exv10w8



 







Exhibit 10.8




 





CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP,




CALUMET SHREVEPORT, LLC,




CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC, and




CALUMET SHREVEPORT FUELS, LLC




as Borrowers




 





CREDIT AGREEMENT




Dated as of December 9, 2005




$225,000,000




 





CERTAIN FINANCIAL INSTITUTIONS,




as Lenders,




BANK OF AMERICA, N.A.,




as Agent,




and




JPMORGAN CHASE BANK, N.A.

and

LASALLE BUSINESS CREDIT, LLC,




as Co-Syndication Agents


and




WACHOVIA
BANK, NATIONAL ASSOCIATION

and

WELLS FARGO FOOTHILL, LLC




as
Co-Documentation Agents




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
	 	 	35	 
	 	 	1.3.	 	Certain Matters of Construction
	 	 	36	 
	Section 2. CREDIT FACILITIES	 	 	36	 
	 	 	2.1.	 	Revolver Commitment
	 	 	36	 
	 	 	2.2.	 	Reserved
	 	 	38	 
	 	 	2.3.	 	Letter of Credit Facility
	 	 	38	 
	Section 3. INTEREST, FEES AND CHARGES	 	 	40	 
	 	 	3.1.	 	Interest
	 	 	40	 
	 	 	3.2.	 	Fees
	 	 	41	 
	 	 	3.3.	 	Computation of Interest, Fees, Yield Protection
	 	 	42	 
	 	 	3.4.	 	Reimbursement Obligations
	 	 	42	 
	 	 	3.5.	 	Illegality
	 	 	42	 
	 	 	3.6.	 	Increased Costs
	 	 	43	 
	 	 	3.7.	 	Capital Adequacy
	 	 	44	 
	 	 	3.8.	 	Mitigation
	 	 	44	 
	 	 	3.9.	 	Funding Losses
	 	 	45	 
	 	 	3.10.	 	Maximum Interest
	 	 	45	 
	Section 4. LOAN ADMINISTRATION	 	 	45	 
	 	 	4.1.	 	Manner of Borrowing and Funding Revolver Loans
	 	 	45	 
	 	 	4.2.	 	Defaulting Lender
	 	 	47	 
	 	 	4.3.	 	Number and Amount of LIBOR Loans; Determination of Rate
	 	 	47	 
	 	 	4.4.	 	Borrower Agent
	 	 	47	 
	 	 	4.5.	 	One Obligation
	 	 	48	 
	 	 	4.6.	 	Effect of Termination
	 	 	48	 
	Section 5. PAYMENTS	 	 	48	 
	 	 	5.1.	 	General Payment Provisions
	 	 	48	 
	 	 	5.2.	 	Repayment of Revolver Loans
	 	 	48	 
	 	 	5.3.	 	Reserved
	 	 	49	 
	 	 	5.4.	 	Payment of Other Obligations
	 	 	49	 
	 	 	5.5.	 	Marshaling; Payments Set Aside
	 	 	49	 
	 	 	5.6.	 	Post-Default Allocation of Payments
	 	 	49	 
	 	 	5.7.	 	Application of Payments
	 	 	50	 
	 	 	5.8.	 	Loan Account; Account Stated
	 	 	50	 
	 	 	5.9.	 	Taxes
	 	 	50	 
	 	 	5.10.	 	[Reserved]
	 	 	52	 
	 	 	5.11.	 	Nature and Extent of Each Borrower’s Liability
	 	 	52	 
	Section 6. CONDITIONS PRECEDENT	 	 	54	 
	 	 	6.1.	 	Conditions Precedent to Initial Loans
	 	 	54	 
	 	 	6.2.	 	Conditions Precedent to All Credit Extensions
	 	 	58	 
	 	 	6.3.	 	Limited Waiver of Conditions Precedent
	 	 	59	 
	Section 7. RESERVED	 	 	59	 
	Section 8. COLLATERAL ADMINISTRATION	 	 	59	 
	 	 	8.1.	 	Borrowing Base Certificates
	 	 	59	 
	 	 	8.2.	 	Administration of Accounts
	 	 	59	 
	 	 	8.3.	 	Administration of Inventory
	 	 	60	 
	 	 	8.4.	 	Administration of Equipment
	 	 	61	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	8.5.	 	Administration of Deposit Accounts
	 	 	61	 
	 	 	8.6.	 	General Provisions
	 	 	61	 
	 	 	8.7.	 	Power of Attorney
	 	 	62	 
	Section 9. REPRESENTATIONS AND WARRANTIES	 	 	63	 
	 	 	9.1.	 	General Representations and Warranties
	 	 	63	 
	 	 	9.1.1.	 	Existence, Qualification and Power; Compliance with Applicable Laws
	 	 	63	 
	 	 	9.1.2	 	Authorization; No Contravention
	 	 	63	 
	 	 	9.1.3.	 	Governmental Authorization and Approvals; Other Consents
	 	 	63	 
	 	 	9.1.4.	 	Binding Effect
	 	 	64	 
	 	 	9.1.5	 	Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	64	 
	 	 	9.1.6.	 	Litigation
	 	 	64	 
	 	 	9.1.7.	 	No Default
	 	 	65	 
	 	 	9.1.8.	 	Ownership of Property; Liens
	 	 	65	 
	 	 	9.1.9.	 	Environmental Compliance
	 	 	65	 
	 	 	9.1.10.	 	Insurance
	 	 	66	 
	 	 	9.1.11.	 	Taxes
	 	 	66	 
	 	 	9.1.12.	 	ERISA Compliance
	 	 	66	 
	 	 	9.1.13.	 	Capital Structure/Subsidiaries
	 	 	67	 
	 	 	9.1.14.	 	Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	67	 
	 	 	9.1.15.	 	Disclosure
	 	 	68	 
	 	 	9.1.16.	 	Compliance with Laws
	 	 	68	 
	 	 	9.1.17.	 	Intellectual Property
	 	 	68	 
	 	 	9.1.18.	 	Solvency
	 	 	68	 
	 	 	9.1.19.	 	Business Locations
	 	 	69	 
	 	 	9.1.20.	 	Brokers’ Fees
	 	 	69	 
	 	 	9.1.21.	 	Labor Matters
	 	 	69	 
	 	 	9.1.22.	 	Nature of Business
	 	 	69	 
	 	 	9.1.23	 	Representations and Warranties from Other Loan Documents
	 	 	69	 
	 	 	9.1.24.	 	Security Documents
	 	 	69	 
	 	 	9.1.25.	 	Real Properties
	 	 	69	 
	 	 	9.1.27	 	Trade Relations
	 	 	70	 
	 	 	9.2.	 	Complete Disclosure
	 	 	71	 
	Section 10. COVENANTS AND CONTINUING AGREEMENTS	 	 	71	 
	 	 	10.1.	 	Affirmative Covenants
	 	 	71	 
	 	 	10.1.2.	 	Certificates; Other Information
	 	 	72	 
	 	 	10.1.3.	 	Notices and Information
	 	 	74	 
	 	 	10.1.4.	 	Payment of Obligations
	 	 	75	 
	 	 	10.1.5.	 	Preservation of Existence, Licenses, Etc
	 	 	75	 
	 	 	10.1.6.	 	Maintenance of Properties
	 	 	75	 
	 	 	10.1.7.	 	Maintenance of Insurance
	 	 	76	 
	 	 	10.1.8.	 	Compliance with Laws and Material Contractual Obligations
	 	 	76	 
	 	 	10.1.9.	 	Books and Records
	 	 	76	 
	 	 	10.1.10.	 	Inspection Rights
	 	 	76	 
	 	 	10.1.11.	 	Use of Proceeds
	 	 	77	 
	 	 	10.1.12	 	Reserved
	 	 	77	 
	 	 	10.1.13.	 	Additional Guarantors
	 	 	77	 
	 	 	10.1.14.	 	Pledged Assets
	 	 	77	 
	 	 	10.1.15.	 	Landlord and Storage Agreements
	 	 	78	 
	 	 	10.1.16.	 	Clean Down of Distribution Revolver Loans
	 	 	78	 
	 	 	10.1.17.	 	Lien Waivers
	 	 	79	 
	 	 	10.1.18	 	Title Insurance
	 	 	79	 
	 	 	10.2.	 	Negative Covenants
	 	 	79	 






(ii)









 






	 	 	 	 	 	 	 	 	 
	 	 	10.2.1.	 	Liens
	 	 	79	 
	 	 	10.2.2.	 	Investments
	 	 	81	 
	 	 	10.2.3.	 	Indebtedness
	 	 	83	 
	 	 	10.2.4	 	Fundamental Changes
	 	 	85	 
	 	 	10.2.5	 	Dispositions
	 	 	85	 
	 	 	10.2.6.	 	Restricted Payments
	 	 	86	 
	 	 	10.2.7.	 	Change in Nature of Business; Name, Etc
	 	 	88	 
	 	 	10.2.8.	 	Transactions with Affiliates and Insiders
	 	 	89	 
	 	 	10.2.9	 	Burdensome Agreements
	 	 	89	 
	 	 	10.2.10.	 	Use of Proceeds
	 	 	90	 
	 	 	10.2.11.	 	Consolidated Capital Expenditures
	 	 	90	 
	 	 	10.2.12.	 	Prepayment of Other Indebtedness, Amendment of Documents, Etc
	 	 	90	 
	 	 	10.2.13.	 	Organization Documents; Fiscal Year; Accounting Practices
	 	 	91	 
	 	 	10.2.14.	 	Ownership of Subsidiaries
	 	 	91	 
	 	 	10.2.15.	 	Tax Consolidation
	 	 	91	 
	 	 	10.2.16.	 	Payables Practices
	 	 	91	 
	 	 	10.3.	 	Financial Covenants
	 	 	92	 
	Section 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT	 	 	92	 
	 	 	11.1.	 	Events of Default
	 	 	92	 
	 	 	11.2.	 	Remedies upon Default
	 	 	94	 
	 	 	11.3.	 	License
	 	 	95	 
	 	 	11.4.	 	Setoff
	 	 	95	 
	 	 	11.5.	 	Remedies Cumulative; No Waiver
	 	 	95	 
	Section 12. AGENT	 	 	96	 
	 	 	12.1.	 	Appointment, Authority and Duties of Agent
	 	 	96	 
	 	 	12.2.	 	Agreements Regarding Collateral and Field Examination Reports
	 	 	97	 
	 	 	12.3.	 	Reliance By Agent
	 	 	98	 
	 	 	12.4.	 	Action Upon Default
	 	 	98	 
	 	 	12.5.	 	Ratable Sharing
	 	 	98	 
	 	 	12.6.	 	Indemnification of Agent Indemnitees
	 	 	98	 
	 	 	12.7.	 	Limitation on Responsibilities of Agent
	 	 	98	 
	 	 	12.8.	 	Successor Agent and Co-Agents
	 	 	99	 
	 	 	12.9.	 	Due Diligence and Non-Reliance
	 	 	99	 
	 	 	12.10.	 	Reserved
	 	 	100	 
	 	 	12.11.	 	Remittance of Payments and Collections
	 	 	100	 
	 	 	12.12.	 	Agent in its Individual Capacity
	 	 	100	 
	 	 	12.13.	 	Agent Titles
	 	 	100	 
	 	 	12.14.	 	Intercreditor Agreement
	 	 	101	 
	 	 	12.15	 	No Third Party Beneficiaries
	 	 	101	 
	Section 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS	 	 	101	 
	 	 	13.1.	 	Successors and Assigns
	 	 	101	 
	 	 	13.2.	 	Participations
	 	 	101	 
	 	 	13.3.	 	Assignments
	 	 	102	 
	 	 	13.4.	 	Tax Treatment
	 	 	102	 
	 	 	13.5.	 	Representation of Lenders
	 	 	102	 
	Section 14. MISCELLANEOUS	 	 	102	 
	 	 	14.1.	 	Consents, Amendments and Waivers
	 	 	102	 
	 	 	14.2.	 	General Indemnity
	 	 	104	 
	 	 	14.3.	 	Reimbursement by Lenders
	 	 	105	 
	 	 	14.4.	 	Notices and Communications
	 	 	105	 
	 	 	14.5.	 	Performance of Borrowers’ Obligations
	 	 	107	 
	 	 	14.6.	 	Credit Inquiries
	 	 	107	 






(iii)









 






	 	 	 	 	 	 	 	 	 
	 	 	14.7.	 	Severability
	 	 	107	 
	 	 	14.8.	 	Cumulative Effect; Conflict of Terms
	 	 	107	 
	 	 	14.9.	 	Counterparts; Facsimile Signatures; Entire Agreement
	 	 	107	 
	 	 	14.10.	 	Time of the Essence
	 	 	108	 
	 	 	14.11.	 	Obligations of Lenders
	 	 	108	 
	 	 	14.12.	 	Confidentiality
	 	 	108	 
	 	 	14.13.	 	[Reserved
	 	 	109	 
	 	 	14.14.	 	GOVERNING LAW
	 	 	109	 
	 	 	14.15.	 	SUBMISSION TO JURISDICTION; WAIVER OF VENUE OBJECTION; SERVICE OF PROCESS
	 	 	109	 
	 	 	14.16.	 	Waivers by Borrowers
	 	 	109	 
	 	 	14.17.	 	Patriot Act Notice
	 	 	110	 
	 	 	14.18.	 	Replacement of Certain Lenders
	 	 	110	 






(iv)









 






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 1.1A

	 	Commitments of Lenders
	Schedule 1.1B

	 	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”), and each other Person which may become a Borrower hereunder pursuant to Section
10.1.13 (together with the Company, Calumet Shreveport, CSLW, and CSF, 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 =
	 	Offshore Base Rate
	 

	 	 	 	 
	 

	 	 	 	1.00 — 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.




     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.




     Anti-Terrorism Laws — any laws relating to terrorism or money laundering,
including the Patriot Act.




     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.



2









 






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

	 	< 1.75 to. 1.0
	 	 	0.00	%	 	 	1.00	%
	II

	 	3
 1.75 to. 1.0 but

< 2.25 to 1.0
	 	 	0.00	%	 	 	1.25	%
	III

	 	3 2.25 to 1.0 but

< 2.75 to 1.0
	 	 	0.00	%	 	 	1.50	%
	IV

	 	3 2.75 to 1.0 but

< 3.25 to 1.0
	 	 	0.25	%	 	 	1.75	%
	V

	 	3 3.25 to 1.0
	 	 	0.50	%	 	 	2.00	%







Until June 30, 2006, margins shall be determined as if Level III were applicable.
Thereafter, 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 V 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.




     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.




     Asphalt Notes — collectively, (i) that certain revolving promissory note made
by the Company to Asphalt Refining Company in the original principal amount of $180,000,000
dated June 30, 2005 and (ii) that certain promissory note made by the Company to Asphalt
Refining Company in the original principal amount of $11,400,000 dated June 30, 2005.




     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



3









 






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 Financial Statements — the audited consolidated balance sheet of the
Consolidated Parties for the fiscal year ended December 31, 2004, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of the Consolidated Parties, 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
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



4









 






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)
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; provided, however,
that with respect to the MLP Conversion, “Calculation Period” shall mean the 12-month period
of the Consolidated Parties ended as of the last day of the most recent fiscal month of the
Consolidated Parties preceding the applicable Calculation Date for which the Agent shall
have received the financial information that would have been required to be provided to the
Agent pursuant to Section 10.1.1(c) and Section 10.1.2(c) had the Closing
Date occurred on or before October 31, 2005.



5









 






     Calumet Incorporated – Calumet, Incorporated, an Indiana corporation.




     Calumet Sales — Calumet Sales Company Incorporated, a Delaware corporation.




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




     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 $30,000,000, 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 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



6









 






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) prior to the MLP Conversion:




     (i) the Existing Partners shall fail to own beneficially, directly or
indirectly, at least 70% of the outstanding Voting Stock of the Company and 100% of
the Voting Stock of the general partner of the Company; or




     (ii) the Existing Partners shall fail to control, whether through ownership of
Voting Stock, by contract or otherwise, majority of the seats on the board of
directors or other equivalent governing body of the Company; and




     (b) after the MLP Conversion:




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




     (ii) 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; or




     (iii) 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 composed of individuals (A) who were members of that board or equivalent
governing



7









 






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.




     (iv) 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; or




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




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




Notwithstanding any provision to the contrary contained in this definition, an MLP
Conversion permitted hereunder upon satisfaction of the MLP Conversion Conditions shall not
be deemed a Change of Control.




     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.




     Closing Date — the date on which all of the conditions precedent in Section 6
are satisfied or waived in accordance with Section 14.1.




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



8









 






     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.




     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.




     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 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.




     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,



9









 






(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 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) 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 — (a) prior to the effective date of the MLP Conversion, a
collective reference to the Borrowers and their Subsidiaries (other than CSP) and (b) on and
after the effective date of the MLP Conversion, the MLP Parent and the Subsidiaries of the
MLP Parent (other than CSP), and Consolidated Party means any one of them.




     Contingent Obligation — any obligation of a Person arising from a guaranty,
indemnity or



10









 






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) 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 Closing 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.




     CSP — Calumet Shreveport Packaging, LLC, an Indiana limited liability company.




     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
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



11









 






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.




     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



12









 






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 $8,000,000 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 $1,000,000 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, 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



13









 






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 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 (other than CSP) 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, permits, concessions,
grants, franchises, Licenses, agreements or 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 Notice — a notice (whether written or oral) 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, including any complaint, summons, citation, order, claim, demand or request for
correction,



14









 






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 414of 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 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



15









 






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 $500,000, 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 $1,000,000, (c) the real Property located in Pennsylvania and described on Schedule
6.19(a), (d) any other owned real Property located in the United States which has a net book
value of less than $250,000, provided that the aggregate net book value of all real
Property of all of the Obligors excluded pursuant to this clause (d) shall not exceed
$500,000, (e) the leased real Property located in Indianapolis, Indiana and described on
Schedule 9.19(a), (f) any leased personal Property, (g) 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, (h) 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 and (i) the Equity Interests of
CSP; 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.




     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 Credit Agreements — collectively, (a) the $40,000,000 Term Loan
Agreement dated October 25, 2004, among certain of the Borrowers, as borrowers or guarantors
thereunder, the several lenders from time to time party thereto, Lehman Brothers, Inc, as
arranger and Lehman Commercial Paper, Inc., as syndication agent and administrative agent,
and (b) the Loan and Security Agreement dated October 25, 2004, by and among certain of the
Borroweros, as borrowers or guarantors thereunder, LaSalle Business Credit, LLC, as agent,
and the financial institutions from time to time party thereto, as lenders,




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



16









 






respective Affiliates.




     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’ 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) (i) prior to the MLP
Conversion, any dividends or distributions made by the Company to the holder of its Equity
Interests during such period and (ii) on and after the date of the effectiveness of the MLP
Conversion, 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



17









 






premiums paid by the Consolidated Parties during such period in connection with the
repayment of Indebtedness.




     Flood Hazard Property — as defined in Section 6.1(d).




     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 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 Revolver Loan — as defined in Section 2.1.




     General Revolver Loan Committed Amount — $175,000,000.




     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.



18









 






     General Partner —  (a) prior to the MLP Conversion, Calumet Incorporated, and
(b) on and after the effective date of the MLP Conversion, the New General Partner.




     Goods — as defined in the UCC.




     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.




     Heritage Credit Agreement — the Amended and Restated Credit Agreement dated as
of February 28, 2003, among The Heritage Group, Asphalt Materials, Inc. and Heritage
Environmental Services, Inc., as borrowers or guarantors thereunder, National City Bank, as



19









 






agent and the lenders party thereto, under which the Borrower is a limited guarantor
and co-obligor.




     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).




     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



20









 






Intellectual Property.




     Intercreditor Agreement — the Intercreditor Agreement dated as of the Closing
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.




     Internal Control Event — a material weakness in, or fraud that involves
management or other employees who have a significant role in, any Consolidated Party’s
internal controls over financial reporting, in each case as described in the applicable
Securities Laws.




     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.




     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.



21









 






     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 $200,000,000, (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 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.



22









 






     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.




     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.




     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.




     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.



23









 






     MLP Conversion — a recapitalization and restructuring transaction pursuant to
which (a) the Company will become an indirect, Wholly Owned Subsidiary of the MLP Parent,
(b) the New General Partner will become the sole general partner of the Company and a
direct, Wholly Owned Subsidiary of the New Limited Partner, (c) the New Limited Partner will
become a direct, Wholly Owned Subsidiary of the MLP Parent and the sole limited partner of
the Company, and (d) in connection with such restructuring, the MLP Parent will (i) issue to
the Existing Partners common and subordinated units representing limited partnership
interests in the MLP Parent in exchange for such Person’s limited partner interests in the
Company and (ii) issue and sell to the public (the “MLP Offering”) common units
representing limited partner interests in the MLP Parent.




     MLP Conversion Conditions — each of the following conditions:




     (i) no Default or Event of Default shall have occurred and be continuing at the time of
the MLP Conversion or be directly or indirectly caused as a result of the MLP Conversion;




     (ii) Obligors shall apply (or cause to be applied) an amount equal to not less than 75%
of the Net Cash Proceeds (as defined in the PP&E Credit Agreement) of the MLP Offering
received by the MLP Parent to the prepayment of the PP&E Credit Facilities in accordance
with the terms of Section 2.04(b)(v)(B) of the PP&E Credit Agreement;




     (iii) not less than five (5) Business Days prior to the effective date of the MLP
Conversion, the Company shall have delivered to Agent a Pro Forma Compliance Certificate
demonstrating that, after giving effect to the MLP Conversion on a Pro Forma Basis as of the
12-month period of the Consolidated Parties ended as of the last day of the most recent
fiscal month of the Consolidated Parties preceding the applicable Calculation Date for which
the Agent shall have received both (A) the financial information required to be provided to
the Agent pursuant to Section 10.1.1(c) and Section 10.1.2(c) and (B) the
consolidated statements of income from operations, shareholders’ equity and cash flows for
such 12-month period of the Consolidated Parties, all in reasonable detail, such statements
to be certified on behalf of the Borrowers by the Chief Financial Officer of the general
partner of the Borrower Agent as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Consolidated Parties for such
12-month period then ended in accordance with GAAP (subject to normal year-end adjustments),
(1) the Consolidated Leverage Ratio would be less than 3.00 to 1.00, and (2) the
Consolidated Interest Coverage Ratio would be greater than 3.00 to 1.00.




     (iv) the representations and warranties set forth in Section 9 of this Agreement shall
be true and correct in all material respects immediately following consummation of the MLP
Conversion (and each component transaction relating thereto) (except for those which
expressly relate to an earlier date);




     (v) prior to or concurrently with the MLP Conversion (and each component transaction
related thereto, as applicable), and as a condition to the effectiveness thereof, the
Company shall have (A) caused the MLP Parent, the New General Partner and the New Limited
Partner to become a Guarantor or Borrower and an obligor under the Security Agreement by
executing and delivering to Agent a Guaranty or a joinder agreement, in either case, in form
and substance satisfactory to Agent, (B) caused to be executed and delivered such documents,
instruments and certificates as Agent may reasonably request (1) so as to cause such Persons
and the other Obligors to be in compliance with the terms of Sections 10.1.13 and 10.1.14
after giving effect to the MLP Conversion and all transactions related thereto and (2)
evidencing any changes made necessary by the consummation of the MLP Conversion and (C)
delivered to Agent a legal opinion of counsel to Obligors or, where applicable, local
counsel reasonably satisfactory to Agent, in form and substance reasonably acceptable to
Agent’s legal counsel, addressing, among



24









 






other things, (1) the enforceability of the Loan Documents with respect to each of the
MLP Parent, the New General Partner, the New Limited Partner, the Company and the other
Obligors after giving effect to the MLP Conversion and (2) that the terms of this Agreement
do not conflict with the terms of the MLP Partnership Agreement;




     (vi) the consummation of the MLP Conversion (A) shall not result in a material and
adverse impact to the interests of Agent and/or the Lenders under this Agreement, the Notes
and/or the other Loan Documents and (B) shall be done in compliance in all material respects
with all Applicable Laws, including applicable tax laws;




     (vii) the Company shall promptly provide Agent with such additional information and
documents related to the MLP Conversion as may be reasonably requested by Agent;




     (viii) upon consummation of the MLP Conversion, the Company shall be a Wholly Owned
Subsidiary of the MLP Parent;




     (ix) the Company shall have delivered to Agent evidence satisfactory to Agent that the
material terms of this Agreement have been disclosed in the Form S-1 filed in connection
with the MLP Conversion; and




     (x) concurrently with the consummation of the MLP Conversion, the Borrower shall have
delivered to the Agent a certificate of the Chief Financial Officer of the General Partner
of the Borrower (which shall be delivered by Agent to all Lenders) certifying that the Loan
Parties have complied with all of the MLP Conversion Conditions, including, without
limitation, the financial tests set forth in clause (iii) of this definition.




     MLP General Partner — Calumet GP , LLC, a Delaware limited liability company
formed by the Existing Partners, or any other Person acting in the capacity as general
partner of the MLP Parent.




     MLP Offering — as defined in the definition of “MLP Conversion”.




     MLP Parent — Calumet Specialty Products Partners, L.P., a Delaware limited
partnership formed by the Existing Partners.




     MLP Partnership Agreement — the partnership agreement of the MLP Parent in
substantially the form of the First Amended and Restated Agreement of Limited Partnership of
Calumet Specialty Products, L.P. attached to the Amendment No. 1 to Form S-1 of Calumet
Specialty Products Partners, L.P. filed with the SEC on November 16, 2005 or, if different,
the partnership agreement actually entered into among the partners of the MLP Parent.




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




     Mortgage Instrument — as defined in Section 6.1(d).




     Mortgage Policies — as defined in Section 10.1.18.




     Mortgaged Property — as defined in Section 6.1(d).




     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.



25









 






     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.




     New General Partner - Calumet LP GP, LLC, a Delaware limited liability company
and direct Wholly Owned Subsidiary of the New Limited Partner that, upon the consummation of
the MLP Conversion, will directly hold a 10% general partner interest in the Company.




     New Limited Partner - Calumet Operating, LLC, a Delaware limited liability
company and direct Wholly Owned Subsidiary of the MLP Parent that, upon the consummation of
the MLP Conversion, will directly hold a 90% limited partner interest in the Company.




     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 Lease — as applied to any Person, any lease (including leases which
may be



26









 






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.




     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 Hazard Act of 1970, as amended.




     Other Agreement — each Note; LC Document; 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.




     PBGC — the United States Pension Benefit Guaranty Corporation.




     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.



27









 






     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.




     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) $275,000,000 minus (B) all
payments and prepayments of the principal amount of the PP&E Obligations made after the
Closing 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 December 9,
2005, 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 Deposit 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.



28









 






     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 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



29









 






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.




     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.




     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 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 $75,000,000 or (b) a Default or Event of Default.




     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.



30









 






     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, (a) any dividend or other
payment or distribution, direct or indirect, on account of any shares or units of any class
of Equity Interests of such Person, now or hereafter outstanding (including without
limitation any payment in connection with any dissolution, merger, consolidation or
disposition involving any Consolidated Party), or to the holders, in their capacity as such,
of any shares or units of any class of Equity Interests of such Person, now or hereafter
outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares or units of any class of
Equity Interests of such Person, now or hereafter outstanding, and (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares or units of any class of Equity Interests of such Person, now or hereafter
outstanding.




     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.




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




     Revolver Termination Date — December 9, 2010.




     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 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.



31









 






     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.




     Shoreline/Cottage Grove Properties – as defined in Section 6.1(d).




     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



32









 






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.




     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) prior to the effectiveness of the MLP Conversion, a
Subsidiary or Subsidiaries of the Company and (b) on and after the date of the effectiveness
of the MLP Conversion, a Subsidiary or Subsidiaries of the MLP Parent.




     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 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).



33









 






     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 — $5,000,000.




     Title Insurance Company — as defined in Section 6.1(d).




     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:



	 	 	 	 	 	 	 
	Level	 	Utilization	 	Unused Line Fee Percentage
	I

	 	> 50%
	 	 	0.250	%
	II

	 	> 25% and £
 50%
	 	 	0.375	%
	III

	 	£ 25%
	 	 	0.500	%







     From the Closing Date until June 30, 2006, the Unused Line Fee Percentage shall be
determined as if Level II were applicable, regardless of the actual Utilization during such
period.




     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.



34









 






     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 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



35









 




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 Company
(or, after the MLP Conversion, 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 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 2.3. 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 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 2.3. In no
event shall Lenders have any obligation



36









 




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
$175,000,000. 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 satisfy existing Indebtedness of the Company and its Subsidiaries
(including, on the Closing Date only, certain obligations owing by the Company to Asphalt Refining
Company under the Asphalt Notes); (b) to pay fees and transaction expenses associated with the
closing of this credit facility; (c) to pay Obligations in accordance with this Agreement; and (d)
for working capital and other lawful corporate purposes of Borrowers, 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.



          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



37









 




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 $10,000,000 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. Reserved.



     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 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



38









 




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 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 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




39









 





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.



          (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



40









 




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 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



41









 




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




          3.2.4. Agent Fees. In consideration of Agent’s syndication of the Commitments and
service as Agent hereunder, Borrowers shall pay to Agent, for its own account, the fees described
in the 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.



     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.



     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.



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     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, 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



43









 




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 “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.



44









 





     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 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 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



45









 




(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 $25,000,000, unless the funding is
specifically required to be made by all Lenders 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.



46









 





          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 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. After the effectiveness of the MLP Conversion and provided that the MLP Parent has
become a Borrower hereunder, the Borrowers may submit written notice to Agent designating MLP
Parent as their representative and agent for all purposes set forth in Section 4.4.1, after which
time the



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term “Borrower Agent” shall refer to the MLP Parent rather than the Company. MLP Parent,
by becoming a Borrower, shall be deemed to have accepted such appointment.




          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 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 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



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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);



          (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





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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.



     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)



50









 




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 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



51









 






(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




     (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 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



52









 




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 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



53









 




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 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. In addition to the conditions set forth
in Section 6.2, the Lenders shall not be required to fund any requested Loan, issue any Letter of
Credit, or otherwise extend credit to Borrowers hereunder, unless each of the following conditions
has been satisfied:



          (a) Loan Documents, Organization Documents, Etc. Agent’s receipt 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 Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance satisfactory to
Agent and each of the Lenders:



          (i) executed counterparts of this Agreement and the other Loan Documents;



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



          (iii) 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, where applicable, and certified by a secretary or assistant
secretary of such Obligor to be true and correct as of the Closing Date;



          (iv) 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 Agreement 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



54









 





          (v) such documents and certifications as 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.



          (b) Opinions of Counsel. Agent shall have received, in each case dated as of the
Closing Date and in form and substance reasonably satisfactory to Agent:



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



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



          (iii) a legal opinion of Cook, Yancey, King & Galloway, special Louisiana counsel for the
Obligors.



          (c) Personal Property Collateral. Agent shall have received:



          (i) searches of Uniform Commercial Code filings in the jurisdiction of the chief executive
office of each Obligor and each jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect Agent’s security interest in the Collateral, copies of
the financing statements on file in such jurisdictions and evidence that no Liens exist other than
Permitted Liens;



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



          (iii) searches of ownership of, and Liens on, Intellectual Property of each Obligor in the
appropriate governmental offices;



          (iv) 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;



          (v) duly executed notices for filing with the United States Patent and Trademark Office and
United States Copyright Office 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;



          (vi) 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;



          (vii) duly executed Lien Waivers and such other consents as are necessary, in Agent’s
reasonable discretion, to perfect Agent’s security interest in the Collateral in accordance with
the terms of the Security Documents, including agreements establishing each Dominion Account and
related lockbox in form and substance, and with financial institutions, satisfactory to Agent;



          (viii) in the case of any personal property Collateral located at a premises leased by an



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Obligor, such estoppel letters, consents and waivers from the landlords on such real Property as
may be required by Agent.




          (d) Real Property Collateral. Agent shall have received, in form and substance
reasonably satisfactory to Agent:



          (i) fully executed and notarized mortgages, deeds of trust or deeds to secure debt (each, as
the same may be amended, modified, restated or supplemented from time to time, a “Mortgage
Instrument” and collectively the “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) in the case of each real property leasehold interest of any Obligor constituting
Mortgaged Property, (a) such estoppel letters, consents and waivers from the landlords on such real
property as may be required by Agent, which estoppel letters shall be in the form and substance
reasonably satisfactory to Agent and (b) evidence that the applicable lease, a memorandum of lease
with respect thereto, or other evidence of such lease in form and substance reasonably satisfactory
to Agent, has been or will be recorded in all places to the extent necessary or desirable, in the
reasonable judgment of Agent, so as to enable the Mortgage Instrument encumbering such leasehold
interest to effectively create a valid and enforceable first priority lien (subject to Permitted
Liens) on such leasehold interest in favor of Agent (or such other Person as may be required or
desired under local law) for the benefit of Lenders;



          (iii) maps or plats of a survey or a mortgage inspection of the sites of the Refinery
Properties, the Terminal Property and other owned Mortgaged Properties (other than the leased Real
Properties referred to in items 7 and 8 of Schedule 9.1.19(a) (the “Shoreline/Cottage Grove
Properties”)), certified to Agent and the title insurance company issuing the policies referred
to in Section 6.1(d)(iv) (the “Title Insurance Company”) in a manner reasonably
satisfactory to each of Agent and the Title Insurance Company, dated a date reasonably satisfactory
to each of Agent and the Title Insurance Company by an independent professional licensed land
surveyor;



          (iv) [Reserved];



          (v) 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 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; and



          (vi) evidence reasonably satisfactory to Agent that each of the Mortgaged Properties (other
than the Shoreline/Cottage Grove Properties), and the uses of the Mortgaged Property, are in
compliance in all material respects with all applicable zoning laws (the evidence submitted as to
which should include the zoning designation made for each of the Mortgaged Properties, the
permitted uses of each such Mortgaged Properties under such zoning designation and, if available,
zoning requirements as to parking, lot size, ingress, egress and building setbacks).



          (e) Evidence of Insurance. Receipt by Agent of copies of insurance policies or



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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 loss payee (in the case of hazard insurance) on behalf of Agent, for
the benefit of the Lenders.




          (f) 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 Closing Date, in
form and substance satisfactory to Agent, stating that (A) the conditions specified in subsections
(a) through (e) of Section 6.2 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), and (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 have a Material Adverse Effect.



          (g) Solvency. Agent shall have received a certificate executed by a Senior Officer of
each Borrower or the General Partner as of the Closing Date, in form and substance satisfactory to
Agent, certifying that each of the Obligors is Solvent.



          (h) Fees. Any fees required to be paid by the Borrowers to Agent, the Arranger or any
of the Lenders pursuant to the Fee Letter or otherwise on or before the Closing Date shall have
been paid.



          (i) 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 Closing 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).



          (j) Existing Indebtedness. Agent shall have received evidence, in form and substance
satisfactory to Agent, that (i) each of the Existing Credit Agreements has been or concurrently
with the Closing Date is being terminated and all Liens securing obligations under the Existing
Credit Agreements have been or concurrently with the Closing Date are being released, (ii) any and
all guarantees and other obligations of the Company and any other Consolidated Party under the
Heritage Credit Agreement, and all Liens securing such obligations under the Heritage Credit
Agreement, have been or concurrently with the Closing Date are being released, and (iii) each of
the Asphalt Notes has been or concurrently with the Closing Date is being terminated and all Liens
securing obligations under each of the Asphalt Notes have been or concurrently with the Closing
Date are being released.



          (k) 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
Closing Date and funding of the Loans shall be, satisfied, (ii) the PP&E Credit Agreement shall
make available to the PP&E Borrowers not less than $225 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 initial extensions of
credit under this Agreement. 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.



          (l) Priority of Liens. Agent shall have received satisfactory evidence that (A)
Agent, on behalf of the Lenders, holds a (1) perfected Lien on all Collateral and (2) a first
priority, perfected lien on all Priority Collateral (in each case subject to clause (B)) and (B)
none of the Collateral is subject to



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any other Liens other than Permitted Liens and Liens on
Indebtedness to be repaid on the Closing Date and to be released on or promptly after the Closing
Date.




          (m) Reports. Agent shall have received the following reports, each in form and
substance satisfactory to Agent: (i) an operational report prepared by Purvin & Gertz with respect
to the Refinery Properties and (ii) and environmental report prepared by Arcadis covering the
Refinery Properties and such other Real Properties as requested by Agent.



          (n) Accuracy of Representations and Warranties. The representations and warranties of
the Company and each other Obligor contained in Section 9 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 Closing Date.



          (o) No Default. No Default shall exist and be continuing as of the Closing Date.



          (p) Due Diligence. Agent shall have completed its business, financial and legal due
diligence of Obligors, including a roll-forward of its previous field examination, with results
satisfactory to Agent. 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, 2004.



          (q) Borrowing Base Certificate; Opening Availability. Agent and each Lender shall
have received a Borrowing Base Certificate prepared as of November 16, 2005. Upon giving effect to
the initial funding of Loans and issuance of Letters of Credit, the payment by Borrowers of all
fees and expenses incurred in connection herewith as well as any payables stretched beyond their
customary payment practices, and the transactions contemplated herein to take place on the Closing
Date, Availability shall be at least $50,000,000.



          Without limiting the generality of the provisions of Section 12.3, for purposes of determining
compliance with the conditions specified in this Section 6.1, each Lender that has signed this
Agreement 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 Closing Date specifying its objection thereto.



     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.



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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 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
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



59









 




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 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 $500,000; and (d) any payment received by a Borrower for a return is promptly
remitted to Agent for application to the Obligations.



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          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 $500,000 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 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



61









 




(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, 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 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




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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 under the Loan Documents, if any, 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 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 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, 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.




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          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; No Internal Control Event.




          (a) The Audited Financial Statements (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 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 as of the date thereof, including material liabilities for taxes, material
commitments and Indebtedness.




          (b) The unaudited consolidated balance sheet of the Consolidated Parties dated September 30,
2005, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Consolidated Parties as of the date
thereof and their results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), 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 as of the date of such financial statements, including liabilities for
taxes, material commitments and Indebtedness.




          (c) During the period from December 31, 2004, to and including the Closing 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, which is not reflected in the foregoing financial statements or in
the notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the
Closing 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 Financial Statements, (i) 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, and (ii) no Internal Control Event has occurred.




          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,




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or any of the transactions contemplated hereby 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 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.




     (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.



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     (e) No judicial proceeding or governmental or administrative action is pending or, to
the best 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 release, or threat of 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 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





66









 







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 actual 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 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.




          (e) No Obligor has any Foreign Plan.




          9.1.13. Capital Structure/Subsidiaries.




          The corporate capital and ownership structure of the Consolidated Parties as of the Closing
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 Closing Date with respect to the Company 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 Closing 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 Company 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 Closing
Date, the Company 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; Public Utility Holding
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.




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          (b) None of the Obligors or any Subsidiary of an Obligor (i) is a “holding company,” or a
“subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a
“subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding
Company Act of 1935, (ii) is an “investment company” or a “person directly or indirectly controlled
by or acting 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 (iii) 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 Closing 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 Closing 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 $50,000 is located as of the Closing 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 Closing Date. During the five years
preceding the Closing 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 Closing 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 Closing 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 Closing 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.




          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




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          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 Closing
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 Closing 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;




          (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




70









 







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. CSP. As of the Closing Date, CSP has no assets other than a minority
interest in the Equity Interests of Shreveport Packaging Partners, LLC (the “JV”) and
engages in no activities other than ownership of such Equity Interests. Neither CSP nor any of the
Obligors has any obligation owing to the JV to supply the JV with products or any financial
obligation owing to the JV.




          9.1.30. Calumet Sales. As of the Closing Date, Calumet Sales has no assets and
engages in no activities other than immaterial administrative activities.




          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.




     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 (other than CSP) to:



          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, 2005), 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, shareholders’ equity 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 (other than, with respect to the audited
financial statements of the Consolidated Parties delivered prior to the MLP Conversion, an
exception regarding compliance with the marking-to-market requirements of FASB 133) and (ii) from
and after the effective date of the MLP Conversion, an attestation report of such Registered Public
Accounting Firm when required to be filed periodically with the SEC by the MLP Parent pursuant to
applicable Securities Laws as to the internal controls of the Consolidated Parties pursuant to
Section 404 of Sarbanes-Oxley;




          (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, 2006), 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,
shareholders’ equity




71









 







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, shareholders’ equity 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, shareholders’ equity 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, shareholders’ equity 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.



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, 2005), 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) at least 30 days prior to the end of each fiscal year of the Consolidated Parties,
beginning with the fiscal year ending December 31, 2005, 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, 2006, 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, on and after the effective date of the MLP




72









 







Conversion, 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 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 or communication sent to
the equityholders of the Company or the MLP Parent, and copies of all registration statements 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 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





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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 $2,500,000; (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 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 (i) the occurrence of any ERISA Event, and (ii)
the occurrence of any Internal Control Event.




          (d) Promptly notify Agent and each Lender of any material change in accounting policies or
financial reporting practices by any Consolidated Party.




          (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





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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) Upon obtaining knowledge thereof, the Company will promptly provide Agent and the Lenders
with (i) written notice of any actual or expected MLP Conversion, (ii) the circumstances and
relevant facts regarding such MLP Conversion (including the information with respect to pro forma
historical income, cash flow and capitalization, each after giving effect to such MLP
Conversion), (iii) a certificate signed by a Senior Officer of the Borrower Agent or its general
partner stating that each of the MLP Conversion Conditions has been satisfied and (iv) such
additional information and documents regarding such MLP Conversion as may be reasonably requested
by Agent and/or any Lender.



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




75









 







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.




          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 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




76









 







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 ($850 per day as of the Closing 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 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) 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,
organizational documents and legal opinions, in form and substance satisfactory to Agent, as it
shall deem appropriate.




          (b) MLP Parent and its Subsidiaries Become Borrowers. In connection with the MLP
Conversion, and as a condition to the consummation thereof, the MLP Parent and each other Domestic
Subsidiary of the MLP Parent that is not already an Obligor hereunder (other than CSP) shall become
a Borrower as contemplated above.




          (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.





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     (i) Prior to the consummation of the MLP Conversion, the Obligors will cause (A) 100%
of the issued and outstanding Equity Interests of each Domestic Subsidiary of each Obligor
(other than CSP), 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.




     (ii) From and after the consummation of the MLP Conversion (as a condition the
effectiveness thereof), the Obligors will, in addition to the requirements of clause (i) of
this Section 10.1.14, cause 100% of the issued and outstanding Equity Interests of each of
the Company, the New General Partner of the Company and the New Limited Partner 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 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 commencing
with the effective date of the MLP Conversion.




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          10.1.17. Lien Waivers.




          On or before February 28, 2006, provide Agent with any Lien Waivers related to the processes
necessary to complete work-in-process fuel and specialty Inventory and required by the Agent in its
sole discretion.




          10.1.18 Title Insurance.




          On or before February 8, 2005, provide Agent with ALTA mortgagee title insurance policies
issued by Stewart Title Insurance Company or another title insurance company acceptable to Agent in
its discretion (the “Mortgage Policies”) with respect to each of the Mortgaged Properties
(other than the Shoreline/Cottage Grove Properties), assuring Agent that each of the Mortgage
Instruments creates 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 shall otherwise be in form and substance reasonably satisfactory to Agent and
shall include such endorsements as are reasonably requested by Agent.




          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 (other than CSP) 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;




          (b) Liens existing on the date hereof 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;




79









 








          (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 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;




          (r) Liens securing the PP&E Obligations, so long as the Intercreditor Agreement or a




80









 







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 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 purposes of speculation; provided that
such Liens do not encumber any Property other than the commodity being leased; and




          (u) other Liens (other than Liens on Equity Interests of any Subsidiary) securing
Indebtedness permitted under Section 10.2.3(i) so long as the amount of the Indebtedness
secured thereby does not exceed $5,000,000 and such Lien does not extend to any Collateral.




          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 Closing 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 $500,000 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;




          (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



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     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 than the PP&E Deposit Account)
plus (B) Availability shall be greater than $30 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
Company or, following the MLP Conversion, 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 Company or, following the MLP Conversion, the MLP Parent
consummated subsequent to the Closing Date and (C) the proceeds of any Disposition,
Excluded Disposition or Involuntary Disposition consummated subsequent to the
Closing Date) paid by the Consolidated Parties for all such Acquisitions occurring
after the Closing Date shall not exceed (1) if the MLP Conversion has not yet been
consummated, $10,000,000, and (2) if the MLP Conversion has been consummated,
$30,000,000; or



          (i) to the extent constituting Investments, Swap Contracts permitted to be incurred




82









 







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, (a) Investments in Foreign 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 $5,000,000, (b) Investments in CSP in an aggregate
principal amount (excluding Investments of such type set forth in Schedule 10.2.2) not to
exceed $4,000,000, and (c) Investments in Calumet Sales while it is not an Obligor in an
aggregate principal amount (excluding Investments of such type set forth in Schedule 10.2.2)
not to exceed $1,000,000; or



     (k) 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 Closing Date pursuant to this subsection (k) not to exceed
$10,000,000.



     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 Closing 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 (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





83









 







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 $10,000,000 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 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 $10,000,000 at
any time;




          (i) other Indebtedness hereafter incurred by any Consolidated Party provided
that (i) the terms, taken as a whole, of any such Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith, are not materially less favorable
to the Consolidated Parties or the Lenders than the terms of the Loan Documents, and (ii)
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 and (iii) the aggregate principal amount of such
Indebtedness incurred pursuant to this clause (i) shall not exceed (A) with




84









 









respect to
secured Indebtedness incurred pursuant to this clause (i), $5,000,000 at any time, and (B)
with respect to all Indebtedness incurred pursuant to this clause (i), $10,000,000 at any
time; and




               (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 $500,000 at any time outstanding, excluding
bonds posted to secure excise tax or sales tax payment obligations.



          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, and (h) provided that the MLP Conversion Conditions shall have been
satisfied and the Borrower Agent shall have delivered to Agent a certificate signed by a Senior
Officer of the Borrower Agent or its general partner stating that each of the MLP Conversion
Conditions has been satisfied, the Company may consummate the MLP Conversion.




          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 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 Closing Date shall not exceed (1) in respect of any single Disposition, $5,000,000, and with
respect to all such Dispositions in any fiscal year, $10,000,000 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.




85









 








          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) From the Closing Date through the date immediately prior to the effective date of the MLP
Conversion:





     (i) each Subsidiary of the Company may make Restricted Payments, directly or
indirectly, or incur obligations to do so, to the Company or any other Subsidiary of the
Company that is an Obligor;




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




     (iii) 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
Deposit Account) plus (2) Availability shall be greater than $30 million:




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




     (B) the Company 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 shares of the Equity Interests of the Company;




     (C) the Company 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 Company and its Subsidiaries;




     (D) the Company may, and may incur obligations to, make Restricted Payments to
the Company’s general partner (1) to reimburse the general partner for
administrative or operating expenses of the Company incurred by the general partner,
and (2) permit the general partner to pay franchise fees or similar Taxes and fees
required to maintain its existence;




     (E) the Company may, and may incur obligations to, make Restricted



86









 






Payments consisting of (1) cash payments to directors, managers, employees or members of the
management of any Obligor, the General Partner or any Subsidiary of any Obligor,
pursuant to phantom equity, equity unit appreciation or other employee incentive,
employee benefit or employee compensation plans, or (2) the purchase, repurchase or
acquisition of units of its Equity Interests (x) from directors, employees or
members of the management of any Obligor, General Partner or any Subsidiary of any
Obligor, in accordance with repurchase rights or obligations established in
connection with the original issuance of such Equity Interests and (y) pursuant to
the terms of any deferred compensation, employee or restricted equity interest
purchase plan, equity interest option plans or other employee benefit or equity
based compensation plan established by the Company; provided that the aggregate
amount of all such Restricted Payments made pursuant to this Section
10.2.6(a)(iii)(E) shall not exceed $1,000,000 in any fiscal year; and




     (F) the Company may, and may incur obligations to, make, beginning
January 1, 2007, other Restricted Payments in an aggregate amount of all
Restricted Payments made by the Company pursuant to this Section 10.2.6(a)(iii)(F)
not to exceed $5,000,000 in any fiscal year;



          (b) From and after the effective date of the MLP Conversion (provided that the MLP Conversion
Conditions shall have been satisfied and the Borrower Agent shall have delivered to Agent a
certificate signed by a Senior Officer of the Borrower Agent or its general partner stating that
each of the MLP Conversion Conditions has been satisfied):





     (i) 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;




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




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




     (iv) 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
Deposit Account) plus (2) Availability shall be greater than $30 million:




     (A) 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;



87









 






     (B) 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;




     (C) 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;




     (D) the MLP Parent may, and may incur obligations to, make Restricted
Payments consisting of (1) cash payments to directors, managers, employees or
members of the management of any Obligor, the MLP General Partner or any Subsidiary
of any Obligor pursuant to phantom equity, equity unit appreciation or other
employee incentive, employee benefit or employee compensation plans, or (2) the
purchase, repurchase or acquisition of units of its Equity Interests (x) from
directors, managers, employees or members of the management of any Obligor, the MLP
General Partner or any Subsidiary of any Obligor, in accordance with repurchase
rights or obligations established in connection with the original issuance of 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 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)(D) shall not
exceed $1,000,000 in any fiscal year;




     (E) 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




     (F) 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 Deposit Account) plus (2) Availability
shall be greater than $30 million.



          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




88









 







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, upon
consummation of the MLP Conversion, and provided that the MLP Conversion conditions have been
satisfied, 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) the repayment by the Company on the Closing Date of the
outstanding Indebtedness owed by the Company to Asphalt Refining Company under the Asphalt Notes,
(e) normal compensation and reimbursement of expenses of officers and directors, (f) provided that
the Company shall have delivered to Agent a certificate of a Senior Officer of the Company or its
general partner demonstrating that the MLP Conversion
Conditions shall have been satisfied, the MLP Conversion, and (g) 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.




          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 Closing 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




89









 







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 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 (i) for the period
from the Closing Date through the end of fiscal year 2006, $40,000,000, (ii) for fiscal year
2007, $30,000,000, and (iii) for any fiscal year thereafter, $25,000,000. 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, 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, debt issuances or equity issuances
required by Section 2.04(b)(iii), (iv) or (v) 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 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



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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); provided that the Company shall be permitted to prepay the Asphalt Notes on
the Closing Date as permitted by Section 10.2.8(d); 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 Eventof 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 contact.



          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 (i) permit any Person (other than the Company or, after the effectiveness of
the MLP Conversion, the MLP Parent, or any Wholly Owned Subsidiary of the Company or, after the
effectiveness of the MLP Conversion, the MLP Parent) to own any Equity Interests of any Subsidiary
except (i) 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, (ii) permit any Subsidiary to
issue or have outstanding any shares of preferred Equity Interests or (iii) 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.




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     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
$25,000,000, 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 $25,000,000, Availability subsequently exceeds $30,000,000 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 $25,000,000; provided, further that the immediately preceding proviso
shall only apply to the first such time that Availability so exceeds $30,000,000 for ninety (90)
consecutive days.




          10.3.2. Consolidated Leverage Ratio. Maintain as of the end of each Fiscal Quarter
(commencing with the Fiscal Quarter ending March 31, 2006) a Consolidated Leverage Ratio of no more
than 3.75 to 1.00.




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




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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 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 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




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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 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)




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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
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.




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          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 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.




          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.




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          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. 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.




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     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
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



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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, 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
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



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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
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



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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.



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.




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          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.




     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.



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




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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.




     (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.



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          (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 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 any Indemnitee) 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



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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
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.




          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




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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).




          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




106









 







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.



     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.



107









 





     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 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




108









 







will handle such material non-public information in accordance with Applicable Law,
including Federal and state securities Laws.




     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 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




109









 







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 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



110









 






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; 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.



[Remainder of page intentionally left blank; signatures begin on following page]




111









 








     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, INCORPORATED, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Patrick Murray II	 	 
	 

	 	 	 	 	 	 
	 	 	Name: R. Patrick Murray II

Title: Vice President and CFO
	 
	 	 	 	 	 	 
	 	 	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 CFO
	 
	 	 	 	 	 	 
	 	 	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 CFO
	 
	 	 	 	 	 	 
	 	 	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 CFO
	 
	 	 	 	 	 	 
	 	 	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






2









 






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

	 	By:
	 	/s/ Hance Vanbeber	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Hance Vanbeber

Title: S.V.P.
	 
	 	 	 	 	 	 
	 	 	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/ Lawrence J. Cannariato	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Lawrence J. Cannariato

Title: Vice President
	 
	 	 	 	 	 	 
	 	 	Address:
	 

	 	 	 	JPMorgan Chase Bank, N.A.

2200 Ross Avenue, 6th Floor

Dallas, Texas 75201

Attn: Lawrence J. Cannariato

Telecopy: (214) 965-2594
	 	 
	 
	 	 	 	 	 	 
	 	 	LASALLE BUSINESS CREDIT, INC.,

as Co-Syndication Agent and a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel Gallagher	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Daniel Gallagher

Title: VP
	 
	 	 	 	 	 	 
	 	 	Address:
	 

	 	 	 	135 S. LaSalle Suite 425

Chicago, IL 60477

Attn: James Simpson

Telecopy: (312) 904-6450	 	 






 









 






	 	 	 	 	 	 	 
	 	 	WELLS FARGO FOOTHILL, INC.,

as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donna Arensen	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Donna Arensen

Title: Assistant Vice President
	 
	 	 	 	 	 	 
	 	 	Address:
	 

	 	 	 	2450 Colorado Ave.

Ste 3000 West

Santa Monica, CA 90404

Attn:

Telecopy: 310-453-7443	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joe T. Curdy	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Joe T. Curdy

Title: Vice President
	 
	 	 	 	 	 	 
	 	 	Address:
	 

	 	 	 	Wachovia Bank, National Association

5001 LBJ Freeway Suite #1050

Dallas, Texas 75244

Attn: Michael Hendricks

Telecopy: (214) 748-9118	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL CITY BUSINESS CREDIT, INC.,

as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas W. Buda, Jr.	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Thomas W. Buda, Jr.

Title: Vice President
	 
	 	 	 	 	 	 
	 	 	Address:
	 

	 	 	 	National City Business Credit, Inc.

1965 E. 6th Street

Locator 01-3049

Cleveland, Ohio 44114

Attn: Montreal Phillips

Telecopy: (216) 222-9555	 	 






 









 






	 	 	 	 	 	 	 
	 	 	SIEMENS FINANCIAL SERVICES, INC.,

as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frank Amodio	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Frank Amodio

Title: Vice President – Credit
	 
	 	 	 	 	 	 
	 	 	Address:
	 

	 	 	 	Siemens Financial Services, Inc.

170 Wood Ave. South

Iselin, New Jersey 08830

Attn: Robert Nadler

Telecopy: (732) 590-0648	 	 






 









 






EXHIBIT A




FORM OF GENERAL REVOLVER NOTE




December ___, 2005



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”), and Calumet Shreveport Fuels, LLC, an Indiana limited liability company
(“CSF;” and together with the Company, Calumet Shreveport and CSLW collectively the
“Borowers”), 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, INCORPORATED, 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:	 	 	 	 	 	 






 









 






EXHIBIT B




FORM OF DISTRIBUTION REVOLVER NOTE




December ___, 2005



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 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”), and Calumet Shreveport Fuels, LLC, an Indiana limited liability company
(“CSF;” and together with the Company, Calumet Shreveport and CSLW collectively the
“Borowers”), 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, INCORPORATED, 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:	 	 	 	 	 	 






 









 






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 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;” and together with the Company, Calumet Shreveport and CSLW,
collectively the “Borowers”), 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, INCORPORATED, 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;” and together with the Company,
Calumet Shreveport, CSLW and CSF, collectively the “Borowers”).
	 
	 	 	 	 
	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, INCORPORATED, 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, INCORPORATED, 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;” and together with the Company, Calumet Shreveport and CSLW, 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 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;” and together with the Company, Calumet Shreveport and CSLW,
collectively the “Borrowers”), the Lenders from time to time party thereto and Bank of
America, N.A., as Agent. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms 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, INCORPORATED, its general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	Name:

Title:






 









 






EXHIBIT G




FORM OF BORROWING BASE CERTIFICATE




See attached.




 









 








Schedule 1.1




Revolver Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver Commitment	 	 	Commitment Percentage	 
	Bank of America, N.A.
	 	$	50,000,000	 	 	 	22.222222222	%
	JPMorgan Chase Bank, N.A.
	 	$	37,500,000	 	 	 	16.666666667	%
	LaSalle Business Credit, LLC
	 	$	37,500,000	 	 	 	16.666666667	%
	Wells Fargo Foothill, LLC
	 	$	27,500,000	 	 	 	12.222222222	%
	Wachovia Bank, National Association
	 	$	27,500,000	 	 	 	12.222222222	%
	National City Business Credit, Inc.
	 	$	25,000,000	 	 	 	11.111111111	%
	Siemens Financial Services, Inc.
	 	$	20,000,000	 	 	 	8.888888889	%
	Total:
	 	$	225,000,000	 	 	 	100.000000000	%