exv10w1



 





Exhibit 10.1




FIFTH AMENDMENT

TO CREDIT AGREEMENT




     THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of November 6,
2007, 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 “Borrowers” and each
individually a “Borrower”), the financial institutions identified on the signature pages
hereto as lenders (collectively, “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 Lenders and the Agent (as previously amended, the “Existing Credit
Agreement”), the Lenders have extended commitments to make certain credit facilities available
to the Borrowers;



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



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



     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. 5 Effective Date” is defined in Subpart
3.1.




     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. 5 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. Amendment to Section 1.1. Section 1.1 of the Existing Credit
Agreement is hereby amended as follows:




     (A) The definitions of “Borrowing Base”, “General Revolver Loan Committed
Amount”, “Reporting Trigger Event” and “Revolver Commitment” are hereby deleted in
their entirety and replaced with the following:




     “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, plus, during
the Bridge Period only, the Incremental Borrowing Availability.




     General Revolver Loan Committed Amount — at all times
other than during the Bridge Period, $175,000,000, and during the
Bridge Period, $210,000,000.




     Reporting Trigger Event — the occurrence of any of the
following: (a) Availability falls below (i) at all times other than
during the Bridge Period, $50,000,000 and (ii) during the Bridge
Period, $0 or (b) a Default or Event of Default.




     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 1.1, 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. The Revolver Commitments as of the Closing Date
total $225,000,000. The Revolver Commitments during the Bridge
Period will total $260,000,000.



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     (B) The following definitions are herby added in appropriate alphabetical
order:




     “Amendment
No. 5 Effective Date” — November 12, 2007.




     “Bridge Period” — the period beginning on November 15, 2007 and
ending on the earliest of (i) January 15, 2008, (ii) the date of the PP&E
Refinancing and (iii) the first Business Day immediately following the
closing date of the first Equity Issuance by Calumet Specialty Products
Partners, L.P. to Persons that are not its Affiliates following the
Amendment No. 5 Effective Date.




     “Incremental Accounts Formula Amount” — 5% of the net amount of
Eligible Accounts. “Net amount” has the meaning provided in the
definition of “Accounts Formula Amount”.




     “Incremental Borrowing Availability” — the lesser of (a) the
sum of (i) the Incremental Accounts Formula Amount plus (ii) the
Incremental Inventory Formula Amount or (b) $35,000,000.




     “Incremental Inventory Formula Amount” —  the lesser of (a) the
sum of (i) 15% of the Value of Eligible Category A Inventory plus
(ii) 15% of the Value of Eligible Category B Inventory; or (b) 15% 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.




     “PP&E Refinancing” — the repayment or refinancing of the PP&E
Obligations.



     SUBPART 2.2 Amendment to Section 2.1.1. Section 2.1.1 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the following:




     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 General Revolver
Loan Committed Amount. Each



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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 (A) at all times
other than during the Bridge Period, $175,000,000 and (B) during the Bridge Period,
$210,000,000. The Revolver Loans may be repaid and reborrowed as provided herein.




     SUBPART 2.3 Amendment to Section 3.2. Section 3.2 of the Existing Credit
Agreement is hereby amended by adding the following new section to the end thereof:




     3.2.5 Bridge Period Fee. Borrowers shall pay to Agent, for the Pro Rata
benefit of the Lenders, a fee in an amount equal to $1,000 per day for each day
during the Bridge Period.



     SUBPART 2.4 Amendment to Section 10.3. Section 10.3.1 is here by amended by
adding the following sentence to the end thereof:




     Notwithstanding the foregoing, the Fixed Charge Coverage Ratio shall not be
tested during the Bridge Period.



     SUBPART 2.5 Amendment to Schedule 1.1. Schedule 1.1 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the Schedule attached hereto
as Exhibit A.



PART III

CONDITIONS TO EFFECTIVENESS




     SUBPART 3.1. Amendment No. 5 Effective Date. This Amendment shall be and become
effective as of the date hereof (the “Amendment No. 5 Effective Date”) when all of
the conditions set forth in this Part III shall have been satisfied, and thereafter
this Amendment shall be known, and may be referred to, as the “Fifth Amendment.”



     SUBPART 3.2. 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 and each of the Lenders.



     SUBPART 3.3 Legal Opinion. The Agent shall have received, dated as of the
Amendment No. 5 Effective Date and in form and substance reasonably satisfactory to the
Agent, one or more legal opinions from counsel to the Borrowers.



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     SUBPART 3.4 Resolutions; Good Standings. The Agent shall have received the
following, each of which shall be properly executed by a Senior Officer of the signing
Obligor or the General Partner, each dated as of the Amendment No. 5 Effective Date (or, in
the case of certificates of governmental officials, a recent date before the Amendment No. 5
Effective Date) and each in form and substance satisfactory to the Agent and each of the
Lenders:




     (a) such certificates of resolutions or other action and/or other certificates
of Senior Officers of each Obligor or the General Partner as Agent may require
evidencing each Obligor’s authority to enter into this Amendment; and




     (b) such documents and certifications as the Agent may reasonably require to
evidence that each Obligor is duly organized or formed, and is validly existing, in
good standing and qualified to engage in business in (A) the jurisdiction of its
incorporation or organization 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.



     SUBPART 3.5 Amendment Fee. The Borrowers shall have paid or caused to be paid
an amendment fee to the Agent in connection with this Amendment for the pro rata account of
each Lender that shall have returned executed signature pages to this Amendment no later
than 3:00 p.m. on November 6, 2007, as directed by the Agent, in an aggregate amount equal
to $120,000 for such Lenders as a group.



PART IV

MISCELLANEOUS




     SUBPART 4.1 Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.



     SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement. This Amendment
is an Other Agreement executed pursuant to the Existing Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in accordance
with the terms and provisions of the Existing Credit Agreement.



     SUBPART 4.3. References in Other Agreements. At such time as this Amendment
shall become effective pursuant to the terms of Subpart 3.1, 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 4.4. 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



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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 both before and after giving effect to the amendments contained herein.



     SUBPART 5.5. 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 5.6. 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 WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.



     SUBPART 5.7. 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 5.8. 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.



     SUBPART 5.9. 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.



[remainder of page intentionally left blank]





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     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.



	 	 	 	 	 	 	 	 	 	 	 
	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
	 

	 	 	 	 







 









 







	 	 	 	 	 
	AGENT AND LENDERS:	 	BANK OF AMERICA, N.A.,
	 	 	as Agent and a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ HANCE VAN BEBER
	 

	 	 	 	 
	 

	 	Name:
	 	Hance Van Beber
	 

	 	 	 	 
	 

	 	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
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION,
	 	 	as Co-Syndication Agent and a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ HANCE VAN BEBER
	 

	 	 	 	 
	 

	 	Name:
	 	Hance Van Beber
	 

	 	 	 	 
	 

	 	Title:
	 	Sr. Vice President
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	WELLS FARGO FOOTHILL, LLC,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ JENNIFER FONG
	 

	 	 	 	 
	 

	 	Name:
	 	Jennifer Fong
	 

	 	 	 	 
	 

	 	Title:
	 	Assistant 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/ TOM BUDA
	 

	 	 	 	 
	 

	 	Name:
	 	Tom Buda
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 







 









 







	 	 	 	 	 
	 	 	SIEMENS FINANCIAL SERVICES, INC.,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ MARK PICILLO
	 

	 	 	 	 
	 

	 	Name:
	 	Mark Picillo
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





[END OF SIGNATURE PAGES]





 









 







Exhibit A




Schedule 1.1




Revolver Commitments




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver	 	Revolver	 	Commitment
	 	 	Commitment	 	Commitment	 	Percentage
	 	 	(Outside Bridge	 	(During Bridge	 	 
	 	 	Period)	 	Period)	 	 
	 
	Bank of America, N.A.
	 	$	50,000,000	 	 	$	57,777,777.79	 	 	 	22.222222222	%
	JPMorgan Chase Bank, N.A.
	 	$	37,500,000	 	 	$	43,333,333.34	 	 	 	16.666666667	%
	LaSalle Bank National Association
	 	$	37,500,000	 	 	$	43,333,333.34	 	 	 	16.666666667	%
	Wells Fargo Foothill, LLC
	 	$	27,500,000	 	 	$	31,777,777.77	 	 	 	12.222222222	%
	Wachovia Bank, National Association
	 	$	27,500,000	 	 	$	31,777,777.77	 	 	 	12.222222222	%
	National City Business Credit, Inc.
	 	$	25,000,000	 	 	$	28,888,888.88	 	 	 	11.111111111	%
	Siemens Financial Services, Inc.
	 	$	20,000,000	 	 	 	23,111,111.11	 	 	 	8.888888889	%
	Total:
	 	$	225,000,000	 	 	$	260,000,000	 	 	 	100.000000000	%