exv10w1






Exhibit 10.1




Execution Version




 





AMENDMENT NO. 2




Effective as of September 30, 2011




to




COLLATERAL TRUST AGREEMENT




Dated as of April 21, 2011




among




CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP,

a limited partnership organized under the laws of the State of Indiana,




THE GUARANTORS

party hereto,




THE SECURED HEDGE COUNTERPARTIES

party hereto,




and




BANK OF AMERICA, N.A.,

as Administrative Agent




 









 









 








     This AMENDMENT NO. 2 (this “Amendment”), effective as of September 30, 2011, is among
Calumet Lubricants Co., Limited Partnership, a limited partnership organized under the laws of the
State of Indiana (“Calumet”), each Guarantor party hereto, each Secured Hedge Counterparty
party hereto and Bank of America, N.A., in its capacity as administrative agent for the benefit of
the Secured Hedge Counterparties (the “Administrative Agent”). Unless otherwise defined in
this Amendment, each capitalized term used in this Amendment has the meaning given to such term in
the Collateral Trust Agreement (as hereinafter defined).



     WHEREAS, Calumet, the Guarantors, the Secured Hedge Counterparties and the Administrative
Agent are parties to that certain Collateral Trust Agreement dated as of April 21, 2011 (as
amended, the “Collateral Trust Agreement”);



     WHEREAS, the parties hereto have agreed to make certain amendments to the Collateral Trust
Agreement as provided for herein;



     NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:



     SECTION 1 Amendments to the Collateral Trust Agreement.



          (a) Amendments. Effective as of the date first above written, the
Collateral Trust Agreement is amended by:





(i) in Section 1.1, deleting the definition of “Approved
Counterparty” and replacing it in its entirety with the following:




“Approved Counterparty” means any of the following: (a) J. Aron &
Company, Koch Supply & Trading, LP, Merrill Lynch Commodities, Inc.,
JPMorgan Chase Bank, N.A., Bank of America, N.A., or any successor by merger
of the foregoing (together with any trading affiliate of any of foregoing
entities that has comparable credit support, if any, from the applicable
parent entity), (b) any Person whose senior unsecured debt ratings, if any,
otherwise the corporate credit rating or issuer rating, as the case may be
(or whose parent entity has any such rating if such Person receives
comparable credit support from such parent entity), are not less than A3
from Moody’s Investors Service, Inc. or A- from Standard & Poor’s Ratings
Services, a division of The McGraw-Hill Companies, Inc., and any successors
thereto, and (c) with respect to Forward Purchase Contracts only, any Person
that is a Forward Purchase Secured Hedge Counterparty.




(ii) in Section 1.1, deleting the definition of “Exposure” and
replacing it in its entirety with the following:




“Exposure” means, for any Secured Hedge Counterparty, on any date of
determination, the greater of (i) U.S.$10,000,000 and (ii) the sum of (A)
with respect to all Swap Contracts to which such Secured Hedge Counterparty
is a party other than Forward Purchase Contracts, the amount determined in
good faith by the applicable Secured Hedge Counterparty equal to the
aggregate amount, if any, that would be or is payable by any Transaction
Party to such Secured Hedge Counterparty under the Secured Hedge Agreement
with such Secured Hedge Counterparty, as if (1) each such Secured Hedge
Agreement were being terminated early on such date of determination due to a
“Termination Event”, “Event of Default”, “Additional Event of Default”, or
“Additional



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Termination Event”, where such Transaction Party is the sole “Affected
Party,” or the sole “Defaulting Party”, as applicable, and (2) the Secured
Hedge Counterparty were the sole party determining such payment amount (with
the applicable Secured Hedge Counterparty making such determination
reasonably in accordance with the provisions of the above-described Secured
Hedge Agreement) and (B) with respect to all Forward Purchase Contracts to
which such Secured Hedge Counterparty is a counterparty, such Forward
Purchase Secured Hedge Counterparty’s Forward Purchase Limited Exposure in
the aggregate. If, as of the date of determination, any Secured Hedge
Agreement has been terminated and a payment is expected to become due to the
relevant Secured Hedge Counterparty in respect of such termination, then,
for purposes of calculating its Exposure pursuant to subclause (ii)(A)
hereof, (i) until such termination payment has been calculated pursuant to
the terms of the Secured Hedge Agreement, such Secured Hedge Counterparty
shall reasonably estimate the amount of such termination payment, and (ii)
after such termination payment has been calculated pursuant to the terms of
the Secured Hedge Agreement, the actual termination payment (including any
accrued interest due thereon) shall be used; provided, however, if such
Secured Hedge Agreement included both Forward Purchase Contracts and Swap
Contracts that were not Forward Purchase Contracts, then the Secured Hedge
Counterparty shall continue to calculate Exposure pursuant to subclause
(ii)(A) on a gross basis with respect only to Swap Contracts that were not
Forward Purchase Contracts without regard to any netting of transactions
that may have resulted from including Forward Purchase Contracts in the
calculation of the termination payment.




(iii) in Section 1.1, inserting the following new defined terms in the
appropriate alphabetical order:




“Forward Purchase Contract” means a Swap Contract that involves the
purchase or sale of any physical commodity.




“Forward Purchase Exposure” means, for any Forward Purchase Secured
Hedge Counterparty, the amount determined in good faith by such Forward
Purchase Secured Hedge Counterparty equal to the aggregate amount, if any,
that would be or is payable by any Transaction Party to such Forward
Purchase Secured Hedge Counterparty under the Secured Hedge Agreement with
respect to all Forward Purchase Contracts to which such Forward Purchase
Secured Hedge Counterparty is a party, as if (a) each such Secured Hedge
Agreement were being terminated early on such date of determination due to a
“Termination Event”, “Event of Default”, “Additional Event of Default”, or
“Additional Termination Event”, where such Transaction Party is the sole
“Affected Party,” or the sole “Defaulting Party”, as applicable, and (b) the
Forward Purchase Secured Hedge Counterparty were the sole party determining
such payment amount (with the applicable Forward Purchase Secured Hedge
Counterparty making such determination reasonably in accordance with the
provisions of the above-described Secured Hedge Agreement). If, as of the
date of determination, any Secured Hedge Agreement has been terminated and a
payment (in respect of a Forward Purchase Contract) is expected to become
due to the relevant Forward Purchase Secured Hedge Counterparty in respect
of such termination, then, for purposes of calculating its Forward Purchase
Exposure hereunder, (i) until such termination payment has been calculated
pursuant to the terms of the Secured Hedge Agreement, such Forward Purchase
Secured Hedge Counterparty shall



2









 






	 	 	 	reasonably estimate the amount of such termination payment, and (ii) after
such termination payment has been calculated pursuant to the terms of the
Secured Hedge Agreement, the actual termination payment (including any
accrued interest due thereon) shall be used; provided, however, if such
Secured Hedge Agreement included both Forward Purchase Contracts and Swap
Contracts that were not Forward Purchase Contracts, then the Secured Hedge
Counterparty shall continue to calculate its Forward Purchase Exposure on a
gross basis with respect only to Forward Purchase Contracts without regard
to any netting of transactions that may have resulted from including other
Swap Contracts that were not Forward Purchase Contracts in the calculation
of the termination payment.
	 
	 	 	 	“Forward Purchase Limit” means U.S. $100,000,000.
	 
	 	 	 	“Forward Purchase Limited Exposure” means, for any Forward Purchase
Secured Hedge Counterparty, the lower of (i) such Forward Purchase Secured
Hedge Counterparty’s Forward Purchase Exposure and (ii) the product of (a)
the Forward Purchase Limit and (b) such Forward Purchase Secured Hedge
Counterparty’s Forward Purchase Exposure Percentage.
	 
	 	 	 	“Forward Purchase Exposure Percentage” means, for any Forward
Purchase Secured Hedge Counterparty, the percentage determined by dividing
(a) the amount of such Forward Purchase Secured Hedge Counterparty’s Forward
Purchase Exposure then in effect by (b) the aggregate amount of all Forward
Purchase Secured Hedge Counterparties’ Forward Purchase Exposures then in
effect.
	 
	 	 	 	“Forward Purchase Secured Hedge Counterparty” means a Secured Hedge
Counterparty that has entered into one or more Forward Purchase Contracts
with a Transaction Party.
	 
	 	(iv)	 	inserting a new Section 2.13 as follows:






        Section 2.13 Forward Purchase Contract Notice.




              (a) Within five (5) Business Days of entering into any Forward Purchase
Contract, Calumet shall notify Administrative Agent and provide the details
thereof, including the type of commodity, the pricing mechanism, whether
fixed or floating, the applicable fixed price or index, the applicable
delivery period and the quantity.




              (b) Upon Administrative Agent’s receipt of a notice in accordance with
clause (a) above, the Administrative Agent shall promptly forward such
notice to all Secured Hedge Counterparties.




	 	(v)	 	deleting Section 6.3(c) in its entirety and replacing it with the
following:
	 
	 	 	 	third, to the payment of any Secured Obligations outstanding under each
Secured Hedge Agreement or any Collateral Document payable to each Secured
Hedge Counterparty, ratably in accordance with the Secured Obligations owed
to each such Secured Hedge Counterparty provided, however, that for purposes
of determining the amount of Secured Obligations owed to any Secured Hedge
Counterparty that is also a Forward Purchase Secured Hedge Counterparty
pursuant to this clause third, the gross amount of Secured Obligations
(other than





3









 











	 	 	 	any amount payable in respect of any Forward Purchase Contract) and the
gross amount of Secured Obligations in respect of Forward Purchase Contracts
shall be calculated separately (without regard to any netting between
Forward Purchase Contracts and other Swap Contracts) and the amount of
Secured Obligations payable to such Secured Hedge Counterparty that is also
a Forward Purchase Secured Hedge Counterparty in respect of such Forward
Purchase Contracts shall be limited to such Forward Purchase Secured Hedge
Counterparty’s Forward Purchase Limited Exposure; provided, however, that in
no event shall the Secured Obligations owing to a Forward Purchase Secured
Hedge Counterparty under this clause exceed the net Secured Obligations then
outstanding; and
	 
	 	(vi)	 	deleting Section 6.3(d) in its entirety and replacing it with the
following:
	 
	 	 	 	fourth, to the extent not paid under clause third above, to the payment of
any other Secured Obligations in respect of Forward Purchase Contracts owed
to any Forward Purchase Secured Hedge Counterparty, ratably in accordance
with any other Secured Obligations owed to each such Forward Purchase
Secured Hedge Counterparty after deducting amounts paid under clause third
above; and
	 
	 	(vii)	 	inserting a new Section 6.3(e) as follows:
	 
	 	 	 	fifth, to the applicable Transaction party or pursuant to applicable Law or
court order.





          SECTION 2 Certification. Calumet certifies that this Amendment will not
cause Calumet or any other Transaction Party to be in breach of any of its obligations under any
Group Transaction Document and that such Transaction Parties are in compliance with the Group
Transaction Documents, in each case, as of the date hereof.




          SECTION 3 Effect on Collateral Documents.




          (a) Except as amended herein, the Collateral Trust Agreement, the Security Agreement
and each other Collateral Document shall remain in full force and effect as originally executed,
and nothing herein shall act as a waiver of any of the Administrative Agent’s or any Secured Hedge
Counterparty’s rights under the Collateral Documents, as amended; provided, however, that for the
avoidance of doubt, the Administrative Agent and each Secured Hedge Counterparty waive Calumet’s
requirement, pursuant to Section 7.3(c) of the Collateral Trust Agreement, to deliver a Vote
Request in connection with this Amendment.




          (b) This Amendment is a Collateral Document for the purposes of the provisions of
each other Collateral Document.




          (c) Upon and after the execution of this Amendment by each of the parties hereto,
each reference in the Collateral Trust Agreement to “this Agreement”, “hereunder”, “hereof” or
words of like import referring to the Collateral Trust Agreement, and each reference in the other
Collateral Documents, including the Security Agreement, to “the Collateral Trust Agreement”,
“thereunder”, “thereof” or words of like import referring to the Collateral Trust Agreement, shall
mean and be a reference to the Collateral Trust Agreement as modified hereby.




          SECTION 4 Headings. Headings herein are for convenience only and shall not
be relied upon in interpreting or enforcing this Agreement.







4









 








          SECTION 5 Counterparts. This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same instrument and any
of the parties hereto may execute this Agreement by signing any such counterpart.




          SECTION 6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CHOICE OF LAW
DOCTRINE, OTHER THAN §§ 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.




[remainder of page intentionally left blank]








5









 








     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
duly authorized officers on the respective dates specified below effective on the date specified on
the first page of this document.



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/ Alan Tapley
 	 
	 	 	Name:  	Alan Tapley 	 
	 	 	Title:  	Assistant Vice President
 	 
	 	 	Date:



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]


















 





	 	 	 	 	 
	 	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
	 
	 	 	Date:   September 30, 2011 



	 	 	 	 	 
	 	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

	 
	 	 	Date:   September 30, 2011 



	 	 	 	 	 
	 	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
	 
	 	 	Date:   September 30, 2011 



	 	 	 	 	 
	 	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
	 
	 	 	Date:   September 30, 2011 



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]







 









 








	 	 	 	 	 
	 	CALUMET SHREVEPORT, 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
	 
	 	 	Date:   September 30, 2011 



	 	 	 	 	 
	 	CALUMET SHREVEPORT LUBRICANTS &WAXES, LLC

 	 
	 	By:  	Calumet Shreveport, LLC, its sole member
 	 
	 



					
	 	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
	 
	 	 	Date:   September 30, 2011  



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]






 









 







	 	 	 	 	 
	 	CALUMET SHREVEPORT FUELS, LLC 

 	 
	 	By:  	Calumet Shreveport, LLC, its sole member
 	 



					
	 	
 	 
	 	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
	 
	 	 	Date:   September 30, 2011  



	 	 	 	 	 
	 	CALUMET SALES COMPANY INCORPORATED

 	 
	 	By:  	/s/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
		 	Title:  	Vice President and Chief Financial Officer
	 
	 	 	Date:   September 30, 2011 



	 	 	 	 	 
	 	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
	 
	 	 	Date:   September 30, 2011  



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]







 









 








	 	 	 	 	 
	 	J. ARON & COMPANY

as a Secured Hedge Counterparty

 	 
	 	By:  	/s/ Colleen Foster
 	 
	 	 	Name:  	Colleen Foster 	 
	 	 	Title:  	Managing Director
 	 
	 	 	Date: 	 	 	 
	 



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]







 









 








	 	 	 	 	 
	 	KOCH SUPPLY & TRADING, LP

as a Secured Hedge Counterparty

 	 
	 	By:  	/s/ Authorized Signatory
 	 
	 	 	Name:  	Authorized Signatory 	 
	 	 	Title:  	President


 	 
	 	 	Date:   	September 30, 2011


 	 
	 



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]







 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

as a Secured Hedge Counterparty

 	 
	 	By:  	/s/ Ana Morales Gillard
 	 
	 	 	Name:  	Ana Morales Gillard 	 
	 	 	Title:  	Vice President


 	 
	 	 	Date:  	


 	 
	 



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]







 









 








	 	 	 	 	 
	 	MERRILL LYNCH COMMODITIES, INC.

as a Secured Hedge Counterparty

 	 
	 	By:  	/s/ Rob L. Jones
 	 
	 	 	Name:  	Rob L. Jones 	 
	 	 	Title:  	Managing Director
 	 
	 	 	Date: 	September 29, 2011	 
	 



[Signature Page to Amendment No. 2 to Collateral Trust Agreement]