver Loans”) to
Borrowers from time to time through the Commitment Termination Date for the purposes set
forth in Section 2.1.3. In no event shall Lenders have any obligation to honor a request
for a Distribution Revolver Loan if the unpaid balance of Distribution Revolver Loans
outstanding at such time (including the requested Loan) would exceed the difference of (a)
the Distribution Revolver Loan Committed Amount minus (b) the amount by which the
sum of (1) the outstanding principal balance of General Revolver Loans and (2) the amount
available for drawing under Letters of Credit hereunder, exceeds $325,000,000 plus the
outstanding principal amount of any




45











 






loan advanced pursuant to the Incremental Revolving Facility. The Revolver Loans may be
repaid and reborrowed as provided herein.




     2.1.2 Revolver Notes. The Revolver Loans made by each Lender and interest
accruing thereon shall be evidenced by the records of Agent and such Lender. At the request
of any Lender, Borrowers shall deliver a General Revolver Note and/or a Distribution
Revolver Note to such Lender.




     2.1.3 Use of Proceeds. The proceeds of General Revolver Loans shall be used by
Borrowers solely (a) to finance the PENRECO Acquisition (and costs and expenses related
thereto) on the Amendment No. 6 Effective Date; (b) to satisfy existing Indebtedness of the
Company and its Subsidiaries; (c) to pay fees and transaction expenses associated with the
closing of the Sixth Amendment; (d) to pay Obligations in accordance with this Agreement;
and (e) for working capital and other lawful corporate purposes of Borrowers, including
Permitted Acquisitions, other than making any Restricted Payment. The proceeds of
Distribution Revolver Loans shall be used by Borrowers (i) in the same manner or for the
same purpose for which General Revolver Loans may be used as described hereinabove, and (ii)
for the purpose of making Restricted Payments permitted by Section 10.2.6 hereof.




     2.1.4 Voluntary Reduction or Termination of Revolver Commitments.




     (a) The Revolver Commitments shall terminate on the Revolver Termination Date,
unless sooner terminated in accordance with this Agreement. At any time, Borrowers
may, at their option, terminate the Revolver Commitments and this credit facility.
Any notice of termination given by Borrowers shall be irrevocable. On the
Commitment Termination Date, Borrowers shall make Full Payment of all Obligations.




     (b) Borrowers may permanently reduce the Revolver Commitments, on a Pro Rata
basis for each Lender, from time to time upon written notice to Agent, which notice
shall specify the amount of the reduction, shall be irrevocable once given, shall be
given at least five Business Days prior to the end of a month and shall be effective
as of the first day of the next month. Each reduction shall be in a minimum amount
of $10,000,000, or an increment of $1,000,000 in excess thereof.



46









 






     2.1.5 Overadvances. If the aggregate Revolver Loans exceed the Borrowing Base
(“Overadvance”) or the aggregate Revolver Commitments at any time, the excess amount
shall be payable by Borrowers on demand by Agent, but all such Revolver Loans shall
nevertheless constitute Obligations secured by the Collateral and entitled to all benefits
of the Loan Documents. Unless its authority is revoked in writing by Required Lenders,
Agent may require Lenders to honor requests for Overadvance Loans and to forbear from
requiring Borrowers to cure an Overadvance, (a) when no Event of Default other than an Event
of Default created by the existence of an Overadvance is known to Agent, provided
that (i) no Overadvance may continue for more than 30 consecutive days and no additional
Overadvance Loans may be required for at least five consecutive days following the
termination of the preceding Overadvance), and (ii) the Overadvance is not known by Agent to
exceed $20,000,000; and (b) regardless of whether an Event of Default exists, if Agent
discovers an Overadvance not previously known by it to exist, as long as from the date of
such discovery the Overadvance (i) is not increased by more than $10,000,000 (provided that
the aggregate amount of all Overadvances shall not exceed $20,000,000), and (ii) does not
continue for more than 30 consecutive days. In no event shall Overadvance Loans be required
that would cause the outstanding Revolver Loans and LC Obligations to exceed the aggregate
Revolver Commitments. Any funding of an Overadvance Loan or sufferance of an Overadvance
shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby.
In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section nor
authorized to enforce any of its terms.




     2.1.6 Protective Advances. Agent shall be authorized, in its discretion, at
any time that a Default or Event of Default exists or any conditions in Section 6 are not
satisfied, and without regard to the aggregate Commitments, to make Base Rate Revolver Loans
(“Protective Advances”) (a) up to an aggregate amount of $15,000,000 outstanding at
any time, if Agent deems such Loans necessary or desirable to preserve or protect any
Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any
other amounts chargeable to Obligors under any Loan Documents, including costs, fees and
expenses. All Protective Advances shall be Obligations, secured by the Collateral, and
shall be treated for all purposes as Extraordinary Expenses. Each Lender shall participate
in each Protective Advance on a Pro Rata basis. Required Lenders may at any time revoke
Agent’s authorization to make further Protective Advances by written notice to Agent.
Absent such revocation, Agent’s determination that funding of a Protective Advance is
appropriate shall be conclusive.



     2.2 Incremental Availability.




     Subject to the terms and conditions set forth herein, Borrowers shall have the right,
at any time prior to the fourth anniversary of the Amendment No. 6 Effective Date (but not
more than once) to incur additional Indebtedness under this Agreement in the form of an
increase to the Revolver Commitments (the “Incremental Revolving Facility”) by an
aggregate amount of up to $50,000,000; provided, that no Default or Event of Default
shall have occurred and be continuing. The following terms and conditions shall apply to
the Incremental Revolving Facility: (i) the loans made under the Incremental



47









 







Revolving Facility shall constitute Obligations and will be secured and guaranteed with
the other Obligations on a pari passu basis, (ii) such Incremental Revolving Facility shall
be obtained from existing Lenders or from other banks, financial institutions or investment
funds, in each case in accordance with the terms set forth below, (iii) Borrowers shall
execute a Note in favor of any new Lender or any existing Lender requesting a Note whose
Revolver Commitment is increased, (iv) the conditions in Section 6.2 shall have been
satisfied, (v) Agent shall have received evidence that all requisite corporate action and
proceedings in connection with the Incremental Revolving Facility shall have been taken
which evidence shall be in form and substance satisfactory to Agent and (vi) Agent shall
have received from Borrowers and Guarantors such other customary documentation as it deems
reasonably necessary. Participation in the Incremental Revolving Facility shall be offered
first to each of the existing Lenders, but each such Lender shall have no obligation to
provide all or any portion of the Incremental Revolving Facility. If the amount of the
Incremental Revolving Facility requested by Borrowers shall exceed the commitments which the
existing Lenders are willing to provide with respect to such Incremental Revolving Facility,
then Borrowers may invite other banks, financial institutions and investment funds
reasonably acceptable to Agent to join this Agreement as Lenders hereunder for the portion
of such Incremental Revolving Facility not taken by existing Lenders, provided that
such other banks, financial institutions and investment funds shall enter into such joinder
or assignment agreements to give effect thereto as Agent may reasonably request. Agent is
authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any
other document as may be necessary to incorporate the terms of any new Incremental Revolving
Facility therein. Any loans made pursuant to the Incremental Revolver Facility shall have
the same terms (including, but not limited to, interest rate, maturity date, voting rights
and rights to receive the proceeds of prepayments) as the existing Revolver Loans and shall
be considered Revolver Loans hereunder.



     2.3 Letter of Credit Facility.




     2.3.1 Issuance of Letters of Credit. Issuing Bank agrees to issue Letters of
Credit from time to time until 30 days prior to the Revolver Termination Date (or until the
Commitment Termination Date, if earlier), on the terms set forth herein, including the
following:




     (a) Each Borrower acknowledges that Issuing Bank’s willingness to issue any
Letter of Credit is conditioned upon Issuing Bank’s receipt of an LC Application
with respect to the requested Letter of Credit, as well as such other instruments
and agreements as Issuing Bank may customarily require for issuance of a letter of
credit of similar type and amount. Issuing Bank shall have no obligation to issue
any Letter of Credit unless (i) Issuing Bank receives a LC Application at least
three Business Days prior to the requested date of issuance; and (ii) each LC
Condition is satisfied. If Issuing Bank receives written notice from a Lender at
least one Business Day before issuance of a Letter of Credit that any LC Condition
has not been satisfied, Issuing Bank shall have no obligation to issue the requested
Letter of Credit (or any other) until such notice is withdrawn



48









 







in writing by that Lender or until Required Lenders have waived such condition
in accordance with this Agreement. Prior to receipt of any such notice, Issuing
Bank shall not be deemed to have knowledge of any failure of LC Conditions.




     (b) Letters of Credit may be requested by a Borrower only (i) to support
obligations of such Borrower incurred in the Ordinary Course of Business; or (ii)
for other purposes as Agent and Lenders may approve from time to time in writing.
Letters of Credit may not be requested for the purpose of supporting obligations of
a Consolidated Party to a counterparty providing any Secured Crack Spread Hedge
Agreements. The renewal or extension of any Letter of Credit shall be treated as
the issuance of a new Letter of Credit, except that delivery of a new LC Application
shall be required at the discretion of Issuing Bank.




     (c) Borrowers assume all risks of the acts, omissions or misuses of any Letter
of Credit by the beneficiary. In connection with issuance of any Letter of Credit,
none of Agent, Issuing Bank or any Lender shall be responsible for the existence,
character, quality, quantity, condition, packing, value or delivery of any goods
purported to be represented by any Documents; any differences or variation in the
character, quality, quantity, condition, packing, value or delivery of any goods
from that expressed in any Documents; the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Documents or of any endorsements thereon; the
time, place, manner or order in which shipment of goods is made; partial or
incomplete shipment of, or failure to ship, any goods referred to in a Letter of
Credit or Documents; any deviation from instructions, delay, default or fraud by any
shipper or other Person in connection with any goods, shipment or delivery; any
breach of contract between a shipper or vendor and a Borrower; errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation
of technical terms; the misapplication by a beneficiary of any Letter of Credit or
the proceeds thereof; or any consequences arising from causes beyond the control of
Issuing Bank, Agent or any Lender, including any act or omission of a Governmental
Authority. The rights and remedies of Issuing Bank under the Loan Documents shall
be cumulative. Issuing Bank shall be fully subrogated to the rights and remedies of
each beneficiary whose claims against Borrowers are discharged with proceeds of any
Letter of Credit.




     (d) In connection with its administration of and enforcement of rights or
remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled
to act, and shall be fully protected in acting, upon any certification, notice or
other communication in whatever form believed by Issuing Bank, in good faith, to be
genuine and correct and to have been signed, sent or made by a proper Person.
Issuing Bank may consult with and employ legal counsel, accountants and other
experts to advise it concerning its obligations, rights and remedies, and shall be
entitled to act upon, and shall be fully protected in any action taken in



49









 







good faith reliance upon, any advice given by such experts. Issuing Bank may
employ agents and attorneys-in-fact in connection with any matter relating to
Letters of Credit or LC Documents, and shall not be liable for the negligence or
misconduct of any such agents or attorneys-in-fact selected with reasonable care.




     2.3.2 Reimbursement; Participations.




     (a) If Issuing Bank honors any request for payment under a Letter of Credit,
Borrowers shall pay to Issuing Bank, in Dollars on the same day (“Reimbursement
Date”), the amount paid by Issuing Bank under such Letter of Credit, together
with interest at the interest rate for Base Rate Revolver Loans from the
Reimbursement Date until payment by Borrowers. The obligation of Borrowers to
reimburse Issuing Bank for any payment made under a Letter of Credit shall be
absolute, unconditional, irrevocable, and joint and several, and shall be paid
without regard to any lack of validity or enforceability of any Letter of Credit or
the existence of any claim, setoff, defense or other right that Borrowers may have
at any time against the beneficiary. Whether or not Borrower Agent submits a Notice
of Borrowing, Borrowers shall be deemed to have requested a Borrowing of Base Rate
Revolver Loans in an amount necessary to pay all amounts due Issuing Bank on any
Reimbursement Date and each Lender agrees to fund its Pro Rata share of such
Borrowing whether or not the Commitments have terminated, an Overadvance exists or
is created thereby, or the conditions in Section 6 are satisfied.




     (b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have
irrevocably and unconditionally purchased from Issuing Bank, without recourse or
warranty, an undivided Pro Rata interest and participation in all LC Obligations
relating to the Letter of Credit. If Issuing Bank makes any payment under a Letter
of Credit and Borrowers do not reimburse such payment on the Reimbursement Date,
Agent shall promptly notify Lenders and each Lender shall promptly (within one
Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the
Lender’s Pro Rata share of such payment. Upon request by a Lender, Issuing Bank
shall furnish copies of any Letters of Credit and LC Documents in its possession at
such time.




     (c) The obligation of each Lender to make payments to Agent for the account of
Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit
shall be absolute, unconditional and irrevocable, not subject to any counterclaim,
setoff, qualification or exception whatsoever, and shall be made in accordance with
this Agreement under all circumstances, irrespective of any lack of validity or
unenforceability of any Loan Documents; any draft, certificate or other document
presented under a Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or the existence of any setoff or defense that any
Obligor may have with respect to any Obligations. Issuing Bank does not assume any
responsibility for any failure or delay in performance or any



50









 







breach by any Borrower or other Person of any obligations under any LC
Documents. Issuing Bank does not make to Lenders any express or implied warranty,
representation or guaranty with respect to the Collateral, LC Documents or any
Obligor. Issuing Bank shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties contained in, or for the
execution, validity, genuineness, effectiveness or enforceability of any LC
Documents; the validity, genuineness, enforceability, collectibility, value or
sufficiency of any Collateral or the perfection of any Lien therein; or the assets,
liabilities, financial condition, results of operations, business, creditworthiness
or legal status of any Obligor.




     (d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person
for any action taken or omitted to be taken in connection with any LC Documents or
this Section 2.3 except as a result of its gross negligence or willful misconduct.
Issuing Bank shall not have any liability to any Lender if Issuing Bank refrains
from any action under any Letter of Credit or LC Documents until it receives written
instructions from Required Lenders.




     2.3.3 Cash Collateral. If any LC Obligations, whether or not then due or
payable, shall for any reason be outstanding at any time (a) that an Event of Default
exists, (b) that Availability is less than zero, (c) after the Commitment Termination Date,
or (d) within 20 Business Days prior to the Revolver Termination Date, then Borrowers shall,
at Issuing Bank’s or Agent’s request, pay to Issuing Bank the amount of all outstanding LC
Obligations and Cash Collateralize all outstanding Letters of Credit. If Borrowers fail to
Cash Collateralize outstanding Letters of Credit as required herein, Lenders may (and shall
upon direction of Agent) advance, as Revolver Loans, the amount of the Cash Collateral
required (whether or not the Commitments have terminated, an Overadvance exists, or the
conditions in Section 6 are satisfied).



SECTION 3 INTEREST, FEES AND CHARGES




     3.1 Interest.




     3.1.1 Rates and Payment of Interest.




     (a) The Obligations shall bear interest (i) if a Base Rate Loan, at the Base
Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan,
at the Adjusted LIBOR for the applicable Interest Period, plus the Applicable
Margin; and (iii) if any other Obligation (including, to the extent permitted by
law, interest not paid when due), at the Base Rate in effect from time to time, plus
the Applicable Margin for Base Rate Revolver Loans. Interest shall accrue from the
date the Loan is advanced or the Obligation is incurred or payable, until paid by
Borrowers. If a Loan is repaid on the same day made, one day’s interest shall
accrue.



51









 






     (b) During any proceeding under any Debtor Relief Law with respect to any
Borrower, or during any other Event of Default if Agent or Required Lenders in their
discretion so elect, Obligations shall bear interest at the Default Rate. Each
Borrower acknowledges that the cost and expense to Agent and each Lender due to an
Event of Default are difficult to ascertain and that the Default Rate is a fair and
reasonable estimate to compensate Agent and Lenders for such added cost and expense.




     (c) Interest accrued on the Loans shall be due and payable in arrears, (i) on
the first day of each month and, for any LIBOR Loan, on the last day of its Interest
Period; (ii) on any date of prepayment, with respect to the principal amount of
Loans being prepaid; and (iii) on the Commitment Termination Date. Interest accrued
on any other Obligations shall be due and payable as provided in the Loan Documents
and, if no payment date is specified, shall be due and payable on demand.
Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and
payable on demand.




     3.1.2 Application of Adjusted LIBOR to Outstanding Loans.




     (a) Borrowers may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or
to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan.
During any Default or Event of Default, Agent may (and shall at the direction of
Required Lenders) declare that no Loan may be made, converted or continued as a
LIBOR Loan.




     (b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans,
Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later than
11:00 a.m. at least two Business Days before the requested conversion or
continuation date. Promptly after receiving any such notice, Agent shall notify
each Lender thereof. Each Notice of Conversion/Continuation shall be irrevocable,
shall be written (or telephonic, if promptly confirmed in writing), and shall
specify the aggregate principal amount of Loans to be converted or continued, the
conversion or continuation date (which shall be a Business Day), and the duration of
the Interest Period (which shall be deemed to be one month if not specified). If,
upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers
shall have failed to deliver a Notice of Conversion/Continuation, they shall be
deemed to have elected to convert such Loans into Base Rate Loans. Notices given by
electronic mail or submitted through Agent’s website shall be deemed to have been
given in writing.




     3.1.3 Interest Periods. In connection with the making, conversion or
continuation of any LIBOR Loans, Borrowers shall select an interest period (“Interest
Period”) to apply, which interest period shall be the period commencing on the date such
LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on



52









 







the date one, two, three or six months thereafter, as selected by the Borrowers in the
Notice of Borrowing; provided that:




     (a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;




     (b) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period; and




     (c) no Interest Period shall extend beyond the Revolver Termination Date.




     3.1.4 Interest Rate Not Ascertainable. If Agent shall determine that on any
date for determining the Adjusted LIBOR, due to any circumstance affecting the London
interbank market, adequate and fair means do not exist for ascertaining such rate on the
basis provided herein, then Agent shall immediately notify Borrowers of such determination.
Until Agent notifies Borrowers that such circumstance no longer exists, the obligation of
Lenders to make LIBOR Loans shall be suspended, and no further Loans may be converted into
or continued as LIBOR Loans.



     3.2 Fees.




     3.2.1 Upfront Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of
the Lenders, the upfront fee described in the Fee Letter, which shall be paid concurrently
with the funding of the initial Loans hereunder.




     3.2.2 Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit
of Lenders, a fee equal to the Unused Line Fee Percentage per annum times the amount by
which the Revolver Commitments exceed the average daily balance of Revolver Loans and stated
amount of Letters of Credit during any month. Such fee shall be payable in arrears, on the
first Business Day of each month and on the Commitment Termination Date.




     3.2.3 LC Facility Fees. Borrowers shall pay (a) to Agent, for the Pro Rata
benefit of Lenders, a fee equal to the Applicable Margin in effect for LIBOR Revolver Loans
times the average daily stated amount of Letters of Credit, which fee shall be payable
monthly in arrears, on the first Business Day of each month; (b) to Agent, for its own
account, a fronting fee equal to 0.125% of the stated amount of each Letter of Credit, which
fee shall be payable in arrears, on the first Business Day of each month and on the
Commitment Termination Date; and (c) to Issuing Bank, for its own account, all customary
charges associated with the issuance, amending, negotiating, payment, processing, transfer
and administration of Letters of Credit, which charges shall be paid



53









 







as and when incurred. During an Event of Default, the fee payable under clause (a)
shall be increased by 2%.




     3.2.4 Other Fees. Borrowers shall pay to Bank of America the fees described in
the Sixth Amendment Fee Letter.



     3.3 Computation of Interest, Fees, Yield Protection. All interest, as well as fees
and other charges calculated on a per annum basis, shall be computed for the actual days elapsed,
based on a year of 360 days. Each determination by Agent of any interest, fees or interest rate
hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees
shall be fully earned when due and shall not be subject to rebate or refund, nor subject to
proration except as specifically provided herein. All fees payable under Section 3.2 are
compensation for services and are not, and shall not be deemed to be, interest or any other charge
for the use, forbearance or detention of money. A certificate as to amounts payable by Borrowers
under Section 3.4, 3.6, 3.7, 3.9 or 5.9, submitted to Borrowers by Agent or the affected Lender, as
applicable, shall be final, conclusive and binding for all purposes, absent manifest error. The
Borrowers’ obligations under this paragraph shall survive the termination of the Revolver
Commitment and the repayment of all other Obligations.


3.4 Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary
Expenses incurred by it. Borrowers shall also reimburse Agent for all legal, accounting,
appraisal, consulting, and other fees, costs and expenses incurred by it in connection with (a)
negotiation and preparation of any Loan Documents, including any amendment or other modification
thereof; (b) administration of and actions relating to any Collateral, Loan Documents and
transactions contemplated thereby, including any actions taken to perfect or maintain priority of
Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify
Collateral; and (c) subject to the limits of Section 10.1.10(b), each inspection, audit or
appraisal with respect to any Obligor or Collateral. All legal, accounting and consulting fees
shall be charged to Borrowers by Agent’s professionals at their full hourly rates, regardless of
any reduced or alternative fee billing arrangements that Agent, any Lender or any of their
Affiliates may have with such professionals with respect to this or any other transaction. All
amounts reimbursable by Borrowers under this Section shall constitute Obligations secured by the
Collateral and shall be payable on demand. If, as a result of any restatement of or other
adjustment to the financial statements of the MLP Parent and/or its Subsidiaries or for any other
reason, the Borrowers or the Lenders determine that (i) the Consolidated Leverage Ratio as
calculated by the Borrowers as of any applicable date was inaccurate and (ii) a proper calculation
of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the
Borrowers shall immediately and retroactively be obligated to pay to the Agent for the account of
the applicable Lenders, promptly on demand by the Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, automatically and without further action by the Agent, any Lender or the Issuing
Bank), an amount equal to the excess of the amount of interest and fees that should have been paid
for such period over the amount of interest and fees actually paid for such period. In the event
of any change in GAAP applicable to the Borrower and other similarly situated entities generally,
if any such change would otherwise requires a restatement or other retroactive financial statement
adjustment as a result of the retroactive application of such revised GAAP


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principles, then Section 1.2.2 shall control and all fee related calculations shall continue to be
made as set forth in Section 1.2.2.




     3.5 Illegality. If any Lender determines that any Applicable Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge
interest rates based upon Adjusted LIBOR, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrowers through
Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans
to LIBOR Loans shall be suspended until such Lender notifies Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the
Borrowers shall, upon demand from such Lender (with a copy to Agent), prepay or, if applicable,
convert all LIBOR Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such
prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or
converted.



     3.6 Increased Costs.




     3.6.1 Increased Costs Generally.




     If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.6.5) or Issuing Bank;




     (ii) subject any Lender or Issuing Bank to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of
Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to
such Lender or Issuing Bank in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 5.9 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or Issuing Bank); or




     (iii) impose on any Lender or Issuing Bank or the London interbank market any
other condition, cost or expense affecting this Agreement or LIBOR Loans made by
such Lender or Issuing Bank or participation therein;




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any LIBOR Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or Issuing Bank of participating in,



55









 







issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate
in or to issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or Issuing Bank, the Borrowers will pay to
such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.




     3.6.2 Capital Requirements. If any Lender or Issuing Bank determines that any
Change in Law affecting such Lender or Issuing Bank or any Lending Office of such Lender or
such Lender’s or Issuing Bank’s holding company, if any, regarding capital requirements has
or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s
capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by
Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or
Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or
Issuing Bank’s holding company with respect to capital adequacy), then from time to time the
Borrowers will pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing
Bank’s holding company for any such reduction suffered.




     3.6.3 Certificates for Reimbursement. A certificate of a Lender or Issuing
Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank
or its holding company, as the case may be, as specified in subsection (a) or (b) of this
Section and delivered to the Borrowers shall be conclusive absent manifest error. The
Borrowers shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.




     3.6.4 Delay in Requests. Failure or delay on the part of any Lender or Issuing
Bank to demand compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation,
provided that the Borrowers shall not be required to compensate a Lender or Issuing
Bank pursuant to the foregoing provisions of this Section for any increased costs incurred
or reductions suffered more than nine months prior to the date that such Lender or Issuing
Bank, as the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above shall be extended
to include the period of retroactive effect thereof).




     3.6.5 Reserves on LIBOR Loans. The Borrowers shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as



56









 







“Eurocurrency liabilities”), additional interest on the unpaid principal amount of each
LIBOR Loan equal to the actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be conclusive), which
shall be due and payable on each date on which interest is payable on such Loan,
provided the Borrowers shall have received at least 10 days’ prior notice (with a
copy to Agent) of such additional interest from such Lender. If a Lender fails to give
notice 10 days prior to the relevant Interest Payment Date, such additional interest shall
be due and payable 10 days from receipt of such notice.



     3.7 Capital Adequacy. If a Lender determines that any introduction of or any change
in a Capital Adequacy Regulation, any change in the interpretation or administration of a Capital
Adequacy Regulation by a Governmental Authority charged with interpretation or administration
thereof, or any compliance by such Lender or any Person controlling such Lender with a Capital
Adequacy Regulation, increases the amount of capital required or expected to be maintained by such
Lender or Person (taking into consideration its capital adequacy policies and desired return on
capital) as a consequence of such Lender’s Commitments, Loans, participations in LC Obligations or
other obligations under the Loan Documents, then Borrowers shall, within five days following demand
therefor, pay such Lender an amount sufficient to compensate for such increase. A Lender’s demand
for payment shall set forth the nature of the occurrence giving rise to such compensation and a
calculation of the amount to be paid. In determining such amount, the Lender may use any
reasonable averaging and attribution method.



     3.8 Mitigation.




     3.8.1 Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.6, or the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section
5.9, or if any Lender gives a notice pursuant to Section 3.5, then such Lender shall use
reasonable efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 5.9 or Section 3.6, as the
case may be, in the future, or eliminate the need for the notice pursuant to Section 3.5, as
applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.




     3.8.2 Replacement of Lenders. If any Lender requests compensation under
Section 3.6 or Section 3.7, or if the Borrowers are required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 5.9, the Borrowers may replace such Lender in accordance with Section 14.18.



     3.9 Funding Losses. If for any reason (other than default by a Lender) (a) any
borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or



57









 







not withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than the
end of its Interest Period, or (c) the Borrowers fail to repay a LIBOR Loan when required
hereunder, then the Borrowers shall pay to Agent its customary administrative charge and to each
Lender all losses and expenses that it sustains as a consequence thereof, including any loss or
expense arising from liquidation or redeployment of funds or from fees payable to terminate
deposits of matching funds. Lenders shall not be required to purchase Dollar deposits in the
London interbank market or any other offshore Dollar market to fund any LIBOR Loan, but the
provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to fund
its LIBOR Loan.



     3.10 Maximum Interest. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrowers. In determining whether the interest contracted for, charged, or
received by Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.



SECTION 4 LOAN ADMINISTRATION




     4.1 Manner of Borrowing and Funding Revolver Loans.




     4.1.1 Notice of Borrowing.




     (a) Whenever Borrowers desire funding of a Borrowing of Revolver Loans,
Borrower Agent shall give Agent a Notice of Borrowing. Such notice must be received
by Agent no later than 11:00 a.m. (i) on the Business Day of the requested funding
date, in the case of Base Rate Loans, and (ii) at least two Business Days prior to
the requested funding date, in the case of LIBOR Loans. Notices received after
11:00 a.m. shall be deemed received on the next Business Day. Each Notice of
Borrowing (including any telephonic notice thereof, any notice given via electronic
mail and any notice submitted through Agent’s website) shall be irrevocable and
shall specify (A) the principal amount of the Borrowing, (B) the requested funding
date (which must be a Business Day), (C) whether the Borrowing is to be made as Base
Rate Loans or LIBOR Loans, (D) in the case of LIBOR Loans, the duration of the
applicable Interest Period (which shall be deemed to be one month if not specified)
and (E) whether such Loan is a General Revolver Loan or a Distribution Revolver
Loan.




     (b) Unless payment is otherwise timely made by Borrowers, the becoming due of
any Obligations (whether principal, interest, fees or other



58









 







charges, including Extraordinary Expenses, LC Obligations, Cash Collateral and
Bank Product Indebtedness) shall be deemed irrevocably to be a request (without any
requirement for a Notice of Borrowing) for Base Rate Revolver Loans on the due date,
in the amount of such Obligations. The proceeds of such Revolver Loans shall be
disbursed as direct payment of the relevant Obligation.




     (c) If Borrowers establish a controlled disbursement account with Agent or any
Affiliate of Agent, then the presentation for payment of any check or other item of
payment drawn on such account at a time when there are insufficient funds to cover
it shall be deemed to be a request (without any requirement for a Notice of
Borrowing) for Base Rate Revolver Loans on the date of such presentation, in the
amount of the check and items presented for payment. The proceeds of such Revolver
Loans may be disbursed directly to the controlled disbursement account.




     (d) Neither Agent nor any Lender shall have any obligation to Borrowers to
honor any deemed request for a Revolver Loan (i) on or after the Commitment
Termination Date, (ii) when an Overadvance exists or would result therefrom, or
(iii) when any condition in Section 6 is not satisfied, but may do so in their
discretion, without being deemed to have waived any Default or Event of Default.




     4.1.2 Fundings by Lenders. Each Lender shall timely honor its Revolver
Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans that is
properly requested hereunder. Agent shall endeavor to notify Lenders of each Notice of
Borrowing (or deemed request for a Borrowing) by 12:00 noon on the proposed funding date for
Base Rate Loans or by 3:00 p.m. at least two Business Days before any proposed funding of
LIBOR Loans. Each Lender shall fund to Agent such Lender’s Pro Rata share of the Borrowing
to the account specified by Agent in immediately available funds not later than 2:00 p.m. on
the requested funding date, unless Agent’s notice is received after the times provided
above, in which event Lender shall fund its Pro Rata share by 11:00 a.m. on the next
Business Day. Subject to its receipt of such amounts from Lenders, Agent shall make the
proceeds of the Revolver Loans as directed by Borrower Agent. Unless Agent shall have
received (in sufficient time to act) written notice from a Lender that it does not intend to
fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has deposited or
promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to
Borrowers. If a Lender’s share of any Borrowing is not in fact received by Agent, then
Borrowers agree to repay to Agent on demand the amount of such share, together with interest
thereon from the date disbursed until repaid, at the rate applicable to such Borrowing.




     4.1.3 Swingline Loans; Settlement.




     (a) Agent may, but shall not be obligated to, advance Swingline Loans to
Borrowers out of Agent’s own funds, up to an aggregate outstanding amount of
$30,000,000, unless the funding is specifically required to be made by all Lenders



59









 







hereunder. Each Swingline Loan shall constitute a Revolver Loan for all
purposes, except that payments thereon shall be made to Agent for its own account.
In no event shall Agent honor a request for a Swingline Loan if Agent knows that the
unpaid balance of Revolving Loans outstanding at such time (including the requested
Swingline Loan) would exceed the Borrowing Base, unless such Swingline Loan would
otherwise be permitted as an Overadvance or a Protective Advance. The obligation of
Borrowers to repay Swingline Loans shall be evidenced by the records of Agent and
need not be evidenced by any promissory note.




     (b) To facilitate administration of the Revolver Loans, Lenders and Agent agree
(which agreement is solely among them, and not for the benefit of or enforceable by
any Borrower) that settlement among them with respect to Swingline Loans and other
Revolver Loans may take place periodically on a date determined from time to time by
Agent, which shall occur at least once every five Business Days. On each settlement
date, settlement shall be made with each Lender in accordance with the Settlement
Report delivered by Agent to Lenders. Between settlement dates, Agent may in its
discretion apply payments on Revolver Loans to Swingline Loans, regardless of any
designation by Borrower or any provision herein to the contrary. Each Lender’s
obligation to make settlements with Agent is absolute and unconditional, without
offset, counterclaim or other defense, and whether or not the Commitments have
terminated, an Overadvance exists, or the conditions in Section 6 are satisfied.
If, due to any proceeding under any Debtor Relief Law with respect to a Borrower or
otherwise, any Swingline Loan may not be settled among Lenders hereunder, then each
Lender shall be deemed to have purchased from Agent a Pro Rata participation in each
unpaid Swingline Loan and shall transfer the amount of such participation to Agent,
in immediately available funds, within one Business Day after Agent’s request
therefor.




     4.1.4 Telephonic Notices. Each Borrower authorizes Agent and Lenders to
extend, convert or continue Loans, effect selections of interest rates, and transfer funds
to or on behalf of Borrowers (but not change the account into which Loan proceeds are to be
deposited) based on telephonic instructions. Borrowers shall confirm each such telephonic
request by prompt delivery to Agent of a written Notice of Borrowing or Notice of
Conversion/Continuation, if applicable, duly executed by an authorized officer of Borrower
Agent. If a written confirmation differs in any material respect from the action taken by
Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any
Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or
any Lender acting upon its understanding of telephonic instructions from a person believed
in good faith by Agent or any Lender to be a person authorized to give such instructions on
a Borrower’s behalf.




     4.1.5 Electronic Notices. Each Borrower authorizes Agent and Lenders to
extend, convert or continue Loans, effect selections of interest rates, and transfer funds
to or on behalf of Borrowers based on instructions delivered via electronic mail or



60









 







submitted through Agent’s website. Neither Agent nor any Lender shall have any
liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon
its understanding of instructions delivered via electronic mail or submitted through Agent’s
website from a source believed in good faith by Agent or any Lender to be authorized to give
such instructions on a Borrower’s behalf.



     4.2 Defaulting Lender. If a Lender fails to make any payment to Agent that is
required hereunder, Agent may (but shall not be required to), in its discretion, retain payments
that would otherwise be made to such defaulting Lender hereunder, apply the payments to such
Lender’s defaulted obligations or readvance the funds to Borrowers in accordance with this
Agreement. The failure of any Lender to fund a Loan or to make a payment in respect of a LC
Obligation shall not relieve any other Lender of its obligations hereunder, and no Lender shall be
responsible for default by another Lender. Lenders and Agent agree (which agreement is solely
among them, and not for the benefit of or enforceable by any Borrower) that, solely for purposes of
determining a defaulting Lender’s right to vote on matters relating to the Loan Documents and to
share in payments, fees and Collateral proceeds thereunder, a defaulting Lender shall not be deemed
to be a “Lender” until all its defaulted obligations have been cured.



     4.3 Number and Amount of LIBOR Loans; Determination of Rate. For ease of
administration, all LIBOR Revolver Loans having the same length and beginning date of their
Interest Periods shall be aggregated together, and such Loans shall be allocated among Lenders on a
Pro Rata basis. No more than eight (8) aggregated LIBOR Loans may be outstanding at any time, and
each aggregate LIBOR Loan when made, continued or converted shall be in a minimum amount of
$10,000,000, or an increment of $1,000,000 in excess thereof. Upon determining Adjusted LIBOR for
any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof in
writing, by telephone or electronically and, if requested by Borrowers, shall confirm any
telephonic notice in writing



     4.4 Borrower Agent.




     4.4.1 Each Borrower hereby designates the Company (“Borrower Agent”) as its
representative and agent for all purposes under the Loan Documents, including requests for
Loans and Letters of Credit, designation of interest rates, delivery or receipt of
communications with Agent, Issuing Bank or any Lender, preparation and delivery of Borrowing
Base and financial reports, receipt and payment of Obligations, requests for waivers,
amendments or other accommodations, actions under the Loan Documents (including in respect
of compliance with covenants), and all other dealings with Agent, Issuing Bank or any
Lender. Borrower Agent hereby accepts such appointment.




     4.4.2 [Intentionally Omitted]




     4.4.3 Agent and Lenders shall be entitled to rely upon, and shall be fully protected in
relying upon, any notice or communication (including any Notice of Borrowing) delivered by
Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or
communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower. Agent
shall have the right, in its discretion, to deal exclusively



61









 







with Borrower Agent for any or all purposes under the Loan Documents. Each Borrower
agrees that any notice, election, communication, representation, agreement or undertaking
made on its behalf by Borrower Agent shall be binding upon and enforceable against it.



     4.5 One Obligation. The Loans, LC Obligations and other Obligations shall constitute
one general obligation of Borrowers and (unless otherwise expressly provided in any Loan Document)
shall be secured by Agent’s Lien upon all Collateral; provided, however, that Agent and each Lender
shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to
the extent of any Obligations jointly or severally owed by such Borrower.



     4.6 Effect of Termination. On the effective date of any termination of the
Commitments, all Obligations shall be immediately due and payable, and any Lender may terminate its
and its Affiliates’ Bank Products (including, with the consent of Agent, any Cash Management
Services). All undertakings of Borrowers contained in the Loan Documents shall survive any
termination, and Agent shall retain its Liens in the Collateral and all of its rights and remedies
under the Loan Documents until Full Payment of the Obligations. Notwithstanding Full Payment of
the Obligations, Agent shall not be required to terminate its Liens in any Collateral unless, with
respect to any damages Agent may incur as a result of the dishonor or return of Payment Items
applied to Obligations, Agent receives (a) a written agreement, executed by Borrowers and any
Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying Agent
and Lenders from any such damages; or (b) such Cash Collateral as Agent, in its discretion, deems
necessary to protect against any such damages. The provisions of Sections 2.3, 3.4, 3.6, 3.7, 3.9,
5.5, 5.9, 12, 14.2, 14.3 and this Section shall survive Full Payment of the Obligations and any
release relating to this credit facility.



SECTION 5 PAYMENTS




     5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars,
without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes,
and in immediately available funds, not later than 12:00 noon on the due date. Any payment after
such time shall be deemed made on the next Business Day. Borrowers may, at the time of payment,
specify to Agent the Obligations to which such payment is to be applied, but Agent shall in all
events retain the right to apply such payment in such manner as Agent, subject to the provisions
hereof, may determine to be appropriate. If the Borrowers fail to designate which type of Loans
are to be repaid with any payment, the payment shall be applied first to the General Revolver Loans
and then to the Distribution Revolver Loans. If any payment under the Loan Documents shall be
stated to be due on a day other than a Business Day, the due date shall be extended to the next
Business Day and such extension of time shall be included in any computation of interest and fees.
Any payment of a LIBOR Loan prior to the end of its Interest Period shall be accompanied by all
amounts due under Section 3.9. Any prepayment of Loans shall be applied first to Base Rate Loans
and then to LIBOR Loans.



     5.2 Repayment of Revolver Loans. Revolver Loans shall be due and payable in full on
the Revolver Termination Date, unless payment is sooner required hereunder. Revolver Loans



62









 







may be prepaid from time to time, without penalty or premium. If any Disposition includes the
disposition of Accounts or Inventory (other than Inventory sold in the Ordinary Course of
Business), then Net Cash Proceeds equal to the greater of (a) the net book value of such Accounts
and Inventory, or (b) the reduction in the Borrowing Base upon giving effect to such Disposition,
shall be applied to the Revolver Loans. Notwithstanding anything herein to the contrary, if an
Overadvance exists, Borrowers shall, on the sooner of Agent’s demand or the first Business Day
after any Borrower has knowledge thereof, repay the outstanding Revolver Loans in an amount
sufficient to reduce the principal balance of Revolver Loans to the Borrowing Base.



     5.3 Reserved.



     5.4 Payment of Other Obligations. Obligations other than Loans, including LC
Obligations and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan
Documents or, if no payment date is specified, on demand.



     5.5 Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of any Obligor or against any Obligations. To the extent
that any payment by or on behalf of the Borrowers or from the proceeds of Collateral is made to
Agent, Issuing Bank or any Lender, or Agent, Issuing Bank or any Lender exercises its right of
setoff under Section 11.4, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by Agent, Issuing Bank or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
Obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and Issuing Bank severally agrees to pay to Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect.



     5.6 Post-Default Allocation of Payments.




     5.6.1 Allocation. Notwithstanding anything herein to the contrary, during an
Event of Default, monies to be applied to the Obligations, whether arising from payments by
Obligors, realization on Collateral or otherwise, shall be allocated as follows:




     (a) first, to all Extraordinary Expenses owing to Agent;




     (b) second, to all amounts owing to Agent on Swingline Loans or Protective
Advances, or to Issuing Bank on LC Obligations;




     (c) third, to all Obligations constituting fees (excluding amounts relating to
Bank Products);




63












 






     (d) fourth, to all Obligations constituting interest (excluding amounts
relating to Bank Products);




     (e) fifth, to provide Cash Collateral for outstanding Letters of Credit;




     (f) sixth, to all Obligations constituting principal of the Loans;




     (g) seventh, to all other Obligations, other than Bank Product Indebtedness;
and




     (h) eighth, to Bank Product Indebtedness.




     Amounts shall be applied to each category of Obligations set forth above until Full
Payment thereof and then to the next category. If amounts are insufficient to satisfy a
category, they shall be applied on a pro rata basis among the Obligations in the category.
Amounts distributed with respect to any Bank Product Indebtedness shall be the lesser of the
applicable Bank Product Amount last reported to Agent or the actual Bank Product
Indebtedness as calculated by the methodology reported to Agent for determining the amount
due. Agent shall have no obligation to calculate the amount to be distributed with respect
to any Bank Product Indebtedness, but may rely upon written notice of the amount (setting
forth a reasonably detailed calculation) from the Secured Party. In the absence of such
notice, Agent may assume the amount to be distributed is the Bank Product Amount last
reported to it. The allocations set forth in this Section are solely to determine the
rights and priorities of Agent and Lenders as among themselves, and may be changed by
agreement among them without the consent of any Obligor. This Section is not for the
benefit of or enforceable by any Borrower. Within the foregoing parameters, payments
applied to Revolver Loans shall be applied first to General Revolver Loans and then to
Distribution Revolver Loans.




     5.6.2 Erroneous Application. Agent shall not be liable for any application of
amounts made by it in good faith and, if any such application is subsequently determined to
have been made in error, the sole recourse of any Lender or other Person to which such
amount should have been made shall be to recover the amount from the Person that actually
received it (and, if such amount was received by any Lender, such Lender hereby agrees to
return it).



     5.7 Application of Payments. After the occurrence of a Cash Dominion Trigger Event
and until such time as a Cash Dominion Trigger Event has not existed for sixty (60) consecutive
days, the ledger balance in the main Dominion Account as of the end of a Business Day shall be
applied to the Obligations at the beginning of the next Business Day. Each Borrower irrevocably
waives the right to direct the application of any payments or Collateral proceeds, and agrees that
Agent shall have the continuing, exclusive right to apply and reapply same against the Obligations,
in such manner as Agent deems advisable, notwithstanding any entry by Agent in its records. If, as
a result of Agent’s receipt of Payment Items or proceeds of Collateral, a credit balance exists,
the balance shall not accrue interest in favor of Borrowers and shall be made available to
Borrowers as long as no Default or Event of Default exists.



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     5.8 Loan Account; Account Stated.




     5.8.1 Loan Account. Agent shall maintain in accordance with its usual and
customary practices an account or accounts (“Loan Account”) evidencing the Indebtedness of
Borrowers resulting from each Loan or issuance of a Letter of Credit from time to time,
including the amount of principal and interest payable and outstanding LC Obligations. Any
failure of Agent to record anything in the Loan Account, or any error in doing so, shall not
limit or otherwise affect the obligation of Borrowers to pay any amount owing hereunder.
Agent may maintain a single Loan Account in the name of Borrower Agent, and each Borrower
confirms that such arrangement shall have no effect on the joint and several character of
its liability for the Obligations.




     5.8.2 Entries Binding. Entries made in the Loan Account shall constitute
presumptive evidence of the information contained therein. If any information contained in
the Loan Account is provided to or inspected by any Person, then such information shall be
conclusive and binding on such Person for all purposes absent manifest error, except to the
extent such Person notifies Agent in writing within 30 days after receipt or inspection that
specific information is subject to dispute.



     5.9 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by Applicable Law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) Agent, Lender or
Issuing Bank, as the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrowers shall make such deductions and (iii)
the Borrowers shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with Applicable Law.




     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions
of subsection (a) above, the Borrowers shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with Applicable Law.




     (c) Indemnification by the Borrowers. The Borrowers shall indemnify Agent,
each Lender and the Issuing Bank, within 30 days after demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) paid by Agent, such
Lender or the Issuing Bank, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or



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liability delivered to the Borrower by a Lender or the Issuing Bank (with a copy to Agent),
or by Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.




     (d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrowers to a Governmental Authority, the Borrowers
shall deliver to Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to Agent.




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which a Borrower
is resident for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document shall deliver to such
Borrower (with a copy to Agent), at the time or times prescribed by Applicable Law or
reasonably requested by the Borrowers or Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit such payments to be made without
withholding or at a reduced rate of withholding. Any Lender, at the time or time prescribed
by Applicable Law or as reasonably requested by the Borrowers or Agent, shall deliver such
other documentation prescribed by Applicable Law or reasonably requested by the Borrowers or
Agent as will enable the Borrowers or Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.


Without limiting the generality of the foregoing, in the event that a Borrower is resident for tax
purposes in the United States, any Foreign Lender shall deliver to such Borrower and Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or Agent or as required by Applicable Law, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:





     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of a Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or



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     (iv) any other form prescribed by Applicable Law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
Applicable Law to permit the Borrower to determine the withholding or deduction
required to be made.




     (f) Treatment of Certain Refunds. If Agent, any Lender or the Issuing Bank
determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrowers or with respect to which the
Borrowers have paid additional amounts pursuant to this Section, it shall pay to the
Borrowers an amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrowers under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of Agent, such
Lender or the Issuing Bank, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund),
provided that the Borrower, upon the request of Agent, such Lender or the Issuing
Bank, agrees to repay the amount paid over to the Borrowers (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to Agent, such Lender or the
Issuing Bank in the event Agent, such Lender or the Issuing Bank is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to require
Agent, any Lender or the Issuing Bank to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrowers or any other
Person.



     5.10 [Reserved].



     5.11 Nature and Extent of Each Borrower’s Liability.




     5.11.1 Joint and Several Liability. Each Borrower agrees that it is jointly
and severally liable for, and absolutely and unconditionally guarantees to Agent and Lenders
the prompt payment and performance of, all Obligations and all agreements under the Loan
Documents. Each Borrower agrees that its guaranty obligations hereunder constitute a
continuing guaranty of payment and performance and not of collection, that such obligations
shall not be discharged until Full Payment of the Obligations, and that such obligations are
absolute and unconditional, irrespective of (a) the genuineness, validity, regularity,
enforceability, subordination or any future modification of, or change in, any Obligations
or Loan Document, or any other document, instrument or agreement to which any Obligor is or
may become a party or liable; (b) the absence of any action to enforce this Agreement
(including this Section) or any other Loan Document, or any waiver, consent or indulgence of
any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition
of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for
the Obligations or any action, or the absence of any action, by Agent or any Lender in
respect thereof (including the release of any security or guaranty); (d) the insolvency of
any Obligor; (e) any election by Agent or any Lender in any proceeding under any Debtor
Relief Law for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any
borrowing or grant of a Lien by any other Borrower, as



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debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the
disallowance of any claims of Agent or any Lender against any Obligor for the repayment of
any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (h) any other
action or circumstances that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, except Full Payment of all Obligations.




     5.11.2 Waivers.




     (a) Each Borrower expressly waives all rights that it may have now or in the future
under any statute, at common law, in equity or otherwise, to compel Agent or Lenders to
marshal assets or to proceed against any Obligor, other Person or security for the payment
or performance of any Obligations before, or as a condition to, proceeding against such
Borrower. It is agreed among each Borrower, Agent and Lenders that the provisions of this
Section are of the essence of the transaction contemplated by the Loan Documents and that,
but for such provisions, Agent and Lenders would decline to make Loans and issue Letters of
Credit. Notwithstanding anything to the contrary in any Loan Document, and except as set
forth in Section 5.11.3, each Borrower expressly waives all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set off, as well
as all defenses available to a surety, guarantor or accommodation co-obligor. Each Borrower
acknowledges that its guaranty pursuant to this Section is necessary to the conduct and
promotion of its business, and can be expected to benefit such business.




     (b) Agent and Lenders may, in their discretion, pursue such rights and remedies as they
deem appropriate, including realization upon Collateral or any Real Estate by judicial
foreclosure or non-judicial sale or enforcement, without affecting any rights and remedies
under this Section 5.11. If, in the exercise of any rights or remedies, Agent or any Lender
shall forfeit any of its rights or remedies, including its right to enter a deficiency
judgment against any Borrower or any other Person, whether because of any Applicable Laws
pertaining to “election of remedies” or otherwise, each Borrower consents to such action by
Agent or such Lender and waives any claim based upon such action, even if the action may
result in loss of any rights of subrogation that any Borrower might otherwise have had but
for such action. Any election of remedies that results in denial or impairment of the right
of Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair
any other Borrower’s obligation to pay the full amount of the Obligations. Each Borrower
waives all rights and defenses arising out of an election of remedies, such as nonjudicial
foreclosure with respect to any security for the Obligations, even though that election of
remedies destroys such Borrower’s rights of subrogation against any other Person. If Agent
bids at any foreclosure or trustee’s sale or at any private sale, Agent may bid all or a
portion of the Obligations and the amount of such bid need not be paid by Agent but shall be
credited against the Obligations. The amount of the successful bid at any such sale,
whether Agent or any other Person is the successful bidder, shall be conclusively deemed to
be the fair market value of the Collateral, and the difference between such bid amount and
the remaining balance of the Obligations shall be conclusively deemed to be the amount of
the Obligations guaranteed under this Section 5.11, notwithstanding that any present or



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future law or court decision may have the effect of reducing the amount of any
deficiency claim to which Agent or any Lender might otherwise be entitled but for such
bidding at any such sale.




     5.11.3 Extent of Liability; Contribution.




     (a) Notwithstanding anything herein to the contrary, each Borrower’s liability under
this Section 5.11 shall be limited to the greater of (i) all amounts for which such Borrower
is primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.




     (b) If any Borrower makes a payment under this Section 5.11 of any Obligations (other
than amounts for which such Borrower is primarily liable) (a “Guarantor Payment”)
that, taking into account all other Guarantor Payments previously or concurrently made by
any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each
Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the same
proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts of all
Borrowers, then such Borrower shall be entitled to receive contribution and indemnification
payments from, and to be reimbursed by, each other Borrower for the amount of such excess,
pro rata based upon their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment. The “Allocable Amount” for any Borrower shall be the maximum
amount that could then be recovered from such Borrower under this Section 5.11 without
rendering such payment voidable or avoidable under Section 548 of the Bankruptcy Code or
under any applicable state fraudulent transfer or conveyance act, or similar statute or
common law.




     (c) Nothing contained in this Section 5.11 shall limit the liability of any Borrower to
pay Loans made directly or indirectly to that Borrower (including Loans advanced to any
other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such
Borrower), LC Obligations relating to Letters of Credit issued to support such Borrower’s
business, and all accrued interest, fees, expenses and other related Obligations with
respect thereto, for which such Borrower shall be primarily liable for all purposes
hereunder. Agent and Lenders shall have the right, at any time in their discretion, to
condition Loans and Letters of Credit upon a separate calculation of borrowing availability
for each Borrower and to restrict the disbursement and use of such Loans and Letters of
Credit to such Borrower.




     5.11.4 Joint Enterprise. Each Borrower has requested that Agent and Lenders
make the credit facility established hereunder available to Borrowers on a combined basis,
in order to finance Borrowers’ business most efficiently and economically. Borrowers’
business is a mutual and collective enterprise, and Borrowers believe that consolidation of
their credit facility will enhance the borrowing power of each Borrower and ease the
administration of their relationship with Lenders, all to the mutual advantage of Borrowers.
Borrowers acknowledge and agree that Agent’s and Lenders’ willingness



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to extend credit to Borrowers and to administer the Collateral on a combined basis, as
set forth herein, is done solely as an accommodation to Borrowers and at Borrowers’ request.




     5.11.5 Subordination. Each Borrower hereby subordinates any claims, including
any right of payment, subrogation, contribution and indemnity, that it may have at any time
against any other Obligor, howsoever arising, to the Full Payment of all Obligations,
provided, however, that so long as no Event of Default has occurred and is continuing, each
Borrower shall be entitled to receive and apply payment of all intercompany obligations
including the fees, allocated overhead, repayments of indebtedness and interest thereon, and
any and all other obligations.



SECTION 6 CONDITIONS PRECEDENT




     6.1 Conditions Precedent to Initial Loans. [Intentionally omitted in connection with
the Sixth Amendment since the conditions in this Section 6.1 applied to loans to be made on
December 9, 2005 which conditions no longer apply. The conditions to the effectiveness of the
Sixth Amendment are set forth in Part 4 of the Sixth Amendment].



     6.2 Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders
shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any
other accommodation to or for the benefit of Borrowers, unless the following conditions are
satisfied:




     (a) No Default or Event of Default shall exist at the time of, or result from, such
funding, issuance or grant;




     (b) The representations and warranties of each Obligor in the Loan Documents shall be
true and correct on the date of, and upon giving effect to, such funding, issuance or grant
(except for representations and warranties that expressly relate to an earlier date);




     (c) All conditions precedent set forth in any other Loan Document shall have been
satisfied;




     (d) No event shall have occurred or circumstance exist that has or could reasonably be
expected to have a Material Adverse Effect; and




     (e) With respect to issuance of a Letter of Credit, the LC Conditions shall have been
satisfied.


Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit
or grant of an accommodation shall constitute a representation by Borrowers that the foregoing
conditions are satisfied on the date of such request and on the date of such funding, issuance or
grant. As an additional condition to any funding, issuance or grant, Agent shall have


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received such other information, documents, instruments and agreements as it deems appropriate in
connection therewith.




     6.3 Limited Waiver of Conditions Precedent. If Agent, Issuing Bank or Lenders fund
any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation when any
conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or
unknown at the time), it shall not operate as a waiver of (a) the right of Agent, Issuing Bank and
Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent
funding, issuance or grant; nor (b) any Default or Event of Default due to such failure of
conditions or otherwise.


SECTION 7 RESERVED



SECTION 8 COLLATERAL ADMINISTRATION




     8.1 Borrowing Base Certificates. Prior to the occurrence of a Reporting Trigger Event
(and after a Reporting Trigger Event has not existed for sixty (60) consecutive days), Borrowers
shall, by the 15th day of each month, deliver to Agent (and Agent shall promptly deliver
same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the previous
month, and at such other times as Agent may reasonably request. After the occurrence of a
Reporting Trigger Event and until such time as a Reporting Trigger Event has not existed for sixty
(60) consecutive days, Borrowers shall, by Tuesday of each week, deliver to Agent (and Agent shall
promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business
of Friday of the immediately preceding week, and at such other times as Agent may reasonably
request. All calculations of Availability in any Borrowing Base Certificate shall originally be
made by Borrowers and signed by a Senior Officer or the Controller of Borrower Agent or its general
partner, provided that Agent may from time to time review and adjust any such calculation (a) to
reflect its reasonable estimate of declines in value of any Collateral, due to collections received
in the Dominion Account or otherwise; (b) to adjust advance rates and reserves to reflect changes
in dilution, quality, mix and other factors affecting the Collateral; and (c) to the extent the
calculation is not made in accordance with this Agreement or does not accurately reflect the
Availability Reserve.



     8.2 Administration of Accounts.




     8.2.1 Records and Schedules of Accounts. Each Borrower shall keep accurate and
complete records of its Accounts, including all payments and collections thereon, and shall
submit to Agent, on such periodic basis as Agent may reasonably request, a sales and
collections report, in form satisfactory to Agent. Each Borrower shall also provide to
Agent, on or before the 15th day of each month, a detailed aged trial balance of
all Accounts as of the end of the preceding month, specifying each Account’s Account Debtor
name and address, amount, invoice date and due date, showing any discount, allowance,
credit, authorized return or dispute, and including such proof of delivery, copies of
invoices and invoice registers, copies of related documents, repayment



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histories, status reports and other information as Agent may reasonably request. If
Accounts in an aggregate face amount of $500,000 or more cease to be Eligible Accounts,
Borrowers shall notify Agent of such occurrence promptly (and in any event within one
Business Day) after any Borrower has knowledge thereof. Agent shall provide such of the
foregoing information as it deems material to the Lenders promptly upon receipt thereof from
the Borrowers.




     8.2.2 Taxes. If an Account of any Borrower includes a charge for any Taxes,
Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing
authority for the account of such Borrower and to charge Borrowers
therefor; provided,
however, that neither Agent nor Lenders shall be liable for any Taxes that may be due from
Borrowers or with respect to any Collateral.




     8.2.3 Account Verification. Whether or not a Default or Event of Default
exists, Agent shall have the right at any time, in the name of Agent, any designee of Agent
or any Borrower to verify the validity, amount or any other matter relating to any Accounts
of Borrowers by mail, telephone or otherwise. Borrowers shall cooperate fully with Agent in
an effort to facilitate and promptly conclude any such verification process.




     8.2.4 Maintenance of Dominion Account. Borrowers shall maintain Dominion
Accounts pursuant to lockbox or other arrangements acceptable to Agent. Borrowers shall
obtain an agreement (in form and substance satisfactory to Agent) from each lockbox servicer
and Dominion Account bank, establishing Agent’s control over and Lien in the lockbox or
Dominion Account, requiring immediate deposit of all remittances received in the lockbox to
a Dominion Account and, if such Dominion Account is not maintained with Bank of America,
requiring immediate transfer of all funds in the Dominion Account upon notification by Agent
(which notification shall not be given until the occurrence of a Cash Dominion Trigger Event
and will be revoked if a Cash Dominion Trigger Event ceases to exist for sixty (60)
consecutive days) to a Dominion Account maintained with Bank of America, and waiving offset
rights of such servicer or bank against any funds in the lockbox or Dominion Account, except
offset rights for customary administrative charges. Neither Agent nor Lenders assume any
responsibility to Borrowers for any lockbox arrangement or Dominion Account, including any
claim of accord and satisfaction or release with respect to any Payment Items accepted by
any bank.




     8.2.5 Proceeds of Collateral. Borrowers shall request in writing and otherwise
take all reasonable steps to ensure that all payments on Accounts or otherwise relating to
Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion
Account). If any Borrower or Subsidiary receives cash or Payment Items with respect to any
Collateral, it shall hold same in trust for Agent and promptly (not later than the next
Business Day) deposit same into a Dominion Account.




     8.2.6 Bank Products. In order to facilitate the administration of the Loans,
Borrowers will maintain Bank of America as their principal depository bank, including



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for the maintenance of operating, administrative, cash management, collection activity
and other deposit accounts for the conduct of the Borrowers’ business.



     8.3 Administration of Inventory.




     8.3.1 Records and Reports of Inventory. Each Borrower shall keep accurate and
complete records of its Inventory, including costs and daily withdrawals and additions, and
shall submit to Agent inventory reports in form satisfactory to Agent, on such periodic
basis as Agent may request but in no event more frequently than once per week if no Default
or Event of Default exists. Each Borrower shall conduct a physical inventory at least once
per calendar year (and on a more frequent basis if requested by Agent when an Event of
Default exists) and periodic cycle counts consistent with historical practices, and, at
Agent’s request, shall provide to Agent a report based on the latest such physical
inventory. Agent may participate in and observe, at its reasonable request, any physical
inventory count. Agent shall provide such of the foregoing information as it deems material
to the Lenders promptly upon receipt thereof from the Borrowers.




     8.3.2 Returns of Inventory. No Borrower shall return any Inventory to a
supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such
return is in the Ordinary Course of Business; (b) no Default, Event of Default or
Overadvance exists or would result therefrom; (c) Agent is promptly notified if the
aggregate Value of all Inventory returned in any month exceeds $1,000,000; and (d) any
payment received by a Borrower for a return is promptly remitted to Agent for application to
the Obligations.




     8.3.3 Acquisition, Sale and Maintenance. No Borrower shall acquire or accept
any Inventory on consignment or approval, and shall take all steps to assure that all
Inventory is produced in accordance with Applicable Law, including the FLSA. No Borrower
shall sell any Inventory having a value in excess of $1,000,000 for all such Inventory on
consignment or approval or any other basis under which the customer may return or require a
Borrower to repurchase such Inventory, provided, that commodity leases do not constitute
consignments. Borrowers shall use, store and maintain all Inventory with reasonable care
and caution, in accordance with applicable standards of any insurance and in conformity with
all Applicable Law, and shall make current rent payments (within applicable grace periods
provided for in leases) at all locations where any Collateral is located.



     8.4 Administration of Equipment.




     8.4.1 Records and Schedules of Equipment. Each Borrower shall keep accurate
and complete records of its Equipment, including kind, quality, quantity, cost, acquisitions
and dispositions thereof, and shall submit to Agent, on such periodic basis as Agent may
request, a current schedule thereof, in form satisfactory to Agent. Promptly upon request,
Borrowers shall deliver to Agent evidence of their ownership or interests in



73









 







any Equipment. Agent shall provide such of the foregoing information as it deems
material to the Lenders promptly upon receipt thereof from the Borrowers.




     8.4.2 Condition of Equipment. The Equipment is in operating condition and
repair consistent with industry standards, and all necessary replacements and repairs have
been made so that the may be safely and effectively operated at all times. Each Borrower
shall ensure that the Equipment is mechanically and structurally sound, and capable of
performing the functions for which it was designed, in accordance with the manufacturer’s
published and recommended specifications. No Borrower shall permit any Equipment to become
affixed to real Property owned by any Person other than a Borrower unless any landlord or
mortgagee delivers a Lien Waiver or similar instrument.



     8.5 Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit Accounts
maintained by Borrowers, including all Dominion Accounts. Each Borrower shall take all actions
necessary to establish Agent’s control of each such Deposit Account (other than an account
exclusively used for payroll, payroll taxes or employee benefits, or up to ten accounts containing
not more than $25,000 each, at any time). Each Borrower shall be the sole account holder of each
Deposit Account and shall not allow any other Person (other than Agent and PP&E Agent, subject to
the terms of the Intercreditor Agreement) to have control over a Deposit Account or any Property
deposited therein. Each Borrower shall promptly notify Agent of any opening or closing of a
Deposit Account and, with the consent of Agent, will amend Schedule 8.5 to reflect same.



     8.6 General Provisions.




     8.6.1 Location of Collateral. All tangible items of Collateral, other than
Inventory in transit, shall at all times be kept by Borrowers at the business locations set
forth in Schedule 8.6.1, except that Borrowers may (a) make sales or other dispositions of
Collateral in accordance with Section 10.2.5; and (b) move Collateral to another location in
the United States, upon 30 Business Days prior written notice to Agent.




     8.6.2 Insurance of Collateral; Condemnation Proceeds.




     (a) Each Borrower shall maintain insurance with respect to the Collateral, covering
casualty, hazard, public liability, theft, malicious mischief, and such other risks, in such
amounts, with such endorsements, and with such insurers (rated A or better by A.M. Best
Rating Guide) as are satisfactory to Agent. All proceeds under each policy shall be payable
to Agent. From time to time upon request, Borrowers shall deliver the originals or
certified copies of its insurance policies to Agent or Control Agent. Unless Agent shall
agree otherwise, each policy shall include satisfactory endorsements (i) showing Control
Agent as sole loss payee or additional insured, as appropriate; (ii) requiring 30 days prior
written notice to Control Agent in the event of cancellation of the policy for any reason
whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or
invalidated by any act or neglect of any Borrower or the owner of the Property, nor by the
occupation of the premises for purposes more hazardous than are permitted by the policy. If
any Borrower fails to provide and pay for such insurance,



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Agent may, at its option, but shall not be required to, procure the insurance and
charge Borrowers therefor. Each Borrower agrees to deliver to Agent, promptly as rendered,
copies of all reports made to insurance companies. While no Event of Default exists,
Borrowers may settle, adjust or compromise any insurance claim, as long as the proceeds of
Priority Collateral are delivered to Agent. If an Event of Default exists, only Agent or
Control Agent shall be authorized to settle, adjust and compromise such claims.




     (b) Any proceeds of insurance (other than proceeds from workers’ compensation or D&O
insurance) and any awards arising from condemnation of any Collateral shall be paid to
Control Agent for distribution in accordance with the terms of the Intercreditor Agreement.
Any such proceeds or awards that relate to Inventory shall be deposited into the Springing
Dominion Account of the applicable Obligors. Any proceeds or awards received by Agent from
the Control Agent in accordance with the terms of the Intercreditor Agreement that relate to
Equipment or Real Estate shall be deposited into the Springing Dominion Account of the
applicable Obligors. Proceeds from any business interruption insurance may be used by
Borrowers in the Ordinary Course of Business.




     8.6.3 Protection of Collateral. All expenses of protecting, storing,
warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable
with respect to any Collateral (including any sale thereof), and all other payments required
to be made by Agent to any Person to realize upon any Collateral, shall be borne and paid by
Borrowers. Agent shall not be liable or responsible in any way for the safekeeping of any
Collateral, for any loss or damage thereto (except for reasonable care in its custody while
Collateral is in Agent’s actual possession), for any diminution in the value thereof, or for
any act or default of any warehouseman, carrier, forwarding agency or other Person
whatsoever, but the same shall be at Borrowers’ sole risk.




     8.6.4 Defense of Title to Collateral. Each Borrower shall at all times defend
its title to Collateral and Agent’s Liens therein against all Persons, claims and demands
whatsoever, except Permitted Liens.



     8.7 Power of Attorney. Each Borrower hereby irrevocably constitutes and appoints
Agent (and all Persons designated by Agent) as such Borrower’s true and lawful attorney (and
agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without
notice and in either its or a Borrower’s name, but at the cost and expense of Borrowers:




     (a) Endorse a Borrower’s name on any Payment Item or other proceeds of Collateral
(including proceeds of insurance) that come into Agent’s possession or control; and




     (b) During the continuance of an Event of Default, (i) notify any Account Debtors of
the assignment of their Accounts, demand and enforce payment of Accounts, by legal
proceedings or otherwise, and generally exercise any rights and remedies with respect to
Accounts; (ii) settle, adjust, modify, compromise, discharge or release any Accounts or
other Collateral, or any legal proceedings brought to collect Accounts or



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Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for
such amounts and at such times as Agent deems advisable; (iv) take control, in any manner,
of any proceeds of Collateral; (v) prepare, file and sign a Borrower’s name to a proof of
claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment
or satisfaction of Lien or similar document; (vi) receive, open and dispose of mail
addressed to a Borrower and received through any lockbox; (vii) endorse any Chattel Paper,
Document, Instrument, invoice, freight bill, bill of lading, or similar document or
agreement relating to any Accounts, Inventory or other Collateral; (viii) sign a Borrower’s
name to verifications of Accounts and notices to Account Debtors; (ix) use the information
recorded on or contained in any data processing equipment and computer hardware and software
relating to any Collateral; (x) make and adjust claims under policies of insurance; (xi)
take any action as may be necessary or appropriate to obtain payment under any letter of
credit or banker’s acceptance for which a Borrower is a beneficiary; and (xii) take all
other actions as Agent deems appropriate to fulfill any Borrower’s obligations under the
Loan Documents.



SECTION 9 REPRESENTATIONS AND WARRANTIES




     9.1 General Representations and Warranties. To induce Agent and Lenders to enter into
this Agreement and to make available the Commitments, Loans and Letters of Credit, each Borrower
represents and warrants that:




     9.1.1 Existence, Qualification and Power; Compliance with Applicable Laws.
Each Obligor (a) is duly organized or formed, validly existing and in good standing (to the
extent the concept of good standing exists in such jurisdiction) under the Applicable Laws
of the jurisdiction of its incorporation or formation, and (b) has all requisite power and
authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver
and perform its obligations, if any, under the Loan Documents and the Related Documents to
which it is a party and (c) is duly qualified and is licensed and in good standing under the
Applicable Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in each case
referred to in clause (b)(i) or (c), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.




     9.1.2 Authorization; No Contravention. The execution, delivery and performance
by each Obligor of each Loan Document and Related Document to which such Person is party,
have been duly authorized by all necessary corporate or other organizational action, and do
not and will not (a) contradict the terms of any of such Person’s Organization Documents;
(b) violate or result in any breach or contravention of, or result in or require the
creation of any Lien (other than the Liens created by this Agreement or the other Loan
Documents) under, or require any payment to be made under (i) any Contractual Obligation to
which such Obligor is a party or affecting such Obligor or the Property of such Obligor or
any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (c)
violate any Applicable Law (including Regulation U or Regulation X issued by the FRB). Each
Obligor and each Subsidiary



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thereof is in compliance with all Contractual Obligations referred to in clause (b)(i),
except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect




     9.1.3 Governmental Authorization and Approvals; Other Consents. Each
Consolidated Party has, is in compliance with, and is in good standing with respect to, all
Governmental Approvals necessary to conduct its business, to own, lease and operate its
Properties and to execute, deliver and perform its obligations under the Loan Documents.
All necessary import, export or other Licenses, permits or certificates for the import or
handling of any goods or other Collateral have been procured and are in effect. No
approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, any Obligor of this
Agreement or any other Loan Document, or any Related Document, or for the consummation of
the PENRECO Transaction, except for (a) consents, authorizations, notices and filings
described in Schedule 9.1.3, all of which have been obtained or made or have the status
described in such Schedule 9.1.3, (b) third party consents with respect to immaterial
contracts, and (c) filings to perfect the Liens created by the Security Documents or the
PP&E Loan Documents. All applicable waiting periods in connection with the PENRECO
Transaction have expired without any action having been taken by any Governmental Authority
restraining, preventing or imposing materially adverse conditions upon the PENRECO
Transaction or the rights of the Obligors or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them. The PENRECO Acquisition has been consummated in accordance with
the PENRECO Acquisition Agreement and Applicable Law.




     9.1.4 Binding Effect. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each Obligor that
is party thereto. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Obligor,
enforceable against each Obligor that is party thereto in accordance with its terms except
as enforceability may be limited by applicable Debtor Relief Laws and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).




     9.1.5 Financial Statements; No Material Adverse Effect.




     (a) The Audited Company Financial Statements and to the knowledge of the Obligors, the
Audited PENRECO Financial Statements, respectively, (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the Consolidated
Parties and PENRECO and its Subsidiaries, respectively, as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein;
and (iii) show all material indebtedness and other direct or known contingent material
liabilities of the Consolidated Parties and PENRECO and its



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Subsidiaries, respectively, as of the date thereof, including material liabilities for
taxes, material commitments and Indebtedness.




     (b) The unaudited consolidated balance sheet of (i) the Consolidated Parties dated
September 30, 2007, and (ii) to the knowledge of the Obligors, PENRECO and its Subsidiaries
dated September 30, 2007, and (iii) in each case, the related consolidated statements of
income or operations, partners’ capital and cash flows for the nine month period ended on
that date, respectively, (A) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein, and (B)
fairly present the financial condition of the Consolidated Parties and PENRECO and its
Subsidiaries, respectively, as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (A) and (B), to the absence of
footnotes and to normal year-end audit adjustments. Schedule 9.1.5 sets forth all material
indebtedness and other liabilities, direct or contingent, of the Consolidated Parties and
PENRECO and its Subsidiaries, respectively, as of the date of the applicable financial
statements, including liabilities for taxes, material commitments and Indebtedness.




     (c) During the period from December 31, 2006, to and including the Amendment No. 6
Effective Date, there has been no sale, transfer or other disposition by any Consolidated
Party of any material part of the business or Property of the Consolidated Parties, taken as
a whole, and no purchase or other acquisition by any of them of any business or property
(including any Equity Interests of any other Person) material in relation to the
consolidated financial condition of the Consolidated Parties, taken as a whole, in each
case, other than (i) the PENRECO Acquisition or (ii) as reflected in the foregoing financial
statements or in the notes thereto or otherwise disclosed in writing to the Lenders on or
prior to the Amendment No. 6 Effective Date.




     (d) The financial statements delivered pursuant to Section 10.1.1(a), (b) and (c) have
been prepared in accordance with GAAP and present fairly (except as may otherwise be
permitted under Section 10.1.1(a), (b) and (c)) and on the basis disclosed in the footnotes
to such financial statements) the consolidated financial condition, results of operations
and cash flows of the Consolidated Parties as of such date and for such periods.




     (e) Since the date of the Audited Company Financial Statements, there has been no event
or circumstance, either individually or in the aggregate, that has had or could reasonably
be expected to have a Material Adverse Effect.




     (f) The forecasts delivered pursuant to Part IV of the Sixth Amendment were prepared in
good faith on the basis of the assumptions stated therein, which assumptions were reasonable
in light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower’s good faith estimate of its future
financial performance during the period covered by such forecasts. The Agent, the Issuing
Bank and the Lenders hereby acknowledge that forecasts and estimates of future financial
performance are inherently uncertain and no assurances have been given, and no



78









 







representations or warranties have been made by any Loan Party, that the results
reflected in the forecasts will be achieved.




     9.1.6 Litigation. There are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of the Obligors after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against any Obligor or against any of its properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, any Related Document or the consummation of the PENRECO
Transaction or (b) either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect. No Obligor is in default with
respect to any order, injunction or judgment of any Governmental Authority.




     9.1.7 No Default. No Consolidated Party is in default under or with respect to
any Contractual Obligation that could, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing or would result from the consummation of the transactions contemplated by
this Agreement or any other Loan Document. There is no basis upon which any party (other
than a Consolidated Party) could terminate a Material Contract prior to its scheduled
termination date.




     9.1.8 Ownership of Property; Liens. Each Consolidated Party has good record
and marketable (or, as to real property in Texas, indefeasible) title in fee simple to, or
valid leasehold interests in, all real Property necessary or used in the ordinary conduct of
its business, and good title to all of its personal Property, including all Property
reflected in any financial statements delivered to Agent or the Lenders, except for such
defects in title as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. All Liens of Agent in the Priority Collateral are duly
perfected, first priority Liens, all Liens of Agent in the PP&E Priority Collateral are duly
perfected, second priority liens, in each case in accordance with the Security Documents and
subject only to Permitted Liens that are expressly allowed to have priority over the Liens
of Agent. Each Consolidated party has paid and discharged all lawful claims that, if
unpaid, could become a Lien on its Properties, other than Permitted Liens.




     9.1.9 Environmental Compliance. Except in each case as where the existence
and/or occurrence of any of the following could not reasonably be expected to have a
Material Adverse Effect:




     (a) Each of the Real Properties and all operations at the Real Properties are
in compliance with all applicable Environmental Laws, there is no violation of any
Environmental Law with respect to the Real Properties or the Businesses, and there
are no conditions relating to the Real Properties or the Businesses that could give
rise to liability under any applicable Environmental Laws.



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     (b) None of the Real Properties contains any Hazardous Materials at, on or
under the Real Properties in amounts or concentrations that constitute a violation
of, or could give rise to liability under, Environmental Laws.




     (c) No Consolidated Party has received any written notice of, or inquiry from
any Governmental Authority that remains unresolved or is currently outstanding with
regard to, any violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws with
regard to any of the Real Properties or the Businesses, nor does any Senior Officer
of any Obligor or the general partner of any Obligor have knowledge or reason to
believe that any such notice will be received or is being threatened.




     (d) Hazardous Materials have not been transported or disposed of from the Real
Properties, or generated, treated, stored or disposed of at, on or under any of the
Real Properties or any other location, in each case by or on behalf of any
Consolidated Party in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Law.




     (e) No judicial proceeding or governmental or administrative action is pending
or, to the knowledge of the Senior Officers of the Obligors or the general partner
of any Obligor, threatened, under any Environmental Law to which any Consolidated
Party is or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with
respect to the Consolidated Parties, the Real Properties or the Businesses.




     (f) There has been no Environmental Release, or threat of Environmental
Release, of Hazardous Materials at or from the Real Properties, or arising from or
related to the operations (including disposal) of any Consolidated Party in
connection with the Real Properties or otherwise in connection with the Businesses,
in violation of or in amounts or in a manner that could give rise to liability under
Environmental Laws.




     9.1.10 Insurance. The properties of the Consolidated Parties are insured with
financially sound and reputable insurance companies not Affiliates of a Borrower, in such
amounts, with such deductibles and covering such risks as are, in the reasonable business
judgment of the management of the Company, adequate for the Consolidated Parties.
Schedule 9.1.10 contains a list of all insurance policies in effect as of the date hereof
for each of the properties of the Company and its Subsidiaries and provides a description of
coverage provided by such policies, the carrier, policy number, expiration date and amount
on Schedule 9.1.10.




     9.1.11 Taxes. The Consolidated Parties have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and




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other material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with GAAP. There
is no proposed tax assessment against any Consolidated Party that would, if made, have a
Material Adverse Effect. Except as described on Schedule 9.1.11, neither any Obligor nor
any Subsidiary thereof is party to any tax sharing agreement. The provision for Taxes on
the books of each Consolidated Party is adequate for all years not closed by applicable
statutes, and for its current Fiscal Year.





     9.1.12 ERISA Compliance.




     (a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Applicable Laws. Each Plan
that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best knowledge
of the Obligors, nothing has occurred which would prevent, or cause the loss of,
such qualification. Each Obligor and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, except where the
failure to make such contribution could not reasonably be expected to have a
Material Adverse Effect, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan, except where the failure to make such contribution could not
reasonably be expected to have a Material Adverse Effect.




     (b) There are no pending or, to the best knowledge of the Obligors, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with respect
to any Plan that could reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could reasonably
be expected to result in a Material Adverse Effect.




     (c) Except as could not reasonably be expected to have a Material Adverse
Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) the
aggregate actuarial present value of all accumulated plan benefits of all Pension
Plans (determined utilizing the assumptions used for purposes of Statement of
Financial Accounting Standards No. 35) did not, as of the date of the Company’s most
recent financial statement reflecting any such amount, exceed the aggregate fair
market value of the assets of all such Pension Plans except as disclosed in such
financial statement; (iii) no Obligor nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) no Obligor nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and, to the knowledge of the Obligors, no event has
occurred which, with the giving of notice under



81









 







Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) no Obligor and no ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.




     (d) No Obligor is an entity deemed to hold “plan assets” within the meaning of
29 C.F.R. §2510.3-101 of any Plan or any “plan” (within the meaning of Section 4975
of the Code), and neither the execution of this Agreement nor the funding of any
Loans gives rise to a prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code.




     9.1.13 Capital Structure/Subsidiaries. The corporate capital and ownership
structure of the Consolidated Parties as of the Amendment No. 6 Effective Date is as
described in Schedule 9.1.13(a). Set forth on Schedule 9.1.13(b) is a complete and accurate
list as of the Amendment No. 6 Effective Date with respect to the MLP Parent and each of its
direct and indirect Subsidiaries of (i) jurisdiction of formation or organization, (ii)
number of shares of each class of Equity Interests outstanding, (iii) number and percentage
of outstanding shares of each class owned (directly or indirectly) by the Consolidated
Parties and (iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect thereto as of the
Amendment No. 6 Effective Date. The outstanding Equity Interests of all such Persons is
validly issued, fully paid and non-assessable and is owned by the Consolidated Parties,
directly or indirectly, in the manner set forth on Schedule 9.1.13(b), free and clear of all
Liens (other than those arising under or contemplated in connection with the Loan
Documents). Other than as set forth in Schedule 9.1.13(b), neither the MLP Parent nor any
of its Subsidiaries has outstanding any securities convertible into or exchangeable for its
Equity Interests nor does any such Person have outstanding any rights to subscribe for or to
purchase or any options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any character relating
to its Equity Interests. As of the Amendment No. 6 Effective Date, the MLP Parent has no
equity investments in any other Person constituting 5% or more of the outstanding equity
interests in such Person other than those equity investments set forth on Schedule 9.1.13(c)
hereto.




     9.1.14 Margin Regulations; Investment Company Act.




     (a) None of the Consolidated Parties is engaged and will not engage,
principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock. No Loan
proceeds will be used by any Consolidated Party to purchase or carry, or to reduce
or refinance any Indebtedness incurred to purchase or carry, any margin stock or for
any related purpose governed by Regulations T, U or X of the FRB.




     (b) None of the Obligors or any Subsidiary of an Obligor is an “investment
company” or a “person directly or indirectly controlled by or acting



82









 







on behalf of an investment company” within the meaning of the Investment
Company Act of 1940, or is required to be registered as an “investment company”
under, the Investment Company Act of 1940, or subject to regulation under any other
Law which limits its ability to incur Indebtedness.




     9.1.15 Disclosure. Neither this Agreement nor any report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of
any Obligor to Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that, with respect to projected financial information, the
Obligors represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.




     9.1.16 Compliance with Laws. Each Consolidated Party is in compliance in all
material respects with the requirements of all Applicable Laws and all orders, writs,
injunctions and decrees applicable to it or to its Properties, including all foreign and
domestic laws with respect to the shipment and importation of any goods or Collateral,
except in such instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently conducted or
(b) the failure to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. No Inventory of the Consolidated
Parties has been produced in violation of the FLSA.




     9.1.17 Intellectual Property. Each Consolidated Party owns, or has the legal
right to use, all Intellectual Property necessary for each of them to conduct its business
as currently conducted. Set forth on Schedule 9.1.17 is a list of all Intellectual Property
registered or pending registration with the United States Copyright Office or the United
States Patent and Trademark Office and owned by each Consolidated Party or that any
Consolidated Party has the right to use. No claim has been asserted and is pending by any
Person challenging or questioning the use of the Intellectual Property owned by any
Consolidated Party or the validity or effectiveness of the Intellectual Property owned by
any Consolidated Party, nor does any Obligor know of any such claim, and, to the knowledge
of the Senior Officers of the Obligors or the general partner of any Obligor, the use of the
Intellectual Property by any Consolidated Party or the granting of a right or a License by
any Consolidated Party in respect of the Intellectual Property owned by any Consolidated
Party does not infringe on the rights of any Person. As of the Amendment No. 6 Effective
Date, none of the Intellectual Property owned by the Consolidated Parties is subject to any
licensing agreement or similar arrangement except as set forth on Schedule 9.1.17. Except
as disclosed on Schedule 9.1.17, no Consolidated Party pays or owes any Royalty or other
compensation to any Person with respect to any Intellectual Property.




     9.1.18 Solvency. Each Consolidated Party is Solvent.



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     9.1.19 Business Locations. Set forth on Schedule 9.1.19(a) is a list of all
Real Properties located in the United States that are owned or leased by the Obligors as of
the Amendment No. 6 Effective Date. Set forth on Schedule 9.1.19(b) is a list of all
locations where any tangible personal Property of an Obligor (other than inventory in
transit) with a value in excess of $750,000 is located as of the Amendment No. 6 Effective
Date. Set forth on Schedule 9.1.19(c) is the chief executive office, jurisdiction of
formation or organization and principal place of business of each Obligor as of the
Amendment No. 6 Effective Date. During the five years preceding the Amendment No. 6
Effective Date, except as shown on Schedule 9.1.19(d), no Obligor has been known as or used
any corporate, fictitious or trade names, has been the surviving corporation of a merger or
combination, or has acquired any substantial part of the assets of any Person. During the
five years preceding the Amendment No. 6 Effective Date, no Obligor has had any other office
or place of business.




     9.1.20 Brokers’ Fees. No Consolidated Party has any obligation to any Person
in respect of any finder’s, broker’s, investment banking or other similar fee in connection
with any of the transactions contemplated under the Loan Documents.




     9.1.21 Labor Matters. Schedule 9.1.21 sets forth all collective bargaining
agreements or Multiemployer Plans covering the employees of a Consolidated Party as of the
Amendment No. 6 Effective Date. There are no existing or threatened strikes, walkouts, work
stoppages or other material labor difficulty related to any collective bargaining or similar
agreement to which any Consolidated Party is a party which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 9.1.21, no Consolidated Party is party to or bound by any management or
consulting agreement.




     9.1.22 Nature of Business. As of the Amendment No. 6 Effective Date, the
Consolidated Parties are engaged in the business of processing crude oil into customized
lubricating oils, solvents and waxes, and into a variety of fuel and fuel-related products,
including unleaded gasoline, diesel fuel, jet fuel and other petroleum based products.




     9.1.23 Representations and Warranties from Other Loan Documents. Each of the
representations and warranties made by any of the Obligors in any of the other Loan
Documents is true and correct in all material respects.




     9.1.24 Security Documents. The provisions of the Security Documents are
effective to create in favor of Agent for the benefit of the Lenders and any other secured
parties identified therein, legal, valid and enforceable (i) with respect to the Priority
Collateral, first priority, and (ii) with respect to the PP&E Priority Collateral, second
priority, security interests in all right, title and interest of the Obligors in the
Collateral described therein and all proceeds thereof (in each case subject to Permitted
Liens). Except for filings completed prior to the Closing Date and as contemplated by this
Agreement and the Security Documents, no filing or other action will be necessary to perfect
or protect such security interest.



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     9.1.25 Real Properties. The real Property legal description set forth in each
Mortgage Instrument is a true and correct description in all material respects of the
applicable Mortgaged Property covered by such Mortgage Instrument, none of the buildings,
structures or improvements located on any Mortgage Property is in violation of any
applicable set back or other similar requirements under Applicable Law and/or interferes
with any easement rights granted to any Person with respect to such Mortgaged Property,
except as may be disclosed in the surveys delivered to Agent on or before the Amendment No.
6 Effective Date, and neither the ownership rights of any Consolidated Party and/or the
rights of Agent under the Security Documents will be affected by any title defect or third
party rights with respect to such Mortgaged Property in any manner that could reasonably be
expect to have a Material Adverse Effect.




     9.1.26 Surety Obligations. No Consolidated Party is obligated as surety or
indemnitor under any bond or other contract that assures payment or performance of any
obligation of any Person, except as permitted hereunder.




     9.1.27 Trade Relations. There exists no actual or threatened termination,
limitation or modification of any business relationship between any Consolidated Party and
any customer or supplier, or any group of customers or suppliers, who individually or in the
aggregate are material to the business of the Consolidated Parties. There exists no
condition or circumstance that could reasonably be expected to impair the ability of the
Consolidated Parties to conduct their businesses at any time hereafter in substantially the
same manner as conducted on the Amendment No. 6 Effective Date.




     9.1.28 Accounts. Agent may rely, in determining which Accounts are Eligible
Accounts, on all statements and representations made by Borrowers with respect thereto.
Borrowers warrant, with respect to each Account at the time it is shown as an Eligible
Account in a Borrowing Base Certificate, that:




     (a) it is genuine and in all respects what it purports to be, and is not
evidenced by a judgment;




     (b) it arises out of a completed, bona fide sale and delivery of goods or
rendition of services in the Ordinary Course of Business, and substantially in
accordance with any purchase order, contract or other document relating thereto;




     (c) it is for a sum certain, maturing as stated in the invoice covering such
sale or rendition of services, a copy of which has been furnished or is available to
Agent on request;




     (d) it is not subject to any offset, Lien (other than Agent’s Lien), deduction,
defense, dispute, counterclaim or other adverse condition except as arising in the
Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by
the Account Debtor, without contingency in any respect;



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     (e) no purchase order, agreement, document or Applicable Law restricts
assignment of the Account to Agent (regardless of whether, under the UCC, the
restriction is ineffective), other than Accounts owing by a Government Authority
which have been assigned in accordance the Assignment of Claims Act or which
otherwise satisfy the criteria in clause (h) of the definition of Eligible Account;




     (f) no extension, compromise, settlement, modification, credit, deduction or
return has been authorized with respect to the Account, except discounts or
allowances granted in the Ordinary Course of Business for prompt payment that are
reflected on the face of the invoice related thereto and in the reports submitted to
Agent hereunder; and




     (g) to the best of Borrowers’ knowledge, (i) there are no facts or
circumstances that are reasonably likely to impair the enforceability or
collectibility of such Account; (ii) the Account Debtor had the capacity to contract
when the Account arose, continues to meet the applicable Borrower’s customary credit
standards, is Solvent, is not contemplating or subject to any proceeding under any
Debtor Relief Law, and has not failed, or suspended or ceased doing business; and
(iii) there are no proceedings or actions threatened or pending against any Account
Debtor that could reasonably be expected to have a material adverse effect on the
Account Debtor’s financial condition.




     9.1.29 [Reserved]




     9.1.30 [Reserved]




     9.1.31 No Conflict with MLP Partnership Agreement. The execution, delivery and
performance of this Agreement will not, upon the execution and delivery thereof, constitute
a violation of, or otherwise contravene the MLP Partnership Agreement as in effect on the
Amendment No. 6 Effective Date.




     9.1.32 Representations and Warranties in PENRECO Purchase Agreement. As of the
Amendment No. 6 Effective Date, each of the representations and warranties made in the
PENRECO Acquisition Agreement by the MLP Parent and/or any other Consolidated Party party
thereto is true and correct in all material respects.



     9.2 Complete Disclosure. No Loan Document contains any untrue statement of a material
fact, nor fails to disclose any material fact necessary to make the statements contained therein
not materially misleading. There is no fact or circumstance that any Obligor has failed to
disclose to Agent in writing that could reasonably be expected to have a Material Adverse Effect.



SECTION 10 COVENANTS AND CONTINUING AGREEMENTS




     10.1 Affirmative Covenants. For so long as any Commitments or Obligations are
outstanding, each Obligor shall, and shall cause each of its Subsidiaries to:



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     10.1.1 Financial Statements. Deliver to Agent, in form and detail satisfactory
to Agent and the Required Lenders:




     (a) as soon as available, but in any event within 90 days after the end of each
fiscal year of the Consolidated Parties (commencing with the fiscal year ending
December 31, 2007), a consolidated balance sheet of the Consolidated Parties as at
the end of such fiscal year, and the related consolidated statements of income or
operations, partners’ capital and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, such statements to be
audited and accompanied by a (i) report and opinion of a Registered Public
Accounting Firm, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall not
be subject to any “going concern” or like qualification, exception, assumption or
explanatory language or any qualification, exception, assumption or explanatory
language as to the scope of such audit; and




     (b) as soon as available, but in any event within 45 days after the end of each
of the first three fiscal quarters of each fiscal year of the Consolidated Parties
(commencing with the fiscal quarter ending March 31, 2008), a consolidated balance
sheet of the Consolidated Parties as at the end of such fiscal quarter, and the
related consolidated statements of income or operations, partners’ capital and cash
flows for such fiscal quarter and for the portion of the fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such statements to be certified on
behalf of the Consolidated Parties by a Senior Officer of the Borrower Agent or its
general partner as fairly presenting the financial condition, results of operations,
partners’ capital and cash flows of the Consolidated Parties for such fiscal quarter
and portion of such fiscal year in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and




     (c) as soon as available, but in any event within 30 days after the end of each
month (but within 60 days of the last month in each fiscal year of the Consolidated
Parties), a consolidated balance sheet of the Consolidated Parties as at the end of
such month and the related consolidated statements of income or operations,
partners’ capital and cash flows for such month and for the portion of the
Borrowers’ fiscal year then ended, setting forth in each case in comparative form
the figures for the corresponding month of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail, such
statements to be certified by the principal financial officer of the Borrower Agent
as fairly presenting the financial condition, results of operations, partners’
capital and cash flows of the Consolidated Parties for such month and portion of
such fiscal year in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.




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As to any information contained in materials furnished pursuant to Section 10.1.2(h)(i), the
Borrowers shall not be separately required to furnish such information under clause (a), (b) or (c)
above, but the foregoing shall not be in derogation of the obligation of the Borrowers to furnish
the information and materials described in clauses (a), (b) and (c) above at the times specified
therein. Agent shall provide the foregoing information received from the Borrowers to the Lenders
promptly upon receipt thereof.





     10.1.2 Certificates; Other Information. Deliver to Agent, in form and detail
satisfactory to Agent and the Required Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Section 10.1.1, a certificate of its independent certified public accountants
certifying such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Default or, if any such Default
shall exist, stating the nature and status of such event;




     (b) concurrently with the delivery of the financial statements referred to in
subsections (a), (b) and (c) of Section 10.1.1 (commencing with the delivery of the
financial statements for the fiscal year ended December 31, 2007), a duly completed
Compliance Certificate signed on behalf of the Consolidated Parties by a Senior
Officer of the Borrower Agent or its general partner;




     (c) within 31 days after the end of each fiscal year of the Consolidated
Parties, beginning with the fiscal year ending December 31, 2008, an annual business
plan and budget of the Consolidated Parties containing, among other things,
projections of the Borrowers’ consolidated balance sheets, results of operations,
cash flow and Availability for the next Fiscal Year, month by month;




     (d) within 90 days after the end of each fiscal year of the Consolidated
Parties, beginning with the fiscal year ending December 31, 2008, a certificate
containing information regarding the amount of all Dispositions (other than any
Excluded Disposition), issuances of Indebtedness, issuances of Equity Interests and
Acquisitions that occurred during the prior fiscal year;




     (e) promptly after any request by Agent or any Lender, copies of any detailed
audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of any Borrower and the
MLP Parent, in each case, by independent accountants in connection with the accounts
or books of the MLP Parent, such Borrower or any Subsidiary of any of them, or any
audit of any of them;




     (f) promptly after the furnishing thereof, copies of any financial information,
proxy materials, statement, report or other information furnished to any holder of
debt securities of any Obligor or any Subsidiary thereof pursuant to the terms of
any indenture, loan or credit or similar agreement (including the



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PP&E Credit Agreement) and not otherwise required to be furnished to the
Lenders pursuant to Section 10.1.1 or any other clause of this Section 10.1.2;




     (g) promptly, and in any event within five Business Days after receipt thereof
by any Obligor or any Subsidiary thereof, copies of each notice or other
correspondence received from the SEC (or comparable agency in any applicable
non-U.S. jurisdiction) concerning any investigation or possible investigation or
other inquiry by such agency regarding financial or accounting results of any
Obligor or any Subsidiary thereof; and




     (h) promptly after the same are available, (i) copies of each annual report,
definitive proxy or financial statement, report on Form 10-K, 10-Q or 8-K, or other
report (other than Forms 3, 4 or 5) or communication sent to the equityholders of
the Company or the MLP Parent, and copies of all registration statements (other than
any registration statements on Form S-8) that any Consolidated Party may file or be
required to file with the SEC under the Securities Act of 1933, as amended, and (ii)
upon the request of Agent, all reports and written information to and from the
United States Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational Health and
Safety Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning environmental,
health or safety matters, in each case, that could reasonably be expected to have a
Material Adverse Effect;




     (i) promptly upon receipt thereof, a copy of any other report or “management
letter” submitted by independent accountants to any Consolidated Party in connection
with any annual, interim or special audit of the books of such Person; and




     (j) promptly, such additional information regarding the business, financial or
corporate affairs of the Company or any other Obligor, or compliance with the terms
of the Loan Documents, as Agent or any Lender may from time to time reasonably
request;




     (k) promptly, and in any event within fifteen days, following the end of each
month, a listing of each Borrower’s trade payables, specifying the trade creditor
and balance due, and at Agent’s reasonable request, a detailed trade payable aging,
all in form satisfactory to Agent;




     (l) promptly after any request by Agent, such other information as agent may
reasonably request with respect to the Borrowing Base or the components thereof, or
reasonably related thereto, regardless of the requirements of Section 8.1;




     (m) promptly, and in any event within fifteen days, following the end of each
month, a list of all Swap Contracts to which any Obligor is a party and



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information regarding the mark to market for hedging activities as of the end
of the applicable period; and




     (n) promptly, and in any event within fifteen days, following the end of each
month a reconciliation of the outstanding balances of the General Revolver Loans and
Distribution Revolver Loans against the statements provided by Agent and a
certification that the balances shown in the reconciliation are correct.


Documents required to be delivered pursuant to Section 10.1.1(a), (b) or (c) or Section 10.1.2(h)
may be delivered electronically and if so delivered, shall be deemed to have been delivered on the
date (i) on which the Borrower Agent posts such documents, or provides a link thereto, on the
Company’s website on the Internet at the website address; or (ii) on which such documents are
posted on the Company’s behalf on an Internet or intranet website, if any, including Intralinks, to
which each Lender and Agent have access (whether a commercial, third-party website or whether
sponsored by Agent); provided that: (i) the Borrower Agent shall deliver paper copies of
such documents to Agent or any Lender that requests the Consolidated Parties to deliver such paper
copies until a written request to cease delivering paper copies is given by Agent or such Lender
and (ii) the Borrower Agent shall notify Agent and each Lender (by telecopier or electronic mail)
of the posting of any such documents and provide to Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Except for such Compliance Certificates, Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower Agent
with any such request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents. Agent shall provide such of the
foregoing information as it deems material to the Lenders promptly upon receipt thereof from the
Borrowers.




          10.1.3 Notices and Information.





     (a) Promptly notify Agent and each Lender in writing of the occurrence of any
Default or Event of Default and the nature thereof.




     (b) Promptly notify Agent and each Lender in writing, of any of the following
that affects any Consolidated Party: (a) the written threat or commencement of any
proceeding or investigation, whether or not covered by insurance, if an adverse
determination could reasonably be expected to have a Material Adverse Effect; (b)
any pending or threatened material labor dispute, strike or walkout, or the
expiration of any material labor contract; (c) any default under or termination of a
Material Contract; (d) any judgment in an amount exceeding $7,500,000; (e) the
assertion of any Intellectual Property Claim, if an adverse resolution could
reasonably be expected to have a Material Adverse Effect; (f) any violation or
asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any
Environmental Laws), if an adverse resolution could reasonably be expected to have a
Material Adverse Effect; (g) any Environmental Release by a Consolidated Party or on
any Property owned, leased



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or occupied by a Consolidated Party that could reasonably be expected to have a
Material Adverse Effect; or receipt of any Environmental Notice regarding a matter
or event that could reasonably be expected to have a Material Adverse Effect; (h)
the discharge of or any withdrawal or resignation by any Borrower’s independent
accountants; or (i) any opening of a new office or place of business, at least 30
days prior to such opening.




     (c) Promptly notify Agent and each Lender of the occurrence of any ERISA Event.




     (d) Promptly notify Agent and each Lender of any material change in accounting
policies or financial reporting practices by any Consolidated Party, including any
determination by the Borrowers referred to in Section 3.3.




     (e) Upon the reasonable written request of Agent following the occurrence of
any event or the discovery of any condition which Agent or the Required Lenders
reasonably believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 9.1.9 to be untrue in any
material respect, the Obligors will furnish or cause to be furnished to Agent, at
the Obligors’ expense, a report of an environmental assessment of reasonable scope,
form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to Agent as to the nature and extent
of the presence of any Hazardous Materials on any Real Properties and as to the
compliance by any Consolidated Party with Environmental Laws at such Real
Properties. If the Obligors fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request then Agent may arrange
for same, and the Consolidated Parties hereby grant to Agent and its representatives
access to the Real Properties to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable cost of
any assessment arranged for by Agent pursuant to this provision will be payable by
the Obligors on demand and added to the obligations secured by the Security
Documents.




     (f) At the time of delivery of the financial statements and reports provided
for in Section 10.1.1(a), deliver to Agent a report signed by a Senior Officer of
the Borrower Agent or its general partner setting forth (i) a list of registration
numbers for all patents, trademarks, service marks, trade names and copyrights
awarded to any Obligor since the last day of the immediately preceding fiscal year
and (ii) a list of all patent applications, trademark applications, service mark
applications, trade name applications and copyright applications submitted by any
Obligor since the last day of the immediately preceding fiscal year and the status
of each such application, all in such form as shall be reasonably satisfactory to
Agent.




     (g) Not later than five Business Days after receipt thereof by any Consolidated
Party thereof, copies of all notices or written requests and other



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documents (including amendments, waivers and other modifications) so received
under or pursuant to any Related Document or material instrument, indenture, loan or
credit or similar agreement and, from time to time upon request by the Agent, such
information and reports regarding the Related Documents and such material
instruments, indentures and loan and credit and similar agreements as the Agent may
reasonably request.




Each notice pursuant to this Section 10.1.3(a) through (e) shall be accompanied by a
statement of a Senior Officer of the Borrower Agent or its general partner setting forth in
reasonable detail the occurrence referred to therein and stating what action the Borrowers
have taken and propose to take with respect thereto. Each notice pursuant to
Section 7.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.




     10.1.4 Payment of Obligations. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, including (a) all Tax liabilities,
assessments and governmental charges or levies upon it or its Properties or assets, unless
the same are being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the applicable
Consolidated Party; (b) all lawful claims which, if unpaid, would by law become a Lien upon
its Property (unless a Permitted Lien); and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.




     10.1.5 Preservation of Existence, Licenses, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under the Applicable
Laws of the jurisdiction of its organization except in a transaction permitted by
Section 10.2.4 or Section 10.2.5; (b) take all reasonable action to maintain all rights,
privileges, permits, Licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect; (c) preserve or renew all of its material
registered copyrights, patents, trademarks, trade names and service marks, and (d) without
limitation of the foregoing, keep each License affecting any Collateral (including the
manufacture, distribution or disposition of Inventory) or any other material Property of the
Consolidated Parties in full force and effect; promptly notify Agent of any proposed
modification to any such License, or entry into any new License, in each case at least 30
days prior to its effective date; pay all Royalties when due; and notify Agent of any
default or breach asserted by any Person to have occurred under any License.




     10.1.6 Maintenance of Properties. (a) Maintain, preserve and protect all of
its material Properties and Equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear and Involuntary Dispositions excepted;
and (b) make all necessary repairs thereto and renewals and replacements thereof; and (c)
use the standard of care typical in the industry in the operation and maintenance of its
facilities.



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     10.1.7 Maintenance of Insurance. Maintain in full force and effect insurance
(including worker’s compensation insurance, liability insurance, property insurance and
business interruption insurance) with insurers rated A or better by Best Rating Guide, in
such amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are deemed sufficient for the Consolidated Parties by the
management of the Borrower Agent in the exercise of reasonable business judgment and
acceptable to the Required Lenders. The Control Agent, for the benefit of Agent and the
PP&E Agent shall be named as loss payee or mortgagee, as its interest may appear, and/or
additional insured with respect to any such insurance providing coverage in respect of any
Collateral, and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to Agent, that it
will give Agent thirty (30) days prior written notice before any such policy or policies
shall be altered or canceled.




     10.1.8 Compliance with Laws and Material Contractual Obligations. (a) Comply
with the requirements of all Applicable Laws, all Contractual Obligations, and all orders,
writs, injunctions and decrees applicable to it or to its business or Property, except in
such instances in which (i) such requirement of Law, Contractual Obligation, or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (ii) the failure to comply therewith could not reasonably be expected to have
a Material Adverse Effect, and (b) maintain all Governmental Approvals necessary to the
ownership of its Properties or conduct of its business, unless failure to comply (other than
failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to
have a Material Adverse Effect.




     10.1.9 Books and Records. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and business of the
Obligor or such Subsidiary, as the case may be; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Obligor or such Subsidiary, as the case
may be.




     10.1.10 Inspection Rights.




     (a) Permit representatives and independent contractors of Agent and each Lender
to visit and inspect any of its Properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to discuss
its affairs, finances and Accounts with its directors, officers, and independent
public accountants, all at the expense of the Borrowers and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrowers; provided, however, that
when an Event of Default exists Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrowers at any time during normal business hours and without
advance notice. The Obligors agree that Agent, and its



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representatives, may conduct an annual audit of the Collateral, at the expense
of the Obligors. Neither Agent nor any Lender shall have any duty to any Obligor to
make any inspection, nor to share any results of any inspection, appraisal or report
with any Obligor. To the extent any inspection result, appraisal or report is
shared by Agent or a Lender with any Obligor, such Obligor shall not be entitled to
rely upon it.




     (b) Reimburse Agent for all charges, costs and expenses of Agent in connection
with (i) examinations of any Obligor’s books and records or any other financial or
Collateral matters as Agent deems appropriate, up to four times per Loan Year; and
(ii) appraisals of Inventory up to one time per Loan Year; provided, however, that
if an examination or appraisal is initiated during a Default or Event of Default,
all charges, costs and expenses therefor shall be reimbursed by Borrowers without
regard to such limits. Subject to the foregoing, Borrowers shall pay Agent’s
standard charges ($950 per day as of the Amendment No. 6 Effective Date) for each
day that an employee of Agent or its Affiliates is engaged in any examination
activities, and shall pay the standard charges of Agent’s internal appraisal group.
This Section shall not be construed to limit Agent’s right to conduct examinations
or to obtain appraisals at any time in its discretion, nor to use third parties for
such purposes.




     10.1.11 Use of Proceeds. Use the proceeds of the Loans for the purposes set
forth in Section 2.1.3 and not in contravention of any Law or of any Loan Document.




     10.1.12 Reserved.




     10.1.13 Additional Borrowers or Guarantors.




     (a) Joinder as Borrower or Guarantor. Promptly notify Agent upon any
Person becoming a Subsidiary (whether in connection with a Permitted Acquisition,
another permitted Investment or otherwise), excluding any Person that is an
Immaterial Subsidiary but including any Person that is initially an Immaterial
Subsidiary and subsequently ceases to be an Immaterial Subsidiary, and, if such
Person is not a Foreign Subsidiary, cause it (a) to become a party to this Agreement
as a joint and several “Borrower” by executing a joinder agreement in form and
substance satisfactory to Agent, and (b) to execute and deliver such other
documents, instruments and agreements and to take such other actions as Agent shall
require to evidence and perfect a Lien in favor of Agent (for the benefit of Secured
Parties) on all assets of such Person, including delivery of such corporate
resolutions, organizational documents and legal opinions, in form and substance
satisfactory to Agent, as it shall deem appropriate; provided, that in lieu
of the foregoing at the option of Agent, the Borrowers shall cause such Person to
execute and deliver a Guaranty and such other documents, instruments and agreements
and to take such other actions as Agent shall require to evidence and perfect a Lien
in favor of Agent (for the benefit of Secured Parties) on all assets of such Person,
including delivery of such corporate resolutions,



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organizational documents and legal opinions, in form and substance satisfactory
to Agent, as it shall deem appropriate. For the purpose of clarification, it is
understood and agreed that the MLP General Partner is not, and shall not be required
to become, a Borrower or Guarantor.




     (b) [Intentionally Omitted].




     (c) Effect on Borrowing Base. No Inventory of any Person which becomes
a Borrower shall be Eligible Inventory and no Accounts of such Person shall be
Eligible Accounts until Agent shall have completed and received all due diligence
materials with respect to such Person as Agent may reasonably request, including,
but not limited to, an appraisal of such Person’s Inventory and a field examination
with respect to such Person’s assets, financial position and other information that
Agent may require, in each case, in form and substance satisfactory to Agent in its
discretion.




     10.1.14 Pledged Assets.




     (a) Equity Interests. The Obligors will cause (A) 100% of the issued
and outstanding Equity Interests of each Domestic Subsidiary of each Obligor, and
(B) 65% (or such greater percentage that, due to a change in an Applicable Law after
the date hereof, (1) would not cause the undistributed earnings of such Foreign
Subsidiary as determined for United States federal income tax purposes to be treated
as a deemed dividend to such Foreign Subsidiary’s United States parent (provided
that the foregoing shall not require a pledge of more than 65% of the Equity
Interests of any controlled foreign corporation merely because it has no
undistributed earnings) and (2) could not reasonably be expected to cause any
adverse tax consequences) of the issued and outstanding Equity Interests entitled to
vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the
issued and outstanding Equity Interests not entitled to vote (within the meaning of
Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary, in each case to be
subject at all times to a perfected Lien in favor of Agent pursuant to the terms and
conditions of the Security Documents or such other security documents as Agent shall
reasonably request.




     (b) Other Assets. Each Obligor will (i) cause all of its owned and
leased real and personal Property (other than Excluded Property) to be subject at
all times to first priority, perfected and, in the case of real Property (whether
leased or owned), title insured, Liens in favor of Agent to secure the Obligations
pursuant to the terms and conditions of the Security Documents, or, with respect to
Property acquired after the Closing Date, such other additional security documents
as Agent may reasonably request, subject in any case to Permitted Liens, and (ii)
deliver such other documentation as Agent may reasonably request in connection with
the foregoing, including appropriate UCC-1 financing statements, real estate title
insurance policies, surveys, appraisals, flood plain certificates, environmental
reports, landlord’s waivers, certified resolutions and



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other organizational and authorizing documents of such Person, favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred
to above and the perfection of Agent’s Liens thereunder) and other items of the
types required to be delivered pursuant to Section 6.1(c) and (d), all in form,
content and scope reasonably satisfactory to Agent.




     10.1.15 Landlord and Storage Agreements. Upon request, provide Agent with
copies of all existing agreements, and promptly after execution thereof provide Agent with
copies of all future agreements, between a Consolidated Party and any landlord,
warehouseman, processor or bailee that owns any premises at which any Collateral may be kept
or that otherwise may possess any Collateral.




     10.1.16 Clean Down of Distribution Revolver Loans. Cause the aggregate
outstanding principal balance of Distribution Revolver Loans to be zero for a period of at
least fifteen (15) consecutive days during each twelve-month period.




     10.1.17 Post Closing Agreements.




     (a) Lien Waivers. Use its commercially reasonable efforts to provide
Agent, on or before March 31, 2008, with any Lien Waivers required by the Agent in
its sole discretion, it being agreed that the failure to provide such Lien Waivers
after using commercially reasonable efforts shall not constitute a Default or Event
of Default, but will result in the establishment by the Agent of an appropriate
Reserve.




     (b) Intellectual Property Matters. On or before February 28, 2008,
file or cause to be filed with the United States Patent and Trademark Office such
documentation as reasonably requested by the Agent so that applicable records
correctly reflect the applicable Obligor’s ownership of all registered patents and
trademarks (or applications therefor) listed on Schedule 9.1.17.




     (c) Title Policy. On or before February 28, 2008, deliver or cause to
be delivered to the Agent a title insurance policy with respect to the Mortgaged
Property located in Karns City, Pennsylvania that meets the requirements set forth
in Subpart 4.7(ii) of the Sixth Amendment.



     10.2 Negative Covenants. For so long as any Commitments or Obligations are
outstanding, each Obligor shall not, and shall cause each of its Subsidiaries not to:




     10.2.1 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other than the
following:




     (a) Liens pursuant to any Loan Document;



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     (b) Liens existing on the Amendment No. 6 Effective Date and listed on Schedule
10.2.1 and any renewals or extensions thereof, provided that (i) the
Property (or, in the case of fungible Property, any replacement thereof) covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased (other than for reasonable and customary transaction costs incurred in
connection with such renewal or extension), (iii) the direct or any contingent
obligor with respect thereto is not changed, and (iv) any renewal or extension of
the obligations secured or benefited thereby is permitted by Schedule 10.2.3(b);




     (c) Liens (other than Liens imposed under ERISA) for Taxes, assessments or
governmental charges or levies not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in accordance
with GAAP;




     (d) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the Ordinary Course of
Business, provided that such Liens secure only amounts not yet due and
payable or, if due and payable, are unfiled and no other action has been taken to
enforce the same or are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been established;




     (e) pledges or deposits in the Ordinary Course of Business in connection with
workers’ compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;




     (f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case incurred in
the Ordinary Course of Business;




     (g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real Property which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the Property subject
thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;




     (h) Liens securing judgments for the payment of money not constituting an Event
of Default under Section 11.1(i), and pre-judgment Liens created by or existing from
any litigation or legal proceeding that are being contested in good faith by
appropriate proceedings, promptly instituted and diligently conducted, for which
adequate reserves have been made to the extent required by GAAP, and which would
not, upon becoming Liens securing



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judgments for the payment of money, constitute an Event of Default under
Section 11.1(h);




     (i) Liens securing Indebtedness permitted under Section 10.2.3(e);
provided that (i) such Liens do not at any time encumber any Property other
than the Property financed by such Indebtedness and the proceeds thereof (including
insurance proceeds), (ii) the Indebtedness secured thereby does not exceed the cost
or fair market value on the date of acquisition, whichever is lower, of the Property
being acquired and (iii) such Liens attach to such Property concurrently with or
within 90 days after the acquisition thereof;




     (j) Liens on Property acquired pursuant to a Permitted Acquisition, or on the
Property of a Subsidiary in existence at the time such Subsidiary is acquired
pursuant to a Permitted Acquisition; provided that (i) any Indebtedness that
is secured by such Liens is permitted to exist under Section 10.2.3(h), (ii) such
Liens existed at the time such Person became a Subsidiary and were not created in
connection with, or in contemplation or anticipation of, such Permitted Acquisition,
(iii) any such Liens do not attach to any other Property of any Consolidated Party
or any their Subsidiaries, and (iv) the amount of Indebtedness secured thereby is
not increased;




     (k) leases or subleases granted to others not interfering in any material
respect with the business of any Consolidated Party;




     (l) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Agreement;




     (m) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods;




     (n) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 10.2.2;




     (o) normal and customary rights of setoff upon deposits of cash in favor of
banks or other depository institutions;




     (p) Liens of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection;




     (q) Liens of sellers of goods to the Consolidated Parties arising under
Article 2 of the Uniform Commercial Code or similar provisions of Applicable Law in
the Ordinary Course of Business, covering only the goods sold and securing only the
unpaid purchase price for such goods and related expenses;



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     (r) Liens securing the PP&E Obligations, so long as the Intercreditor Agreement
or a replacement intercreditor agreement satisfactory to Agent and all the Lenders
is in effect;




     (s) customary setoff rights and related settlement procedures under any Swap
Contract permitted to be incurred pursuant to Section 10.2.3(d);




     (t) Liens arising in connection with (i) any lease of catalyst necessary for
the operation of the refinery assets of the Consolidated Parties in the Ordinary
Course of Business or (ii) any commodity leases for catalyst elements necessary for
the operation of the refinery assets of the Consolidated Parties in the Ordinary
Course of Business and not for the purpose of speculation; provided, in each
case, that such Liens do not encumber any Property other than the catalyst or the
commodity being leased, or any insurance proceeds of either of the foregoing; and




     (u) other Liens (other than (i) Liens on Equity Interests of any Subsidiary or
(ii) any Real Estate (including improvements thereon) or any Material Operating Unit
in each case that are part of or associated with any Refinery Property) securing
Indebtedness or other obligations permitted under Section 10.2.3(i) so long as the
amount of the Indebtedness and other obligations secured thereby does not exceed
$5,000,000.




     10.2.2 Investments. Make any Investments, except the following (“Permitted
Investments”):




     (a) Investments held in the form of Cash Equivalents;




     (b) Investments existing as of the Amendment No. 6 Effective Date and set forth
in Schedule 10.2.2;




     (c) Investments consisting of advances or loans to directors, officers,
employees, agents, customers or suppliers in an aggregate principal amount
(including Investments of such type set forth in Schedule 10.2.2) not to exceed
$1,000,000 at any time outstanding; provided that all such advances must be
in compliance with Applicable Laws, including Sarbanes-Oxley.




     (d) Investments in (i) any Person which is an Obligor at the time of such
Investment and (B) newly created Domestic Subsidiaries, provided that the applicable
requirements of Section 10.1.13 and Section 10.1.14 are satisfied;




     (e) Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the
Ordinary Course of Business, and Investments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;



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     (f) Guarantees constituting Indebtedness permitted by Section 10.2.3 (other
than Section 10.2.3(e)), to the extent such Guarantees also constitute Investments;




     (g) any reinvestment of the proceeds of any Involuntary Disposition or of any
Disposition, in each case, so long as such reinvestment is permitted by the terms
hereof and the terms of the PP&E Credit Agreement;




     (h) Investments consisting of an Acquisition by any Consolidated Party,
provided that




     (i) Same or Similar Line of Business. The Property acquired
(or the Property of the Person acquired) in such Acquisition is used or
useful in the same or a similar line of business as the Consolidated Parties
were engaged in on the Closing Date (or any reasonable extensions or
expansions thereof);




     (ii) Guaranty and Collateral Requirements. Agent shall have
received all items, including in respect of the Equity Interests or Property
acquired in such Acquisition and/or in respect of any Subsidiary that is
formed to effect such Acquisition, required to be delivered by the terms of
Section 10.1.13 and/or Section 10.1.14;




     (iii) Non-Hostile. In the case of an Acquisition of the Equity
Interests of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such
Acquisition;




     (iv) Continued Accuracy of Representations and Warranties. The
representations and warranties made by the Obligors in any Loan Document
shall be true and correct in all material respects at and as if made as of
the date of such Acquisition (after giving effect thereto) except to the
extent such representations and warranties expressly relate to an earlier
date;




     (v) Partnership Interests. If such transaction involves the
purchase of an equity interest in a partnership between a Consolidated Party
as a general partner and entities unaffiliated with such Consolidated Party
as the other partners, such transaction shall be effected by having such
equity interest acquired by a corporate or limited liability holding company
directly or indirectly wholly-owned by the Company and newly formed for the
sole purpose of effecting such transaction;




     (vi) Minimum Liquidity. After giving effect to such
Acquisition, the sum of (A) cash on hand in Dominion Accounts (other



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than the PP&E Proceeds Account) plus (B) Availability shall be
greater than $45 million;




     (vii) No Default or Event of Default. No Default or Event of
Default shall exist immediately prior to or immediately after the
consummation of such Acquisition;




     (viii) Pro Forma Compliance. The Borrower Agent shall have
delivered to Agent a certificate demonstrating that, upon giving effect to
such Acquisition on a pro forma basis, the Consolidated Parties will be in
compliance with all of the covenants set forth in Section 10.3;




     (ix) Due Diligence Matters. Agent shall have completed and
received all due diligence materials with respect to such Person as Agent
may reasonably request, including, but not limited to, an appraisal of such
Person’s Inventory and a field examination with respect to such Person’s
assets, financial position and other information as Agent may request, in
each case, in form and substance satisfactory to Agent in its discretion;
and




     (x) Aggregate Consideration. The aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness
and any earn-out payments, but excluding consideration consisting of (A) any
Equity Interests of the MLP Parent issued to the seller of the Equity
Interests or Property acquired in such Acquisition, (B) the proceeds of any
Equity Issuance by the MLP Parent consummated subsequent to the Amendment
No. 6 Effective Date and (C) the proceeds of any Disposition, Excluded
Disposition or Involuntary Disposition consummated subsequent to the
Amendment No. 6 Effective Date; provided, that in the case of clause
(B) such amounts have not previously (1) served as the basis for allowing
any capital expenditures made pursuant to Section 10.2.11 or any other
Acquisition pursuant to this clause (h) or (2) been applied to fund the
purchase price of, and related expenses incurred in connection with, the
Proposed Acquisition) paid by the Consolidated Parties for all such
Acquisitions occurring after the Amendment No. 6 Effective Date shall not
exceed $100,000,000;




     (i) to the extent constituting Investments, Swap Contracts permitted to be
incurred pursuant to Section 10.2.3(d);




     (j) so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, Investments in Subsidiaries which are not Obligors at the
time of such Investment in an aggregate principal amount (excluding Investments of
such type set forth in Schedule 10.2.2) not to exceed $15,000,000;



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     (k) the PENRECO Acquisition;




     (l) the Proposed Acquisition, provided that the Proposed Acquisition
Conditions have been satisfied; and




     (m) so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, other Investments (other than Acquisitions) not of a type
otherwise described in this Section 10.2.2 in an aggregate outstanding amount at
any time for all such Investments made after the Amendment No. 6 Effective Date
pursuant to this subsection (m) not to exceed $25,000,000.




     For the avoidance of doubt, no Inventory or Accounts acquired in connection
with the PENRECO Acquisition or the Proposed Acquisition shall be Eligible Inventory
or Eligible Accounts until Agent shall have completed and received all due diligence
materials as Agent may reasonably request, including, but not limited to, an
appraisal of such Inventory and a field examination with respect to such Accounts,
other assets, financial position and other information that Agent may require, in
each case, in form and substance satisfactory to Agent in its discretion.




     10.2.3 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of the Borrower and its Subsidiaries outstanding on the
Amendment No. 6 Effective Date and set forth in Schedule 10.2.3, and renewals,
refinancings and extensions thereof on terms and conditions no less favorable to
such Person than such existing Indebtedness; provided that (i) the amount of
such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments unutilized
thereunder, and (ii) the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms taken as a
whole, of any such refinancing, refunding, renewing or extending Indebtedness, and
of any agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Obligors or the Lenders than
the terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable to any
such refinancing, refunding, renewing or extending Indebtedness does not exceed the
then applicable market interest rate (it being understood that it shall be deemed a
permitted refinancing under this Section 10.2.3(b) if funds, raised in a public
offering of debt securities, are restricted to repayment of such Indebtedness, even
if a period of up to 30 days



102









 







(or a longer period to the extent that such funds are escrowed pursuant to
arrangements satisfactory to the Required Lenders) intervenes between the date such
public offering closes and the date that the applicable Indebtedness is repaid from
such funds;




     (c) intercompany Indebtedness, and Guarantees with respect to Indebtedness
otherwise permitted hereunder, so long as in each case the related Investment made
by the holder of such Indebtedness or by the provider of such Guarantee, as
applicable, is permitted under Section 10.2.2 (other than subsection (f) thereof);




     (d) obligations (contingent or otherwise) of any Consolidated Party existing or
arising under any Swap Contract (including any Secured Crack Spread Hedge Agreement)
provided that (i) such obligations are (or were) entered into by such Person
in the Ordinary Course of Business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or Property held or
reasonably anticipated by such Person, or changes in the value of securities issued
by such Person, and not for purposes of speculation or taking a “market view;”; (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party; and (iii) with respect to a Secured Crack Spread Hedge Agreement,
such agreement shall be permitted by the terms of the PP&E Credit Agreement.




     (e) purchase money Indebtedness (including obligations in respect of Capital
Leases or Synthetic Lease Obligations) hereafter incurred by any Consolidated Party
to finance fixed assets provided that (i) the total of all such Indebtedness
for all such Persons taken together shall not exceed an aggregate principal amount
of $25,000,000 at any one time outstanding; (ii) such Indebtedness when incurred
shall not exceed the purchase price or value of the asset(s) financed; (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing and (iv) not less than
five Business Days prior to the date of the incurrence of such Indebtedness, the
Borrower Agent shall have delivered to Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to the incurrence of such Indebtedness and to
the concurrent retirement of any other Indebtedness of any Consolidated Party, on a
Pro Forma Basis as of the most recent fiscal quarter end with respect to which Agent
has received the Required Financial Information, the Obligors would be in compliance
with the financial covenant set forth in Section 10.3.2;




     (f) [Reserved];




     (g) (i) PP&E Obligations of the PP&E Borrowers in an aggregate outstanding
principal amount not to exceed the PP&E Cap Amount; and (ii) the Guarantee of any
future Subsidiary of the Company which is a Guarantor under



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the PP&E Loan Documents of the Indebtedness of the PP&E Borrowers permitted
under clause (i) of this subsection (g), in each case, so long as the Intercreditor
Agreement or a replacement intercreditor agreement acceptable to Agent and each
Lender is in effect;




     (h) Indebtedness of a Subsidiary acquired pursuant to a Permitted Acquisition
(or Indebtedness assumed by a Consolidated Party pursuant to a Permitted Acquisition
as a result of a merger or consolidation, or the acquisition of Property securing
such Indebtedness), so long as (i) such Indebtedness was not incurred in connection
with, or in anticipation or contemplation of, such Permitted Acquisition, (ii) not
less than five Business Days prior to the date of the consummation of such Permitted
Acquisition and incurrence of such Indebtedness, the Borrower Agent shall have
delivered to Agent a Pro Forma Compliance Certificate demonstrating that, upon
giving effect to the incurrence of such Indebtedness, on a Pro Forma Basis as of the
most recent fiscal quarter end with respect to which Agent has received the Required
Financial Information, the Obligors would be in compliance with the financial
covenant set forth in Section 10.3.2, and (iii) the aggregate principal amount of
such Indebtedness incurred pursuant to this clause (h) shall not exceed $25,000,000
at any time;




     (i) additional Indebtedness hereafter incurred by any Consolidated Party not
otherwise permitted pursuant to this Section 10.2.3; provided that, (i) upon
giving effect to the incurrence of such Indebtedness and to the concurrent
retirement of any other Indebtedness of any Consolidated Party, on a Pro Forma Basis
as of the most recent fiscal quarter end with respect to which Agent has received
the Required Financial Information, the Obligors would be in compliance with the
financial covenants set forth in Section 10.3.2 and (ii) the aggregate principal
amount of such Indebtedness incurred pursuant to this clause (i) shall not exceed
$5,000,000 at any time;




     (j) Indebtedness of a Consolidated Party in the form of completion guarantees
and performance bonds and other similar obligations required in the Ordinary Course
of Business in an aggregate principal amount not to exceed $2,000,000 at any time
outstanding, excluding bonds posted to secure excise tax or sales tax payment
obligations;




     (k) To the extent constituting Indebtedness, obligations of the Consolidated
Parties (i) arising under any license for a proprietary refining process entered
into by a Consolidated Party in connection with (1) the Shreveport Initiative or (2)
otherwise in the Ordinary Course of Business (including, without limiting the
generality of the foregoing, plant expansion, modification and optimization), (ii)
in respect of leases (including any such lease constituting a Capital Lease) of
catalyst necessary for the operation of the refinery assets of the Consolidated
Parties in the Ordinary Course of Business and (iii) in respect of commodity leases
(including any such commodity lease constituting a Capital Lease) for catalyst
elements and necessary for the operation of the



104









 







refinery assets of the Consolidated Parties in the Ordinary Course of Business
and not for the purposes of speculation; and




     (l) additional unsecured Indebtedness of the Consolidated Parties not otherwise
permitted pursuant to this Section 10.2.3; provided that (i) the maturity
date for such Indebtedness shall occur no earlier than the date six months after the
Revolver Termination Date, (ii) the amount of such Indebtedness shall not amortize
prior to, have any put or similar rights that may be exercised prior to, or have any
required prepayments of principal prior to, the Revolver Termination Date, (iii) the
terms of any such Indebtedness, taken as a whole, and of any agreement (including
applicable covenants) entered into or in connection therewith are not materially
less favorable to any Consolidated Party and are not more restrictive than the
covenants or default provisions in the Loan Documents relating to any Consolidated
Party, and in the case of any subordinated Indebtedness, the applicable
subordination terms thereof shall be reasonably acceptable to the Agent, and
(iv) 75% of the Net Cash Proceeds of such Indebtedness shall be applied to the
repayment of the PP&E Obligations in accordance with the terms of Section
2.04(b)(iv) of the PP&E Credit Agreement as in effect on the Amendment No. 6
Effective Date.




     10.2.4 Fundamental Changes. Except in connection with an Excluded Disposition,
merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether
in one transaction or in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to or in favor of any Person; provided
that, notwithstanding the foregoing provisions of this Section 10.2.4 but subject to the
terms of Sections 10.1.13 and 10.1.14, (a) the Company may merge or consolidate with any of
its Subsidiaries provided that the Company shall be the continuing or surviving corporation,
(b) any Obligor other than the Company or, after the MLP Conversion, the MLP Parent, may
merge or consolidate with any other Obligor other than the Company or, after the MLP
Conversion, the MLP Parent, (c) any Consolidated Party which is not an Obligor may be merged
or consolidated with or into any Obligor provided that such Obligor shall be the continuing
or surviving corporation, (d) any Consolidated Party which is not an Obligor may be merged
or consolidated with or into any other Consolidated Party which is not an Obligor, (e) any
Subsidiary may merge with any Person that is not an Obligor in connection with a Disposition
permitted under Section 10.2.5, (f) the Company or any Subsidiary of the Company may merge
with any Person other than a Consolidated Party in connection with a Permitted Acquisition
provided that, if such transaction involves the Company, the Company shall be the continuing
or surviving corporation, (g) any Wholly Owned Subsidiary of the Company may dissolve,
liquidate or wind up its affairs at any time provided that such dissolution, liquidation or
winding up, as applicable, could not reasonably be expected to have a Material Adverse
Effect.




     10.2.5 Dispositions. Make any Disposition other than an Excluded Disposition
unless (a) the consideration paid in connection therewith shall be in cash or Cash
Equivalents, such payment to be contemporaneous with consummation of such transaction, and
shall be in an amount not less than the fair market value of the Property




105












 






disposed of, (b) such transaction is not a Sale and Leaseback Transaction, (c) such
transaction does not involve the sale or other disposition of a minority equity interest in
any Consolidated Party, (d) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other Property concurrently
being disposed of in a transaction otherwise permitted under this Section 10.2.5, (e) the
aggregate fair market value of all operating assets sold or otherwise disposed of in all
such transactions after the Amendment No. 6 Effective Date shall not exceed (1) in respect
of any single Disposition, $10,000,000, and with respect to all such Dispositions in any
fiscal year, $20,000,000 in any fiscal year, (f) no later than five (5) Business Days prior
to any such Disposition, the Borrower Agent shall have delivered to Agent a certificate of a
Senior Officer of the Borrower Agent or its general partner specifying the anticipated date
of such Disposition, briefly describing the assets to be sold or otherwise disposed of and
setting forth the fair market value of such assets and the aggregate consideration and the
Net Cash Proceeds to be received for such assets in connection with such Disposition, and
(g) the Obligors shall remit the Net Cash Proceeds of any Disposition of Priority Collateral
to Agent for deposit into the Springing Dominion Account of the applicable Obligors.
Notwithstanding any other provision of this Agreement to the contrary, the Obligors shall
not sell, lease, license, transfer or otherwise dispose of (i) any Refinery Property as a
whole or (ii) any Material Operating Unit (it being understood that this sentence shall not
prohibit the sale, lease, license, transfer or other disposition, in accordance with the
foregoing provisions of this Section 10.2.5, of any operating unit that is at any time a
Material Operating Unit but that is subsequently (i) deemed by the management of the
Consolidated Parties to no longer be a Material Operating Unit and (ii) decommissioned or
idled and is no longer used in the business of the Consolidated Parties).




     10.2.6 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:




     (a) each Subsidiary of the MLP Parent may, and may incur obligations to, make
Restricted Payments (directly or indirectly) to the MLP Parent or any other
Subsidiary of the MLP Parent that is an Obligor;




     (b) each Consolidated Party may, and may incur obligations to, declare and make
Restricted Payments payable solely in the Equity Interests of such Person;




     (c) the MLP Parent or any Subsidiary thereof may, and may incur obligations to,
make offsets against and acquisitions of Equity Interests of the MLP Parent in
satisfaction of customary indemnification and purchase price adjustment obligations
owed to the MLP Parent or its Subsidiaries under acquisition arrangements in which
Equity Interests of the MLP Parent were issued as consideration for the Acquisition,
provided that the only consideration exchanged by any Consolidated Party in
connection with any such Acquisition is



106









 







the relief, satisfaction or waiver of claims of such Consolidated Party under
such acquisition arrangements;




     (d) so long as (A) no Default or Event of Default shall have occurred and be
continuing at the time of any action described below or would result therefrom, (B)
not less than five Business Days prior to the date of such Restricted Payment, the
Borrower Agent shall have delivered to Agent a Pro Forma Compliance Certificate
demonstrating that immediately after giving effect to any such Restricted Payment,
on a Pro Forma Basis as of the most recent fiscal quarter end with respect to which
Agent has received the Required Financial Information, the Obligors would be in
compliance with the financial covenant set forth in Section 10.3.2, and (C)
immediately after giving effect to such Restricted Payment, the sum of (1) cash on
hand in Dominion Accounts of the Obligors (other than the PP&E Proceeds Account)
plus (2) Availability shall be greater than $35 million:




     (i) the MLP Parent may, and may incur obligations to, purchase, redeem
or otherwise acquire its Equity Interests with the proceeds received from
the substantially concurrent issue of new units of the Equity Interests of
the MLP Parent;




     (ii) the MLP Parent may, and may incur obligations to, make Restricted
Payments to its general and limited partners to be used by such Person (or,
if applicable, distributed by such Person to its respective partners or
members) to pay consolidated, combined or similar Federal, state and local
Taxes payable by any such Person and directly attributable to (or arising as
a result of) the operations of the MLP Parent and its Subsidiaries;




     (iii) the MLP Parent may, and may incur obligations to, make Restricted
Payments to the MLP General Partner to (1) reimburse the MLP General Partner
for reasonable and customary administrative or operating expenses of the MLP
Parent incurred by the MLP General Partner, and (2) permit the MLP General
Partner to pay franchise fees or similar Taxes and fees required to maintain
its existence;




     (iv) the MLP Parent may, and may incur obligations to,




     purchase, repurchase, retire or otherwise acquire or retire for value
units of its Equity Interests (x) held by any present or former director,
officer, member of management or employee of any Obligor, or any Subsidiary
of any Obligor, in accordance with repurchase rights or obligations
established in connection with such Equity Interests, and (y) pursuant to
the terms of any incentive, benefit, compensation, employee or restricted
equity interest purchase plan, equity interests option plan or other
employee benefit or equity based compensation plan established by



107









 







the MLP Parent or any other Obligor; provided that the
aggregate amount of all such Restricted Payments made pursuant to this
Section 10.2.6(b)(iv) shall not exceed $15,000,000 in any fiscal year;




     (v) the MLP Parent may, and may incur obligations to, make Restricted
Payments consisting of the cashless exercise of options or warrants in
connection with customary and reasonable employee compensation, incentive,
or other benefit programs; and




     (vi) the MLP Parent may, and may incur obligations to, make other
Restricted Payments not otherwise permitted above; provided that (A)
not less than five Business Days prior to the date of such Restricted
Payment, the Borrower Agent shall have delivered to Agent a Pro Forma
Compliance Certificate demonstrating that immediately after giving effect to
any such Restricted Payment, on a Pro Forma Basis as of the most recent
fiscal quarter end with respect to which Agent has received the Required
Financial Information, the Obligors would be in compliance with the
financial covenant set forth in Section 10.3.2, and (B) immediately after
giving effect to such Restricted Payment, the sum of (1) cash on hand in
Dominion Accounts of the Obligors (other than the PP&E Proceeds Account)
plus (2) Availability shall be greater than $35 million immediately
after giving effect to the making of such Restricted Payment.




     10.2.7 Change in Nature of Business; Name, Etc. (a) Engage in any line of
business different from those lines of business conducted by the Consolidated Parties taken
as a whole on the date hereof or any business substantially related or incidental thereto,
or (b) change its name or conduct business under any fictitious name; or change its tax,
charter or other organizational identification number, or form or state of organization,
unless, in the case of a name change, the Borrower Agent first provides Agent at least 30
days prior written notice of such change or fictitious name.




     10.2.8 Transactions with Affiliates and Insiders. Enter into or permit to
exist any transaction or series of transactions with any officer, director or Affiliate of
such Person other than (a) advances of working capital to any Obligor, (b) transfers of cash
and assets to any Obligor, (c) intercompany transactions expressly permitted by Section
10.2.2, Section 10.2.3, Section 10.2.4, Section 10.2.5 or Section 10.2.6, (including,
distributions to the MLP General Partner permitted under Section 10.2.6(b)(v)(B) to
reimburse the MLP General Partner for administrative and operating expenses of the MLP
Parent incurred by the MLP General Partner) (d) normal compensation and reimbursement of
expenses of officers and directors, and (e) except as otherwise specifically limited in this
Agreement, other transactions which are entered into in the Ordinary Course of Business of
such Person on terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other than an
officer, director or Affiliate.



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     10.2.9 Burdensome Agreements. (a) Enter into any Contractual Obligation that
encumbers or restricts the ability of any such Person to (i) pay dividends or make any other
distributions to any Obligor on its Equity Interests or with respect to any other interest
or participation in, or measured by, its profits, (ii) pay any Indebtedness or other
obligation owed to any Obligor, (iii) make loans or advances to any Obligor, (iv) sell,
lease or transfer any of its Property to any Obligor or (v) except in respect of any
Consolidated Party which is not an Obligor, (A) pledge its Property (other than Excluded
Property) pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof or (B) act as an Obligor pursuant to the Loan Documents or
any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect
of any of the matters referred to in clauses (i)-(v) above) for (1) this Agreement and the
other Loan Documents, (2) any PP&E Loan Document as in effect on the Amendment No. 6
Effective Date, (3) any document or instrument governing Indebtedness incurred pursuant to
Section 10.2.3(e), provided that any such restriction contained therein relates only
to the asset or assets constructed, acquired or financed in connection therewith, (4) any
Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets subject to
such Permitted Lien, (5) restrictions or conditions imposed by leases or licenses otherwise
permitted hereunder, if such restrictions or conditions apply only to the leased or licensed
property, or to customary provisions in leases, licenses and other contracts otherwise
permitted hereunder restricting the assignment thereof; provided that any such
restriction contained therein relates only to the asset or assets subject to such Permitted
Lien, (6) customary restrictions and conditions contained in any agreement relating to the
sale of any Property permitted under Section 10.2.5 pending the consummation of such sale,
and (7) restrictions and conditions contained in credit agreements and other financial
accommodations executed by Foreign Subsidiaries which Indebtedness is otherwise permitted
hereunder.




     (b) Enter into any Contractual Obligation that prohibits or otherwise restricts
the existence of any Lien upon any of its Property in favor of Agent (for the
benefit of the Lenders) for the purpose of securing the Obligations, whether now
owned or hereafter acquired, or requiring the grant of any security for any
obligation if such Property is given as security for the Obligations, except (i) any
document or instrument governing Indebtedness incurred pursuant to Section
10.2.3(e), provided that any such restriction contained therein relates only
to the asset or assets constructed or acquired in connection therewith, (ii) in
connection with any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien and (iii) pursuant to
customary restrictions and conditions contained in any agreement relating to the
sale of any Property permitted under Section 10.2.5, pending the consummation of
such sale.




     10.2.10 Use of Proceeds. Use the proceeds of any Loan, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness



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originally incurred for such purpose or in any other manner not contemplated in Section
2.1.3.




     10.2.11 Consolidated Capital Expenditures.




     Permit Consolidated Capital Expenditures for any fiscal year to exceed an amount equal
to the sum of (a) the Net Cash Proceeds of any equity offering by the MLP Parent consummated
after the Amendment No. 6 Effective Date (provided that such amounts have not
previously (i) served as the basis for allowing any other capital expenditures made pursuant
to this Section 10.2.11 or any Acquisition pursuant to Section 10.2.2(h) or (ii) been
applied to fund the purchase price of, and related expenses incurred in connection with, the
Proposed Acquisition), plus (b) $75,000,000; plus (c) growth or maintenance
capital expenditures made in connection with the Shreveport Initiatives; provided
that (i) with respect to all such capital expenditures made pursuant to this Section
10.2.11, the applicable Property acquired by the Consolidated Parties in connection with any
such capital expenditures shall constitute Collateral and (ii) the Agent shall have received
all items in respect of the Property acquired in connection with such capital expenditures
required to be delivered by the terms of Section 10.1.14). To the extent that any portion
of the Consolidated Capital Expenditures limitation (determined without giving effect to
this sentence) is not used during any fiscal year, such unused available amount may be
carried forward and used during the next fiscal year only; provided further,
however, that with respect to any fiscal year, Consolidated Capital Expenditures
made during such fiscal year shall be deemed to be made first with respect to the applicable
limitation for such fiscal year and then with respect to any carry-forward from the
immediately preceding fiscal year.




     10.2.12 Prepayment of Other Indebtedness, Amendment of Documents, Etc. Permit
any Consolidated Party to:




     (a) if any Default or Event of Default has occurred and is continuing or would
be directly or indirectly caused as a result thereof, or, with respect to clause
(ii) hereof, after giving effect to any such payment, prepayment (excluding any
mandatory prepayment of the proceeds of dispositions of PP&E Priority Collateral or
debt issuances required by Section 2.04(b)(iii) or (iv) of the PP&E Credit
Agreement, respectively), redemption, acquisition for value, refund, refinance or
exchange on a pro forma basis, Availability would be less than $40,000,000, (i)
amend or modify any of the terms of any Indebtedness of such Consolidated Party
(other than Indebtedness under the Loan Documents or the PP&E Loan Documents) if
such amendment or modification would add or change any terms in a manner adverse to
such Consolidated Party, or shorten the final maturity or average life to maturity
or require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto, or (ii) make (or give any notice with respect
thereto) any voluntary, optional or other non-scheduled payment, prepayment
(including any excess cash flow sweeps of Borrowed Money), redemption, acquisition
for value (including without limitation, by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or



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exchange of any Indebtedness of such Consolidated Party (other than (A)
Indebtedness under the Loan Documents or (B) purchase money Indebtedness permitted
under Section 10.2.3(e) hereof if (and only if) the required prepayment involves the
mandatory application of the proceeds of the Property securing such purchase money
Indebtedness) (in each case, whether or not mandatory);




     (b) Amend, replace, refinance, refund, restructure, amend, supplement, extend
or otherwise modify the PP&E Credit Agreement:




     (i) to violate the provisions of the Intercreditor Agreement; or




     (ii) to increase the then outstanding aggregate principal amount of the
loans, reimbursement obligations with respect to letters of credit and
similar obligations under the PP&E Credit Agreement, including all amounts
constituting “Secured Obligations” as defined in PP&E Security Agreement to
an amount that would exceed the PP&E Cap Amount.




     (c) Notwithstanding subsection (a) of this Section 10.2.12, make any payment in
respect of Subordinated Indebtedness in violation of the relevant subordination
provisions;




     (d) Notwithstanding subsection (a) of this Section 10.2.12, make any payment or
prepayment of principal of, or premium or interest on, any Indebtedness owed to any
of the Existing Partners or any of their respective Affiliates (other than such
Affiliates that are not Obligors); or




     (e) without the prior written consent of Agent, (i) amend, modify, cancel or
terminate or permit the amendment, modification, cancellation or termination of any
Material Contract, other than in the Consolidated Parties’ Ordinary Course of
Business (unless an Event of Default has occurred and is continuing) or (ii) after
the occurrence and during the continuation of an Event of Default, permit the
amendment, modification, cancellation or termination of any customer contract.




     10.2.13 Organization Documents; Fiscal Year; Accounting Practices. Permit any
Consolidated Party to (a) amend, modify or change its Organization Documents in a manner
adverse to the interests of Agent or the Lenders; (b) change its fiscal year; or (c) make
any material change in accounting treatment or reporting practices, except as required by
GAAP and in accordance with Section 1.2;




     10.2.14 Ownership of Subsidiaries. Notwithstanding any other provisions of
this Agreement to the contrary, permit any Consolidated Party to (a) permit any Person other
than (i) the MLP Parent to own any Equity Interests of the General Partner or the Limited
Partner, (ii) the MLP Parent, the General Partner and the Limited Partner to own any Equity
Interests of the Company, or (iii) the Company or any Wholly Owned Subsidiary of the Company
to own any Equity Interests of any Subsidiary of the Company, except in



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each case to qualify directors where required by Applicable Law or to satisfy other
requirements of Applicable Law with respect to the ownership of Equity Interests of Foreign
Subsidiaries or (ii) as a result of or in connection with a dissolution, merger,
consolidation or disposition of a Subsidiary not prohibited by Section 10.2.13 or Section
10.2.14, (b) permit any Subsidiary to issue or have outstanding any shares of preferred
Equity Interests or (c) permit, create, incur, assume or suffer to exist any Lien on any
Equity Interests of any Subsidiary, except for Permitted Liens.




     10.2.15 Tax Consolidation. File or consent to the filing of any consolidated
income tax return with any Person other than the Consolidated Parties.




     10.2.16 Payables Practices. Change its historical accounts payable practices
from those in effect on the Closing Date, unless, with respect to a change related to a
liquidity problem of a Borrower, it has notified Agent in writing of the reason for any
material change which could reasonably be deemed to be an indication of a liquidity problem
for such Person.




     10.2.17 Amendment of Related Documents. (a) Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof, (b) amend, modify
or change in any manner any term or condition of any Related Document or give any consent,
waiver or approval thereunder, (c) waive any default under or any breach of any term or
condition of any Related Document, or (d) take any other action in connection with any
Related Document, in each case if such action would materially impair the value of the
interest or rights of any Obligor thereunder or would materially impair the rights or
interests of the Agent or any Lender.



     10.3 Financial Covenants. For so long as any Commitments or Obligations are
outstanding, the Consolidated Parties shall:



     10.3.1 Fixed Charge Coverage Ratio. At all times after Availability falls
below $35,000,000, maintain as of the end of each Fiscal Quarter (commencing with the Fiscal
Quarter ending immediately prior to the Fiscal Quarter during which Availability falls below
the threshold stated above) a Fixed Charge Coverage Ratio of at least 1.0 to 1.0;
provided, that if after Availability falls below $35,000,000, Availability
subsequently exceeds $40,000,000 for ninety (90) consecutive days, then the Consolidated
Parties shall not be required to maintain the Fixed Charge Coverage ratio set forth above
until such time as Availability subsequently falls below $35,000,000; provided,
further that the immediately preceding proviso shall only apply to the first
such time that Availability so exceeds $40,000,000 for ninety (90) consecutive days.



     10.3.2 Consolidated Leverage Ratio. Maintain as of the end of each Fiscal
Quarter a Consolidated Leverage Ratio (commencing with the Fiscal Quarter ending March 31,
2008) of no more than (i) for any fiscal quarter ending during the period from the Amendment
No. 6 Effective Date to and including March 31, 2009, 4.00 to 1.00 and (ii) for any fiscal
quarter ending on or after June 30, 2009, 3.75 to 1.00.



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Section 11 EVENTS OF DEFAULT; REMEDIES ON DEFAULT




     11.1 Events of Default. Each of the following shall be an “Event of Default”
hereunder, if the same shall occur for any reason whatsoever, whether voluntary or involuntary, by
operation of law or otherwise:




     (a) Non-Payment. Any Borrower or any other Obligor fails to pay when and as
required to be paid (whether at stated maturity, on demand, upon acceleration or otherwise)
any Obligation; or




     (b) Specific Covenants. Any Obligor fails to perform or observe any term,
covenant or agreement contained in any of Section 8.1, 8.2.4, 8.2.5, 8.6.2, 10.1.1, 10.1.2,
10.1.3, 10.1.5, 10.1.10, 10.1.11, 10.1.13, 10.1.14, 10.2 or 10.3, or any Guarantor fails to
perform or observe any term, covenant or agreement contained in the applicable Guaranty; or




     (c) Other Defaults. Any Obligor fails to perform or observe any other covenant
or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document
on its part to be performed or observed and such failure continues for 15 days after a
Senior Officer of such Obligor or the general partner of such Obligor has knowledge thereof
or receives written notice thereof from Agent, whichever is sooner;
provided, however, that
such notice and opportunity to cure shall not apply if the breach or failure to perform is
not capable of being cured within such period or is a willful breach by an Obligor; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any Borrower or
any other Obligor herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading when made or deemed made;
or




     (e) Cross-Default. (i) Any Obligor (A) fails to perform or observe (beyond the
applicable grace period with respect thereto, if any) any Contractual Obligation if such
failure could reasonably be expected to have a Material Adverse Effect, (B) fails to make
any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the Threshold
Amount, or (C) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to



113









 







become due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be
made, prior to its stated maturity, or such Guarantee to become payable or cash collateral
in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Obligor is the Defaulting Party (as defined in such
Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which the Obligor or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Obligor or such Subsidiary as a result thereof
is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. Any Consolidated Party or other Obligor
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or any Obligor makes any offer of
settlement, extension or composition to its unsecured creditors generally; or




     (g) Inability to Pay Debts; Attachment. (i) Any Consolidated Party or other
Obligor becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 days after its issue or levy;
or




     (h) Judgments. There is entered against the any Consolidated Party or other
Obligor (i) any one or more final judgments or orders for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or
more non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 30 consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, is not in effect; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability
of a Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of the Threshold Amount, or (ii) any



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Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of
the Threshold Amount; or




     (j) Invalidity of Loan Documents; Guarantees. (i) Any provision of any Loan
Document, at any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or Full Payment of all the Obligations, ceases to be in full
force and effect; or any Obligor or any other Person contests in any manner the validity or
enforceability of any provision of any Loan Document; or any Obligor denies that it has any
or further liability or obligation under any Loan Document, or purports to revoke, terminate
or rescind any provision of any Loan Document; or (ii) except as the result of or in
connection with a dissolution, merger or disposition of a Subsidiary not prohibited by
Section 10.2.4 or Section 10.2.5, the Guaranty given by any Guarantor or any provision
thereof shall cease to be in full force and effect, or any Guarantor or any Person acting by
or on behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations under
its Guaranty, or any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to its
Guaranty; or




     (k) PP&E Loan Documents. There shall occur and be continuing an “Event of
Default” under (and as defined in) the PP&E Credit Agreement, or there shall occur and be
continuing an event of default under any of the other PP&E Loan Documents; or




     (l) Change of Control. There occurs any Change of Control; or




     (m) Loss of Collateral. Any (a) loss, theft, damage or destruction occurs with
respect to any Collateral if the amount not covered by insurance exceeds the Threshold
Amount or (b) Involuntary Disposition occurs with respect to which the owner of the
Collateral subject to such Involuntary Disposition receives compensation in an amount which
is less than the book value of such Collateral by more than the Threshold Amount; or




     (n) Injunctions; Solvency. Any Obligor is enjoined, restrained or in any way
prevented by any Governmental Authority from conducting any material part of its business;
any Obligor suffers the loss, revocation or termination of any license, permit, lease or
agreement which loss, revocation or termination (either alone or together with other such
losses, revocations or terminations) could reasonably be expected to have a Material Adverse
Effect; there is a cessation of any part of such Obligor’s business for a period of time and
such cessation could reasonably be expected to have a Material Adverse Effect; any material
Collateral or Property of an Obligor is taken or impaired through condemnation; or any
Obligor ceases to be Solvent; or




     (o) Certain Criminal Matters. Any Obligor, the general partner of any Obligor
or any of their respective Senior Officers is criminally indicted or convicted for (i) a
felony committed in the conduct of such Obligor’s business, or (ii) any state or



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federal law (including the Controlled Substances Act, Money Laundering Control Act of
1986 and Illegal Exportation of War Materials Act) that could lead to forfeiture of any
material Property or any Collateral.



     11.2 Remedies upon Default. If an Event of Default described in Section 11.1(f)
occurs with respect to any Consolidated Party or other Obligor, then to the extent permitted by
Applicable Law, all Obligations shall become automatically due and payable and all Commitments
shall terminate, without any action by Agent or notice of any kind. In addition, or if any other
Event of Default exists, Agent may in its discretion (and shall upon written direction of Required
Lenders) do any one or more of the following from time to time:




     (a) declare any Obligations immediately due and payable, whereupon they shall be due
and payable without diligence, presentment, demand, protest or notice of any kind, all of
which are hereby waived by Borrowers to the fullest extent permitted by law;




     (b) terminate, reduce or condition any Commitment, or make any adjustment to the
Borrowing Base;




     (c) require Obligors to Cash Collateralize LC Obligations, Bank Product Indebtedness
and other Obligations that are contingent or not yet due and payable, and, if Obligors fail
promptly to deposit such Cash Collateral, Lenders may (and shall upon the direction of
Required Lenders) advance the required Cash Collateral as Revolver Loans (whether or not an
Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied); and




     (d) exercise any other rights or remedies afforded under any agreement, by law, at
equity or otherwise, including the rights and remedies of a secured party under the UCC.
Such rights and remedies include the rights to (i) take possession of any Collateral; (ii)
require Borrowers to assemble Collateral, at Borrowers’ expense, and make it available to
Agent at a place designated by Agent; (iii) enter any premises where Collateral is located
and store Collateral on such premises until sold (and if the premises are owned or leased by
a Borrower, Borrowers agree not to charge for such storage); and (iv) sell or otherwise
dispose of any Collateral in its then condition, or after any further manufacturing or
processing thereof, at public or private sale, with such notice as may be required by
Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion,
deems advisable. Each Borrower agrees that 10 days notice of any proposed sale or other
disposition of Collateral by Agent shall be reasonable. Agent shall have the right to
conduct such sales on any Obligor’s premises, without charge, and such sales may be
adjourned from time to time in accordance with Applicable Law. Agent shall have the right
to sell, lease or otherwise dispose of any Collateral for cash, credit or any combination
thereof, and Agent may purchase any Collateral at public or, if permitted by law, private
sale and, in lieu of actual payment of the purchase price, may set off the amount of such
price against the Obligations.



     11.3 License. Agent is hereby granted an irrevocable, non-exclusive license or other
right to use, license or sub-license (without payment of royalty or other compensation to any



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Person) any or all Intellectual Property of Borrowers, computer hardware and software, trade
secrets, brochures, customer lists, promotional and advertising materials, labels, packaging
materials and other Property, in advertising for sale, marketing, selling, collecting, completing
manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral.
Each Borrower’s rights and interests under Intellectual Property shall inure to Agent’s benefit.



     11.4 Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, Issuing Bank and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender,
Issuing Bank or any such Affiliate to or for the credit or the account of a Borrower or any other
Obligor against any and all of the obligations of such Borrower or such Obligor now or hereafter
existing under this Agreement or any other Loan Document to such Lender or Issuing Bank,
irrespective of whether or not such Lender or Issuing Bank shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Borrower or such Obligor
may be contingent or unmatured or are owed to a branch or office of such Lender or Issuing Bank
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, Issuing Bank and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, Issuing
Bank or their respective Affiliates may have. Each Lender and Issuing Bank agrees to notify the
Borrowers and Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



     11.5 Remedies Cumulative; No Waiver.




     11.5.1 Cumulative Rights. All covenants, conditions, provisions, warranties,
guaranties, indemnities and other undertakings of Borrowers contained in the Loan Documents
are cumulative and not in derogation or substitution of each other. In particular, the
rights and remedies of Agent and Lenders are cumulative, may be exercised at any time and
from time to time, concurrently or in any order, and shall not be exclusive of any other
rights or remedies that Agent and Lenders may have, whether under any agreement, by law, at
equity or otherwise.




     11.5.2 Waivers. The failure or delay of Agent or any Lender to require strict
performance by Borrowers with any terms of the Loan Documents, or to exercise any rights or
remedies with respect to Collateral or otherwise, shall not operate as a waiver thereof nor
as establishment of a course of dealing. All rights and remedies shall continue in full
force and effect until Full Payment of all Obligations. No modification of any terms of any
Loan Documents (including any waiver thereof) shall be effective, unless such modification
is specifically provided in a writing directed to Borrowers and executed by Agent or the
requisite Lenders, and such modification shall be applicable only to the matter specified.
No waiver of any Default or Event of Default shall constitute a waiver of any other Default
or Event of Default that may exist at such time, unless expressly stated. If Agent or any
Lender accepts performance by any Obligor




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under any Loan Documents in a manner other than that specified therein, or during any
Default or Event of Default, or if Agent or any Lender shall delay or exercise any right or
remedy under any Loan Documents, such acceptance, delay or exercise shall not operate to
waive any Default or Event of Default nor to preclude exercise of any other right or remedy.
It is expressly acknowledged by Borrowers that any failure to satisfy a financial covenant
on a measurement date shall not be cured or remedied by satisfaction of such covenant on a
subsequent date.



SECTION
12 AGENT




     12.1 Appointment, Authority and Duties of Agent.




     12.1.1 Appointment and Authority. Each Lender appoints and designates Bank of
America as Agent hereunder. Agent may, and each Lender authorizes Agent to, enter into all
Loan Documents to which Agent is intended to be a party and accept all Security Documents,
for Agent’s benefit and the Pro Rata benefit of Lenders. Each Lender agrees that any action
taken by Agent or Required Lenders in accordance with the provisions of the Loan Documents,
and the exercise by Agent or Required Lenders of any rights or remedies set forth therein,
together with all other powers reasonably incidental thereto, shall be authorized and
binding upon all Lenders. Without limiting the generality of the foregoing, Agent shall
have the sole and exclusive authority to (a) act as the disbursing and collecting agent for
Lenders with respect to all payments and collections arising in connection with the Loan
Documents; (b) execute and deliver as Agent each Loan Document, including the Intercreditor
Agreement and any other intercreditor or subordination agreement, and accept delivery of
each Loan Document from any Obligor or other Person; (c) act as collateral agent for Secured
Parties for purposes of perfecting and administering Liens under the Loan Documents, and for
all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral;
and (e) exercise all rights and remedies given to Agent with respect to any Collateral under
the Loan Documents, Applicable Law or otherwise. The duties of Agent shall be ministerial
and administrative in nature, and Agent shall not have a fiduciary relationship with any
Lender, Secured Party, Participant or other Person, by reason of any Loan Document or any
transaction relating thereto. Agent alone shall be authorized to determine whether any
Accounts or Inventory constitute Eligible Accounts or Eligible Inventory, or whether to
impose or release any reserve, which determinations and judgments, if exercised in good
faith, shall exonerate Agent from liability to any Lender or other Person for any error in
judgment.




     12.1.2 Duties. Agent shall not have any duties except those expressly set
forth in the Loan Documents, nor be required to initiate or conduct any Enforcement Action
except to the extent directed to do so by Required Lenders while an Event of Default exists.
The conferral upon Agent of any right shall not imply a duty on Agent’s part to exercise
such right, unless instructed to do so by Required Lenders in accordance with this
Agreement.



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     12.1.3 Agent Professionals. Agent may perform its duties through agents and
employees. Agent may consult with and employ Agent Professionals, and shall be entitled to
act upon, and shall be fully protected in any action taken in good faith reliance upon, any
advice given by an Agent Professional. Agent shall not be responsible for the negligence or
misconduct of any agents, employees or Agent Professionals selected by it with reasonable
care.




     12.1.4 Instructions of Required Lenders. The rights and remedies conferred
upon Agent under the Loan Documents may be exercised without the necessity of joinder of any
other party, unless required by Applicable Law. Agent may request instructions from
Required Lenders with respect to any act (including the failure to act) in connection with
any Loan Documents, and may seek assurances to its satisfaction from Lenders of their
indemnification obligations under Section 12.6 against all Claims that could be incurred by
Agent in connection with any act. Agent shall be entitled to refrain from any act until it
has received such instructions or assurances, and Agent shall not incur liability to any
Person by reason of so refraining. Instructions of Required Lenders shall be binding upon
all Lenders, and no Lender shall have any right of action whatsoever against Agent as a
result of Agent acting or refraining from acting in accordance with the instructions of
Required Lenders. Notwithstanding the foregoing, instructions by and consent of all Lenders
shall be required in the circumstances described in Section 14.1.1, and in no event shall
Required Lenders, without the prior written consent of each Lender, direct Agent to
accelerate and demand payment of Loans held by one Lender without accelerating and demanding
payment of all other Loans, nor to terminate the Commitments of one Lender without
terminating the Commitments of all Lenders. In no event shall Agent be required to take any
action that, in its opinion, is contrary to Applicable Law or any Loan Documents or could
subject any Agent Indemnitee to personal liability.



     12.2 Agreements Regarding Collateral and Field Examination Reports.




     12.2.1 Lien Releases; Care of Collateral. Lenders authorize Agent to release
any Lien with respect to any Collateral (a) upon Full Payment of the Obligations, (b) that
is the subject of a Disposition which Borrowers certify in writing to Agent is an Excluded
Disposition or a Lien which Borrowers certify is a Permitted Lien entitled to priority over
Agent’s Liens (and Agent may rely conclusively on any such certificate without further
inquiry), (c) that is the subject of any other Disposition permitted by Section 10.2.5 or
otherwise consented to by the Required Lenders, or (d) with the written consent of all
Lenders. Agent shall have no obligation whatsoever to any Lenders to assure that any
Collateral exists or is owned by a Borrower, or is cared for, protected, insured or
encumbered, nor to assure that Agent’s Liens have been properly created, perfected or
enforced, or are entitled to any particular priority, nor to exercise any duty of care with
respect to any Collateral.




     12.2.2 Possession of Collateral. Agent and Lenders appoint each other Lender
as agent for the purpose of perfecting Liens (for the benefit of Secured Parties) in any
Collateral that, under the UCC or other Applicable Law, can be perfected by possession.



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If any Lender obtains possession of any such Collateral, it shall notify Agent thereof
and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal with
such Collateral in accordance with Agent’s instructions.




     12.2.3 Reports. Agent shall promptly, upon receipt thereof, forward to each
Lender copies of the results of any field audit or other examination prepared by or on
behalf of Agent with respect to any Obligor or Collateral (“Report”). Each Lender
agrees (a) that neither Bank of America nor Agent makes any representation or warranty as to
the accuracy or completeness of any Report, and shall not be liable for any information
contained in or omitted from any Report; (b) that the Reports are not intended to be
comprehensive audits or examinations, and that Agent or any other Person performing any
audit or examination will inspect only specific information regarding Obligations or the
Collateral and will rely significantly upon Borrowers’ books and records as well as upon
representations of Borrowers’ officers and employees; and (c) to keep all Reports
confidential and strictly for such Lender’s internal use, and not to distribute any Report
(or the contents thereof) to any Person (except to such Lender’s Participants, attorneys,
accountants and other Persons with whom such Lender has a confidential relationship) or use
any Report in any manner other than administration of the Loans and other Obligations. Each
Lender agrees to indemnify and hold harmless Agent and any other Person preparing a Report
from any action such Lender may take as a result of or any conclusion it may draw from any
Report, as well as any Claims arising in connection with any third parties that obtain all
or any part of a Report through such Lender.



     12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any certification, notice or other communication (including those by telephone,
telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person, and upon the advice and statements of Agent
Professionals.



     12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default
or Event of Default unless it has received written notice from a Lender or Borrower specifying the
occurrence and nature thereof. If Agent receives such a notice or otherwise acquires actual
knowledge of any Default or Event of Default, Agent shall promptly notify Lenders in writing. If
any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify Agent and
the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any
Loan Documents or with the written consent of Agent and Required Lenders, it will not take any
Enforcement Action, accelerate its Obligations, or exercise any right that it might otherwise have
under Applicable Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of
Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or
enforce its rights against an Obligor where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of Obligations held by such Lender, including the filing
of proofs of claim in any proceeding under any Debtor Relief Law.



     12.5 Ratable Sharing. If any Lender shall obtain any payment or reduction of any
Obligation (whether through set-off or otherwise) in excess of its Pro Rata share of payments or
reductions of Obligations obtained by all Lenders, such Lender shall forthwith purchase from the



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other Lenders such participations in the affected Obligations as shall be necessary to cause
the purchasing Lender to share the excess payment or reduction, net of costs incurred in connection
therewith, on a Pro Rata basis, provided that if any of such payment or reduction is
thereafter recovered from the purchasing Lender or if any additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of such recovery or
additional costs, but without interest.



     12.6 Indemnification of Agent Indemnitees.




     12.6.1 Indemnification. Each Lender shall indemnify and hold harmless Agent
Indemnitees, to the extent not reimbursed by Obligors (but without limiting the
indemnification obligations of Obligors under any Loan Documents), on a Pro Rata basis,
against all claims that may be incurred by or asserted against any Agent Indemnitee. If
Agent is sued by any receiver, trustee in bankruptcy, debtor-in-possession or other Person
for any alleged preference from an Obligor or fraudulent transfer, then any monies paid by
Agent in settlement or satisfaction of such proceeding, together with all interest, costs
and expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly
reimbursed to Agent by Lenders to the extent of each Lender’s Pro Rata share.




     12.6.2 Proceedings. Without limiting the generality of the foregoing, if at
any time (whether prior to or after the Commitment Termination Date) any proceeding is
brought against any Agent Indemnitees by an Obligor, or any Person claiming through an
Obligor, to recover damages for any act taken or omitted by Agent in connection with any
Obligations, Collateral, Loan Documents or matters relating thereto, or otherwise to obtain
any other relief of any kind on account of any transaction relating to any Loan Documents,
each Lender agrees to indemnify and hold harmless Agent Indemnitees with respect thereto and
to pay to Agent Indemnitees such Lender’s Pro Rata share of any amount that any Agent
Indemnitee is required to pay under any judgment or other order entered in such proceeding
or by reason of any settlement, including all interest, costs and expenses (including
attorneys’ fees) incurred in defending same. In Agent’s discretion, Agent may reserve for
any such proceeding, and may satisfy any judgment, order or settlement, from proceeds of
Collateral prior to making any distributions of Collateral proceeds to Lenders.



     12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to Lenders for any
action taken or omitted to be taken under the Loan Documents, except for losses directly and solely
caused by Agent’s gross negligence or willful misconduct. Agent does not assume any responsibility
for any failure or delay in performance or any breach by any Obligor or Lender of any obligations
under the Loan Documents. Agent does not make to Lenders any express or implied warranty,
representation or guarantee with respect to any Obligations, Collateral, Loan Documents or Obligor.
No Agent Indemnitee shall be responsible to Lenders for any recitals, statements, information,
representations or warranties contained in any Loan Documents; the execution, validity,
genuineness, effectiveness or enforceability of any Loan Documents; the genuineness,
enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; the validity, enforceability or
collectibility of any Obligations; or the assets, liabilities, financial condition,



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results of operations, business, creditworthiness or legal status of any Obligor or Account
Debtor. No Agent Indemnitee shall have any obligation to any Lender to ascertain or inquire into
the existence of any Default or Event of Default, the observance or performance by any Obligor of
any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any
Loan Documents.



     12.8 Successor Agent and Co-Agents.




     12.8.1 Resignation; Successor Agent. Subject to the appointment and acceptance
of a successor Agent as provided below, Agent may resign at any time by giving at least 30
days written notice thereof to Lenders and Borrowers. Upon receipt of such notice, Required
Lenders shall have the right to appoint a successor Agent which shall be (a) a Lender or an
Affiliate of a Lender; or (b) a commercial bank that is organized under the laws of the
United States or any state or district thereof, has a combined capital surplus of at least
$200,000,000 and (provided no Default or Event of Default exists) is reasonably acceptable
to Borrowers. If no successor agent is appointed prior to the effective date of the
resignation of Agent, then Agent may appoint a successor agent from among Lenders. Upon
acceptance by a successor Agent of an appointment to serve as Agent hereunder, such
successor Agent shall thereupon succeed to and become vested with all the powers and duties
of the retiring Agent without further act, and the retiring Agent shall be discharged from
its duties and obligations hereunder but shall continue to enjoy the benefits of the
indemnification set forth in Sections 12.6 and 14.2. Notwithstanding any Agent’s
resignation, the provisions of this Section 12 shall continue in effect for its benefit with
respect to any actions taken or omitted to be taken by it while Agent. Any successor by
merger or acquisition of the stock or assets of Bank of America shall continue to be Agent
hereunder without further act on the part of the parties hereto, unless such successor
resigns as provided above.




     12.8.2 Separate Collateral Agent. It is the intent of the parties that there
shall be no violation of any Applicable Law denying or restricting the right of financial
institutions to transact business in any jurisdiction. If Agent believes that it may be
limited in the exercise of any rights or remedies under the Loan Documents due to any
Applicable Law, Agent may appoint an additional Person who is not so limited, as a separate
collateral agent or co-collateral agent. If Agent so appoints a collateral agent or
co-collateral agent, each right and remedy intended to be available to Agent under the Loan
Documents shall also be vested in such separate agent. Every covenant and obligation
necessary to the exercise thereof by such agent shall run to and be enforceable by it as
well as Agent. Lenders shall execute and deliver such documents as Agent deems appropriate
to vest any rights or remedies in such agent. If any collateral agent or co-collateral
agent shall die or dissolve, become incapable of acting, resign or be removed, then all the
rights and remedies of such agent, to the extent permitted by Applicable Law, shall vest in
and be exercised by Agent until appointment of a new agent.



     12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has,
independently and without reliance upon Agent or any other Lenders, and based upon such



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documents, information and analyses as it has deemed appropriate, made its own credit analysis
of each Obligor and its own decision to enter into this Agreement and to fund Loans and participate
in LC Obligations hereunder. Each Lender has made such inquiries concerning the Loan Documents,
the Collateral and each Obligor as such Lender feels necessary. Each Lender further acknowledges
and agrees that the other Lenders and Agent have made no representations or warranties concerning
any Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan
Documents or Obligations. Each Lender will, independently and without reliance upon the other
Lenders or Agent, and based upon such financial statements, documents and information as it deems
appropriate at the time, continue to make and rely upon its own credit decisions in making Loans
and participating in LC Obligations, and in taking or refraining from any action under any Loan
Documents. Except for notices, reports and other information expressly requested by a Lender,
Agent shall have no duty or responsibility to provide any Lender with any notices, reports or
certificates furnished to Agent by any Obligor or any credit or other information concerning the
affairs, financial condition, business or Properties of any Obligor (or any of its Affiliates)
which may come into possession of Agent or any of Agent’s Affiliates.



     12.10 Reserved.



     12.11 Remittance of Payments and Collections.




     12.11.1 Remittances Generally. All payments by any Lender to Agent shall be
made by the time and on the day set forth in this Agreement, in immediately available funds.
If no time for payment is specified or if payment is due on demand by Agent and request for
payment is made by Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender
not later than 2:00 p.m. on such day, and if request is made after 11:00 a.m., then payment
shall be made by 11:00 a.m. on the next Business Day. Payment by Agent to any Lender shall
be made by wire transfer, in the type of funds received by Agent. Any such payment shall be
subject to Agent’s right of offset for any amounts due from such Lender under the Loan
Documents.




     12.11.2 Failure to Pay. If any Lender fails to pay any amount when due by it
to Agent pursuant to the terms hereof, such amount shall bear interest from the due date
until paid at the rate determined by Agent as customary in the banking industry for
interbank compensation. In no event shall Borrowers be entitled to receive credit for any
interest paid by a Lender to Agent.




     12.11.3 Recovery of Payments. If Agent pays any amount to a Lender in the
expectation that a related payment will be received by Agent from an Obligor and such
related payment is not received, then Agent may recover such amount from each Lender that
received it. If Agent determines at any time that an amount received under any Loan
Document must be returned to an Obligor or paid to any other Person pursuant to Applicable
Law or otherwise, then, notwithstanding any other term of any Loan Document, Agent shall not
be required to distribute such amount to any Lender. If any amounts received and applied by
Agent to any Obligations are later required to be



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returned by Agent pursuant to Applicable Law, Lenders shall pay to Agent, on demand,
such Lender’s Pro Rata share of the amounts required to be returned.



     12.12 Agent in its Individual Capacity. As a Lender, Bank of America shall have the
same rights and remedies under the other Loan Documents as any other Lender, and the terms
“Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as
a Lender. Each of Bank of America and its Affiliates may accept deposits from, maintain deposits
or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under
indentures of, serve as financial or other advisor to, and generally engage in any kind of business
with, Obligors and their Affiliates, as if Bank of America were any other bank, without any duty to
account therefor (including any fees or other consideration received in connection therewith) to
the other Lenders. In their individual capacity, Bank of America and its Affiliates may receive
information regarding Obligors, their Affiliates and their Account Debtors (including information
subject to confidentiality obligations), and each Lender agrees that Bank of America and its
Affiliates shall be under no obligation to provide such information to Lenders, if acquired in such
individual capacity and not as Agent hereunder.



     12.13 Agent Titles. Each Lender, other than Bank of America, that is designated (on
the cover page of this Agreement or otherwise) by Bank of America as an “Agent” or “Arranger” of
any type shall not have any right, power, responsibility or duty under any Loan Documents other
than those applicable to all Lenders, and shall in no event be deemed to have any fiduciary
relationship with any other Lender.



     12.14 Intercreditor Agreement. Each of the Lenders hereby acknowledges that it has
received and reviewed the Intercreditor Agreement and agrees to be bound by the terms thereof.
Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 13.3) hereby (i)
acknowledges that Bank of America is acting under the Intercreditor Agreement in multiple
capacities as Agent, the PP&E Agent and the Control Agent and (ii) waives any conflict of interest,
now contemplated or arising hereafter, in connection therewith and agrees not to assert against
Bank of America any claims, causes of action, damages or liabilities of whatever kind or nature
relating thereto. Each Lender (and each Person that becomes a Lender hereunder pursuant to Section
13.3) hereby authorizes and directs Bank of America to enter into the Intercreditor Agreement on
behalf of such Lender and agrees that Bank of America, in its various capacities thereunder, may
take such actions on its behalf as is contemplated by the terms of the Intercreditor Agreement.



     12.15 No Third Party Beneficiaries. This Section 12 is an agreement solely among
Lenders and Agent, and does not confer any rights or benefits upon Borrowers or any other Person.
As between Borrowers and Agent, any action that Agent may take under any Loan Documents shall be
conclusively presumed to have been authorized and directed by Lenders as herein provided.



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SECTION 13 BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS




     13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Borrowers, Agent and Lenders and their respective successors and assigns, except that
(a) no Borrower shall have the right to assign its rights or delegate its obligations under any
Loan Documents, and (b) any assignment by a Lender must be made in compliance with Section 13.3.
Agent may treat the Person which made any Loan as the owner thereof for all purposes until such
Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a
Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender.



     13.2 Participations.




     13.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary course
of its business and in accordance with Applicable Law, at any time sell to a financial
institution (“Participant”) a participating interest in the rights and obligations of such
Lender under any Loan Documents. Despite any sale by a Lender of participating interests to
a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto for performance of
such obligations, such Lender shall remain the holder of its Loans and Commitments for all
purposes, all amounts payable by Borrowers shall be determined as if such Lender had not
sold such participating interests, and Borrowers and Agent shall continue to deal solely and
directly with such Lender in connection with the Loan Documents. Each Lender shall be
solely responsible for notifying its Participants of any matters under the Loan Documents,
and Agent and the other Lenders shall not have any obligation or liability to any such
Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 5.9 unless Borrowers agree otherwise in writing.




     13.2.2 Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, waiver or other modification of any
Loan Documents other than that which forgives principal, interest or fees, reduces the
stated interest rate or fees payable with respect to any Loan or Commitment in which such
Participant has an interest, postpones the Commitment Termination Date or any date fixed for
any regularly scheduled payment of principal, interest or fees on such Loan or Commitment,
or releases any Borrower, Guarantor or substantial portion of the Collateral.




     13.2.3 Benefit of Set-Off. Borrowers agree that each Participant shall have a
right of set-off in respect of its participating interest to the same extent as if such
interest were owing directly to a Lender, and each Lender shall also retain the right of
set-off with respect to any participating interests sold by it. By exercising any right of
set-off, a Participant agrees to share with Lenders all amounts received through its
set-off, in accordance with Section 12.5 as if such Participant were a Lender.



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     13.3 Assignments.




     13.3.1 Permitted Assignments. A Lender may assign to any Eligible Assignee any
of its rights and obligations under the Loan Documents, as long as (a) each assignment is of
a constant, and not a varying, percentage of the transferor Lender’s rights and obligations
under the Loan Documents and, in the case of a partial assignment, is in a minimum principal
amount of $10,000,000 (unless otherwise agreed by Agent in its discretion) and integral
multiples of $1,000,000 in excess of that amount; (b) except in the case of an assignment in
whole of a Lender’s rights and obligations, the aggregate amount of the Commitments retained
by the transferor Lender be at least $1,000,000 (unless otherwise agreed by Agent in its
discretion); and (c) the parties to each such assignment shall execute and deliver to Agent,
for its acceptance and recording, an Assignment and Acceptance. Nothing herein shall limit
the right of a Lender to pledge or assign any rights under the Loan Documents to (i) any
Federal Reserve Bank or the United States Treasury as collateral security pursuant to
Regulation A of the FRB and any Operating Circular issued by such Federal Reserve Bank, or
(ii) counterparties to swap agreements relating to any Loans; provided, however, that any
payment by Borrowers to the assigning Lender in respect of any Obligations assigned as
described in this sentence shall satisfy Borrowers’ obligations hereunder to the extent of
such payment, and no such assignment shall release the assigning Lender from its obligations
hereunder.




     13.3.2 Effect; Effective Date. Upon delivery to Agent of a notice of
assignment in the form of Exhibit E and a processing fee of $5,000, such assignment shall
become effective as specified in the notice, if it complies with this Section 13.3. From
the effective date of such assignment, the Eligible Assignee shall for all purposes be a
Lender under the Loan Documents, and shall have all rights and obligations of a Lender
thereunder. Upon consummation of an assignment, the transferor Lender, Agent and Borrowers
shall make appropriate arrangements for issuance of replacement and/or new Notes, as
appropriate.



     13.4 Tax Treatment. If any interest in a Loan Document is transferred to a Transferee
that is organized under the laws of any jurisdiction other than the United States or any state or
district thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 5.9(e).



     13.5 Representation of Lenders. Each Lender represents and warrants to each Borrower,
Agent and other Lenders that none of the consideration used by it to fund its Loans or to
participate in any other transactions under this Agreement constitutes for any purpose of ERISA or
Section 4975 of the Internal Revenue Code assets of any “plan” as defined in Section 3(3) of ERISA
or Section 4975 of the Internal Revenue Code and the interests of such Lender in and under the Loan
Documents shall not constitute plan assets under ERISA.



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SECTION 14 MISCELLANEOUS




     14.1 Consents, Amendments and Waivers.



          14.1.1 Amendment.





     (a) General. Notwithstanding anything to the contrary contained herein
or in any other Loan Document to the contrary, no amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any
departure by the any Obligor therefrom, shall be effective except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into by
the Company, each other Obligor and the Required Lenders and acknowledged by Agent,
or, in the case of any other Loan Document, pursuant to an agreement or agreements
in writing entered into by Agent and the Obligors that are parties thereto, in each
case with the consent of the Required Lenders, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which
given; provided, however, that:




     (i) no such amendment, waiver or consent shall, without the written
consent of each Lender affected thereby:




     (A) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to the terms hereof) (it
being understood and agreed that a waiver of any condition precedent
set forth in Section 6.2 or of any Default or Event of Default or
mandatory reduction in the Commitments shall not constitute a change
in the terms of any Commitment of any Lender);




     (B) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document or extend the Revolver Termination Date;




     (C) reduce or forgive the principal of, or the rate of interest
specified herein on, any Loan, or any fees or other amounts payable
hereunder or under any other Loan Document; provided,
however, that only the consent of the Required Lenders shall
be necessary to amend the definition of “Default Rate” or to waive
any obligation of the Borrowers to pay interest or to pay the fees
set forth in clause (a) of Section 3.2.3 at the Default Rate; or




     (D) impose any greater restriction on the ability of any Lender
to assign any of its rights or obligations hereunder.



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     (ii) no such amendment, waiver or consent shall, without the written
consent of all Lenders:




     (A) alter Section 5.6, Section 2 of the Security Agreement
(except to add Collateral) or this Section 14.1.1;




     (B) amend the definitions of Borrowing Base (and the defined
terms used in such definition), Pro Rata or Required Lenders or any
other provision of this Agreement specifying the number or percentage
of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder;




     (C) increase any advance rate (provided, that Agent may increase
any advance rate which it had previously reduced back to the advance
rate in effect on the Closing Date or to an intermediate value);




     (D) increase the total Commitments;




     (E) release all or substantially all of the Collateral, except
as currently contemplated by the Loan Documents; or




     (F) release any Obligor from liability for any Obligations, if
such Obligor is Solvent at the time of the release.




     (iii) no amendment, waiver or consent shall, unless in writing and
signed by Issuing Bank in addition to the Lenders required above, affect the
LC Obligations, the rights or duties of Issuing Bank under this Agreement,
including Section 2.3, or any LC Document;




     (iv) no amendment, waiver or consent shall, unless in writing and
signed by Agent in addition to the Lenders required above, affect the rights
or duties of Agent under this Agreement or any other Loan Document; and




     (v) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto.




     (b) [Intentionally Omitted].




     14.1.2 Limitations. The agreement of Borrowers shall not be necessary to the
effectiveness of any modification of a Loan Document that deals solely with the rights and
duties of Lenders, Agent and/or Issuing Bank as among themselves. Only the consent of the
parties to any agreement relating to a Bank Product shall be required for any modification
of such agreement, and no Affiliate of a Lender that is party to a Bank



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Product agreement shall have any other right to consent to or participate in any manner
in modification of any other Loan Document. The making of any Loans during the existence of
a Default or Event of Default shall not be deemed to constitute a waiver of such Default or
Event of Default, nor to establish a course of dealing. Any waiver or consent granted by
Lenders hereunder shall be effective only if in writing, and then only in the specific
instance and for the specific purpose for which it is given.




     14.1.3 Payment for Consents. No Borrower will, directly or indirectly, pay any
remuneration or other thing of value, whether by way of additional interest, fee or
otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for
agreement by such Lender with any modification of any Loan Documents, unless such
remuneration or value is concurrently paid, on the same terms, on a Pro Rata basis to all
Lenders providing their consent.



     14.2 General Indemnity. The Borrowers shall indemnify Agent (and any sub-agent
thereof), each Lender and Issuing Bank, and each other Indemnitee against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for the Agent, and one counsel retained by the
Lenders or any steering committee or similar group acting on behalf of the Lenders as a group (and
such additional counsel as the Agent, any Lender, any group of Lenders or any such steering
committee determines in good faith are necessary in light of actual or potential conflicts of
interest or the availability of different claims or defenses) incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by any Borrower or any other Obligor arising
out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of
the transactions contemplated hereby or thereby, or, in the case of Agent Indemnitees only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or
the use or proposed use of the proceeds therefrom (including any refusal by Issuing Bank to honor a
demand for payment under any Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of the Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by any
Obligor, or any Environmental Liability related in any way to any Obligor, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by any
Borrower or any other Obligor, and regardless of whether any Indemnitee is a party thereto, in all
cases, whether or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by a Borrower or any other Obligor against an Indemnitee for breach in
bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such
Borrower or such Obligor has obtained a final and nonappealable judgment in its favor on such claim
as determined by a court of competent jurisdiction. If any Taxes (other than Excluded Taxes) shall



129









 







be payable by any party due to the execution, delivery, issuance or recording of any Loan
Documents, or the creation or repayment of any Obligations, Borrowers shall pay (and shall promptly
reimburse Agent and Lenders for their payment of) all such Taxes, including any interest and
penalties thereon, and will indemnify and hold harmless Indemnitees against all liability in
connection therewith.



     14.3 Reimbursement by Lenders. To the extent that the Borrowers for any reason fails
to indefeasibly pay any amount required under Section 14.2 to be paid by it to any Indemnitee, each
Lender severally agrees to pay to such Indemnitee such Lender’s Pro Rata portion (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against Agent (or any
such sub-agent) or Issuing Bank in its capacity as such, or against any Related Party of any of the
foregoing acting for Agent (or any such sub-agent) or Issuing Bank in connection with such
capacity.



     14.4 Notices and Communications.




     14.4.1 Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as provided in
Section 14.4.2 below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:




     (a) if to any Borrower, Agent or Issuing Bank, to the address, telecopier
number, electronic mail address or telephone number specified for such Person on the
signature pages hereto; and




     (b) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on the signature pages hereto
or, in the case of a Person who becomes a Lender after the Closing Date, at the
address shown on its Assignment and Acceptance).




     Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, shall be deemed to have been given
at the opening of business on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in subsection (b)
below, shall be effective as provided in such subsection (b). Notwithstanding the
foregoing, no notice to Agent pursuant to Section 2.1.4, 2.3, 3.1.2, 4.1.1 or 5.3.3
shall be effective until actually received by the individual to whose attention at
Agent such notice is required to be sent. Any notice received by Borrower Agent
shall be deemed received by all Borrowers.



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          14.4.2 Electronic Communications.





     Notices and other communications to Lenders and Issuing Bank hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by Agent. Agent or Borrower Agent may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.




     Unless Agent otherwise prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website
address therefor.



          14.4.3 The Platform.





     THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” AGENT INDEMNITEES DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF
THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
OBLIGOR MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE OBLIGOR MATERIALS OR THE
PLATFORM. In no event shall any Agent Indemnitee have any liability to any
Borrower, any Lender, Issuing Bank or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising
out of the Borrowers’ or Agent’s transmission of Obligor Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Indemnitee; provided, however, that in no
event shall any Agent Indemnitee have any liability to any Borrower, any Lender,
Issuing Bank or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).



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     14.4.4 Change of Address, Etc. Each of Borrowers, Agent and Issuing Bank may
change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower Agent, Agent and Issuing Bank. In addition, each Lender agrees to notify Agent
from time to time to ensure that Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.




     14.4.5 Reliance by Agent, Issuing Bank and Lenders. Agent, Issuing Bank and
Lenders shall be entitled to rely and act upon any notices (including telephonic Notices of
Borrowing) purportedly given by or on behalf of the Borrowers even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. Borrowers shall indemnify Agent, Issuing
Bank, each Lender and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice purportedly given
by or on behalf of any Borrower. All telephonic notices to and other telephonic
communications with Agent may be recorded by Agent, and each of the parties hereto hereby
consents to such recording.




     14.4.6 Non-Conforming Communications. Agent and Lenders may rely upon any
notices (including telephonic communications) purportedly given by or on behalf of any
Borrower even if such notices were not made in a manner specified herein, were incomplete or
were not confirmed, or if the terms thereof, as understood by the recipient, varied from a
later confirmation. Each Borrower shall indemnify and hold harmless each Indemnitee from
any liabilities, losses, costs and expenses arising from any telephonic communication
purportedly given by or on behalf of a Borrower.



     14.5 Performance of Borrowers’ Obligations. Agent may, in its discretion at any time
and from time to time, at Borrowers’ expense, pay any amount or do any act required of a Borrower
under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents
or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c)
defend or maintain the validity or priority of Agent’s Liens in any Collateral; including any
payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or
landlord claim, or any discharge of a Lien. All payments, costs and expenses (including
Extraordinary Expenses) of Agent under this Section shall be reimbursed to Agent by Borrowers, on
demand, with interest from the date incurred to the date of payment thereof at the Default Rate
applicable to Base Rate Revolver Loans. Any payment made or action taken by Agent under this
Section shall be without prejudice to any right to assert an Event of Default or to exercise any
other rights or remedies under the Loan Documents.



132









 





     14.6 Credit Inquiries. Each Borrower hereby authorizes Agent and Lenders (but they
shall have no obligation) to respond to usual and customary credit inquiries from third parties
concerning any Borrower or Subsidiary.



     14.7 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     14.8 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are
cumulative. The parties acknowledge that the Loan Documents may use several different limitations,
tests or measurements to regulate the same or similar matters, and they agree that these are
cumulative and that each must be performed as provided. Except as otherwise specifically provided
in another Loan Document (by specific reference to the applicable provision of this Agreement), if
any provision contained herein is in direct conflict with any provision in another Loan Document,
the provision herein shall govern and control.



     14.9 Counterparts; Facsimile Signatures; Entire Agreement. This Agreement may be
executed in counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 6.1, this Agreement shall become effective when it shall have been executed by Agent and
when Agent shall have received counterparts hereof that, when taken together, bear the signatures
of each of the other parties hereto. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.



     Any Loan Document may be executed in counterparts, each of which taken together shall
constitute one instrument. Loan Documents may be executed and delivered by facsimile, and they
shall have the same force and effect as manually signed originals. Agent may require confirmation
by a manually-signed original, but failure to request or deliver same shall not limit the
effectiveness of any facsimile signature.



     14.10 Time of the Essence. Time is of the essence of the Loan Documents.



     14.11 Obligations of Lenders. The obligations of each Lender hereunder are several,
and no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts
payable hereunder to each Lender shall be a separate and independent debt, and each Lender shall be
entitled, to the extent not otherwise restricted hereunder, to protect and enforce its rights
arising out of the Loan Documents. It shall not be necessary for Agent or any other



133









 







Lender to be joined as an additional party in any proceeding for such purposes. Nothing in
this Agreement and no action of Agent or Lenders pursuant to the Loan Documents shall be deemed to
constitute Agent and Lenders to be a partnership, association, joint venture or any other kind of
entity, nor to constitute control of any Borrower. Each Borrower acknowledges and agrees that in
connection with all aspects of any transaction contemplated by the Loan Documents, Borrowers,
Agent, Issuing Bank and Lenders have an arms-length business relationship that creates no fiduciary
duty on the part of Agent, Issuing Bank or any Lender, and each Borrower, Agent, Issuing Bank and
Lender expressly disclaims any fiduciary relationship.



     14.12 Confidentiality. Each of Agent, the Lenders and Issuing Bank agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to any Borrower and its obligations, (g) with the consent of a Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to Agent, any Lender, Issuing Bank or any of their respective Affiliates on
a nonconfidential basis from a source other than a Borrower.



     For purposes of this Section, “Information” means all information received from any
Consolidated Party relating to any Consolidated Party or other Obligor or any of their respective
businesses, other than any such information that is available to Agent, any Lender or Issuing Bank
on a nonconfidential basis prior to disclosure by such Consolidated Party, provided that,
in the case of information received from any Consolidated Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



     Each of Agent, Lenders and Issuing Bank acknowledges that (a) the Information may include
material non-public information concerning the Consolidated Parties or any other Obligor, as the
case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with
Applicable Law, including Federal and state securities Laws.



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     14.13 [Reserved].



     14.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF NEW YORK.



     14.15 SUBMISSION TO JURISDICTION; WAIVER OF VENUE OBJECTION; SERVICE OF PROCESS.



          14.15.1 SUBMISSION TO JURISDICTION.





     EACH BORROWER AND EACH OTHER OBLIGOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTION BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR
IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT, ANY LENDER OR ISSUING
BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ANY OTHER OBLIGOR OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.



          14.15.2 WAIVER OF VENUE OBJECTION.





     EACH BORROWER AND EACH OTHER OBLIGOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
SECTION 14.15.1. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH



135









 







COURT BASED ON INCONVENIENT FORUM OR LACK OF PERSONAL JURISDICTION.



          14.15.3 SERVICE OF PROCESS.





     EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 14.4. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.



     14.16 Waivers by Borrowers. To the fullest extent permitted by Applicable Law, each
Borrower waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in
any proceeding, claim or counterclaim of any kind relating in any way to any Loan Documents,
Obligations or Collateral; (b) presentment, demand, protest, notice of presentment, default,
non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial
paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time
held by Agent on which a Borrower may in any way be liable, and hereby ratifies anything Agent may
do in this regard; (c) notice prior to taking possession or control of any Collateral; (d) any bond
or security that might be required by a court prior to allowing Agent to exercise any rights or
remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim against
Agent or any Lender, on any theory of liability, for special, indirect, consequential, exemplary or
punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement
Action, Obligations, Loan Documents or transactions relating thereto; and (g) notice of acceptance
hereof. Each Borrower acknowledges that the foregoing waivers are a material inducement to Agent
and Lenders entering into this Agreement and that Agent and Lenders are relying upon the foregoing
in their dealings with Borrowers. Each Borrower has reviewed the foregoing waivers with its legal
counsel and has knowingly and voluntarily waived its jury trial and other rights following
consultation with legal counsel. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.



     14.17 Patriot Act Notice. Agent and Lenders hereby notify Borrowers that pursuant to
the requirements of the Patriot Act, Agent and Lenders are required to obtain, verify and record
information that identifies each Borrower, including its legal name, address, tax ID number and
other information that will allow Agent and Lenders to identify it in accordance with the Patriot
Act. Agent and Lenders will also require information regarding each personal guarantor, if any,
and may require information regarding Borrowers’ management and owners, such as legal name,
address, social security number and date of birth.



     14.18 Replacement of Certain Lenders.



     If (i) any Lender requests compensation under Section 3.6 or Section 3.7 and the circumstances
described in such Section for which such Lender is claiming compensation do not apply to a majority
in number of the other Lenders, (ii) the Borrowers are required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender



136









 







pursuant to Section 5.9, (iii) a Lender does not consent to a proposed change, waiver,
discharge or termination with respect to any Loan Document that requires unanimous consent of all
Lenders and that has been approved by the Required Lenders, (iv) any Lender delivers a notice
pursuant to Section 3.5 with respect to circumstances that do not affect any of the other Lenders
hereunder, or (v) any Lender is a Defaulting Lender, then the Borrowers may (and in the case of
clauses (iii) and (iv) above, Agent may), at the sole expense and effort of the Borrowers, upon
notice to such Lender and Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section
13.3), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:




     (a) the Borrowers shall have paid to Agent the assignment fee specified in Section
13.3.2;




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts under Section 3.9)
from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.6 or payments required to be made pursuant to Section 5.9, such assignment will
result in a reduction in such compensation or payments thereafter;




     (d) such assignment does not conflict with Applicable Laws; and




     (e) in the case of any such assignment resulting from a Lender’s failure to consent to
a proposed change, waiver, discharge or termination with respect to any Loan Document, the
applicable amendment, modification and/or waiver of this Agreement that the Borrowers have
requested shall become effective upon giving effect to such assignment (and any related
assignments required to be effected in connection therewith in accordance with this Section
14.18).




     A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrowers to require such assignment and delegation cease to apply.



     14.19 Subordination of Intercompany Indebtedness.



     Each Obligor agrees that all intercompany Indebtedness among Obligors (the “Intercompany
Debt”) is subordinated in right of payment, to the prior payment in full of all Obligations.
Notwithstanding any provision of this Agreement to the contrary, provided that no Event of Default
has occurred and is continuing, the Obligors may make and receive payments with respect to the
Intercompany Debt to the extent not otherwise prohibited by this Agreement;



137









 




provided, that in the event of and during the continuation of any Event of Default, no
payment shall be made by or on behalf of any Obligor on account of any Intercompany Debt except
pursuant to the customary operation of a consolidated cash management system. In the event that
any Obligor receives any payment of any Intercompany Debt at a time when such payment is prohibited
by this Section 14.19, such payment shall be held by such Obligor, in trust for the benefit of, and
shall be paid forthwith over and delivered, upon written request, to, Agent.




     14.20 No Advisory or Fiduciary Relationship. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding
this Agreement provided by the Agent and the Arranger, are arm’s-length commercial transactions
between such Borrower and its Affiliates, on the one hand, and the Agent and the Arranger, on the
other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents; (b)(i) the Agent and the Arranger each is and has been acting
solely as a principal and, except as expressly agreed in writing by the relevant parties, has not
been, is not and will not be acting as an advisor, agent or fiduciary, for the Borrower or any of
Affiliates or any other Person and (ii) neither the Agent nor the Arranger has any obligation to
the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; and (c) the Agent and
the Arranger and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the Agent
nor the Arranger has any obligation to disclose any of such interests to the Borrower or its
Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases, any
claims that it may have against the Agent or the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.



     14.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



[Remainder of page intentionally left blank; signatures begin on following page]





138












 






     IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth
above.



	 	 	 	 	 
	 	BORROWERS:



CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP

 	 
	 	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
 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R. Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 
	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






	 	 	 	 	 
	 	CALUMET SHREVEPORT, LLC

 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R. Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 
	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II
                   
Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






 









 






	 	 	 	 	 
	 	CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC

 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R.
Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 
	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






	 	 	 	 	 
	 	CALUMET SHREVEPORT FUELS, LLC

 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R. Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 
	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






 









 






	 	 	 	 	 
	 	CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.

 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 
	 	 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R. Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






	 	 	 	 	 
	 	CALUMET LP GP, LLC

 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 
	 	 	 
	 	By:  	Calumet Specialty Products Partners, L.P., its sole member
 	 
	 	 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 
	 	 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R. Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






 









 






	 	 	 	 	 
	 	CALUMET OPERATING, LLC

 	 
	 	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:  	Vice-President and Chief Financial Officer	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






	 	 	 	 	 
	 	CALUMET SALES COMPANY INCORPORATED

 	 
	 	By:  	/s/ R. Patrick Murray II	 
	 	 	Name:  	R. Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






 









 






	 	 	 	 	 
	 	CALUMET PENRECO, LLC

 	 
	 	By:  	Calumet Lubricants Co., Limited Partnership, its sole member
 	 
	 	 	 
	 	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
 	 
	 	 	 
	 	By:  	/s/
R. Patrick Murray II	 
	 	 	Name:  	R.
Patrick Murray II	 
	 	 	Title:  	Vice-President
and Chief Financial Officer	 




	 	 	 
	 

	 	Address:
	 

	 	2780 Waterfront Parkway East Drive 

Suite 200

Indianapolis, Indiana 46214
	 

	 	Attention: R. Patrick Murray II

                   Vice President and Chief Financial Officer
	 

	 	Telecopy: (317) 328-5676






 









 






	 	 	 	 	 
	AGENT AND LENDERS: 	BANK OF AMERICA, N.A., 

as Agent and a Lender

 	 
	 	By:  	/s/
Hance VanBeber	 
	 	 	Name:  	Hance
VanBeber	 
	 	 	Title:  	Sr.
Vice-President	 




	 	 	 
	 

	 	Address:
	 

	 	Bank of America, N.A.

901 Main Street, 22nd Floor 

Dallas, Texas 75202
	 

	 	Mail Code: TX1-492-22-13
	 

	 	Attn: Hance Vanbeber
	 

	 	Telecopy: (214) 209-4766






	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agent and a Lender

 	 
	 	By:  	/s/
Santiago Giraldo	 
	 	 	Name:  	Santiago Giraldo	 
	 	 	Title:  	Vice-President	 




	 	 	 
	 

	 	Address:
	 

	 	JPMorgan Chase Bank, N.A. 

2200 Ross Avenue 

6th Floor 

Dallas, Texas 75241
	 

	 	Attn: Santiago Giraldo
	 

	 	Telecopy: (214) 965-2594






 









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/
Joe Curdy	 
	 	 	Name:  	Joe
Curdy	 
	 	 	Title:  	Director	 




	 	 	 
	 

	 	Address:
	 

	 	Wachovia Bank, National Association

5001 LBJ Freeway Suite #1050

Dallas, Texas 75244
	 

	 	Attn: Joe Curdy
	 

	 	Telecopy: (214) 748-9118







 











 





	 	 	 	 	 
	 	NATIONAL CITY BUSINESS CREDIT, INC.,

as a Lender

 	 
	 	By:  	
/s/ Jason Hanes	 
	 	 	Name:  	Jason Hanes	 
	 	 	Title:  	Vice-President	 
	 
	 	
Address:

National City Business Credit, Inc.

1965 E. 6th Street

Locator 01-3049

Cleveland, Ohio  44114

Attn:  Tom Buda

Telecopy:  (216) 222-9555 	 
	 
	 	SIEMENS FINANCIAL SERVICES, INC.,

as a Lender

 	 
	 	By:  	
/s/ Mark Picillo	 
	 	 	Name:  	
Mark Picillo	 
	 	 	Title:  	
Vice-President	 
	 
	 	Address:

Siemens Financial Services, Inc.

170 Wood Ave. South

Iselin, New Jersey 08830

Attn:  Robert Nadler

Telecopy:  (732) 590-0648	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NORTH FORK BUSINESS CAPITAL CORPORATION, as a Lender

 	 
	 	By:  	/s/  Todd Kemme	 
	 	 	Name:  	Todd Kemme	 
	 	 	Title:  	Vice-President	 
	 
	 	Address:

5430 LBJ Freeway, Suite 1540

Dallas, Texas 75240

Attn:  Todd Kemme

Telecopy: 972-770-2671	 
	 
	 	REGIONS BANK, as a Lender

 	 
	 	By:  	/s/  Michael
Fogarty	 
	 	 	Name:  	Michael
Fogarty	 
	 	 	Title:  	Senior
Vice-President	 
	 
	 	Address:

5001 Spring Valley Rd.

Suite 153-W

Dallas, Texas  75244

Attn:  Michael Fogarty

Telecopy:  (972) 383-7505	 
	 
	 	FIFTH THIRD BANK, as a Lender

 	 
	 	By:  	/s/
Peter T. Hale	 
	 	 	Name:  	Peter
T. Hale	 
	 	 	Title:  	Officer	 
	 
	 	Address:

251 N. Illinois St., Suite 1200

Indianapolis, IN  46204

Attn:  David O’Neal

Telecopy:  (317) 383-2320

	 
	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender
 	 
	 
	 	By:  	/s/
William L. Prindle Jr.	 
	 	 	Name:  	William
L. Prindle Jr.	 
	 	 	Title:  	Vice-President	 
	 
	 	Address:

4720 Piedmont Row. Dr.

Suite 300

Charlotte, NC  28210

Attn:  Alex Council

Telecopy:  (704) 643-7918	 



 









 





	 	 	 	 	 
	 
	 
	 	LLOYDS TSB COMMERCIAL FINANCE LIMITED, as a Lender

 	 
	 	By:  	
/s/ Jeremy Harrison	 
	 	 	Name:  	Jeremy Harrison	 
	 	 	Title:  	ABL
Director	 
	 
	 	Address:

1251 Avenue of the Americas

39th Floor

New York, New York  10020

Attn:   Jeremy Harrison

Telecopy:  (212) 930-5098	 
	 



 









 






	 	 	 	 	 



EXHIBIT A




FORM OF GENERAL REVOLVER NOTE




January __, 2008



FOR VALUE RECEIVED, the undersigned Borrowers (as hereinafter defined) hereby promise, jointly and
severally, to pay to __________ or registered assigns (the “Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each General Revolver Loan from time to time made by the Lender to the Borrowers under that certain
Credit Agreement dated as of December 9, 2005 (as amended, restated, extended, supplemented or
otherwise modified in writing at any time and from time to time, the “Agreement”) among
Calumet Lubricants Co., Limited Partnership, an Indiana limited partnership (the
“Company”), Calumet Shreveport, LLC, an Indiana limited liability company (“Calumet
Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited liability company
(“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability company
(“CSF”), Calumet Specialty Products Partners, L.P., a Delaware limited partnership
(“MLP Parent”), Calumet Operating, LLC, a Delaware limited liability company (the “New
Limited Partner”), Calumet LP GP, LLC, a Delaware limited liability company (the “New
General Partner”), Calumet Sales Company Incorporated, a Delaware corporation (“Calumet
Sales”), and Calumet Penreco, LLC, a Delaware limited liability company (“Calumet Penreco”,
together with the Company, Calumet Shreveport, CSF, CSLW, MLP Parent, the New Limited Partner, the
New General Partner and Calumet Sales, collectively the “Borrowers”), the financial
institutions from time to time party thereto (the “Lenders”) and Bank of America, N.A., as
Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the
Agreement.



The Borrowers promise, jointly and severally, to pay interest on the unpaid principal amount of
each General Revolver Loan from the date of such General Revolver Loan until such principal amount
is paid in full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Agent for the account of the Lender in
Dollars in immediately available funds at the Agent’s Office. If any amount is not paid in full
when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due
date thereof until the date of actual payment (and before as well as after judgment) computed at
the per annum rate set forth in the Agreement.



This General Revolver Note is one of the General Revolver Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this General Revolver Note
shall become, or may be declared to be, immediately due and payable all as provided in the
Agreement. General Revolver Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this General Revolver Note and endorse thereon the date, amount and
maturity of its General Revolver Loans and payments with respect thereto.



Each Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and nonpayment of this General Revolver
Note.




[Intentionally left blank — Signatures appear on following page]




 









 







THIS GENERAL REVOLVER NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.




	 	 	 	 	 
	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an Indiana
limited partnership

 	 
	 	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
 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET SHREVEPORT, LLC,

an Indiana limited liability company

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC,

an Indiana limited liability company

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET SHREVEPORT FUELS, LLC,

an Indiana limited liability company

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	




 









 




	 	 	 	 	 
	 	CALUMET SPECIALTY PRODUCTS PARTNERS, L.P., a Delaware
limited partnership
 	 
	 
	 	By:  	CALUMET GP, LLC, its general partner
 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	


	 
	 	CALUMET OPERATING, LLC,

a Delaware limited liability company

 	 
	 
	 	By:  	Calumet Specialty Products Partners, L.P., its sole member
 	 
	 
	 	By:  	Calumet GP, LLC, its general partner
 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	



	 
	 
	 	CALUMET SALES COMPANY INCORPORATED,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET LP GP, LLC,

a Delaware limited liability company

 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 
	 	 	 
	 	By:  	Calumet Specialty Products Partners, L.P., its sole member
 	 
	 	 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 









 





	 	 	 	 	 
	 	CALUMET PENRECO, LLC

 	 
	 
	 	By:  	Calumet Lubricants Co., Limited Partnership, its sole member
 	 
	 
	 	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
 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





EXHIBIT B




FORM OF DISTRIBUTION REVOLVER NOTE




January ___, 2008



FOR VALUE RECEIVED, the undersigned Borrowers (as hereinafter defined) hereby promise, jointly and
severally, to pay to                      registered assigns (the “Lender”), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal amount of each
Distribution Revolver Loan from time to time made by the Lender to the Borrowers under that certain
Credit Agreement dated as of December 9, 2005 (as amended, restated, extended, supplemented or
otherwise modified in writing at any time and from time to time, the “Agreement”) among
Calumet Lubricants Co., Limited Partnership, an Indiana limited partnership (the
“Company”), Calumet Shreveport, LLC, an Indiana limited liability company (“Calumet
Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited liability company
(“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability company
(“CSF”), Calumet Specialty Products Partners, L.P., a Delaware limited partnership
(“MLP Parent”), Calumet Operating, LLC, a Delaware limited liability company (the “New
Limited Partner”), Calumet LP GP, LLC, a Delaware limited liability company (the “New
General Partner”), Calumet Sales Company Incorporated, a Delaware corporation (“Calumet
Sales”), and Calumet Penreco, LLC, a Delaware limited liability company (“Calumet Penreco”,
together with the Company, Calumet Shreveport, CSF, CSLW, MLP Parent, the New Limited Partner, the
New General Partner and Calumet Sales, collectively the “Borrowers”), the financial
institutions from time to time party thereto (the “Lenders”) and Bank of America, N.A., as
Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the
Agreement.



The Borrowers promise, jointly and severally, to pay interest on the unpaid principal amount of
each Distribution Revolver Loan from the date of such Distribution Revolver Loan until such
principal amount is paid in full, at such interest rates and at such times as provided in the
Agreement. All payments of principal and interest shall be made to the Agent for the account of
the Lender in Dollars in immediately available funds at the Agent’s Office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.



This Distribution Revolver Note is one of the Distribution Revolver Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Agreement, all amounts then remaining unpaid on this
Distribution Revolver Note shall become, or may be declared to be, immediately due and payable all
as provided in the Agreement. Distribution Revolver Loans made by the Lender shall be evidenced by
one or more loan accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Distribution Revolver Note and endorse thereon the
date, amount and maturity of its Distribution Revolver Loans and payments with respect thereto.



Each Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and nonpayment of this Distribution
Revolver Note.




[Intentionally left blank — Signatures appear on following page]




 









 







THIS DISTRIBUTION REVOLVER NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.




	 	 	 	 	 
	 	CALUMET LUBRICANTS CO., LIMITED
PARTNERSHIP, an Indiana
limited partnership



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

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	CALUMET SHREVEPORT, LLC,

an Indiana limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC,

an Indiana limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET SHREVEPORT FUELS, LLC,

an Indiana limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CALUMET SPECIALTY PRODUCTS PARTNERS, 
L.P., a Delaware
limited partnership



By:  CALUMET GP, LLC, its general partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	CALUMET OPERATING, LLC,

a Delaware limited liability company



By:  Calumet Specialty Products Partners, L.P.,

         its sole
member



By:  Calumet GP, LLC, its general partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	CALUMET SALES COMPANY INCORPORATED,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	CALUMET LP GP, LLC,

a Delaware limited liability company



By:  Calumet Operating, LLC, its sole member



By:  Calumet Specialty Products Partners, L.P.,

         its sole member



By:  Calumet GP, LLC, its general partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 







	 	 	 	 	 
	 	CALUMET PENRECO, LLC



By:  Calumet Lubricants Co., Limited Partnership,

         its
sole member



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

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                                         




To: Bank of America, N.A., as Agent




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement, dated as of December 9, 2005 (as amended,
restated, extended, supplemented or otherwise modified at any time and from time to time, the
“Agreement”) among Calumet Lubricants Co., Limited Partnership, an Indiana limited
partnership (the “Company”), Calumet Shreveport, LLC, an Indiana limited liability company
(“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited
liability company (“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability
company (“CSF”), Calumet Specialty Products Partners, L.P., a Delaware limited partnership
(“CSPP”), Calumet LP GP, LLC, a Delaware limited liability company (“CLP”), Calumet
Operating, LLC, a Delaware limited liability company (“Operating”), and Calumet Sales
Company Incorporated, a Delaware corporation (“Calumet Sales” and together with the
Company, Calumet Shreveport, CSLW, CSF, CSPP, CLP and Operating, collectively the
“Borrowers”), the financial institutions from time to time party thereto and Bank of
America, N.A., as Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Agreement.



The undersigned Senior Officer of [the General Partner of] the Company hereby certifies as of the
date hereof that he/she is the
                                         of [the General Partner] [the Company], and
that, as such, he/she is authorized to execute and deliver this Compliance Certificate on behalf of
[the General Partner][the Company] to the Agent, and that:





     [Use following paragraph 1 for fiscal year-end financial statements]



     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 10.1.1(a) of the Agreement for the fiscal year of the Consolidated
Parties ended as of the above date, together with the report and opinion of a Registered Public
Accounting Firm required by such section.



     [Use following paragraph 1 for fiscal quarter-end financial statements]



     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 10.1.1(b) of the Agreement for the fiscal quarter of the Consolidated Parties ended
as of the above date. Such financial statements fairly present the financial condition, results of
operations, shareholders’ equity and cash flows of the Consolidated Parties and their Subsidiaries
in accordance with GAAP as at such date and for such fiscal quarter, subject only to normal
year-end audit adjustments and the absence of footnotes.



     [Use following paragraph 1 for month-end financial statements]



     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 10.1.1(c) of the Agreement for the month of
______________
of the Consolidated Parties
ended as of the above date. Such financial statements fairly present the financial condition,
results of operations, shareholders’ equity and cash flows of the Consolidated Parties and their
Subsidiaries in accordance with



 









 







GAAP as at such date and for such period, subject only to normal year-end audit adjustments
and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Consolidated Parties during the accounting period covered
by the attached financial statements.



     3. A review of the activities of the Consolidated Parties during such fiscal period has been
made under the supervision of the undersigned with a view to determining whether during such fiscal
period the Consolidated Parties performed and observed all of their Obligations under the Loan
Documents, and



[select one:]




     [4. To the best knowledge of the undersigned during such fiscal period, no Default has
occurred and is continuing.]



-or-




     [4. Defaults have occurred and are continuing and the following is a list of each Default and
it nature and status:]



     5. Attached hereto as Schedule 3 are calculations demonstrating compliance with the
financial covenants set forth in Section 10.3 of the Agreement as of the last day of the
fiscal period.




 











 





     IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of
                                        ,                     .



	 	 	 	 	 
	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an
Indiana limited partnership

 	 
	 	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
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Schedule 1

to Compliance Certificate




Schedule 2

to Compliance Certificate




 









 








EXHIBIT D




FORM OF ASSIGNMENT AND ACCEPTANCE





     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Agreement identified below (the
“Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Agreement, as of the Effective
Date inserted by the Agent as contemplated below (i) all of the Assignor’s rights and obligations
as a Lender under the Agreement and any other documents or instruments delivered pursuant thereto
to the extent related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit and Swingline Loans included in such facilities)
and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the “Assigned Interest”). Such sale and assignment is without recourse to
the Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.



	 	 	 	 	 
	1.
	 	Assignor:	 	                                                            
	 
	 	 	 	 
	2.
	 	Assignee:	 	                                                            
	 
	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]]
	 
	 	 	 	 
	3.
	 	Borrowers:	 	Calumet Lubricants Co., Limited Partnership, an Indiana limited
	 
	 	 	 	partnership (the "Company"), Calumet Shreveport, LLC, an
	 
	 	 	 	Indiana limited liability company ("Calumet Shreveport"),
	 
	 	 	 	Calumet Shreveport Lubricants & Waxes, LLC, an Indiana
	 
	 	 	 	limited liability company ("CSLW"), Calumet Shreveport Fuels,
	 
	 	 	 	LLC, an Indiana limited liability company ("CSF"), Calumet
	 
	 	 	 	Specialty Products Partners, L.P., a Delaware limited partnership
	 
	 	 	 	("CSPP"), Calumet LP GP, LLC, a Delaware limited liability
	 
	 	 	 	company ("CLP"), Calumet Operating, LLC, a Delaware limited liability
	 
	 	 	 	company ("Operating"), and Calumet Sales Company
	 
	 	 	 	Incorporated, a Delaware corporation ("Calumet Sales" and
	 
	 	 	 	together with the Company, Calumet Shreveport, CSLW, CSF,
	 
	 	 	 	CSPP, CLP and Operating, collectively the "Borrowers").
	 
	 	 	 	 
	4.
	 	Agent:	 	Bank of America, N.A., as the agent under the Agreement.






 









 






	 	 	 	 	 
	5.
	 	Agreement:	 	Credit Agreement dated as of December 9, 2005 (as
	 
	 	 	 	amended,  restated, extended, supplemented or otherwise
	 
	 	 	 	modified in writing at any time and from time to time,
	 
	 	 	 	the "Agreement"), by and among the Borrowers, the
	 
	 	 	 	financial institutions from time to time party thereto
	 
	 	 	 	(the "Lenders"), and BANK OF AMERICA, N.A., as Agent.
	 
	 	 	 	 
	6.
	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Assigned of	 	 	 	 
	Facility Assigned	 	for all Lenders	 	 	Assigned	 	 	Commitment/Loans	 	 	CUSIP Number	 
	Revolver Loan
	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	[7.
	 	Trade Date:	 	                                        ]






 









 





Effective Date:                                                  , 20___ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an
Indiana limited partnership

 	 
	 	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
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





	 	 	 	 	 
	[Consented to and] Accepted:



BANK OF AMERICA, N.A.,

as Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



	 	 	 	 	 
	[Consented to:]



[BANK OF AMERICA, N.A,

as Issuing Bank]1

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



	 	 	 	 	 
	CALUMET LUBRICANTS CO., LIMITED

PARTNERSHIP, an Indiana limited partnership

 	 	 
	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
 	 	 
	 
	 	 	 
	By:  	
 	 	 
	 	Name:  	
 	 	 
	 	Title:  	
 	 	 
	 





 




			
	1	 	Only if assignment involves the assignment of a
Credit-Linked Commitment




 









 










ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Agreement, (ii) it meets all requirements of an Eligible Assignee under the Agreement (subject to
receipt of such consents as may be required under the Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 10.1.1 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the Agent or any other
Lender, and (v) if it is a not a United States person under Section 7701(a)(30) of the Code,
attached to the Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Agreement, duly completed and executed by the Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.




          2. Payments. From and after the Effective Date, the Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to
the Assignee for amounts which have accrued from and after the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.




 









 








EXHIBIT E




ASSIGNMENT NOTICE




Date:                     , 20     




To:                     , as Assignor and                     , as Assignee:




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement, dated as of December 9, 2005 (as amended,
restated, extended, supplemented or otherwise modified at any time and from time to time, the
“Agreement”) among Calumet Lubricants Co., Limited Partnership, an Indiana limited
partnership (the “Company”), Calumet Shreveport, LLC, an Indiana limited liability company
(“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited
liability company (“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability
company (“CSF”), Calumet Specialty Products Partners, L.P., a Delaware limited partnership
(“CSPP”), Calumet LP GP, LLC, a Delaware limited liability company (“CLP”), Calumet
Operating, LLC, a Delaware limited liability company (“Operating”), and Calumet Sales
Company Incorporated, a Delaware corporation (“Calumet Sales” and together with the
Company, Calumet Shreveport, CSLW, CSF, CSPP, CLP and Operating, collectively the
“Borrowers”), the financial institutions from time to time party thereto and Bank of
America, N.A., as Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Agreement.



The undersigned, as Agent under the Agreement, acknowledges receipt of four (4) executed
counterparts of a completed Assignment and Assumption in the form of Exhibit D to the
Agreement. Terms defined in such Assignment and Assumption are used as therein defined.





Pursuant to such Assignment and Assumption, you are advised that the Effective Date will be
                    ,     .



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACCEPTED FOR RECORDATION

IN REGISTER:




 









 





EXHIBIT F




FORM OF LOAN NOTICE




Date:                    , 20     




To: Bank of America, N.A., as Agent




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement, dated as of December 9, 2005 (as amended,
restated, extended, supplemented or otherwise modified at any time and from time to time, the
“Agreement”) among Calumet Lubricants Co., Limited Partnership, an Indiana limited
partnership (the “Company”), Calumet Shreveport, LLC, an Indiana limited liability company
(“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited
liability company (“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability
company (“CSF”), Calumet Specialty Products Partners, L.P., a Delaware limited partnership
(“CSPP”), Calumet LP GP, LLC, a Delaware limited liability company (“CLP”), Calumet
Operating, LLC, a Delaware limited liability company (“Operating”), and Calumet Sales
Company Incorporated, a Delaware corporation (“Calumet Sales” and together with the
Company, Calumet Shreveport, CSLW, CSF, CSPP, CLP and Operating, collectively the
“Borrowers”), the financial institutions from time to time party thereto and Bank of
America, N.A., as Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Agreement.



The undersigned hereby requests (select one):





	 	•	 	A Borrowing of [General][Distribution] Revolver Loans
	 
	 	•	 	A conversion or continuation of [General][Distribution] Revolver Loans






	 	1.	 	On                      (a Business Day).
	 
	 	2.	 	In the amount of $                    .
	 
	 	3.	 	Comprised of                     .

[Type of Loan requested]
	 
	 	4.	 	For LIBOR Loans: with an Interest Period of __ months.




 









 










The Borrowing requested herein complies with Section 4.1.1 of the Agreement.




	 	 	 	 	 
	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an
Indiana limited partnership

 	 
	 	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
 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT G




FORM OF BORROWING BASE CERTIFICATE




See attached.




 









 





Schedule 1.1A

Commitments of Lenders




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver Commitment	 	Commitment Percentage
	 
	 	 	 	 	 	 	 	 
	Bank of America, N.A.
	 	$	87,500,000	 	 	 	23.333333333	%
	JPMorgan Chase Bank, N.A.
	 	$	50,000,000	 	 	 	13.333333333	%
	Wachovia Bank, National Association
	 	$	50,000,000	 	 	 	13.333333333	%
	Regions Bank
	 	$	42,500,000	 	 	 	11.333333333	%
	National City Business Credit, Inc.
	 	$	40,000,000	 	 	 	10.666666667	%
	Siemens Financial Services, Inc.
	 	$	30,000,000	 	 	 	8.000000000	%
	Fifth Third Bank
	 	$	20,000,000	 	 	 	5.333333333	%
	PNC Bank, National Association
	 	$	20,000,000	 	 	 	5.333333333	%
	Lloyds TSB
	 	$	20,000,000	 	 	 	5.333333333	%
	North Fork Bank
	 	$	15,000,000	 	 	 	4.000000000	%
	Total:
	 	$	375,000,000	 	 	 	100.000000000	%