exv10w1






Exhibit
10.1




 





CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.,

CALUMET LP GP, LLC,

CALUMET OPERATING, LLC,

CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP,

CALUMET SHREVEPORT, LLC,

CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC,

CALUMET SHREVEPORT FUELS, LLC,

CALUMET SALES COMPANY INCORPORATED,

CALUMET PENRECO, LLC and

CALUMET FINANCE CORP.,

as Borrowers




 





AMENDED AND RESTATED

CREDIT AGREEMENT



Dated as of June 24, 2011



$550,000,000




 





CERTAIN FINANCIAL INSTITUTIONS,

as Lenders,



BANK OF AMERICA, N.A.,

as Agent,




JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agent,

WELLS FARGO CAPITAL FINANCE, LLC,

as Co-Syndication Agent,




PNC BANK, N.A.,

as Co-Documentation Agent,

SUNTRUST BANK,

as Co-Documentation Agent




and




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC

and

WELLS FARGO CAPITAL FINANCE, LLC

as Joint Lead Arrangers and Joint Book Runners




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 1.

	 	DEFINITIONS; RULES OF CONSTRUCTION
	 	 	1	 
	 
	 	 	 	 	 	 
	1.1

	 	Definitions
	 	 	1	 
	1.2

	 	Accounting Terms
	 	 	35	 
	 

	 	1.2.1 Generally
	 	 	35	 
	 

	 	1.2.2 Changes in GAAP
	 	 	35	 
	 

	 	1.2.3 Effect of Dispositions, Acquisitions and Expense Reductions
	 	 	35	 
	 

	 	1.2.4 Consolidation of Variable Interest Entities
	 	 	36	 
	1.3

	 	Certain Matters of Construction
	 	 	36	 
	1.4

	 	Proportionate Adjustment
	 	 	37	 
	 
	 	 	 	 	 	 
	SECTION 2.

	 	CREDIT FACILITIES
	 	 	37	 
	 
	 	 	 	 	 	 
	2.1

	 	Revolver Commitment
	 	 	37	 
	 

	 	2.1.1 Revolver Loans
	 	 	37	 
	 

	 	2.1.2 Revolver Notes
	 	 	37	 
	 

	 	2.1.3 Use of Proceeds
	 	 	37	 
	 

	 	2.1.4 Voluntary Reduction or Termination of Revolver Commitments
	 	 	37	 
	 

	 	2.1.5 Overadvances
	 	 	38	 
	 

	 	2.1.6 Protective Advances
	 	 	38	 
	2.2

	 	Incremental Availability
	 	 	39	 
	2.3

	 	Letter of Credit Facility
	 	 	39	 
	 

	 	2.3.1 Issuance of Letters of Credit
	 	 	39	 
	 

	 	2.3.2 Reimbursement; Participations
	 	 	41	 
	 

	 	2.3.3 Cash Collateral
	 	 	42	 
	 

	 	2.3.4 Resignation of Issuing Bank
	 	 	42	 
	 
	 	 	 	 	 	 
	SECTION 3.

	 	INTEREST, FEES AND CHARGES
	 	 	43	 
	 
	 	 	 	 	 	 
	3.1

	 	Interest
	 	 	43	 
	 

	 	3.1.1 Rates and Payment of Interest
	 	 	43	 
	 

	 	3.1.2 Application of LIBOR to Outstanding Loans
	 	 	43	 
	 

	 	3.1.3 Interest Periods
	 	 	44	 
	 

	 	3.1.4 Interest Rate Not Ascertainable
	 	 	44	 
	3.2

	 	Fees
	 	 	44	 
	 

	 	3.2.1 [Reserved]
	 	 	44	 
	 

	 	3.2.2 Unused Line Fee
	 	 	44	 
	 

	 	3.2.3 LC Facility Fees
	 	 	44	 
	 

	 	3.2.4 Other Fees
	 	 	45	 
	3.3

	 	Computation of Interest, Fees, Yield Protection
	 	 	45	 
	3.4

	 	Reimbursement Obligations
	 	 	45	 
	3.5

	 	Illegality
	 	 	46	 
	3.6

	 	Increased Costs
	 	 	46	 
	 

	 	3.6.1 Increased Costs Generally
	 	 	46	 
	 

	 	3.6.2 Capital Requirements
	 	 	47	 
	 

	 	3.6.3 Certificates for Reimbursement
	 	 	47	 
	 

	 	3.6.4 Delay in Requests
	 	 	47	 
	 

	 	3.6.5 Reserves on LIBOR Loans
	 	 	48	 
	3.7

	 	Capital Adequacy
	 	 	48	 
	3.8

	 	Mitigation
	 	 	48	 
	 

	 	3.8.1 Designation of a Different Lending Office
	 	 	48	 
	 

	 	3.8.2 Replacement of Lenders
	 	 	48	 
	3.9

	 	Funding Losses
	 	 	48	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	3.10

	 	Maximum Interest
	 	 	49	 
	 
	 	 	 	 	 	 
	SECTION 4.

	 	LOAN ADMINISTRATION
	 	 	49	 
	 
	 	 	 	 	 	 
	4.1

	 	Manner of Borrowing and Funding Revolver Loans
	 	 	49	 
	 

	 	4.1.1 Notice of Borrowing
	 	 	49	 
	 

	 	4.1.2 Fundings by Lenders
	 	 	50	 
	 

	 	4.1.3 Swingline Loans; Settlement
	 	 	50	 
	 

	 	4.1.4 Telephonic Notices
	 	 	51	 
	 

	 	4.1.5 Electronic Notices
	 	 	51	 
	4.2

	 	Defaulting Lender
	 	 	51	 
	 

	 	4.2.1 Reallocation of Pro Rata Share; Amendments
	 	 	51	 
	 

	 	4.2.2 Payments; Fees
	 	 	51	 
	 

	 	4.2.3 Cure
	 	 	52	 
	4.3

	 	Number and Amount of LIBOR Loans; Determination of Rate
	 	 	52	 
	4.4

	 	Borrower Agent
	 	 	52	 
	 

	 	4.4.1 Designation
	 	 	52	 
	 

	 	4.4.2 [Intentionally Omitted]
	 	 	52	 
	 

	 	4.4.3 Reliance, etc
	 	 	52	 
	4.5

	 	One Obligation
	 	 	53	 
	4.6

	 	Effect of Termination; Survival
	 	 	53	 
	 
	 	 	 	 	 	 
	SECTION 5.

	 	PAYMENTS
	 	 	53	 
	 
	 	 	 	 	 	 
	5.1

	 	General Payment Provisions
	 	 	53	 
	5.2

	 	Repayment of Revolver Loans
	 	 	53	 
	5.3

	 	[Reserved]
	 	 	54	 
	5.4

	 	Payment of Other Obligations
	 	 	54	 
	5.5

	 	Marshaling; Payments Set Aside
	 	 	54	 
	5.6

	 	Post-Default Allocation of Payments
	 	 	54	 
	 

	 	5.6.1 Allocation
	 	 	54	 
	 

	 	5.6.2 Erroneous Application
	 	 	55	 
	5.7

	 	Application of Payments
	 	 	55	 
	5.8

	 	Loan Account; Account Stated
	 	 	55	 
	 

	 	5.8.1 Loan Account
	 	 	55	 
	 

	 	5.8.2 Entries Binding
	 	 	56	 
	5.9

	 	Taxes
	 	 	56	 
	5.10

	 	[Reserved]
	 	 	58	 
	5.11

	 	Nature and Extent of Each Borrower’s Liability
	 	 	58	 
	 

	 	5.11.1 Joint and Several Liability
	 	 	58	 
	 

	 	5.11.2 Waivers
	 	 	59	 
	 

	 	5.11.3 Extent of Liability; Contribution
	 	 	59	 
	 

	 	5.11.4 Joint Enterprise
	 	 	60	 
	 

	 	5.11.5 Subordination
	 	 	60	 
	 
	 	 	 	 	 	 
	SECTION 6.

	 	CONDITIONS PRECEDENT
	 	 	61	 
	 
	 	 	 	 	 	 
	6.1

	 	Conditions Precedent to Initial Loans
	 	 	61	 
	6.2

	 	Conditions Precedent to All Credit Extensions
	 	 	64	 
	6.3

	 	Limited Waiver of Conditions Precedent
	 	 	64	 
	 
	 	 	 	 	 	 
	SECTION 7.

	 	[RESERVED]
	 	 	65	 
	 
	 	 	 	 	 	 
	SECTION 8.

	 	COLLATERAL ADMINISTRATION
	 	 	65	 
	 
	 	 	 	 	 	 
	8.1

	 	Borrowing Base Certificates
	 	 	65	 
	8.2

	 	Administration of Accounts
	 	 	65	 
	 

	 	8.2.1 Records and Schedules of Accounts
	 	 	65	 
	 

	 	8.2.2 Taxes
	 	 	65	 
	 

	 	8.2.3 Account Verification
	 	 	65	 
	 

	 	8.2.4 Maintenance of Dominion Account
	 	 	66	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 

	 	8.2.5 Proceeds of Collateral
	 	 	66	 
	 

	 	8.2.6 Bank Products
	 	 	66	 
	8.3

	 	Administration of Inventory
	 	 	66	 
	 

	 	8.3.1 Records and Reports of Inventory
	 	 	66	 
	 

	 	8.3.2 Returns of Inventory
	 	 	66	 
	 

	 	8.3.3 Acquisition, Sale and Maintenance
	 	 	66	 
	8.4

	 	[Reserved]
	 	 	67	 
	8.5

	 	Administration of Deposit Accounts
	 	 	67	 
	8.6

	 	General Provisions
	 	 	67	 
	 

	 	8.6.1 Location of Collateral
	 	 	67	 
	 

	 	8.6.2 Insurance of Collateral; Condemnation Proceeds
	 	 	67	 
	 

	 	8.6.3 Protection of Collateral
	 	 	68	 
	 

	 	8.6.4 Defense of Title to Collateral
	 	 	68	 
	8.7

	 	Power of Attorney
	 	 	68	 
	 
	 	 	 	 	 	 
	SECTION 9.

	 	REPRESENTATIONS AND WARRANTIES
	 	 	69	 
	 
	 	 	 	 	 	 
	9.1

	 	General Representations and Warranties
	 	 	69	 
	 

	 	9.1.1 Existence, Qualification and Power; Compliance with Applicable Laws
	 	 	69	 
	 

	 	9.1.2 Authorization; No Contravention
	 	 	69	 
	 

	 	9.1.3 Governmental Authorization and Approvals; Other Consents
	 	 	69	 
	 

	 	9.1.4 Binding Effect
	 	 	70	 
	 

	 	9.1.5 Financial Statements; No Material Adverse Effect
	 	 	70	 
	 

	 	9.1.6 Litigation
	 	 	71	 
	 

	 	9.1.7 No Default
	 	 	71	 
	 

	 	9.1.8 Ownership of Property; Liens
	 	 	72	 
	 

	 	9.1.9 Environmental Compliance
	 	 	72	 
	 

	 	9.1.10 Insurance
	 	 	73	 
	 

	 	9.1.11 Taxes
	 	 	73	 
	 

	 	9.1.12 ERISA Compliance
	 	 	73	 
	 

	 	9.1.13 Capital Structure/Subsidiaries
	 	 	74	 
	 

	 	9.1.14 Margin Regulations; Investment Company Act
	 	 	74	 
	 

	 	9.1.15 Disclosure
	 	 	75	 
	 

	 	9.1.16 Compliance with Laws
	 	 	75	 
	 

	 	9.1.17 Intellectual Property
	 	 	75	 
	 

	 	9.1.18 Solvency
	 	 	75	 
	 

	 	9.1.19 Business Locations
	 	 	75	 
	 

	 	9.1.20 Brokers’ Fees
	 	 	76	 
	 

	 	9.1.21 Labor Matters
	 	 	76	 
	 

	 	9.1.22 Nature of Business
	 	 	76	 
	 

	 	9.1.23 Representations and Warranties from Other Credit Documents
	 	 	76	 
	 

	 	9.1.24 Collateral Documents
	 	 	76	 
	 

	 	9.1.25 [Reserved]
	 	 	76	 
	 

	 	9.1.26 Surety Obligations
	 	 	76	 
	 

	 	9.1.27 Trade Relations
	 	 	76	 
	 

	 	9.1.28 Accounts
	 	 	77	 
	 

	 	9.1.29 [Reserved]
	 	 	77	 
	 

	 	9.1.30 [Reserved]
	 	 	77	 
	 

	 	9.1.31 No Conflict with MLP Partnership Agreement
	 	 	77	 
	9.2

	 	Complete Disclosure
	 	 	78	 
	 
	 	 	 	 	 	 
	SECTION 10.

	 	COVENANTS AND CONTINUING AGREEMENTS
	 	 	78	 
	 
	 	 	 	 	 	 
	10.1

	 	Affirmative Covenants
	 	 	78	 
	 

	 	10.1.1 Financial Statements
	 	 	78	 
	 

	 	10.1.2 Certificates; Other Information
	 	 	79	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 

	 	10.1.3 Notices and Information
	 	 	81	 
	 

	 	10.1.4 Payment of Obligations
	 	 	82	 
	 

	 	10.1.5 Preservation of Existence, Licenses, Etc
	 	 	82	 
	 

	 	10.1.6 Maintenance of Properties
	 	 	83	 
	 

	 	10.1.7 Maintenance of Insurance
	 	 	83	 
	 

	 	10.1.8 Compliance with Laws and Material Contractual Obligations
	 	 	83	 
	 

	 	10.1.9 Books and Records
	 	 	83	 
	 

	 	10.1.10 Inspection Rights
	 	 	83	 
	 

	 	10.1.11 Use of Proceeds
	 	 	84	 
	 

	 	10.1.12 [Reserved]
	 	 	84	 
	 

	 	10.1.13 Additional Borrowers or Guarantors
	 	 	84	 
	 

	 	10.1.14 Pledged Assets
	 	 	85	 
	 

	 	10.1.15 Landlord and Storage Agreements
	 	 	85	 
	 

	 	10.1.16 Clean Down of Distribution Revolver Loans
	 	 	85	 
	10.2

	 	Negative Covenants
	 	 	86	 
	 

	 	10.2.1 Liens
	 	 	86	 
	 

	 	10.2.2 Investments
	 	 	88	 
	 

	 	10.2.3 Indebtedness
	 	 	90	 
	 

	 	10.2.4 Fundamental Changes
	 	 	93	 
	 

	 	10.2.5 Dispositions
	 	 	94	 
	 

	 	10.2.6 Restricted Payments
	 	 	94	 
	 

	 	10.2.7 Change in Nature of Business; Name, Etc
	 	 	95	 
	 

	 	10.2.8 Transactions with Affiliates and Insiders
	 	 	96	 
	 

	 	10.2.9 Burdensome Agreements
	 	 	96	 
	 

	 	10.2.10 Use of Proceeds
	 	 	97	 
	 

	 	10.2.11 [Reserved]
	 	 	97	 
	 

	 	10.2.12 Prepayment of Other Indebtedness, Amendment of Documents, Etc
	 	 	97	 
	 

	 	10.2.13 Organization Documents; Fiscal Year; Accounting Practices
	 	 	98	 
	 

	 	10.2.14 Ownership of Obligors
	 	 	99	 
	 

	 	10.2.15 Tax Consolidation
	 	 	99	 
	 

	 	10.2.16 Payables Practices
	 	 	99	 
	10.3

	 	Financial Covenants
	 	 	99	 
	 

	 	10.3.1 Fixed Charge Coverage Ratio
	 	 	99	 
	 
	 	 	 	 	 	 
	SECTION 11.

	 	EVENTS OF DEFAULT; REMEDIES ON DEFAULT
	 	 	99	 
	 
	 	 	 	 	 	 
	11.1

	 	Events of Default
	 	 	99	 
	11.2

	 	Remedies upon Default
	 	 	102	 
	11.3

	 	License
	 	 	103	 
	11.4

	 	Setoff
	 	 	103	 
	11.5

	 	Remedies Cumulative; No Waiver
	 	 	103	 
	 

	 	11.5.1 Cumulative Rights
	 	 	103	 
	 

	 	11.5.2 Waivers
	 	 	104	 
	 
	 	 	 	 	 	 
	SECTION 12.

	 	AGENT
	 	 	104	 
	 
	 	 	 	 	 	 
	12.1

	 	Appointment, Authority and Duties of Agent
	 	 	104	 
	 

	 	12.1.1 Appointment and Authority
	 	 	104	 
	 

	 	12.1.2 Duties
	 	 	104	 
	 

	 	12.1.3 Agent Professionals
	 	 	105	 
	 

	 	12.1.4 Instructions of Required Lenders
	 	 	105	 
	12.2

	 	Agreements Regarding Collateral and Field Examination Reports
	 	 	105	 
	 

	 	12.2.1 Lien Releases; Care of Collateral
	 	 	105	 
	 

	 	12.2.2 Possession of Collateral
	 	 	105	 
	 

	 	12.2.3 Reports
	 	 	105	 
	12.3

	 	Reliance By Agent
	 	 	106	 






iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	12.4

	 	Action Upon Default
	 	 	106	 
	12.5

	 	Ratable Sharing
	 	 	106	 
	12.6

	 	Indemnification of Agent Indemnitees
	 	 	106	 
	 

	 	12.6.1 Indemnification
	 	 	106	 
	 

	 	12.6.2 Proceedings
	 	 	107	 
	12.7

	 	Limitation on Responsibilities of Agent
	 	 	107	 
	12.8

	 	Successor Agent and Co-Agents
	 	 	107	 
	 

	 	12.8.1 Resignation; Successor Agent
	 	 	107	 
	 

	 	12.8.2 Separate Collateral Agent
	 	 	108	 
	12.9

	 	Due Diligence and Non-Reliance
	 	 	108	 
	12.10

	 	Reserved
	 	 	108	 
	12.11

	 	Remittance of Payments and Collections
	 	 	108	 
	 

	 	12.11.1 Remittances Generally
	 	 	108	 
	 

	 	12.11.2 Failure to Pay
	 	 	109	 
	 

	 	12.11.3 Recovery of Payments
	 	 	109	 
	12.12

	 	Agent in its Individual Capacity
	 	 	109	 
	12.13

	 	Agent Titles
	 	 	109	 
	12.14

	 	Bank Product Providers
	 	 	109	 
	12.15

	 	No Third Party Beneficiaries
	 	 	109	 
	 
	 	 	 	 	 	 
	SECTION 13.

	 	BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
	 	 	109	 
	 
	 	 	 	 	 	 
	13.1

	 	Successors and Assigns
	 	 	109	 
	13.2

	 	Participations
	 	 	110	 
	 

	 	13.2.1 Permitted Participants; Effect
	 	 	110	 
	 

	 	13.2.2 Voting Rights
	 	 	110	 
	 

	 	13.2.3 Benefit of Set-Off
	 	 	110	 
	13.3

	 	Assignments
	 	 	110	 
	 

	 	13.3.1 Permitted Assignments
	 	 	110	 
	 

	 	13.3.2 Effect; Effective Date
	 	 	111	 
	13.4

	 	Tax Treatment
	 	 	111	 
	13.5

	 	Representation of Lenders
	 	 	111	 
	 
	 	 	 	 	 	 
	SECTION 14.

	 	MISCELLANEOUS
	 	 	111	 
	 
	 	 	 	 	 	 
	14.1

	 	Consents, Amendments and Waivers
	 	 	111	 
	 

	 	14.1.1 Amendment
	 	 	111	 
	 

	 	14.1.2 Limitations
	 	 	113	 
	 

	 	14.1.3 Payment for Consents
	 	 	113	 
	14.2

	 	General Indemnity
	 	 	113	 
	14.3

	 	Reimbursement by Lenders
	 	 	114	 
	14.4

	 	Notices and Communications
	 	 	114	 
	 

	 	14.4.1 Notices Generally
	 	 	114	 
	 

	 	14.4.2 Electronic Communications
	 	 	115	 
	 

	 	14.4.3 The Platform
	 	 	115	 
	 

	 	14.4.4 Change of Address, Etc
	 	 	116	 
	 

	 	14.4.5 Reliance by Agent, Issuing Bank and Lenders
	 	 	116	 
	 

	 	14.4.6 Non-Conforming Communications
	 	 	116	 
	14.5

	 	Performance of Borrowers’ Obligations
	 	 	117	 
	14.6

	 	Credit Inquiries
	 	 	117	 
	14.7

	 	Severability
	 	 	117	 
	14.8

	 	Cumulative Effect; Conflict of Terms
	 	 	117	 
	14.9

	 	Counterparts; Facsimile Signatures
	 	 	117	 
	14.10

	 	Time of the Essence
	 	 	118	 
	14.11

	 	Obligations of Lenders
	 	 	118	 
	14.12

	 	Confidentiality
	 	 	118	 






v









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	14.13

	 	[Reserved]
	 	 	119	 
	14.14

	 	GOVERNING LAW
	 	 	119	 
	14.15

	 	SUBMISSION TO JURISDICTION; WAIVER OF VENUE OBJECTION; SERVICE OF PROCESS
	 	 	119	 
	 

	 	14.15.1 SUBMISSION TO JURISDICTION
	 	 	119	 
	 

	 	14.15.2 WAIVER OF VENUE OBJECTION
	 	 	119	 
	 

	 	14.15.3 SERVICE OF PROCESS
	 	 	119	 
	14.16

	 	Waivers by Borrowers
	 	 	120	 
	14.17

	 	Patriot Act Notice
	 	 	120	 
	14.18

	 	Replacement of Certain Lenders
	 	 	120	 
	14.19

	 	Subordination of Intercompany Indebtedness
	 	 	121	 
	14.20

	 	No Advisory or Fiduciary Relationship
	 	 	121	 
	14.21

	 	ENTIRE AGREEMENT
	 	 	122	 
	14.22

	 	Amendment and Restatement
	 	 	122	 
	14.23

	 	Ratification of Existing Liens and IP License
	 	 	122	 











vi









 








	 	 	 
	LIST OF EXHIBITS AND SCHEDULES
	 	 	 
	Exhibit A

	 	Revolver Note
	Exhibit B

	 	Compliance Certificate
	Exhibit C

	 	Assignment and Acceptance
	Exhibit D

	 	Assignment Notice
	Exhibit E

	 	Notice of Borrowing/Conversion/Continuation
	Exhibit F

	 	Borrowing Base Certificate






	 	 	 

	Schedule 1.1A

	 	Commitments of Lenders
	Schedule 1.1B

	 	Pipeline Delivery Points
	Schedule 1.1C

	 	Marked-to-Market Basis
	Schedule 1.1D

	 	Existing Letters of Credit
	Schedule 1.1E

	 	Immaterial Subsidiaries
	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

	 	Material Indebtedness
	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 9.1.17

	 	Intellectual Property Matters
	Schedule 9.1.19(a)

	 	Real Properties
	Schedule 9.1.19(b)

	 	Locations of Tangible Personal Property
	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







vii











 





AMENDED AND RESTATED

CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is dated as of June 24,
2011, among CALUMET SPECIALTY PRODUCTS PARTNERS, L.P., a Delaware limited partnership
(“CSPP” or the “Company”), CALUMET LP GP, LLC, a Delaware limited liability company
(“CLP”), CALUMET OPERATING, LLC, a Delaware limited liability company
(“Operating”), CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP, an Indiana limited partnership
(“Calumet Lubricants”), CALUMET SHREVEPORT, LLC, an Indiana limited liability company
(“Calumet Shreveport”), CALUMET SHREVEPORT LUBRICANTS & WAXES, LLC, an Indiana limited
liability company (“CSLW”), CALUMET SHREVEPORT FUELS, LLC, an Indiana limited liability
company (“CSF”), CALUMET SALES COMPANY INCORPORATED, a Delaware corporation (“Calumet
Sales”), CALUMET PENRECO, LLC, a Delaware limited liability company (“Calumet
Penreco”), and CALUMET FINANCE CORP., a Delaware corporation (“Calumet Finance”), and
each other Person which may become a Borrower hereunder pursuant to Section 10.1.13 (together with
CSPP, CLP, Operating, Calumet Lubricants, Calumet Shreveport, CSLW, CSF, Calumet Sales, Calumet
Penreco and Calumet Finance, 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”).



     MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, J.P. MORGAN SECURITIES LLC and WELLS FARGO
CAPITAL FINANCE, LLC are acting as Joint Lead Arrangers and Joint Book Runners with respect to this
Agreement.



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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 1









 




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.




     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 in any way in connection with or relating to this Agreement or any
other Credit Document or any transaction contemplated hereby or thereby, including, without
limitation, in connection with or relating to the administration of, and enforcement of rights or
remedies relating to, this Agreement and the other Credit Documents and the Collateral.



     Agreement — as defined in the first paragraph.



     Allocable Amount — as defined in Section 5.11.3.



     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 applicable provisions of constitutions,
treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.



     Applicable Margin — with respect to any Type of Loan, the margin set forth below, as
determined by the Quarterly Average Availability Percentage for the last Fiscal Quarter:



	 	 	 	 	 	 	 
	 	 	 	 	Base Rate	 	LIBOR
	 	 	Quarterly Average	 	Revolver Loans	 	Revolver Loans
	Level	 	Availability Percentage	 	Margin	 	Margin
	I
	 	≥ 66%
	 	1.00%
	 	2.25%
	II
	 	≥ 33% and < 66%
	 	1.25%
	 	2.50%
	III
	 	< 33%
	 	1.50%
	 	2.75%





From the Closing Date through the date of the adjustment (in accordance with the following
sentence) occurring after the end of the Fiscal Quarter ended September 30, 2011, the margin shall
be based on Level II. The margin shall be subject to increase or decrease upon receipt by Agent of
the Borrowing Base Certificate for the last month (or week, if applicable) of each Fiscal Quarter
provided or issued in accordance with Section 8.1, which change shall be effective on the first
Business Day of the calendar month immediately following receipt of such Borrowing Base
Certificate. If, by the first Business Day of a calendar month, the Borrowing Base Certificate(s)
due with respect to the immediately preceding calendar month have not been received, then the
margin shall be determined as if Level III were applicable, from such day until the first Business
Day of the calendar month following actual receipt of the Borrowing Base Certificate(s).
Notwithstanding anything to the contrary contained in this definition,






AMENDED AND RESTATED CREDIT AGREEMENT — Page 2









 







the determination of the Applicable Margin for any period shall be subject to the provisions of
Section 3.4.




     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 (other than a Defaulting Lender), an entity that administers or manages a
Lender (other than a Defaulting Lender), or an Affiliate of either.



     Arranger Indemnitees — collectively, the MLPFS Indemnitees, the JPMorgan Indemnitees
and the Wells Fargo Indemnitees.



     Arrangers — MLPFS, JPMorgan and Wells Fargo, in their capacities as joint lead
arrangers and joint book runners.



     Assignment and Acceptance — an assignment agreement between a Lender and Eligible
Assignee, in the form of Exhibit C, entered into in accordance with Section 13.3.



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



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



     Audited Financial Statements — the audited consolidated balance sheet of the
Consolidated Parties for the Fiscal Year ended December 31, 2010, and the related consolidated
statements of income or operations, partners’ capital and cash flows for such Fiscal Year of the
Consolidated Parties, including the notes thereto.



     Availability — determined as of any date, the amount that Borrowers are entitled to
borrow as Revolver Loans, being the lesser of (a) the Borrowing Base in effect as of such date
minus the principal balance of all Revolver Loans outstanding on such date and (b) the
amount of the Revolver Commitments then in effect minus the principal balance of all
Revolver Loans outstanding on such date minus the LC Obligations on such date.



     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 permitted assigns.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 3









 





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



     Bank Product — (a) Cash Management Services extended to any Borrower or Subsidiary by
any Lender or any of its Affiliates, (b) Interest Rate Swaps which meet the requirements of clause
(i) and clause (ii) of Section 10.2.3(d) extended to any Borrower or Subsidiary by any Lender or
any of its Affiliates, (c) commercial credit card and merchant card services extended to any
Borrower or Subsidiary by any Lender or any of its Affiliates and (d) other banking products or
services as may be requested by any Borrower or Subsidiary and extended by any Lender or any of its
Affiliates (other than Letters of Credit and Swap Contracts not covered by clause (b) above);
provided, however, that (i) 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, and such applicable Secured Party and
Obligor must have agreed to be bound by Section 12.14, and (ii) for any of the Indebtedness or
other obligations under the foregoing Interest Rate Swaps referred to in clause (b) preceding or
other banking products or services referred to in clause (d) preceding to be included as Bank
Product Indebtedness, the Lender or its Affiliate providing the same shall have agreed in writing
with Agent, and to the reasonable satisfaction of Agent, that such Indebtedness or other
obligations shall not be secured by any of the Liens permitted by Section 10.2.1(v). 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 — for any day, a per annum rate equal to the greater of (a) the Prime Rate
for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) LIBOR for a 30 day
interest period as determined on such day, plus 1.25%.



     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.



     Board of Governors — the Board of Governors of the Federal Reserve System.



     Borrowed Money — with respect to any Obligor, without duplication, its (a)
Indebtedness (other than, for purposes of determining Indebtedness of the Consolidated Parties on a
consolidated basis and for purposes of the definitions of the terms “Consolidated Interest Charges”
and “Fixed Charges”, intercompany 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 4









 




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 (and continuing until any subsequent
date of determination), an amount equal to the lesser of (a) the aggregate amount of Revolver
Commitments then in effect, minus the Availability Reserve; or (b) the sum of the Accounts
Formula Amount, plus the Inventory Formula Amount, plus the Restricted Account
Balance, 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 (upon written notice to Borrower Agent) any other state where Agent’s
principal office that administers this Agreement from time to time 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 Fixed Charge Coverage Ratio on a Pro Forma Basis.



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



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



     Calumet GP — Calumet GP, LLC, a Delaware limited liability company.



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



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



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



     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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 5









 





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



     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, 103% 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. In lieu of the delivery of cash as security for
the Obligations described in clause (b), such Obligations may be secured by the delivery of a
letter of credit in form and substance satisfactory to Agent in its sole discretion and issued by a
financial institution satisfactory to Agent in its sole discretion; provided, that, if such
financial institution ceases to be satisfactory to Agent for any reason, upon written notice to
Borrower Agent, Agent may require the delivery of cash in whole or partial replacement of such
letter of credit.



     Cash Dominion Trigger Event  — the occurrence of any of the following: (a)
Availability falls below the greater of (i) 12.5% of the lesser of the Borrowing Base (without
giving effect to the LC Reserve for purposes of this calculation) and the amount of the Revolver
Commitments then in effect and (ii) subject to Section 1.4, $35,000,000, or (b) a Default or an
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 (or parent company thereof)
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 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 6









 




$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 any Lender 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, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted or issued.



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



     (a) the direct or indirect Disposition (other than by way of merger or consolidation permitted
hereunder), in one or a series of related transactions, of all or substantially all of the
Properties or assets of the Consolidated Parties taken as a whole, to any “person” (as that term is
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended); or



     (b) the adoption of a plan relating to the liquidation or dissolution of the MLP Parent or
Calumet GP or removal of Calumet GP by the limited partners of the MLP Parent or the resignation by
Calumet GP as the general partner of the MLP Parent; or



     (c) the consummation of any transaction (including any merger or consolidation), in one or a
series of related transactions, the result of which is that any “person” (as that term is defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), excluding the Qualifying
Owners, becomes the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock
of either Calumet GP or of the MLP Parent, measured by voting power rather than number of shares,
units or the like; or



     (d) the first day on which a majority of the members of the board of directors of Calumet GP
are not Continuing Directors; or



     (e) the occurrence of a “Change of Control” (or any comparable term) under, and as defined in,
the Senior Notes Indenture.



     Notwithstanding the preceding, a Statutory Conversion of any of the Consolidated Parties from
a limited partnership, corporation, limited liability company or other form of entity to a limited
liability company, corporation, limited partnership or other form of entity or an exchange
permitted by the terms



AMENDED AND RESTATED CREDIT AGREEMENT — Page 7









 




hereof of all of the outstanding Equity Interests in one form of entity for Equity Interests
in another form of entity shall not constitute a Change of Control, so long as following such
conversion or exchange the “persons” (as that term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) who beneficially owned the capital stock of the MLP Parent
immediately prior to such transactions continue to beneficially own in the aggregate more than 50%
of the Voting Stock of such entity, or continue to beneficially own sufficient Equity Interests in
such entity to elect a majority of its directors, managers, trustees or other persons serving in a
similar capacity for such entity or its general partner, as applicable, and, in either case no
“person,” other than a Qualifying Owner, beneficially owns more than 50% of the Voting Stock of
such entity or its general partner, as applicable.




     Chase — JPMorgan Chase Bank, N.A. and its successors and permitted assigns.



     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 Credit Documents or transactions
relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in connection with
any Credit Documents, (c) the existence or perfection of any Liens, or realization upon any
Collateral, (d) exercise of any rights or remedies under any Credit Documents or Applicable Law, or
(e) failure by any Obligor to perform or observe any terms of any Credit 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; provided, that, with respect to any
term or provision of this Agreement other than the terms and provisions of Section 14.15.1 and
Section 14.16, such Claims shall not, as to any Indemnitee, include any liabilities, obligations,
losses, damages, penalties, judgments, proceedings, costs and expenses (i) that are determined by a
court of competent jurisdiction by final and non-appealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (ii) which result from a claim brought
by a Borrower or any other Obligor against such Indemnitee for material breach of such Indemnitee’s
obligations hereunder or under any other Credit 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.



     Closing Date — June 24, 2011.



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



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



     Collateral — a collective reference to all Property described in Section 2 of the
Security Agreement, all Property described in any other Collateral Documents as security for any
Obligations, and all other Property that now or hereafter secures (or is intended to secure) any
Obligations.



     Collateral Documents — each Guarantee, 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.



     Commercial Tort Claim — as defined in the UCC.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 8









 





     Commitment — for any Lender on any date of determination, the aggregate amount of such
Lender’s Revolver Commitment then in effect. Commitments means the aggregate amount of all
Revolver Commitments then in effect.



     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(a); or (c) the date on which the Revolver Commitments are terminated pursuant to Section
11.2.



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



     Compliance Certificate — a Compliance Certificate to be provided by Borrower Agent or
its general partner, on behalf of the Consolidated Parties, to Agent pursuant to this Agreement, in
substantially the form of Exhibit B, 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 (i) sales and excise Taxes charged to and expected to be
paid by customers of any of the Consolidated Parties, 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) any non-recurring, non-cash charges relating to any premium or penalty paid,
write off of deferred finance costs or other charges in connection with redeeming or retiring any
Indebtedness prior to its stated maturity, (iii) the provision for Federal, state, local and
foreign income taxes payable by the Consolidated Parties, (iv) depreciation and amortization
expense (including amortization of intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) and non-cash equity based compensation expense, (v) net non-cash
losses realized on the Disposition of Property of any Consolidated Party, (vi) unrealized losses
resulting from mark to market accounting for hedging activities, including, without limitation
those resulting from the application of FASB Accounting Standards Codification 815 (“FASB ASC
815”), (vii) realized gains under derivative instruments excluded from the determination of
Consolidated Net Income, including, without limitation, those resulting from the application of
FASB ASC 815, (viii) unrealized non-cash losses resulting from foreign currency balance sheet
adjustments required by GAAP, (ix) other extraordinary or non-recurring expenses and restructuring
charges of the Consolidated Parties reducing such Consolidated Net Income which do not represent a
cash item in such period and (x) impairment and other non-cash items (other than write-downs of
current assets) of the Consolidated Parties for such period (excluding any such non-cash item to
the extent that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period), minus, without
duplication (b) the following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits, (ii) unrealized gains resulting from mark
to market accounting for hedging activities, including, without limitation, those resulting from
the application of FASB ASC 815, (iii) realized losses under derivative instruments excluded from
the determination of Consolidated Net Income, including, without limitation, those resulting from
the application of FASB ASC 815, (iv) extraordinary or non-recurring expenses and restructuring
charges of the Consolidated Parties and unrealized items that in each case reduced the Consolidated
Net Income hereunder for a prior period and for which cash payments have been made in the current
applicable period and (v) impairment and other items that were non-cash, that in each case



AMENDED AND RESTATED CREDIT AGREEMENT — Page 9









 




reduced the Consolidated Net Income hereunder for a prior period, were added back for the
purposes for determining Consolidated EBITDA in a prior period, and for which cash payments have
been made in the current applicable period.




     Consolidated Interest Charges — for any period for the Consolidated Parties on a
consolidated basis, without duplication, 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 net of the effect of all payments made or received pursuant
to Interest Rate Swaps and 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 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, provided that
(a) net income shall be calculated without giving effect to the cumulative effect of a change in
accounting principle and (b) net income of any Person that is accounted for by the equity method of
accounting will be included, but only to the extent of the amount of dividends or distributions
paid in cash to a Consolidated Party.



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



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



     Continuing Directors — as of any date of determination, any member of the board of
directors of the MLP General Partner who (a) was a member of such board of directors on the date of
this Agreement, or (b) was nominated for election or elected to such board of directors with the
approval of a majority of the directors then still in office (or a duly constituted committee
thereof) either who were members of such board of directors at the time of such nomination or
election or whose election or nomination for election was approved by a majority of such members of
such board.



     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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 10









 





     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.



     Credit Documents — this Agreement, Other Agreements and Collateral Documents.



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



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



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



     Debtor Relief Laws — the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



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



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



     Defaulting Lender — any Lender that, as reasonably determined by Agent, (a) has failed
to perform any funding obligations hereunder, and such failure is not cured within three Business
Days, unless, within such three Business Day period, such Lender notifies Agent in writing that
such failure is the result of such Lender’s good faith determination that a condition precedent to
funding (specifically identified and including the particular Default, if any) has not been
satisfied; (b) has notified Agent or any Borrower that such Lender does not intend to comply with
its funding obligations hereunder or has made a public statement to the effect that it does not
intend to comply with its funding obligations hereunder or under another credit facility; (c) has
failed, within three Business Days following written request by Agent, to confirm in a manner
satisfactory to Agent that such Lender will comply with its funding obligations hereunder; or (d)
has, or has a direct or indirect parent company that has, become the subject of a proceeding under
any Debtor Relief Laws or taken any action in furtherance or acquiescence thereof;
provided, that a Lender shall not be deemed to be a Defaulting Lender solely by virtue of
the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority.



     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.



     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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 11









 




Party whether by sale, lease, licensing, transfer or otherwise; provided,
however, that the term “Disposition” shall be deemed to exclude any Equity Issuance.




     Distribution Revolver Loan — a Revolver Loan made pursuant to Section 2.1.1, the
proceeds of which are to be used for the purpose of making Restricted Payments permitted by Section
10.2.6 hereof.



     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 reasonably 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 Inventory, 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 immediately preceding
clause (a); (c) when aggregated with other Accounts owing by the Account Debtor and all Affiliates
of the Account Debtor, it exceeds 20% of the aggregate Eligible Accounts (or such higher percentage
as Agent may establish for the Account Debtor from time to time); (d) it does not conform with a
covenant or representation herein; (e) it is owing by a creditor or supplier, or is otherwise
subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve,
defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof
after giving effect to any such amounts owed that are secured by letters of credit on terms
acceptable to Agent in its discretion); (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 affairs, or is not Solvent; or
the Borrower is not able to bring suit or enforce remedies against the Account Debtor through
judicial process; (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 $25,000,000 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, for the benefit of Secured Parties, or is subject to any
other Lien (in each case, 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
or deemed accepted by the Account Debtor, the services giving rise to it have not been accepted or
deemed 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 beyond 60 days after the original due date or beyond 90 days after the
original invoice date, the Account Debtor has made a partial payment (provided, that up to
$4,000,000 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 12









 




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 (other than a Defaulting Lender),
U.S.-based Affiliate of a Lender (other than a Defaulting Lender) or Approved Fund; (b) any other
financial institution approved by Agent (which approval shall not be unreasonably withheld or
delayed) and Borrower Agent (which approval shall not be unreasonably withheld or delayed and shall
be deemed given if no objection is made within five Business Days after Borrower Agent’s receipt of
a written notice of the proposed assignment), 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, 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 (including ethanol, gasoline, diesel and jet fuel) and work-in-process
fuel Inventory owned by a Borrower which is Eligible Inventory.



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



     Eligible Inventory — Inventory owned by a Borrower that Agent, in its reasonable
discretion exercised in good faith, deems to be Eligible Inventory. Without limiting the
foregoing, no Inventory shall be Eligible Inventory unless it (a) is not packaging or shipping
materials, labels, samples, display items, bags, replacement parts or manufacturing supplies; (b)
is not held on consignment, nor subject to any deposit, downpayment, guaranteed sale,
sale-or-return, sale-on-approval or repurchase arrangement; (c) is in saleable condition and is not
damaged, defective, shopworn or otherwise unfit for sale; (d) is not slow-moving, obsolete,
defective or unmerchantable; (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) other than Inventory in transit, 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, with respect to Inventory at a particular location or in possession of a
particular Person that in each case has an aggregate Value (per location or Person) of less than
$100,000, no such Inventory having an aggregate Value in excess of $500,000 will be deemed to
constitute Eligible Inventory; (l) [reserved]; and (m) is not Byproduct Inventory. Subject to the
foregoing, Inventory owned by a Borrower which is in transit, in order to constitute Eligible
Inventory, shall also be Inventory that either: (i) is in transit between two locations owned or
leased by the Borrowers and an appropriate Rent and Costs Reserve has been established, (ii) is
subject only to a Document showing Agent as consignee, which has been delivered to Agent or its
agent, (iii) is handled by



AMENDED AND RESTATED CREDIT AGREEMENT — Page 13









 




a freight forwarder that has delivered a Lien Waiver to Agent, (iv) 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, (v) was purchased on open account and the seller has
forwarded the shipping and title documents to Agent or a freight forwarder, or (vi) is in transit
on a rail car to a location of a Borrower after purchase thereof by a Borrower if (but only if) a
Borrower has fully paid for such Inventory or payment therefor is fully secured by a standby letter
of credit acceptable to Agent and either the shipper, owner and/or operator of such rail car has
executed an appropriate Lien Waiver or Agent has established a Rent and Costs Reserve with respect
to amounts owing or to become owing to such shipper, owner and/or operator, provided,
however, that the aggregate value of all such in transit Inventory deemed to constitute
Eligible Inventory shall not at any time exceed $10,000,000.




     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 CSPP and its Subsidiaries
were engaged in on the Closing Date (or any reasonable extensions or expansions thereof) or any
other business that generates gross income that constitutes “qualifying income” under Section
7704(d) of the Code and relates to the exploration for, or development, mining, production,
ownership, operation, processing, refining, storage, transportation, marketing, distribution or
other handling of, petroleum-based products, biofuels, feedstocks (including, without limiting the
generality of the foregoing, oil and natural gas), and other minerals and fuels related to the
foregoing, and (b) any Permitted Acquisition.



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



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



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



     Environmental Notice — a written notice from any Governmental Authority or other
Person of any possible noncompliance with, investigation of a possible violation of, litigation
relating to, or potential fine or liability under any Environmental Law, or with respect to any
Environmental Release, environmental pollution or Hazardous Materials, including any complaint,
summons, citation, order, claim, demand or request for correction, remediation or otherwise.



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



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




AMENDED AND RESTATED CREDIT AGREEMENT — Page 14











 





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



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



     ERISA — the Employee Retirement Income Security Act of 1974.



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



     ERISA Event — (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by a Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate a Pension Plan in a distress termination (within the meaning of Section 4041(c) of
ERISA), or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV 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 11.1.



     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 reasonably request so as to cause Obligors to be in compliance with the terms of Section
10.1.14 after giving effect to such transaction, (d) any Involuntary Disposition by such
Consolidated Party, (e) any Disposition by such Consolidated Party constituting a Permitted
Investment (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 and (g) the sale, lease, license, transfer, pledge or other disposition of any metal or
other element, composite or alloy used as, or part of, a catalyst in the operation of the refinery
assets of any of the Consolidated Parties.



     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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 15





 









 







imposed on or measured by its overall net income or net profits (however denominated), and
franchise Taxes imposed on it (in lieu of or in addition to net income or net profits Taxes where
such franchise Taxes are imposed on or measured by its overall net income or net profits), 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, (c) in the case
of a Foreign Lender, any withholding Tax that (i) 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),
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) or (ii) 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), (d) any Taxes imposed on any “withholding payment” payable by such recipient
pursuant to FATCA, and (e) any backup withholding tax required by the Code to be withheld from
amounts payable to a Lender as a result of such Lender’s failure to comply with Section 5.9(e).




     Existing Letters of Credit — the letters of credit identified on Schedule 1.1D hereto.



     Existing Partners — The Heritage Group, the Fehsenfeld and Grube Families and their
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 Credit 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 Credit 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, out-of-pocket
legal fees of outside counsel, 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.



     FATCA — Sections 1471 through 1474 of the Code and any Treasury regulations
promulgated thereunder or official interpretations thereof.



     Federal Funds Rate — (a) the weighted average of interest rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers on
the applicable Business Day (or on the preceding Business Day, if the applicable day is not a
Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or
(b) if no such rate is published on the next Business Day, the average rate (rounded up, if
necessary, to the nearest 1/8th of 1%) charged to Bank of America on the applicable day
on such transactions, as determined by Agent.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 16






 









 








     Fee Letters — collectively, (a) that certain letter agreement dated as of May 5, 2011
among CSPP, Bank of America and MLPFS, (b) that certain letter agreement dated as of May 16, 2011
among CSPP, Chase and JPMorgan and (c) that certain letter agreement dated as of May 16, 2011
between CSPP and Wells Fargo.



     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 (i)
Consolidated Capital Expenditures financed by other than Loans and (ii) Consolidated Capital
Expenditures financed by the proceeds of an Equity Issuance or the incurrence of Indebtedness
permitted hereby which proceeds are received on or before the date one hundred eighty days
following the commencement of the relevant project(s)) 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, voluntary prepayments of principal on Borrowed Money (other than
Indebtedness under this Agreement) paid during such period and mandatory prepayments of principal
paid during such period (other than principal payments made with the proceeds of a substantially
contemporaneous Equity Issuance, incurrence of Indebtedness (other than Indebtedness under this
Agreement) or Disposition of assets other than Collateral not prohibited by the terms of this
Agreement) plus (c) any dividends, distributions or other Restricted Payments (other than
Restricted Payments permitted pursuant to Section 10.2.6(b), Section 10.2.6(c) and Section
10.2.6(d)(v), but only to the extent that such Restricted Payments do not involve a payment in
cash) made by the MLP Parent or any other Obligor or Subsidiary of the MLP Parent to the holders or
a holder of the Equity Interests of the MLP Parent during such period, plus (d) the sum of
all management fees and consulting fees made by any Consolidated Party to any Existing Partner or
other Affiliate which is not a Consolidated Party during such period, other than (i) any such
payment made for reimbursement of Consolidated Party expenses which is otherwise included in the
calculation of Consolidated Net Income, or (ii) other such payments otherwise included in the
calculation of Consolidated Net Income, plus (e) the aggregate amount of any prepayment
premiums paid by the Consolidated Parties during such period in connection with the repayment of
Indebtedness.



     FLSA — the Fair Labor Standards Act of 1938.



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



     Foreign Subsidiary — a Subsidiary that is organized under the laws of a jurisdiction
other than the United States, any State thereof or the District of Columbia.



     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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 17





 









 







Law (whether or not allowed in the proceeding); (b) if such Obligations are LC Obligations or
inchoate or contingent in nature (other than unasserted contingent indemnification obligations, if
any, as to which no claim has been made and as to which Agent, in its good faith, believes that no
claim will be made), 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 effect in the United States from
time to time.



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



     General Partner — CLP.



     General Revolver Loan — a Revolver Loan made pursuant to Section 2.1.2 other than a
Distribution Revolver Loan.



     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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 18





 









 








     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.



     Hedge Agreement Collateral — the “Secured Hedge Collateral” as such term is defined in
the Hedge Intercreditor Agreement, provided, however, that the “Hedge Agreement Collateral” shall
not include any Collateral.



     Hedge Intercreditor Agreement — that certain Amended and Restated Intercreditor
Agreement dated as of April 21, 2011, among Agent, Bank of America, as “Secured Hedge Agent”, and
Borrowers, including any replacement thereof approved by Agent from time to time.



     Immaterial Subsidiary — any Subsidiary of the MLP Parent which (a) for the most recent
Fiscal Year of the Consolidated Parties had less than $5,000,000 of revenues and (b) as of the end
of such Fiscal Year was the owner of less than $5,000,000 of assets, all as shown on the
consolidated financial statements of the Consolidated Parties for such Fiscal Year.
Notwithstanding the foregoing, no Subsidiary which meets the preceding criteria shall be deemed to
be an Immaterial Subsidiary if it, along with other Subsidiaries of the MLP Parent which would also
meet the preceding criteria, collectively (a) for the most recent Fiscal Year of the Consolidated
Parties had more than $15,000,000 of revenues and (b) as of the end of such Fiscal Year was the
owner of more than $15,000,000 of assets, all as shown on the consolidated financial statements of
the Consolidated Parties for such Fiscal Year. A list of the Immaterial Subsidiaries as of the
Closing Date is set forth on Schedule 1.1E attached hereto.



     Incremental Revolving Facility — as defined in Section 2.2.



     Indebtedness — with respect to any Person, without duplication, (a) all obligations of
such Person for Borrowed Money, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are customarily made (other than
trade debt incurred in the Ordinary Course of Business and due within six months of the incurrence
thereof), (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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 19





 









 







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, Arranger Indemnitees, Lender Indemnitees, Issuing
Bank Indemnitees and Bank of America Indemnitees, without duplication.



     Information — as defined in Section 14.12.



     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 or by suit)
that a Consolidated Party’s ownership, use, marketing, sale or distribution of any Inventory,
Equipment, Intellectual Property or other Property violates another Person’s Intellectual Property.



     Intercompany Debt — as defined in Section 14.19.



     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 and not for
speculative purposes.



     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 sum of (a) 80% of the Value of Eligible Category A
Inventory plus (b) the lesser of (i) 70% of the Value of Eligible Category B Inventory, or
(ii) 85% of the NOLV Percentage of the Value of Eligible Category B Inventory; provided,
however, that Agent, subject to Section 14.1.1(a)(iii)(A), may adjust such advance
percentages from time to time in its reasonable discretion exercised in good faith.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 20






 









 








     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.



     IP License — that certain License to Use Intellectual Property Rights dated April 21,
2011, executed by Borrowers to Agent, for the benefit of Agent and Lenders, including any
replacement thereof approved by Agent from time to time.



     IRS — the United States Internal Revenue Service.



     Issuing Bank — Bank of America or an Affiliate of Bank of America that issues Letters
of Credit hereunder, or any replacement appointed pursuant to Section 2.3.4.



     Issuing Bank Indemnitees — Issuing Bank and its Related Parties.



     JPMorgan — J.P. Morgan Securities LLC and it successors and permitted assigns.



     JPMorgan Indemnitees — JPMorgan and its Related Parties.



     LC Application — an application by Borrower Agent to Issuing Bank for issuance or, if
applicable, amendment, extension or renewal of a Letter of Credit, in form and substance reasonably
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 6.2; (b) after giving effect to such issuance, (i)
total LC Obligations do not exceed an amount equal to the LC Sublimit, (ii) total LC Obligations
plus the unpaid principal balance of all Revolver Loans, if any, do not exceed the
Borrowing Base (without giving effect to the LC Reserve for purposes of this calculation), (iii) no
Overadvance exists and, (iv) if no Revolver Loans are



AMENDED AND RESTATED CREDIT AGREEMENT — Page 21





 









 







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; provided, that any Letter of Credit may
contain automatic extension provisions so long as (A) such provisions permit the Issuing Bank to
prevent any such extension at least once in each twelve month period by giving prior notice to the
beneficiary thereof not later than a day in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued and (B) the final expiry date of such Letter of Credit does
not extend beyond the date 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 maximum amount potentially available
for draw under 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.



     LC Sublimit — the greater of (a) $400,000,000 and (b) eighty percent (80%) of the
Revolver Commitments then in effect.



     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 pursuant to Section 13.3.



     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, including, without limitation, the Existing Letters of Credit.



     LIBOR — for any Interest Period with respect to a LIBOR Loan, the per annum rate of
interest (rounded up, if necessary, to the nearest 1/8th of 1%), determined by Agent at
approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest
Period, for a term comparable to such Interest Period, equal to: (a) the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially
available source designated by Agent); or (b) if BBA LIBOR is not available for any reason, the
interest rate at which Dollar deposits in the approximate amount of the LIBOR Loan would be offered
by Bank of America’s London branch to major banks in the



AMENDED AND RESTATED CREDIT AGREEMENT — Page 22




 









 







London interbank Eurodollar market. If the Board of Governors imposes a Reserve Percentage
with respect to LIBOR deposits, then LIBOR shall be the foregoing rate, divided by 1 minus the
Reserve Percentage.




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



     LIBOR Revolver Loan — a Revolver Loan that bears interest based on 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 such Intellectual Property or a license therefor, 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 Year — each calendar year commencing on the Closing Date and each one-year
anniversary of the Closing Date.



     Marked-to-Market Basis — at the date of delivery of each Borrowing Base Certificate,
as to Eligible Category A Inventory, for each type of such Eligible Category A Inventory specified
on Schedule 1.1C hereto, as determined by reference to the pricing method for determining the then
current fair market value of Eligible Category A Inventory as specified for such type of inventory
on Schedule 1.1C hereto; provided, that if a price or quotation is not available for a
particular type of Eligible Category A Inventory for any reason on a particular Business Day, the
most recently available price or quotation from a prior Business Day shall be used for that type of
Eligible Category A Inventory. Notwithstanding the foregoing, if any of the indexes or quotations
defined in the column “Pricing



AMENDED AND RESTATED CREDIT AGREEMENT — Page 23





 









 







Method” in Schedule 1.1C are discontinued, or if any such index or quotation is suspended or
not publicly available for more than five consecutive Business Days for a particular type of
inventory and there is a reasonable likelihood that such index or quotation will not be available
for any extended period of time for that type of inventory: (a) Agent and Borrower Agent shall
negotiate in good faith for a suitable substitute index or other suitable pricing mechanism for
determining the fair market value of the type of inventory in question; and (b) until such time as
such substitute index or pricing mechanism is agreed to by Agent and Borrower Agent, the fair
market value of the particular type of inventory for which indexes or quotations are no longer
available shall be the lower of cost or market, calculated on a first-in, first-out basis
reasonably determined by Agent.




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



     Material Contract — any agreement or arrangement to which a Borrower or Subsidiary is
party (other than the Credit 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 $25,000,000 or more.



     Maximum Distribution Revolver Loans Amount -$50,000,000.



     Maximum Rate — as defined in Section 3.10.



     MLPFS — Merrill Lynch, Pierce, Fenner & Smith Incorporated and its successors and
permitted assigns.



     MLPFS Indemnitees — MLPFS and its Related Parties.



     MLP General Partner — Calumet GP, or any other Person acting in the capacity as
general partner of the MLP Parent.



     MLP Parent — CSPP.



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



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



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



     Net Cash Proceeds — the aggregate cash or Cash Equivalents proceeds received by any
Obligor in respect of any Disposition or Involuntary Disposition, net of (a) direct costs incurred
in connection therewith (including legal, accounting and investment banking fees, and sales
commissions), (b) Taxes



AMENDED AND RESTATED CREDIT AGREEMENT — Page 24





 









 







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.




     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 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.



     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.



     Obligations — without duplication, 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 Credit 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 Credit 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 Subsidiary (other than a Foreign
Subsidiary) of a Borrower that is liable for payment of any Obligations or that has granted a Lien
in favor of Agent, for the benefit of Secured Parties, 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. For the
avoidance of doubt, MLP General Partner shall not be an Obligor.



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



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



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



     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 Credit Document).



AMENDED AND RESTATED CREDIT AGREEMENT — Page 25






 









 








     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.



     Original Credit Agreement — that certain Credit Agreement dated as of December 9, 2005
among certain of the Borrowers, the financial institutions party thereto from time to time as
lenders and Bank of America, N.A., as agent for the lenders, as amended, modified or otherwise
supplemented from time to time.



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



     Other Agreement — each Note; each LC Document; the Fee Letters; the IP License, each
Lien Waiver; each Borrowing Base Certificate, each Compliance Certificate, the Hedge Intercreditor
Agreement, all financial statements or reports delivered hereunder; or other documents, instruments
or agreements (other than this Agreement or a Collateral Document) now or hereafter delivered by an
Obligor or other Person to Agent or a Lender in connection with any transactions (excluding, for
the avoidance of doubt, hedging and other swap transactions) contemplated by the Credit 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 Credit Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Credit 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 13.2.1.



     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 CSPP or any ERISA Affiliate or to which CSPP or any ERISA Affiliate
contributes or has



AMENDED AND RESTATED CREDIT AGREEMENT — Page 26





 









 







an obligation to contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five
plan years.




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



     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.



     Prepayment Conditions — (a) Availability (i) at all times during the sixty-day period
preceding any payment, prepayment, redemptions, acquisition for value, refund, refinance or
exchange, (ii) on the date of such payment, prepayment, redemption, acquisition for value, refund,
refinance or exchange and after giving effect thereto, and (iii) projected at all times during the
six-month period following such payment, prepayment, redemption, acquisition for value, refund,
refinance or exchange shall be equal to or greater than 15% of the lesser of the Borrowing Base
(without giving effect to the LC Reserve for purposes of this calculation) and the Revolver
Commitments then in effect; and (b) if Availability as referred to in clause (a)(i), (ii) or (iii)
above is less than 35% of the lesser of (i) the Borrowing Base (without giving effect to the LC
Reserve for purposes of this calculation) and (ii) the Revolver Commitments then in effect (which
Availability under clause (a)(i) above shall be, for purposes of this clause (b) only, calculated
on an average basis), Borrowers shall have demonstrated to the reasonable satisfaction of Agent,
based on adjustments made in good faith using reasonable assumptions, that the Fixed Charge
Coverage Ratio on a Pro Forma Basis (after giving effect to such payment, prepayment, redemption,
acquisition for value, refund, refinance and/or exchange) shall be at least 1.1 to 1.0.



     Prime Rate — the rate of interest announced by Bank of America from time to time as
its prime rate. Such rate is set by Bank of America on the basis of various factors, including its
costs and desired return, general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above or below such rate. Any change in such
rate announced by Bank of America shall take effect at the opening of business on the day specified
in the public announcement of such change.



     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 Fixed Charge 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 27





 









 









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.




     Notwithstanding anything in this Agreement to the contrary, other than as set forth in
Section 1.2.3, all pro forma calculations permitted or required to be made pursuant to this
Agreement shall include only those adjustments that would be (i) permitted or required by
Regulation S-X promulgated under the Securities Act of 1933, as amended, together with those
adjustments that (A) have been certified by the Chief Financial Officer of Borrower Agent as
having been prepared in good faith based upon reasonable assumptions and (B) are based on
reasonably detailed written assumptions reasonably acceptable to Agent and (ii) required by
the definition of Consolidated EBITDA.



     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 then in effect by the aggregate amount of
all Revolver Commitments then in effect; and (b) at any other time, by dividing the amount of such
Lender’s outstanding 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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 28






 









 








     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.



     Qualifying Owners — collectively, any of the owners of Calumet GP as of the date of
this Agreement and their respective Affiliates, and the trustees, beneficiaries or the heirs or
family members of any of the foregoing, including The Heritage Group, The Janet Krampe Grube
Grantor Retained Annuity Trust Dated January 31, 2002, The Mildred L. Fehsenfeld Irrevocable
Intervivos Trust for the Benefit of Fred Mehlert Fehsenfeld and his issue and the Maggie Fehsenfeld
Trust Number 106 for the Benefit of Fred Melert Fehsenfeld and his issue.



     Quarterly Average Availability — the average of Availability for each day of the
immediately preceding calendar quarter as calculated by Agent (which shall be presumed correct
absent manifest error).



     Quarterly Average Availability Percentage — an amount, expressed as a percentage and
calculated as of the last day of each calendar quarter, equal to (a) the Quarterly Average
Availability for such calendar quarter divided by (b) the lesser of the daily average Borrowing
Base (without giving effect to the LC Reserve for purposes of this calculation) and the daily
average amount of the Revolving Commitments, in each case in effect during such calendar quarter.



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



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



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



     Regulation D — Regulation D of the Board of Governors, as in effect from time to time
and any successor or other regulation or official interpretation of the Board of Governors, 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, in each case, 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, other than events
for which the thirty-day notice period has been waived under applicable PBGC regulations.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 29




 









 








     Reporting Trigger Event — the occurrence of any of the following: (a) Availability
falls below the greater of (i) 20% of the lesser of the Borrowing Base (without giving effect to
the LC Reserve for purposes of this calculation) and the amount of the Revolver Commitments then in
effect and (ii) subject to Section 1.4, $40,000,000 or (b) a Default or an 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.



     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 in full or expired, Loans and participations in L/C Obligations in excess of 50% of all
outstanding Loans and L/C Obligations.



     Reserve Percentage — the reserve percentage (expressed as a decimal, rounded up to the
nearest 1/8th of 1%) applicable to member banks under regulations issued from time to
time by the Board of Governors 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”).



     Restricted Account — one or more accounts with the Agent designated by the Agent and
the Borrowers as a restricted account in the name of, and subject to the control of, the Agent.



     Restricted Account Balance — the balance of cash and, to the extent acceptable to the
Agent from time to time, Cash Equivalents on deposit in a Restricted Account.



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



     Revolver Commitment — for any Lender, its obligation to make Revolver Loans and to
participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1A (as such
Schedule may be amended or replaced from time to time), or as specified hereafter in the most
recent Assignment and Acceptance to which it is a party and entered into pursuant to Section 13.3.
“Revolver Commitments” means the aggregate amount of such commitments of all Lenders, as
such amount may be increased from time to time in accordance with Section 2.2 or decreased from
time to time in accordance with Section 2.1.4(b). The Revolver Commitments as of the Closing Date
total $550,000,000.



     Revolver Loan — any loan or advance made pursuant to this Agreement, including any
General Revolver Loan or Distribution Revolver Loan, Swingline Loan, Overadvance Loan, Protective
Advance or loan made under the Incremental Revolving Facility.



     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 Revolver Loans made by such Lender.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 30







 









 








     Revolver Termination Date — June 24, 2016.



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



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



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



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



     Senior Notes — as defined in the definition of “Senior Notes Offering” as set forth in
this Section 1.1.



     Senior Notes Agreements — the Senior Notes, the Senior Notes Indenture, the Senior
Notes Purchase Agreement, the Preliminary Offering Memorandum (as defined in the Senior Notes
Purchase Agreement), the Offering Memorandum (as defined in the Senior Notes Purchase Agreement)
and the Senior Notes Registration Rights Agreement.



     Senior Notes Indenture — (a) that certain Indenture, dated as of April 21, 2011, among
the Company and Calumet Finance, as issuers, the “Guarantors” (as defined therein) and the Senior
Notes Trustee pursuant to which the Senior Notes are issued, and (b) any note purchase agreement,
indenture or other agreement evidencing any refinancing thereof permitted by Section 10.2.3.



     Senior Notes Offering — the issuance by the Company and Calumet Finance of
$400,000,000 aggregate principal amount of 9-3/8% unsecured senior notes due 2019 pursuant to the
Senior Notes



AMENDED AND RESTATED CREDIT AGREEMENT — Page 31





 









 







Indenture, and any subsequent offering of unsecured senior notes, without regard to principal
amount, having a maturity date that is at or after May 1, 2019 (the “Senior Notes”).




     Senior Notes Purchase Agreement — the Purchase Agreement, dated April 15, 2011, among
Borrowers, as issuers or guarantors of the Senior Notes, Calumet GP, MLPFS, Goldman, Sachs & Co.
and MLPFS and Goldman, Sachs & Co. on behalf of themselves and Barclays Capital Inc., Deutsche Bank
Securities Inc. and Wells Fargo Securities, LLC, as initial purchasers of the Senior Notes.



     Senior Notes Registration Rights Agreement — the Registration Rights Agreement dated
April 21 2011, among Borrowers, as issuers or guarantors of the Senior Notes, and MLPFS, Goldman,
Sachs & Co., Barclays Capital Inc., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC,
as initial purchasers of the Senior Notes.



     Senior Notes Trustee — Wilmington Trust FSB, as trustee under the Senior Notes
Indenture, and any successor trustee thereunder.



     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.



     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 Calumet Lubricants, an account
specified by and 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, an account specified by and 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, an account specified by and 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 32





 









 







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 Conversion — a conversion of a Person (the “Pre-Conversion Entity”)
such that, when such conversion is effected, under the laws of the jurisdiction of formation of the
Person to which the Pre-Conversion Entity has converted (such second Person, the
“Post-Conversion Entity”) (a) the Post-Conversion Entity shall be organized or existing
under the laws of one of the United States and shall be deemed to be the same legal entity as the
Pre-Conversion Entity and the conversion shall constitute a continuation of the existence of the
Pre-Conversion Entity in the form of the Post-Conversion Entity, (b) the conversion shall not be
deemed to affect any obligations or liabilities of the Pre-Conversion Entity incurred prior to its
conversion, (c) all of the rights, privileges and powers of the Pre-Conversion Entity, and all
property, real, personal and mixed, and all debts due to the Pre-Conversion Entity, as well as all
other things and causes of action belonging to the Pre-Conversion Entity, shall remain vested in
the Post-Conversion Entity and shall be the property of the Post-Conversion Entity, and the title
to any real property vested by deed or otherwise in the Pre-Conversion Entity shall not revert or
be in any way impaired by reason of the conversion, (d) all rights of creditors and all Liens upon
any property of the Pre-Conversion Entity shall be preserved unimpaired, and all debts, liabilities
and duties of the Pre-Conversion Entity shall remain attached to the Post-Conversion Entity, and
may be enforced against the Post-Conversion Entity to the same extent as if said debts, liabilities
and duties had originally been incurred or contracted by it, and (e) the conversion shall not be
deemed to constitute a dissolution of the Pre-Conversion Entity; and Agent shall have received a
legal opinion in form and substance reasonably satisfactory to Agent with respect to (i) the due
authorization of the conversion by the Pre-Conversion Entity, (ii) the corporate (or equivalent)
power and authority of the Pre-Conversion Entity to effect the conversion, and (iii) the matters
described in clauses (a) and (e) above.



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



     Subsidiary — with respect to any Person, means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority of the shares of
Equity Interests having ordinary voting power for the election of directors or other governing body
(other than Equity Interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the MLP Parent.



     Supermajority Lenders — Lenders (subject to Section 4.2) having (a) Revolver
Commitments in excess of 85% of the aggregate Revolver Commitments; and (b) if the Revolver
Commitments have terminated in full or expired, Loans and participations in L/C Obligations in
excess of 85% of all outstanding Loans and L/C Obligations.



     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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 33




 









 







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).



     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.



     Threshold Amount — $25,000,000.



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



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



     UCC — the Uniform Commercial Code as in effect in the State of New York or, when the
laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform
Commercial Code as in effect in 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%
	 	0.375%
	II
	 	< 50%
	 	0.500%






     U.S. or United States — the United States of America.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 34




 









 








     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 A Inventory, the value of such Inventory
on a Marked-to-Market Basis, and (b) with respect to Eligible Category B Inventory, the value of
such 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.



     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.



     Wells Fargo — Wells Fargo Capital Finance, LLC and its successors and permitted
assigns.



     Wells Fargo Indemnitees — Wells Fargo and its Related Parties.



     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 Credit 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, (a) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change
therein and (b) 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, Acquisitions and Expense Reductions.
Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of
calculations made of the Fixed Charge Coverage Ratio (including without limitation for
purposes of the financial covenant set forth in Section 10.3 and the definitions of “Pro
Forma Basis” set forth in Section 1.1), subject to the last paragraph of the definition of
“Pro Forma Basis” set forth in Section 1.1, (a) after consummation of any Disposition (i)
income statement items (whether positive or



AMENDED AND RESTATED CREDIT AGREEMENT — Page 35




 









 









negative)
and capital expenditures attributable to the Property disposed of shall be excluded and
(ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of
the first day of the applicable period and (b) after consummation of any Acquisition (i)
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, (ii) 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 and (iii) for the purposes of
calculating the Fixed Charge Coverage Ratio under Section 10.2.2(h)(vi) only, any pro forma
expense or cost reductions in connection with such Acquisition that have occurred or are
reasonably expected to occur within the twelve months immediately subsequent to the
Calculation Date, in the reasonable judgment of any Senior Officer of the MLP General
Partner (whether or not those expense or cost reductions could then be reflected in pro
forma financial statements in accordance with Regulation S-X promulgated under the
Securities Act of 1933, as amended, or any other regulation or policy of the Securities and
Exchange Commission related thereto), shall be given pro forma effect.




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



     1.3 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, “from” means “from
and including,” and “to” and “until” each mean “to but excluding.” The terms “including”,
“includes” and “include” shall mean “including, without limitation” and, for purposes of each
Credit Document, the parties agree that the rule of ejusdem generis shall not be applicable to
limit any provision. All references to “day”, “week” or “month” shall be references to a calendar
day, week or month unless otherwise stated. Section titles appear as a matter of convenience only
and shall not affect the interpretation of any Credit 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, supplements
and other modifications, extensions or renewals from time to time (to the extent permitted by the
Credit 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 herein by reference; (e) any Person
include successors and permitted assigns of such Person; (f) time of day mean time of day at
Agent’s notice address referenced in 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 Credit 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 Credit Documents. No provision of any



AMENDED AND RESTATED CREDIT AGREEMENT — Page 36




 









 







Credit 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 knowledge of” a Borrower
or other Obligor or words of similar import are used in any Credit Documents, such phrase means
actual knowledge of a Senior Officer of such Borrower or other Obligor (as applicable), or
knowledge that a Senior Officer of such Borrower or other Obligor (as applicable) 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. Unless otherwise expressly stated herein, the
word term “intercompany” shall relate to matters that are intercompany between or among the
Consolidated Parties.




     1.4 Proportionate Adjustment. The fixed Dollar component of Availability tests set
forth in the definitions of “Cash Dominion Trigger Event” and “Reporting Trigger Event” and in
Sections 10.2.2(k), 10.2.6(d)(iv) and 10.3.1 shall be automatically increased ratably with
increases in the Revolver Commitments after the Closing Date such that such fixed Dollar component
shall be increased by the same percentage as the percentage increase in the Revolving Commitments.



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 for the purposes set forth in
Section 2.1.3. Subject to Section 2.1.5, 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 or if the unpaid
balance of Revolver Loans outstanding at such time (including the requested Loan)
plus total LC Obligations would exceed the aggregate Revolver Commitments. 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 Revolver Note to such Lender.




     2.1.3 Use of Proceeds. The proceeds of General Revolver Loans made pursuant to
Section 2.1.1 shall be used by Borrowers solely (a) to refinance the Borrowers’ obligations
under the Original Credit Agreement; (b) to pay fees and transaction expenses associated
with the closing of this Agreement; (c) to pay Obligations in accordance with this
Agreement; and (d) for working capital, capital expenditures and other lawful corporate
purposes of Borrowers, including Permitted Acquisitions. The proceeds of Distribution
Revolver Loans made pursuant to Section 2.1.1 (not to exceed the Maximum Distribution
Revolver Loans Amount at any time outstanding) shall be used by Borrowers solely 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, by written notice to Agent, terminate the Revolver Commitments
and this credit facility. Any notice of termination given by Borrowers shall be
irrevocable; provided, that a notice of termination of the Revolver
Commitments



AMENDED AND RESTATED CREDIT AGREEMENT — Page 37




 









 









delivered by the Borrowers may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked
by the Borrowers (with written notice to Agent on or prior to the specified
effective date). If Borrowers revoke any notice of termination, they shall be
responsible for the amounts, if any, payable pursuant to Section 3.9. 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 principal amount of the outstanding
Revolver Loans exceeds 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 Credit Documents. Unless its authority to
make Overadvances 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 an amount equal to 5%
of the lesser of (x) the Borrowing Base (without giving effect to the LC Reserve for
purposes of this calculation) and (y) the Revolver Commitments; 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 an amount equal to 2% of the lesser of (x) the Borrowing Base
(without giving effect to the LC Reserve for purposes of this calculation) and (y) the
Revolver Commitments (provided that the aggregate amount of all Overadvances shall not
exceed an amount equal to 7.5% of the lesser of (x) the Borrowing Base (without giving
effect to the LC Reserve for purposes of this calculation) and (y) the Revolver Commitments,
and (ii) does not continue for more than 30 consecutive days. In no event shall an
Overadvance be required that would cause the aggregate principal amount of the outstanding
Revolver Loans and LC Obligations to exceed the aggregate Revolver Commitments then in
effect. Any funding of an Overadvance Loan or sufferance of an Overadvance shall not
constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no event
shall any Borrower or other Obligor be deemed a beneficiary of this Section nor authorized
to enforce any of its terms.



     2.1.6 Protective Advances. Agent shall be authorized, in its discretion, at
any time that a Default or Event of Default exists or any conditions in Section 6 are not
satisfied, to make Base Rate Revolver Loans (“Protective Advances”) (a) up to an
aggregate amount outstanding at any time, together with the amount of any outstanding
Overadvances, equal to the greater of (i) $10,000,000 or (ii) 10% of the lesser of (x) the
Borrowing Base (without giving effect to the LC Reserve for purposes of this calculation)
and (y) the Revolver Commitments, if Agent deems such Loans necessary or desirable to
preserve or protect any Collateral, or to enhance the collectability or repayment of
Obligations; or (b) to pay any other amounts chargeable to Obligors under any Credit
Documents, including costs, fees and expenses. In no event shall Protective Advances be
made that would cause the aggregate principal amount of outstanding Revolver



AMENDED AND RESTATED CREDIT AGREEMENT — Page 38




 









 







Loans and LC Obligations to exceed the aggregate Revolver Commitments then in effect.
All Protective Advances shall be Obligations, secured by the Collateral, and shall be
treated for all purposes as Extraordinary Expenses. Each Lender shall participate in each
Protective Advance on a Pro Rata basis. Required Lenders may at any time revoke Agent’s
authorization to make further Protective Advances by written notice to Agent. Absent such
revocation, Agent’s determination that funding of a Protective Advance is appropriate shall
be conclusive.





2.2 Incremental Availability.




     Subject to the terms and conditions set forth herein, Borrowers shall have the right,
at any time and from time to time prior to the Revolver Termination Date but on not more
than three occasions and in minimum increments of $50,000,000 per occasion, to incur
additional Indebtedness under this Agreement in the form of an increase to the Revolver
Commitments (the “Incremental Revolving Facility”) by an aggregate principal amount
of up to $300,000,000; provided, that no Default or Event of Default shall have
occurred and be continuing. The following terms and conditions shall apply to the
Incremental Revolving Facility: (i) the loans made under the Incremental Revolving Facility
shall constitute Obligations and will be secured and guaranteed with the other Obligations
on a pari passu basis, (ii) such Incremental Revolving Facility shall be obtained from
existing Lenders or from other banks, financial institutions or investment funds, in each
case in accordance with the terms set forth below, (iii) Borrowers shall execute a Note in
favor of any requesting new Lender or any existing Lender requesting a Note whose Revolver
Commitment is increased, (iv) Agent shall have received evidence that all requisite
corporate (or equivalent) action on behalf of Obligors in connection with the Incremental
Revolving Facility shall have been taken, which evidence shall be in form and substance
reasonably satisfactory to Agent, and (v) Agent shall have received from Borrowers and
Guarantors such other customary documentation as it deems reasonably necessary in connection
with the Incremental Revolving Facility, including, without limitation, such documentation
to evidence, preserve and protect the Liens granted pursuant to the Credit Documents.
Participation in the Incremental Revolving Facility shall be offered first to each of the
existing Lenders, but each such Lender shall have no obligation to provide all or any
portion of the Incremental Revolving Facility. If the amount of the Incremental Revolving
Facility requested by Borrowers shall exceed the commitments which the existing Lenders are
willing to provide with respect to such Incremental Revolving Facility, then Borrowers may
invite other banks, financial institutions and investment funds that satisfy clause (b) of
the definition of “Eligible Assignee” or that are otherwise reasonably acceptable to Agent
to join this Agreement as Lenders hereunder for the portion of such Incremental Revolving
Facility not taken by existing Lenders, provided that such other banks, financial
institutions and investment funds shall enter into such joinder or assignment agreements to
give effect thereto as Agent may reasonably request. Agent is authorized to enter into, on
behalf of the Lenders, any amendment to this Agreement or any other document as may be
necessary to incorporate the terms of any new Incremental Revolving Facility therein. Any
loans made pursuant to the Incremental Revolver Facility shall have the same terms
(including, but not limited to, interest rate, maturity date, voting rights and rights to
receive the proceeds of prepayments) as the existing Revolver Loans and shall be considered
Revolver Loans hereunder.




2.3 Letter of Credit Facility.



     2.3.1 Issuance of Letters of Credit. Issuing Bank agrees to issue, amend and
renew 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:



AMENDED AND RESTATED CREDIT AGREEMENT — Page 39






 









 









     (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; (ii) each LC Condition
is satisfied and (iii) if a Defaulting Lender exists, such Lender or Borrowers have
entered into arrangements satisfactory to Agent and Issuing Bank to eliminate any
funding risk with respect to such Defaulting Lender. If Issuing Bank receives
written notice from Required Lenders 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.
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; provided, that this foregoing assumption is not
intended to and shall not preclude Borrowers’ pursuit of any and all rights and
remedies as it may have against any beneficiary at law or otherwise. In connection
with issuance of any Letter of Credit, none of Agent, Issuing Bank or any Lender
shall be responsible for the existence, character, quality, quantity, condition,
packing, value or delivery of any goods purported to be represented by any
Documents; any differences or variation in the character, quality, quantity,
condition, packing, value or delivery of any goods from that expressed in any
Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of
any Documents or of any endorsements thereon; the time, place, manner or order in
which shipment of goods is made; partial or incomplete shipment of, or failure to
ship, any goods referred to in a Letter of Credit or Documents; any deviation from
instructions, delay, default or fraud by any shipper or other Person in connection
with any goods, shipment or delivery; any breach of contract between a shipper or
vendor and a Borrower; errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail,
telephone or otherwise; errors in interpretation of technical terms; the
misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or
any consequences arising from causes beyond the control of Issuing Bank, Agent or
any Lender, including any act or omission of a Governmental Authority. The rights
and remedies of Issuing Bank under the Credit 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 40




 









 









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.




     (e) All Existing Letters of Credit shall be deemed to have been issued pursuant
to this Agreement and to be Letters of Credit issued and outstanding hereunder and,
from and after the Closing Date, shall be subject to and governed by the terms and
conditions hereof.




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 (no matter when Issuing Bank shall
give notice of such honor and the amount thereof to Borrower Agent); provided,
however, that Issuing Bank shall give notice of such honor and the amount thereof to
Borrower Agent in accordance with Issuing Bank’s standard procedures and such
payment by Borrower shall not be due until the date on which such notice is given to
Borrower Agent or, if such notice is given after 2:00 p.m., on the Business Day
immediately succeeding such date on which such notice is given. 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,



AMENDED AND RESTATED CREDIT AGREEMENT — Page 41





 









 









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 Credit 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 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, collectability, 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, willful misconduct or
bad faith. 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 written request, Cash Collateralize the aggregate maximum
amount then potentially available for draw under all outstanding Letters of Credit and pay
to Issuing Bank the amount of all other outstanding LC Obligations. Subject to Section
4.2.2, Borrowers shall, on demand by Issuing Bank or Agent from time to time, Cash
Collateralize the LC Obligations of any Defaulting Lender not otherwise covered by the
arrangements referenced in Section 2.3.1(a)(iii). 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).




     2.3.4 Resignation of Issuing Bank.




     Issuing Bank may resign at any time upon five Business Days’ prior written notice to
Agent and Borrower Agent. On the effective date of such resignation, Issuing Bank shall
have no further obligation to issue, amend, renew, extend or otherwise modify any Letter of
Credit, but shall continue to have the benefits of Sections 2.3, 12.6 and 14.2 with respect
to any Letters of Credit issued or other actions taken while Issuing Bank. Agent shall
promptly appoint a replacement Issuing Bank (other than a Defaulting Lender) and, as long as
no Default or Event of Default exists, such replacement shall be subject to the consent of
Borrower Agent, such consent not to be unreasonably withheld or delayed.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 42





 












 





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 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 the continuance of an Event of Default, if Required Lenders in their
discretion so elect, the Obligations shall bear interest at the Default Rate;
provided, however that, at all times during the continuance of an Event of
Default resulting from a default in the payment of principal of the Loans when and
as required to be paid (whether at stated maturity, on demand, upon acceleration or
otherwise), the 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) for
any Base Rate Loan, on the first day of each month, for any LIBOR Loan with an
Interest Period of three months or less, on the last day of such Interest Period and
for any LIBOR Loan with an Interest Period longer than three months, on each three
month anniversary of the first day of such Interest Period and on the last day of
such 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 Credit 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 LIBOR to Outstanding Loans.





     (a) Borrowers may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or
to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan.
During the continuance of 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



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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 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 [Reserved].




     3.2.2 Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit
of Lenders (other than a Defaulting Lender), 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 undrawn amount of Letters of Credit issued and outstanding
during any month. Such fee shall be payable in arrears, on the first Business Day of each
month and on the Commitment Termination Date.




     3.2.3 LC Facility Fees. Borrowers shall pay (a) to Agent, for the Pro Rata
benefit of Lenders or Issuing Bank, as described below, 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 Issuing Bank, 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 44




 









 









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% per annum. Subject to Section 4.2.2, any fee described in clause (a) above payable
for the benefit of a Defaulting Lender shall be paid, instead, to Issuing Bank unless
Issuing Bank’s potential exposure for such Defaulting Lender’s LC Obligations has been Cash
Collateralized, in which case such fees shall not be payable.




     3.2.4 Other Fees. Borrowers shall pay to Bank of America, JPMorgan, Chase and
Wells Fargo, as applicable, the fees described in the Fee Letters, including, without
limitation, the upfront fees described therein payable for the benefit of Lenders.



     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, except that interest accrued on Base Rate Loans shall be based on a
year of 365 or 366 days, as the case may be. 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 or in separate documentation entered
into between or among the relevant parties thereto, including the Fee Letters. 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 for purposes of
applicable usury laws. 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, describing
in reasonable detail the basis and calculation of such amounts, shall be final, conclusive and
binding for all purposes, absent manifest error. The Borrowers’ obligations under this paragraph
shall survive the termination of the Revolver Commitments and the repayment of all other
Obligations.



     3.4 Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary
Expenses incurred by it. Borrowers shall also reimburse Agent for all reasonable out-of-pocket
legal (for outside counsel), accounting, appraisal, consulting, and other reasonable fees, costs
and expenses incurred by it in connection with (a) negotiation and preparation of any Credit
Documents, including any amendment or other modification thereof; (b) administration of and actions
relating to any Collateral, Credit 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; provided
that (x) Borrowers shall also reimburse Lenders (in addition to Agent) for all reasonable
out-of-pocket legal fees, costs and expenses of one outside counsel to Lenders as a group in
connection with any Enforcement Action (including any restructuring or work out) or in connection
with the exercise, protection or enforcement of any rights or remedies of Agent and/or Lenders in,
or in the monitoring of, any proceeding under any Debtor Relief Law relating to any Obligor or its
property, and (y) except as provided in clause (x) above, such legal fees, costs and expenses
reimbursable by Borrowers pursuant to this sentence shall be limited to one outside counsel of
Agent plus one outside counsel of Agent in each jurisdiction of formation or organization of any
Obligor. Subject to the limitations set forth herein, all out-of-pocket outside legal, accounting
and consulting fees shall be charged to Borrowers by Agent’s professionals at their full hourly
rates, regardless of any reduced or alternative fee billing arrangements that Agent, any Lender or
any of their Affiliates may have with such professionals with respect to this or any other
transaction. All amounts reimbursable by Borrowers under this Section shall constitute Obligations
secured by the Collateral and shall be payable on demand. If, as a result of any restatement of or
other adjustment to the financial statements of the MLP Parent and/or its Subsidiaries or for any
other reason, the Borrowers or the Required Lenders determine that (i) the Quarterly Average
Availability as calculated by the Borrowers as of any applicable date was inaccurate



AMENDED AND RESTATED CREDIT AGREEMENT — Page 45





 









 







and (ii) a proper calculation of the Quarterly Average Availability would have resulted in
higher or lower pricing for such period, (A) in the case of higher pricing, the Borrowers shall
immediately and retroactively be obligated to pay to the Agent for the account of the applicable
Lenders, promptly on demand by the Agent (or, after the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Agent, any Lender or the Issuing Bank), an amount
equal to the excess of the amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period, and (B) in the case of lower
pricing, the applicable Lenders shall immediately and retroactively be obligated to pay to
Borrowers, promptly on demand by Borrowers (or, after the occurrence of an actual or deemed entry
of an order for relief with respect to Borrowers under the Bankruptcy Code of the United States,
automatically and without further action by any Borrower), an amount equal to the excess of the
amount of interest and fees that was actually paid for such period over the amount of interest and
fees that should have been paid for such period, provided, however, that if a Default has then
occurred and is continuing, Agent shall be entitled to apply such amount or any portion thereof to
any Obligations which are then due and/or retain such amount or any portion thereof as Cash
Collateral. In the event of any change in GAAP applicable to Borrowers and other similarly
situated entities generally, if any such change would otherwise requires a restatement or other
retroactive financial statement adjustment as a result of the retroactive application of such
revised GAAP principles, then Section 1.2.2 shall control and all fee related calculations shall
continue to be made as set forth in Section 1.2.2.




     3.5 Illegality. If any Lender determines in good faith 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 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 written 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, which such Lender agrees
to do promptly upon the occurrence thereof. Upon receipt of such notice, the Borrowers shall, upon
demand from such Lender (with a copy to Agent), prepay or, if applicable, convert all LIBOR Loans
of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or
conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.



     3.6 Increased Costs.



          3.6.1 Increased Costs Generally.





     If any Change in Law shall:




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




     (ii) subject any Lender or Issuing Bank to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any



AMENDED AND RESTATED CREDIT AGREEMENT — Page 46




 









 









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 Commitment 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 Section 3.6.1 or Section 3.6.2
of this Section and delivered to the Borrowers in accordance with Section 3.3 shall be
conclusive absent manifest error. The Borrowers shall pay such Lender or Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.




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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 47




 









 









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 in good faith 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 Commitment, Loans, participations in
LC Obligations or other obligations under the Credit Documents, then Borrowers shall, within five
days following written 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. (a) If any Lender gives notice pursuant to
Section 3.5 or requests compensation under Section 3.6 or Section 3.7, (b) if 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, or (c) if a Lender is a Defaulting Lender,
Borrowers may replace such Lender in accordance with Section 14.18.



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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 48




 









 







repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest
Period, (c) the Borrowers fail to repay a LIBOR Loan when required hereunder or (d) the Borrowers
revoke any notice of termination of the Revolver Commitments, 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. A Lender’s demand for payment
of such losses and expenses shall set forth the nature thereof and a calculation of the amount to
be paid in reasonable detail, which demand shall be delivered to Borrower Agent within 90 days
after such Lender has made a determination of such losses or expenses and in no event later than
nine (9) months after the occurrence of the event that gave rise to such losses or expenses.
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
Credit Document, the interest paid or agreed to be paid under the Credit 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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 49





 









 









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




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




     4.1.2 Fundings by Lenders. Each Lender shall timely honor its Revolver
Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans that is
properly requested hereunder. Agent shall use commercially reasonable efforts 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 available 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 equal to
ten percent (10%) of the Revolver Commitments then in effect 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 Revolver 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 50





 









 









date, settlement shall be made with each Lender in accordance with the
Settlement Report delivered by Agent to Lenders. Between settlement dates, Agent
may in its discretion apply payments on Revolver Loans to Swingline Loans,
regardless of any designation by Borrower or any provision herein to the contrary.
Each Lender’s obligation to make settlements with Agent is absolute and
unconditional, without offset, counterclaim or other defense, and whether or not the
Commitments have terminated, an Overadvance exists, or the conditions in Section 6
are satisfied. If, due to any proceeding under any Debtor Relief Law with respect
to a Borrower or otherwise, any Swingline Loan may not be settled among Lenders
hereunder, then each Lender shall be deemed to have purchased from Agent a Pro Rata
participation in each unpaid Swingline Loan and shall transfer the amount of such
participation to Agent, in immediately available funds, within one Business Day
after Agent’s request therefor.




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




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




     4.2.1 Reallocation of Pro Rata Share; Amendments. For purposes of determining
Lenders’ obligations to fund or participate in Loans or Letters of Credit, Agent may exclude
the Commitments and Loans of any Defaulting Lender(s) from the calculation of Pro Rata
shares; provided, however, that in no event shall any Lender be obligated to fund or
participate in Loans or Letters of Credit in an aggregate amount in excess of its Revolver
Commitment. A Defaulting Lender shall have no right to vote on any amendment, waiver or
other modification of a Credit Document, except for an amendment, waiver or other
modification relating to an increase in the Commitment of a Defaulting Lender, a
postponement of any date fixed for payment of principal or interest on Loans held by a
Defaulting Lender or a reduction or forgiveness of the principal of, or the rate of interest
applicable to, any Loan held by a Defaulting Lender.




     4.2.2 Payments; Fees. Agent may, in its discretion, receive and retain any
amounts payable to a Defaulting Lender under the Credit Documents, and a Defaulting Lender
shall be deemed to have assigned to Agent such amounts until all Obligations owing to Agent,
non-Defaulting Lenders and other Secured Parties have been paid in full. Agent may apply
such



AMENDED AND RESTATED CREDIT AGREEMENT — Page 51





 









 









amounts to the Defaulting Lender’s defaulted obligations, use the funds to Cash
Collateralize such Defaulting Lender’s Pro Rata share of LC Obligations or Swingline Loans,
or readvance the amounts to Borrowers hereunder. A Lender shall not be entitled to receive
unused line fees paid pursuant to Section 3.2.2, letter of credit facility fees paid
pursuant to Section 3.2.3 or any other fees accruing hereunder during the period in which it
is a Defaulting Lender, and the unfunded portion of its Commitment shall be disregarded for
purposes of calculating the unused line fee under Section 3.2.2. If any LC Obligations
owing to a Defaulting Lender are reallocated to other Lenders, fees attributable to such LC
Obligations under Section 3.2.3 shall be paid to such Lenders. Agent shall be paid all fees
attributable to LC Obligations that are not reallocated.




     4.2.3 Cure. Borrowers, Agent and Issuing Bank may agree in writing that a
Lender is no longer a Defaulting Lender. At such time, Pro Rata shares shall be reallocated
without exclusion of such Lender’s Commitments and Loans, and all outstanding Revolver
Loans, LC Obligations and other exposures under the Revolver Commitments shall be
reallocated among Lenders and settled by Agent (with appropriate payments by the reinstated
Lender) in accordance with the readjusted Pro Rata shares. Unless expressly agreed by
Borrowers, Agent and Issuing Bank, no reinstatement of a Defaulting Lender shall constitute
a waiver or release of claims against such Lender. The failure of any Lender to fund a
Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations
hereunder shall not relieve any other Lender of its obligations hereunder, and no Lender
shall be responsible for default by another Lender.



     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 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 Designation. Each Borrower hereby designates CSPP (“Borrower
Agent”) as its representative and agent for all purposes under the Credit 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 Credit Documents
(including in respect of compliance with covenants), and all other dealings with Agent,
Issuing Bank or any Lender. Borrower Agent hereby accepts such appointment.




     4.4.2 [Intentionally Omitted].




     4.4.3 Reliance, etc. 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. Each of Agent, Issuing Bank and Lenders shall have the right, in its
discretion, to deal exclusively with Borrower Agent for any or all purposes under the Credit
Documents. Each Borrower agrees that any notice, election, communication, representation,
agreement or



AMENDED AND RESTATED CREDIT AGREEMENT — Page 52




 









 








     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 Credit
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; Survival. On the effective date of any termination of all
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 Credit Documents shall
survive any termination, and Agent shall retain its Liens in the Collateral and all of its rights
and remedies under the Credit 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, subject to the provisions of Section 5.9, free
of (and without deduction for) any Indemnified Taxes and Other 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, so long as an Event of Default has
occurred and is continuing, and whether or not an Event of Default has occurred and is continuing
in the case of payments of interest accrued on the Loans and payments of fees with respect to
Letters of Credit payable under Section 3.2.3 when due, retain the right to apply such payment in
such manner as Agent, subject to the provisions hereof, may determine to be appropriate consistent
with the requirements of, or otherwise to ensure compliance with the terms and provisions of, this
Agreement. 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 Credit 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 at any time from time to time, without penalty or premium. If any Disposition includes the
disposition of Accounts or Inventory (other than Inventory sold in the Ordinary Course of
Business), then Net Cash Proceeds equal to the greater of (a) the net book value of such Accounts
and Inventory, or (b) the reduction in the Borrowing Base upon giving effect to such Disposition,
shall be applied to the Revolver Loans. Notwithstanding anything herein to the contrary, if an
Overadvance exists, Borrowers



AMENDED AND RESTATED CREDIT AGREEMENT — Page 53




 









 







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 Credit
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 during an Event of Default or otherwise with Borrower Agent’s prior written consent) 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 costs and expenses, including Extraordinary Expenses,
owing to Agent;




     (b) second, to all amounts owing to Agent on Swingline Loans;




     (c) third, to all amounts owing to Issuing Bank on LC Obligations;




     (d) fourth, to all Obligations constituting fees (other than Bank
Product Indebtedness);




     (e) fifth, to all Obligations constituting interest (other than Bank
Product Indebtedness);




     (f) sixth, to Cash Collateralization of LC Obligations;




     (g) seventh, to all Obligations constituting principal of the Loans;




     (h) eighth, to all other Obligations, other than Bank Product
Indebtedness;



AMENDED AND RESTATED CREDIT AGREEMENT — Page 54





 









 









     (i) ninth, to Bank Product Indebtedness; and




     (j) tenth, to Borrowers.




     Amounts shall be applied to each category of Obligations set forth above until Full
Payment thereof and then to the next category. If amounts are insufficient to satisfy a
category, they shall be applied on a pro rata basis among the Obligations in the category.
Amounts distributed with respect to any Bank Product Indebtedness shall be the lesser of the
applicable Bank Product Amount last reported to Agent or the actual Bank Product
Indebtedness as calculated by the methodology reported to Agent for determining the amount
due. Agent shall have no obligation to calculate the amount to be distributed with respect
to any Bank Product Indebtedness, but may rely upon written notice of the amount (setting
forth a reasonably detailed calculation) from the applicable Secured Party. If a Secured
Party fails to deliver such notice within five days following request by Agent, Agent may
assume the amount to be distributed is the Bank Product Amount last reported to it. The
allocations set forth in this Section (other than the tenth allocation to Borrowers) 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. Except for the
allocation to Borrowers set forth in clause (j) preceding, 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. Subject to Section 5.6, 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 (other than Bank Product Indebtedness) 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 (unless otherwise separately and expressly agreed
in writing by Agent on or after the date of this Agreement) 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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 55





 









 









     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 Credit Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if any Borrower shall be required by
Applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums
payable under this Section) Agent, Lender or Issuing Bank, as the case may be,
receives an amount equal to the sum it would have received had no such deductions
been made, (ii) such Borrower shall make such deductions and (iii) such Borrower
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, each Borrower shall timely pay any Other Taxes
to the relevant Governmental Authority imposed on such Borrower 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 written 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 reasonably 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
Credit Document shall deliver to such Borrower (with a copy to Agent), on or prior
to the date on which such Foreign Lender becomes a Lender hereunder (and from time
to time thereafter at the time or times



AMENDED AND RESTATED CREDIT AGREEMENT — Page 56





 









 









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, on or prior to the date on which such Lender becomes a
Lender hereunder (and from time to time thereafter at the time or times 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 certify that such Lender is not subject
to backup withholding and enable the Borrowers or Agent to determine whether or not
such Lender is subject to 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 (or
successor form) 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 (or
successor form),




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




     In addition to and without limiting any of the foregoing, each Foreign Lender,
and each other Lender that is a “foreign financial institution” within the meaning
of Section 1471(d)(4) of the Code, shall take any action (including, without
limitation, entering into any agreement with the Internal Revenue Service) and
comply with any information gathering, reporting or other requirements, in each case
that are required to obtain exemption from any United States federal withholding
taxes under FATCA.




     In addition to and without limiting any of the foregoing, each Lender shall
promptly (A) notify Borrower Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction in withholding taxes, and



AMENDED AND RESTATED CREDIT AGREEMENT — Page 57





 









 









(B) notify Borrower Agent when a lapse in time or change in circumstances renders
any previously delivered documentation obsolete or inaccurate and promptly deliver
to Borrower Agent any properly completed and executed documentation as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in withholding tax of such Lender.




     (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 Credit
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 Credit 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 Credit 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.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 58




 









 








          5.11.2 Waivers.





     (a) Each Borrower expressly waives all rights that it may have now or in the
future under any statute, at common law, in equity or otherwise, to compel Agent or
Lenders to marshal assets or to proceed against any Obligor, other Person or
security for the payment or performance of any Obligations before, or as a condition
to, proceeding against such Borrower. It is agreed among each Borrower, Agent and
Lenders that the provisions of this Section are of the essence of the transaction
contemplated by the Credit 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 Credit Document, and except as set forth in Section
5.11.3 or after Full Payment of all Obligations, 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 (subject to the terms and provisions of this Agreement and the
other Credit Documents) Lenders may, in their discretion, pursue such rights and
remedies as they deem appropriate, including (upon the occurrence and during the
continuation of an Event of Default) realization upon Collateral 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 the amount of such successful
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) the amount of the



AMENDED AND RESTATED CREDIT AGREEMENT — Page 59




 









 









Obligations (subject to each Borrower’s right to contribution, indemnification
and reimbursement payments described below), and (ii) such Borrower’s Allocable
Amount.




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




     (c) Nothing contained in this Section 5.11 shall limit the liability of any
Borrower to pay Loans made directly or indirectly to that Borrower (including Loans
advanced to any other Borrower and then re-loaned or otherwise transferred to, or
for the benefit of, such Borrower), LC Obligations relating to Letters of Credit
issued to support such Borrower’s business, and all accrued interest, fees, expenses
and other related Obligations with respect thereto, for which such Borrower shall be
primarily liable for all purposes hereunder. Agent and Lenders shall have the
right, at any time in their discretion upon giving at least 20 Business Days’ prior
written notice to Borrower Agent, 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, prepayments and repayments of indebtedness and
interest thereon, and any and all other obligations.



 









 






AMENDED AND RESTATED CREDIT AGREEMENT — Page 60




SECTION 6. CONDITIONS PRECEDENT




     6.1 Conditions Precedent to Initial Loans. In addition to the conditions precedent
set forth in Section 6.2, 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, and this Agreement shall not be effective to amend and restate the Original
Credit Agreement, unless the following conditions are satisfied (or effectively waived in writing
in accordance with Section 14.1) and, with respect to deliveries, each such delivery shall be fully
executed, where applicable, and in form and substance reasonably satisfactory to Agent (unless
otherwise expressly stated in this Section 6.1 below):




     (a) Credit Documents, Organization Documents, Etc. Agent’s receipt of
the following, each of which shall be originals or telecopies or other electronic
copies (followed promptly by originals) unless otherwise specified, each properly
executed by a Senior Officer of the signing Obligor or the MLP 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
reasonably satisfactory to Agent and each of the Lenders:




     (i) executed counterparts of this Agreement and the other Credit
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 MLP General Partner as Agent may reasonably 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
Credit Documents to which such Obligor is a party (and Agent may rely on
such certificates until otherwise notified by the applicable Obligor in
writing); and




     (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 & Jaworski L.L.P., general counsel for
Obligors; and



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     (ii) a legal opinion of Barnes & Thornburg, special Indiana 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 reasonable discretion, to perfect Agent’s security
interest in the Collateral;




     (iii) evidence that all Instruments and Chattel Paper in the possession
of any of Obligors with a value in excess of $1,000,000, together with
allonges or assignments as may be necessary or appropriate to perfect
Agent’s security interest in the Collateral, have been delivered to Agent;




     (iv) 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 and ensure the first priority thereof in
accordance with the terms of the Collateral Documents, including agreements
establishing each Dominion Account and related lockbox in form and
substance, and with financial institutions, reasonably satisfactory to
Agent; and




     (v) in the case of any personal property Collateral located at a
premises leased by an Obligor, such estoppel letters, consents and waivers
from the landlords on such real Property as may be required by Agent (it
being understood that Agent may in its discretion elect to provide for a
Rent and Costs Reserve in an amount equal to at least three (3) months rent
owing to a landlord rather in lieu of requiring a letter, consent or waiver
from such landlord).




     (d) Evidence of Insurance. Receipt by Agent of copies of insurance
policies or certificates of insurance of Obligors evidencing liability and casualty
insurance meeting the requirements set forth in the Credit Documents, including
endorsements naming 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 Lenders.




     (e) Officer’s Certificates. Agent shall have received a certificate or
certificates executed by a Senior Officer of each Borrower or the MLP General
Partner as of the Closing Date, in form and substance reasonably satisfactory to
Agent, stating that (i) the conditions specified in subsections (a) through (d) of
Section 6.2 have been satisfied, (ii) each Obligor is in compliance with all
existing financial obligations, (iii) all governmental, shareholder and third party
consents and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained (and attaching copies thereof),
and (iv) no action, suit, investigation or proceeding is pending or, to the
knowledge of Borrowers and the MLP General Partner (if applicable), threatened in
any court or before any arbitrator or Governmental Authority that purports



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to affect any Obligor or any transaction contemplated by the Credit Documents,
if, in the case of the immediately preceding subclause (ii) and (iv), failure to so
comply or such action, suit, investigation or proceeding could reasonably be
expected to have a Material Adverse Effect.




     (f) Financial Statements. Receipt by Agent and Lenders of (i) the
Audited Financial Statements and the accountants’ unqualified opinion prepared in
connection therewith described in Section 9.1.5, and (ii) such other information
relating to the Consolidated Parties as Agent may reasonably require in connection
with the structuring and syndication of credit facilities of the type described
herein.




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




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




     (i) Attorney Costs. Borrowers shall have paid all reasonable fees,
charges and disbursements of outside 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 Borrowers and Agent).




     (j) [Reserved].




     (k) [Reserved].




     (l) Priority of Liens. Agent shall have received satisfactory evidence
that (i) Agent, on behalf of Lenders, holds a first priority, perfected Lien on all
Collateral (subject to clause (ii)) and (ii) none of the Collateral is subject to
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) [Reserved].




     (n) [Reserved].




     (o) Due Diligence. No material adverse change in the financial
condition of any Obligor shall have occurred since December 31, 2010.




     (p) Borrowing Base Certificate; Opening Availability. Agent and each
Lender shall have received a Borrowing Base Certificate prepared as of the last day
of the calendar week immediately preceding the Closing Date. 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 $75,000,000.



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     (q) Payment of Obligations under Original Credit Agreement. Except as
may be otherwise agreed by Agent, all principal, interest, fees, costs, expenses and
other “Obligations” (as such term is defined in the Original Credit Agreement)
accrued and unpaid under the Original Credit Agreement and the “Credit Documents”
(as such term is defined in the Original Credit Agreement), in each case, that have
accrued or are otherwise outstanding or due and payable thereunder, shall be paid in
full concurrently with the initial advance of Revolver Loans hereunder.




     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 Credit 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
only to an earlier date, which shall be true and correct on such date);




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




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




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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 64




 









 








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, on or before 5:00 p.m. on the second Business Day 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 $3,000,000 or more that were Eligible Accounts in the immediately preceding
month cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence
promptly (and in any event within one Business Day) after any Borrower has knowledge
thereof. Agent shall provide such of the foregoing information as it deems material to the
Lenders promptly upon receipt thereof from the Borrowers.




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




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



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     8.2.4 Maintenance of Dominion Account. Borrowers (other than Borrowers which
do not have any Eligible Accounts) shall maintain Dominion Accounts pursuant to lockbox or
other arrangements reasonably acceptable to Agent. Borrowers shall obtain an agreement (in
form and substance reasonably 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 or one or more other Lenders as their principal
depository bank or banks, 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 reasonably satisfactory to Agent, on such
periodic basis as Agent may reasonably 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 Eligible 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 $3,000,000; and (d) any
payment received by a Borrower for a return is promptly remitted to Agent for application to
the Obligations.




     8.3.3 Acquisition, Sale and Maintenance. No Borrower shall acquire or accept
any Inventory on consignment or approval, and shall take all steps to assure that all
Inventory is



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produced in accordance with Applicable Law, including the FLSA. No Borrower shall
consign any Inventory having an aggregate value at any one time on consignment in excess of
$10,000,000 for all such Inventory on consignment or approval or any other basis under which
the customer may return or require a Borrower to repurchase such Inventory, provided, that
commodity leases do not constitute consignments. Borrowers shall use, store and maintain
all Inventory with reasonable care and caution, in accordance with applicable standards of
any insurance and in conformity in all material respects with all Applicable Law, and shall
make rent payments (when due and payable or otherwise within applicable grace periods
provided for in leases) at all locations where any Collateral is located.




8.4 [Reserved].



     8.5 Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit Accounts
maintained by Borrowers, including all Dominion Accounts. Except as may be otherwise agreed by
Agent, each Borrower shall take all actions necessary to establish Agent’s control (for the benefit
of Secured Parties and under the terms and condition set forth herein) of each such Deposit Account
(other than the “PP&E Proceeds Account” (as such term is defined in the Security Agreement) and one
or more accounts exclusively used for payroll, payroll taxes or employee benefits, or up to ten
other accounts containing not more than $50,000 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
for the benefit of Secured Parties and under the terms and condition set forth herein) 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, upon Agent’s written request, 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 and Inventory on consignment as permitted by Section 8.3.3, 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 with an aggregate value not to exceed $500,000 to
another location in the United States not set forth in Schedule 8.6.1, upon 15 Business Days
prior written notice to Agent.




     8.6.2 Insurance of Collateral; Condemnation Proceeds.




     (a) Each Borrower shall maintain insurance with respect to its Property,
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 reasonably satisfactory to Agent. All
proceeds under each such policy with respect to Collateral shall be payable to Agent
and (without duplication) the proceeds under each general liability policy and each
excess liability policy up to the amount necessary to reimburse Agent for any out of
pocket losses, claims, damages and related expenses actually suffered by Agent as a
result of its relationship with the Obligors under the Credit Documents shall be
payable to Agent. From time to time upon Agent’s request, Borrowers shall deliver
the originals or certified copies of its insurance policies to Agent. Unless Agent
shall agree otherwise, each policy shall include satisfactory endorsements (i)
showing Agent as sole loss payee with respect to Collateral or additional insured,
as appropriate (except as otherwise provided in, and subject to, Section 4 of the
Hedge Intercreditor Agreement); (ii) requiring 30 days prior written notice to 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



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invalidated by any act or neglect of any Borrower, 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, written notice (including
copies of all related information) of all claims in excess of $5,000,000 made to its
insurance providers. While no Event of Default exists, Borrowers may settle, adjust
or compromise any insurance claim, as long as the proceeds of Collateral are
delivered to Agent. If an Event of Default exists, only Agent shall be authorized
to settle, adjust and compromise such claims.




(b) Any proceeds of insurance for Collateral (other than proceeds from general
liability, workers’ compensation or D&O insurance) and any awards arising from
condemnation of any Collateral shall be paid to Agent, provided that so long as no
Event of Default has occurred and is then continuing and no Cash Dominion Trigger
Event has occurred which remains unrevoked, such proceeds in an aggregate amount not
to exceed $5,000,000 may be used by Borrowers in the Ordinary Course of Business,
including the replacement of Collateral. Any such proceeds or awards 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 or any other Property of the Borrowers, 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 in writing to Borrower 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 and in accordance with Applicable Law; (iv) take control, in any manner,
of any proceeds of Collateral; (v) prepare, file and



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



SECTION 9. REPRESENTATIONS AND WARRANTIES




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




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




     9.1.2 Authorization; No Contravention. The execution, delivery and performance
by each Obligor of each Credit 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 Credit 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 Board of Governors).




     9.1.3 Governmental Authorization and Approvals; Other Consents. Each
Consolidated Party has, is in compliance in all material respects 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 Credit 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 to be made or obtained by any Consolidated Party in connection with the execution,
delivery or performance by, or enforcement



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against, any Obligor of this Agreement or any other Credit 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, (c) consents of certain of the third parties
in possession of Inventory of Obligors permitting Agent access to premises owned by such
third parties where such Inventory is located for the purpose of removing Collateral and/or
subordinating any statutory or contractual lien such third parties may have with respect to
Inventory in their possession (it being understood that Agent may either (i) institute a
reserve with respect to such affected Inventory or, in the alternative, (ii) deem such
affected Inventory ineligible for purposes of the definition of the term “Eligible
Inventory”), and (d) filings to perfect the Liens created by the Collateral Documents.




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




     9.1.5 Financial Statements; No Material Adverse Effect.




     (a) The Audited 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
March 31, 2011, and the related unaudited consolidated statements of income or
operations, partners’ capital and cash flows for the three month period 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. To the extent not described in the immediately preceding clause
(a)(iii), Schedule 9.1.5 sets forth all material indebtedness and other material
liabilities or known material contingent liabilities of the Consolidated Parties as
of the date of the applicable financial statements referenced in this clause (b),
including material liabilities for Taxes, material commitments and Indebtedness.




     (c) During the period from December 31, 2010, 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



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case, other than as reflected in the foregoing financial statements or in the
notes thereto or otherwise disclosed in writing to the Lenders on or prior to the
Closing Date.




     (d) The financial statements delivered pursuant to Section 10.1.1(a), (b) and
(c) will be prepared in accordance with GAAP and when delivered will present fairly
(except as may otherwise be permitted under Section 10.1.1(a), (b) and (c)), on the
basis disclosed in the footnotes to such financial statements, if any, 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, there has been no event
or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.




     (f) The forecasts delivered to Lenders were prepared in good faith on the basis
of the assumptions stated therein, which assumptions were reasonable in light of the
conditions existing at the time of delivery of such forecasts, and represented, at
the time of delivery, Borrowers’ good faith estimate of their future financial
performance during the period covered by such forecasts. The Agent, the Issuing
Bank and the Lenders hereby acknowledge that forecasts and estimates of future
financial performance are inherently uncertain and no assurances have been given,
and no representations or warranties have been made by any Consolidated Party, that
the results reflected in the forecasts will be achieved.




     (g) For the avoidance of doubt, Calumet GP is not a Consolidated Party and it
shall not be included in the consolidated financial statements of the Consolidated
Parties to be prepared in accordance with this Agreement.




     9.1.6 Litigation. There are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of Obligors after due and diligent investigation, threatened in
writing or contemplated in writing, at law, in equity, in arbitration or before any
Governmental Authority, in each case, in writing and 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 Credit Document, 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, except to the extent that such default
could not reasonably be expected to have a Material Adverse Effect.




     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 Credit Document. To Borrowers’ knowledge, as of the Closing
Date, there is no basis upon which any party (other than a Consolidated Party) could
terminate a Material Contract prior to its scheduled termination date, which termination
could reasonably be expected to have a Material Adverse Effect. The execution, delivery and
performance by the Consolidated Parties of their obligations under this Agreement and the
other Credit Documents, and the making of Revolving Loans from time to time and the granting
of Liens under the Collateral Documents as security for the payment of such Revolver Loans
and other Obligations, does not and will not violate, or constitute a default or an event of
default under, any Senior Notes Agreement.



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     9.1.8 Ownership of Property; Liens. Each Consolidated Party has good
record and marketable (or, as to real property in Texas, indefeasible) title in fee simple
to, or valid leasehold interests in, all real Property necessary or used in the ordinary
conduct of its business, and good title to all of its personal Property, including all
Property reflected in any financial statements delivered to Agent or the Lenders, except for
such defects in title as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. All Liens of Agent in the Collateral are duly perfected,
first priority Liens, in accordance with the Collateral 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) All of the Real Estate and all operations at the Real Estate are in
compliance with all applicable Environmental Laws, there is no violation of any
Environmental Law with respect to the Real Estate or the operations conducted
thereon, and there are no conditions relating to the Real Estate or the operations
conducted thereon that could give rise to liability under any applicable
Environmental Laws.




     (b) None of the Real Estate contains any Hazardous Materials at, on or under
the Real Estate 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 Estate or the operations conducted thereon, 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
Estate, or generated, treated, stored or disposed of at, on or under any of the Real
Estate or any other location, in each case by or on behalf of any Consolidated Party
in violation of, or in a manner that could give rise to liability under, any
applicable Environmental Law.




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




     (f) There has been no Environmental Release, or threat of Environmental
Release, of Hazardous Materials at or from the Real Estate, or arising from or
related to the operations (including disposal) of any Consolidated Party in
connection with the Real



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Estate or otherwise in connection with the operations conducted thereon, 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 CSPP, 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 CSPP 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 and state income
and other material Tax returns and reports required to be filed, and have paid all Federal
and state income 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 with any Person other than the Obligors to any Tax sharing
agreement; provided, that the allocation of taxes in connection with a business acquisition
agreement or in the MLP Partnership Agreement (or in any partnership agreement or limited
liability company agreement or equivalent) of any Obligor or any Subsidiary thereof does not
constitute a tax sharing agreement. The provision for Taxes on the books of each
Consolidated Party is adequate in accordance with GAAP 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 covering all periods during which the
Plan has been established, or alternatively, can rely on an opinion letter from the
IRS with respect to the corresponding adoption agreement and basic plan documents
for all periods during which a determination letter does not apply to the Plan, and
if no determination letter can be currently relied upon by the Plan, then the
applicable Plan sponsor (i) has an application for a determination letter which is
currently being processed by the IRS with respect to the Plan thereto, (ii) has a
remedial amendment period for submitting such a determination letter application
that has not closed with respect thereto, or (iii) has properly and timely amended
the Plan to comply with all Applicable Laws and, to the best knowledge of Obligors,
nothing has occurred which would reasonably be expected to prevent, or cause the
loss of, such qualification. Each Obligor and each ERISA Affiliate has 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 Obligors, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with respect
to any



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Plan that could reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could reasonably
be expected to result in a Material Adverse Effect.




     (c) Except as could not reasonably be expected to have a Material Adverse
Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) the
aggregate actuarial present value of all accumulated plan benefits of all Pension
Plans (determined utilizing the assumptions used for purposes of Statement of
Financial Accounting Standards No. 35 or any successor accounting standard) did not,
as of the date of CSPP’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.




     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 MLP Parent and each of its direct and indirect Subsidiaries
of (a) its jurisdiction of formation or organization, and (b) the percentage of the
outstanding shares of each class issued by such Person and owned (directly or indirectly) by
the Consolidated Parties. The outstanding Equity Interests of all such Persons are validly
issued, fully paid and non-assessable and are 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 Permitted Liens and other Liens arising under or contemplated in connection with
the Credit Documents).




     9.1.14 Margin Regulations; Investment Company Act.




     (a) None of the Consolidated Parties is engaged and will not engage,
principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors), 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
Board of Governors.




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



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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.




     9.1.15 Disclosure. Neither this Agreement nor any report, financial statement,
certificate or other information furnished in writing 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 Credit 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 in any material respect; 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 Applicable Laws with respect to the shipment and importation of any goods or
Collateral, except in such instances in which (a) such requirement of Applicable 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. To
the knowledge of Borrowers, 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. As of the Closing Date, 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 in writing to or is otherwise known by any Consolidated Party 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 Borrower know of any such claim, and, to the knowledge
of any Borrower, 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. As of the Closing Date, 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.




     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 and rolling stock)
with an aggregate value per location in excess of $750,000 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 75





 









 









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 Credit 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 and other feedstocks into customized
lubricating oils, solvents, waxes and certain byproducts, 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 Credit Documents. Each of the
representations and warranties made by any of the Obligors in any of the other Credit
Documents is true and correct in all material respects.




     9.1.24 Collateral Documents. The provisions of the Collateral 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 first 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 which by operation of law or
contract would have priority over the Liens securing the Obligations). Except for filings
completed prior to the Closing Date and as contemplated by this Agreement and the Collateral
Documents, no filing or other action will be necessary to perfect or protect such security
interest.




     9.1.25 [Reserved].




     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, to the knowledge of
Borrowers, threatened (in writing) termination, limitation or modification of any business
relationship between any Consolidated Party and any customer or supplier, or any group of
customers or suppliers, that individually or in the aggregate are material to the business
of the Consolidated Parties, taken as a whole. As of the Closing Date, 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.



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




     9.1.29 [Reserved].




     9.1.30 [Reserved].




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



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     9.2 Complete Disclosure. As of the Closing Date, 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 (and continuing until Full Payment of all Obligations), each Obligor shall, and shall
cause each of its Subsidiaries to:




     10.1.1 Financial Statements. Deliver to Agent, in form and detail reasonably
satisfactory to Agent as to clause (c) below only:




     (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, 2011), a consolidated balance sheet of the Consolidated Parties as at
the end of such Fiscal Year, and the related consolidated statements of income or
operations, partners’ capital and cash flows for such Fiscal Year, setting forth in
each case in comparative form the figures for the previous Fiscal Year, prepared in
accordance with GAAP, such statements to be audited and accompanied by a (i) report
and opinion of a Registered Public Accounting Firm, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and applicable
Securities Laws and shall not be subject to any “going concern” or like
qualification, exception, assumption or explanatory language or any qualification,
exception, assumption or explanatory language as to the scope of such audit; and




     (b) as soon as available, but in any event within 45 days after the end of each
of the first three Fiscal Quarters of each Fiscal Year of the Consolidated Parties
(commencing with the Fiscal Quarter ending June 30, 2011), a consolidated balance
sheet of the Consolidated Parties as at the end of such Fiscal Quarter, and the
related consolidated statements of income or operations, partners’ capital and cash
flows for such Fiscal Quarter and for the portion of the Fiscal Year then ended,
setting forth in each case in comparative form the figures for the corresponding
Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the
previous Fiscal Year, such statements to be certified on behalf of the Consolidated
Parties by a Senior Officer of the Borrower Agent or its general partner as fairly
presenting the financial condition, results of operations, partners’ capital and
cash flows of the Consolidated Parties for such Fiscal Quarter and portion of such
Fiscal Year in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes; and




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



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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
reasonably satisfactory to Agent:




     (a) concurrently with the delivery of the financial statements referred to in
Section 10.1.1(a), 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 Quarter ending June 30, 2011), a duly completed
Compliance Certificate signed on behalf of the Consolidated Parties by a Senior
Officer of the Borrower Agent or its general partner;




     (c) within 31 days after the end of each Fiscal Year of the Consolidated
Parties, beginning with the Fiscal Year ending December 31, 2011, 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, 2011, a certificate
containing information regarding the amount of all Dispositions (other than any
Excluded Disposition), issuances of Indebtedness, issuances of Equity Interests and
Acquisitions that occurred during the prior Fiscal Year;




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




     (f) promptly after the furnishing thereof, copies of any financial information,
proxy materials, statement, report or other information furnished to any holder of
debt securities of any Obligor or any Subsidiary thereof pursuant to the terms of
any indenture (including, without limitation, the Senior Notes Indenture), loan or
credit or similar 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;



AMENDED AND RESTATED CREDIT AGREEMENT — Page 79





 









 









     (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 similar inquiry involving a material matter potentially adverse to an Obligor
by such agency regarding financial or accounting results of any Obligor or any
Subsidiary thereof; and




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




     (i) [Reserved.]




     (j) promptly, such additional information regarding the business, financial or
corporate affairs of CSPP or any other Obligor, or compliance with the terms of the
Credit Documents, as Agent 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; and




     (m) promptly, and in any event within fifteen days, following the end of each
month, a summary of all Swap Contracts to which any Obligor is a party and summary
information regarding the aggregate mark to market for hedging activities and
aggregate letters of credit issued to support such activities as of the end of the
applicable period.




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 CSPP’s website on the Internet at the website address or electronically
files such documents with the United States Securities & Exchange Commission; or (ii) on
which such documents are posted on CSPP’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 the Borrower Agent
shall notify Agent (by telecopier or electronic mail) of the posting of any 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



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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 in writing, of any of the following that affects any
Consolidated Party: (i) 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; (ii) any pending or
threatened (in writing) material labor dispute, strike or walkout, or the expiration
of any material labor contract not concurrently replaced; (iii) any default under or
termination of a Material Contract; (iv) any judgment in an amount exceeding
$10,000,000 (provided that (A) this clause (iv) shall exclude judgments if and to
the extent that they are covered by insurance and the insurer has acknowledged such
coverage and is able to pay such claim and (B) if Availability exceeds $100,000,000
on a Pro Forma Basis after giving effect to such judgment at the time of such
judgment, then notice of a judgment must be given only if the amount of such
judgment exceeds the Threshold Amount); (v) the assertion in writing of any
Intellectual Property Claim, if an adverse resolution could reasonably be expected
to have a Material Adverse Effect; (vi) any violation or asserted (in writing)
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; (vii) 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; (viii) the discharge of or any withdrawal or resignation by any
Borrower’s independent accountants; or (ix) any opening of a new office or place of
business holding tangible Collateral exceeding $750,000, at least 10 days prior to
such opening.




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




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




     (e) Upon the reasonable written request of Agent following the occurrence of
any event or the discovery of any condition which Agent or the Required Lenders
reasonably believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 9.1.9 to be untrue in any
material respect, the Obligors will furnish or cause to be furnished to Agent, at
the Obligors’ expense, a report of an environmental assessment of reasonable scope,
form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to Agent as to the nature and extent
of the presence of any Hazardous Materials on any Real Properties impacted or
affected by the breach of the representation or warranty, and as to the compliance
by any Consolidated Party with Environmental Laws at such Real Properties.



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




     (g) Not later than five Business Days after receipt thereof by any Consolidated
Party thereof, to the extent required to be filed by Company pursuant to Company’s
obligations under the Securities Exchange Act of 1934, as amended, copies of (i) all
notices or written requests and other documents (including amendments, waivers and
other modifications) so received under or pursuant to any material instrument,
indenture, loan or credit or similar agreement, and (ii) from time to time upon
request by the Agent, such information and reports regarding such material
instruments, indentures and loan and credit and similar agreements as the Agent may
reasonably request.




Each notice pursuant to this Section 10.1.3(a) through (e) shall be accompanied by a
statement of a Senior Officer of 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 this Section 10.1.3(a) shall describe with particularity any and all provisions
of this Agreement and any other Credit Document giving rise to such Default or Event
of Default.




     10.1.4 Payment of Obligations. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, except to the extent that failure to so
pay and discharge could not reasonably be expected to have a Material Adverse Effect,
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 with respect to the
manufacture, distribution or disposition of Inventory) or any other material Property of the
Consolidated Parties in full force and effect excluding those Licenses the loss of which
could not reasonably be expected to have a Material Adverse Effect; pay all Royalties when
due, unless the same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being



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maintained by the applicable Consolidated Party; and notify Agent of any default or
breach asserted in writing by any Person to have occurred under any such License.




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




     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
reasonably acceptable to Agent. 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 in a manner materially adverse to the insured or
Agent and Lenders 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



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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 (unless such inspection, appraisal or report
form the basis for an adjustment to the Borrowing Base or any component thereof, in
which case the same shall be shared by Agent to Borrower Agent upon the request of
Borrower Agent). To the extent any inspection result, appraisal or report is shared
by Agent or a Lender with any Obligor, such Obligor shall not be entitled to rely
upon it.




     (b) Reimburse Agent for all reasonable charges, costs and expenses of Agent
(consistent with those charged by Agent to its other similarly situated customers)
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 one time per Loan
Year or, if Availability falls below 60% (but is equal to or greater than 25%) of
the lesser of the Borrowing Base (without giving effect to the LC Reserve for
purpose of this calculation) and the amount of the Revolver Commitments then in
effect, up to two times per Loan Year or, if Availability falls below 25% of the
lesser of the Borrowing Base (without giving effect to the LC Reserve for purposes
of this calculation) and the amount of the Revolver Commitments then in effect, up
to three times per Loan Year; and (ii) appraisals of Inventory up to one time per
Loan Year or, if Availability falls below 25% of the lesser of the Borrowing Base
(without giving effect to the LC Reserve for purposes of this calculation) and the
amount of the Revolver Commitments then in effect, two times 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 ($1,000 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 Applicable Law or of any Credit
Document.




     10.1.12 [Reserved].




     10.1.13 Additional Borrowers or Guarantors.




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



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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 the assets
of such Person of the type constituting Collateral, including delivery of such
corporate resolutions, organizational documents and legal opinions, in form and
substance reasonably satisfactory to Agent, as it shall deem appropriate. Nothing
contained herein shall require the MLP General Partner to become a Borrower or
Guarantor.




     (b) [Reserved].




     (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
pertaining to the Collateral that Agent may require, in each case, in form and
substance satisfactory to Agent in its discretion. For the avoidance of doubt, no
assets of any Guarantor shall be included in the Borrowing Base at any time unless
and until such Guarantor is a Borrower and has complied with the terms hereof.




     10.1.14 Pledged Assets.




     (a) [Reserved]




     (b) Other Assets. Each Obligor will (i) cause all of its owned and
leased personal Property of the type constituting Collateral to be subject at all
times to first priority, perfected Liens in favor of Agent, for the benefit of
Secured Parties, to secure the Obligations pursuant to the terms and conditions of
the Collateral Documents, or, with respect to such 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, appraisals, landlord’s waivers,
certified resolutions and other organizational and authorizing documents of such
Person, favorable customary 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), 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 January 1,
2011.



AMENDED AND RESTATED CREDIT AGREEMENT — Page 85





 









 








     10.2 Negative Covenants. For so long as any Commitments or Obligations (and
continuing until Full Payment of all Obligations) are outstanding, each Obligor shall not, and
shall cause each of its Subsidiaries not to:




     10.2.1 Liens. Create, incur, assume or permit 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 Credit Document (including Liens granted under the
Collateral Documents which secure Bank Product Indebtedness and other Obligations);




     (b) Liens existing on the Closing Date and listed on Schedule 10.2.1 and any
renewals or extensions thereof, provided that (i) the Property (or, in the
case of fungible Property, any replacement thereof) covered thereby is not changed,
(ii) the amount secured or benefited thereby is not increased (other than for
reasonable and customary transaction costs incurred in connection with such renewal
or extension), (iii) any additional direct or any contingent obligor with respect
thereto is not added, and (iv) any renewal or extension of the obligations secured
or benefited thereby is permitted by Section 10.2.3(b);




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




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




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




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




     (g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real Property which, in the aggregate, do not 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(h), 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 86





 









 









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) (i) Liens securing Indebtedness permitted under Section 10.2.3(g) (subject
to the condition set forth in clause (i) thereof); and




     (ii) 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 (A) any
Indebtedness that is secured by such Liens is permitted to exist under
Section 10.2.3(h), (B) 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, (C) any such Liens do not
attach to or encumber any Property constituting Collateral, and (D) the
amount of Indebtedness secured thereby is not increased.




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




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




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




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




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




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




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



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     (r) Liens securing Indebtedness permitted under Section 10.2.3(m);
provided, that such Liens do not at any time attach to or encumber any
Property constituting Collateral;




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




     (t) Liens arising in connection with (i) any lease, transfer or disposition of
any metal or other element, composite or alloy used as, or part of, a catalyst
necessary or useful for the operation of the refinery assets of the Consolidated
Parties or (ii) any commodity leases for any metal or other element, composite or
alloy used as, or part of, a catalyst necessary or useful for the operation of the
refinery assets of the Consolidated Parties in the Ordinary Course of Business and
not for the purpose of speculation; provided, in each case, that such Liens
do not encumber any Property other than (A) the catalyst or applicable part thereof
or the commodities (whether one or more) being leased, (B) any insurance proceeds of
any of the foregoing or (C) any metal or other element, composite or alloy used as,
or part of, a catalyst in the operation of the refinery assets;




     (u) Liens securing obligations under Swap Contracts permitted under Section
10.2.3(d) hereof; provided that (other than Obligations under Interest Rate
Swaps which constitute Bank Products) (i) such Liens do not at any time attach to or
encumber Property constituting Collateral and (ii) if reasonably requested by Agent
following notice of the intention of an Obligor or a Subsidiary of an Obligor to
grant such a Lien, the counterparty to such Swap Contracts shall have entered into
an intercreditor agreement with Agent on behalf of Lenders in form and substance
reasonably satisfactory to Agent; and




     (v) Liens on the Hedge Agreement Collateral securing Indebtedness permitted
under Section 10.2.3(d), provided that the Hedge Intercreditor Agreement remains in
effect at all times during the existence of such Liens.




     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
$2,000,000 at any time outstanding; provided that all such advances must be
in compliance with Applicable Laws, including Sarbanes-Oxley.




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



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     (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;




     (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;




     (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) or any other business that generates gross income that
constitutes “qualifying income” under Section 7704(d) of the Code and
relates to the exploration for, or development, mining, production,
ownership, operation, processing, refining, storage, transportation,
marketing, distribution or other handling of, petroleum-based products,
biofuels, feedstocks (including, without limiting the generality of the
foregoing, oil and natural gas), and other minerals and fuels related to the
foregoing;




     (ii) Guaranty and Collateral Requirements. Agent shall have
received all items, including in respect of the 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 Credit 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 CSPP;



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     (vi) Minimum Liquidity. Availability (A) at all times during
the sixty-day period preceding such Acquisition, (B) on the date of such
Acquisition after giving effect thereto, and (C) projected at all times
during the six-month period following such Acquisition, in each case, on a
Pro Forma Basis, shall be greater than or equal to 15% of the lesser of (x)
the Borrowing Base (without giving effect to the LC Reserve for purposes of
this calculation) and (y) the Revolver Commitments then in effect;




     (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. If Availability as referred to in
clause (vi)(A), (B) or (C) above is less than 35% of the lesser of (A) the
Borrowing Base (without giving effect to the LC Reserve for purposes of this
calculation) and (B) the Revolver Commitments then in effect (which
Availability under clause (vi)(A) above shall be, for purposes of this
clause (viii) only, calculated on an average basis), then Borrower Agent
shall have delivered to Agent a certificate demonstrating, based on
adjustments made in good faith using reasonable assumptions, that, upon
giving effect to such Acquisition, the Fixed Charge Coverage Ratio on a Pro
Forma Basis would be at least 1.0 to 1.0; and




     (ix) Due Diligence Matters. Agent shall have 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 reasonably satisfactory to Agent.




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




     (j) so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, Investments in Subsidiaries which are not Obligors at the
time of such Investment in an aggregate amount (excluding Investments of such type
set forth in Schedule 10.2.2) not to exceed, together with the amount of Investments
outstanding pursuant to Section 10.2.2(k), $50,000,000 at any time outstanding;




     (k) so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, other Investments in an aggregate amount for all such
Investments pursuant to this Section 10.2.2(k), together with the amount of
Investments outstanding pursuant to Section 10.2.2(j), not to exceed $50,000,000
(subject to Section 1.4) at any time outstanding; and




     (l) Investments in Senior Notes required by the terms of the Senior Notes
Indenture.




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




     (a) Indebtedness under the Credit Documents;



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     (b) Indebtedness of the Borrowers and their 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 Persons 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; provided that (i) such obligations are (or
were) entered into by such Person in the Ordinary Course of Business for the purpose
of directly mitigating risks associated with liabilities, commitments, investments,
assets, or Property held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person, and not for purposes of speculation or
taking a “market view”, (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party (it being understood that Section
2(a)(iii) of the ISDA Master Agreement does not constitute such a provision), and
(iii) such obligations do not constitute Bank Product Indebtedness;




     (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 (including, without limitation, any metal or other element,
composite or alloy used as, or part of, a catalyst in the operation of the refinery
assets of any of the Consolidated Parties); provided that (i) the total of
all such Indebtedness for all such Persons taken together shall not exceed an
aggregate principal amount of $50,000,000 at any one time outstanding
(provided that the foregoing limitation on principal amount shall not apply
(A) to purchase money Indebtedness (whether in the form of Capital Leases or as
Indebtedness) incurred to purchase any metals or other elements, composites or
alloys used as, or part of, a catalyst in the operation of the refinery assets of
any of the Consolidated Parties or (B) if Borrowers demonstrate to the reasonable
satisfaction of



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Agent, based on adjustments made in good faith using reasonable assumptions,
that the Fixed Charge Coverage Ratio on a Pro Forma Basis after giving effect to the
incurrence of such Indebtedness shall be at least 1.1 to 1.0), (ii) such
Indebtedness when incurred shall not exceed the lesser of the purchase price and the
value of the asset(s) financed, and (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;




     (f) [Reserved];




     (g) Indebtedness incurred to finance a Permitted Acquisition; provided
that (i) no Liens (if such Indebtedness is secured) securing such Indebtedness shall
at any time attach to or encumber any Property constituting Collateral, (ii) the
maturity date for such Indebtedness shall occur no earlier than the date six months
after the Revolver Termination Date, (iii) the principal amount of such Indebtedness
shall not amortize by more than 2% during any year prior to the Revolver Termination
Date (excluding the effect of put rights, required tenders for such Indebtedness or
other repayments or prepayments required upon the occurrence of a contingency (such
as, by way of example and not by way of limitation, an event of default, the
destruction of assets or a change of control) if (but only if) Agent has received
prior written notice of the exercise of such put right, tender or other repayment or
prepayment in reasonable detail and has established an Availability Reserve up to
the aggregate amount of such repayment or prepayment in connection with and prior to
such repayment or prepayment), and (iv) the holder of such Indebtedness (if such
Indebtedness is secured) shall have entered into an intercreditor agreement with
Agent on behalf of Lenders in form and substance satisfactory to Agent;




     (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 such Indebtedness was not incurred in connection
with, or in anticipation or contemplation of, such Permitted Acquisition;
provided, however, that if any of such Indebtedness matures prior to
the Revolver Termination Date and such Indebtedness has not been refinanced or
defeased within ninety days prior to its maturity date, Agent may, in its
discretion, establish an Availability Reserve with respect to such Indebtedness;




     (i) Bank Product Indebtedness;




     (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 $15,000,000 at any time
outstanding, excluding bonds posted to secure excise tax or sales tax payment
obligations;




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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 92





 









 









commodities (including metals) in the Ordinary Course of Business and not for
the purposes of speculation;




     (l) additional unsecured Indebtedness of the Consolidated Parties not otherwise
permitted pursuant to this Section 10.2.3; provided that (i) the maturity
date for such Indebtedness shall occur no earlier than the date six months after the
Revolver Termination Date, (ii) the principal amount of such Indebtedness shall not
amortize by more than 2% during any twelve month period prior to the Revolver
Termination Date (excluding the effect of put rights, required tenders for such
Indebtedness or other repayments or prepayments required upon the occurrence of a
contingency (such as, by way of example and not by way of limitation, an event of
default, the destruction of assets or a change of control) if (but only if) Agent
has received prior written notice of the exercise of such put right, tender or other
repayment or prepayment in reasonable detail and has established an Availability
Reserve up to the aggregate amount of such repayment or prepayment in connection
with and prior to such repayment or prepayment), and (iii) in the case of any
subordinated Indebtedness, the applicable subordination terms thereof shall be
reasonably acceptable to Agent; and




     (m) additional secured Indebtedness in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding, so long as no Liens securing such
Indebtedness shall at any time attach to or encumber any Property constituting
Collateral.




     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) any Borrower may merge or consolidate with any of
its Subsidiaries provided that a Borrower shall be the continuing or surviving entity or, if
not the surviving entity, the survivor shall assume the obligations of such Borrower and
become a party to the Credit Documents as a “Borrower” in a manner reasonably acceptable to
Agent, including, without limitation, by the execution of such documents of joinder and such
Collateral Documents as Agent may reasonably request and by demonstrating that Agent will
have first priority perfected Liens on such Person’s Collateral (subject to Permitted Liens)
and its compliance in all material respects with Applicable Laws, including the Patriot Act,
(b) any Consolidated Party that is an Obligor may merge or consolidate with any other
Obligor, provided that if the merger or consolidation involves a Borrower, such Borrower
shall be the continuing or surviving entity or, if not the surviving entity, the survivor
shall assume the obligations of such Borrower and become a party to the Credit Documents as
a “Borrower” in a manner reasonably acceptable to Agent, including, without limitation, by
the execution of such documents of joinder and such Collateral Documents as Agent may
reasonably request and by demonstrating that Agent will have first priority perfected Liens
on such Person’s Collateral and its compliance in all material respects with Applicable
Laws, including the Patriot Act, (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) a Borrower may merge with any Person in
connection with a Permitted Acquisition, provided that such Borrower shall be the continuing
or surviving entity or, if not the surviving entity, the survivor shall assume the
obligations of such Borrower and become a party to the Credit Documents as a “Borrower” in a
manner reasonably acceptable to Agent, including, without



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limitation, by the execution of such documents of joinder and such Collateral Documents
as Agent may reasonably request and by demonstrating that Agent will have first priority
perfected Liens on such Person’s Collateral and its compliance in all material respects with
Applicable Laws, including the Patriot Act, (g) any Wholly Owned Subsidiary of a Borrower
(other than a Borrower) may dissolve, liquidate or wind up its affairs at any time provided
that such dissolution, liquidation or winding up, as applicable, could not reasonably be
expected to have a Material Adverse Effect.




     10.2.5 Dispositions. Make any Disposition other than an Excluded Disposition
unless (a) at least seventy-five percent (or, in the case of any Disposition of any Property
constituting Collateral, one hundred percent with respect to such Collateral) of 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
does not involve the sale or other disposition of a minority equity interest in any
Consolidated Party, (c) 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, (d) 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 in respect of any single
Disposition, $50,000,000, and with respect to all such Dispositions during the term of this
Agreement, $125,000,000, (e) 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, (f) the
Obligors shall remit the Net Cash Proceeds of any Disposition of Collateral to Agent for
deposit into the Springing Dominion Account of the applicable Obligors and (g) no Default or
Event of Default exists at the time thereof or will arise as a result thereof.




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




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




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




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



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     (d) so long as no Default or Event of Default shall have occurred and be
continuing at the time of any action described below or would result therefrom:




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




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




     (iii) any Borrower or any Subsidiary thereof may, and may incur
obligations to, make Restricted Payments, in the Ordinary Course of
Business, to the MLP General Partner to (A) reimburse the MLP General
Partner for reasonable and customary administrative or operating expenses of
a Borrower incurred by the MLP General Partner, and (B) permit the MLP
General Partner to pay franchise fees or similar Taxes and fees required to
maintain its existence;




     (iv) the MLP Parent may, and may incur obligations to, purchase,
repurchase, retire or otherwise acquire or retire for value units of its
Equity Interests (A) held by any present or former director, officer, member
of management or employee of any Obligor, or any Subsidiary of any Obligor,
in accordance with repurchase rights or obligations established in
connection with such Equity Interests, and (B) 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(d)(iv) shall not exceed
$15,000,000 (subject to Section 1.4) in any Fiscal Year;




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




     (vi) the MLP Parent may, and may incur obligations to, make other
Restricted Payments not otherwise permitted above; provided that
immediately after giving effect to such Restricted Payment, the sum of (A)
cash on hand in Restricted Accounts of the Obligors plus (B)
Availability shall be at least equal to the greater of (x) 15% of the lesser
of the Borrowing Base (without giving effect to the LC Reserve for purposes
of this calculation) and the Revolver Commitments then in effect and (y)
$45,000,000.




     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, any business substantially related or incidental thereto, or
any other business that



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generates gross income that constitutes “qualifying income” under Section 7704(d) of
the Code and relates to the exploration for, or development, mining, production, ownership,
operation, processing, refining, storage, transportation, marketing, distribution or other
handling of, petroleum-based products, biofuels, feedstocks (including, without limiting the
generality of the foregoing, oil and natural gas), and other minerals and fuels related to
the foregoing, (b) change its name or conduct business under any fictitious name; or change
its tax, charter or other organizational identification number, unless, in each case,
Borrower Agent first provides Agent at least 30 days prior written notice of such change or
fictitious name, or (c) change its form or state of organization other than pursuant to a
Statutory Conversion or as otherwise consented to by Required Lenders.




     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 in the Ordinary Course
of Business, (b) transfers of cash and assets to any Obligor in the Ordinary Course of
Business, (c) intercompany transactions expressly permitted by Section 10.2.2, Section
10.2.3, Section 10.2.4, Section 10.2.5 or Section 10.2.6 (including distributions to the MLP
General Partner permitted under Section 10.2.6(d)(iii) to reimburse the MLP General Partner
for administrative and operating expenses of a Borrower incurred by the MLP General Partner,
but excluding other transactions with the MLP General Partner), (d) the assignment by MLP
General Partner to an Obligor of MLP General Partner’s rights under agreements relating to a
Permitted Acquisition for the purpose of allowing such Obligor to consummate such Permitted
Acquisition, and the assumption by such Obligor of the obligations of MLP General Partner
under such agreements, provided that the only consideration payable by such Obligor in
connection with such assignment (other than the assumption of such obligations) shall
consist of reimbursement to MLP General Partner for its actual and reasonable out-of-pocket
fees, costs and expenses relating thereto, (e) the purchase of assets from the MLP General
Partner by an Obligor pursuant to a Permitted Acquisition, provided that the consideration
payable by such Obligor and/or any other Obligor in connection with such purchase shall be
on terms and conditions substantially as favorable to such Obligor and/or the other Obligors
as would be obtainable by it or them in a comparable arms-length transaction with a Person
other than an Affiliate and such purchase and the terms and conditions thereof shall have
been approved in advance by the Conflicts Committee of the MLP General Partner as being fair
and reasonable to Obligors, (f) compensation and reimbursement of expenses of employees,
officers and directors, 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 (other than the Senior Notes
Indenture) 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 of the type constituting Collateral pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension thereof
or (B) act as an Obligor pursuant to the Credit Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except, in respect of any
of the matters referred to in clauses (i), (ii), (iii) and (iv) above



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(but not in respect of any of the matters referred to in clause (v) above,
other than the matters referred to in clause (v)(A) above as they relate to the
proceeds of assets which are subject to a Permitted Lien in favor of a holder of
secured Indebtedness permitted pursuant to Section 10.2.3), for (1) this Agreement
and the other Credit Documents, (2) any document or instrument governing
Indebtedness incurred pursuant to Section 10.2.3(b), (d), (e), (g), (h), (l) or (m),
provided that any such restriction contained therein relates only to the
asset or assets constructed, acquired or financed in connection therewith, (3) 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, (4) 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, (5) 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, (6)
restrictions and conditions contained in credit agreements and other financial
accommodations executed by Foreign Subsidiaries which Indebtedness is otherwise
permitted hereunder, and (7) the Senior Notes Indenture as in effect on April 21,
2011, or as amended from time to time in accordance with the terms of this
Agreement.




     (b) Enter into any Contractual Obligation (other than the Senior Notes
Indenture) that prohibits or otherwise restricts the existence of any Lien upon any
of its Property in favor of Agent, for the benefit of Secured Parties, 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(b), (d), (e), (g), (h), (l) or (m),
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (ii) in connection
with any Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien, and (iii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of any
Property permitted under Section 10.2.5, pending the consummation of such sale.




     10.2.10 Use of Proceeds. Use the proceeds of any Loan, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the Board of Governors) 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 [Reserved].




     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, the Prepayment Conditions are not satisfied at the time, (i) amend or
modify any of the terms of any Indebtedness of such Consolidated Party (other than
Indebtedness



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under the Credit Documents) if such amendment or modification would add or
change any terms such that the incurrence of such Indebtedness would not be
permitted by Section 10.2.3, 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 Credit Documents, (B) purchase money Indebtedness permitted
under Section 10.2.3(e) hereof if (and only if) the required prepayment involves the
mandatory application of, and is limited to the amount of, the proceeds of the
Property securing such purchase money Indebtedness, (C) Indebtedness arising from a
Senior Notes Offering upon the occurrence of a contingency such as, for example and
not by way of limitation, an event of default, the destruction of assets or a change
of control if (and only if) the Senior Notes Indenture requires such prepayment, (D)
payment, prepayment, modification, amendment or settlement of any Swap Contracts,
whether by means of early termination or otherwise, or (E) as permitted by an
intercreditor or subordination agreement in form and substance satisfactory to Agent
with respect to Indebtedness which is subject to such intercreditor or subordination
agreement);




     (b) [Reserved];




     (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);




     (e) without the prior written consent of Agent (not to be unreasonably
withheld, conditioned or delayed), amend or otherwise modify, or permit the
amendment or modification of, any contract for Indebtedness of a Consolidated Party
constituting a Material Contract (excluding Swap Contracts) (i) such that the
Indebtedness documented thereby would not be permitted under Section 10.2.3 after
giving effect thereto or (ii) such that the terms of such Indebtedness are
materially less favorable, taken as a whole, to Obligors or Lenders after giving
effect thereto; or




     (f) amend, replace, refinance, refund, restructure, supplement, extend or
otherwise modify the Senior Notes Indenture (i) such that the Indebtedness
documented thereby would not be permitted under Section 10.2.3 after giving effect
thereto or (ii) to violate the provisions of the Hedge Intercreditor Agreement.




     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;



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     10.2.14 Ownership of Obligors. Permit MLP Parent to own, directly or
indirectly, less than 100% of the Equity Interests of each Obligor except as a result of a
permitted Disposition.




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



     10.3 Financial Covenants. For so long as any Commitments or Obligations (and
continuing until Full Payment of all Obligations) are outstanding, the Consolidated Parties shall:




     10.3.1 Fixed Charge Coverage Ratio. At all times after Availability falls
below the greater of (a) 12.5% of the lesser of the Borrowing Base (without giving effect to
the LC Reserve for purposes of this calculation) and the Revolver Commitments then in effect
and (b) $30,000,000, 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 the greater of
clauses (a) and (b) above, Availability subsequently exceeds the greater of clauses (a) and
(b) above by at least fifteen percent (15%) 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 the greater of clauses
(a) and (b) above.



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 fails to deposit any funds as Cash Collateral in
respect of LC Obligations as and when required herein; 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(a), (b), (c) or (g), 10.1.3, 10.1.5 (with respect only to the
existence or good standing of any Obligor), 10.1.10, 10.1.11, 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 Credit 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



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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 Credit 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 after giving effect to any applicable
grace period (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 amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (C) fails to
observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default
or other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to 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; (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
(iii) there occurs an “Event of Default” as such term is defined in the Senior Notes
Indenture; or




     (f) Insolvency Proceedings, Etc. Any Consolidated Party (other than an
Immaterial Subsidiary) or 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



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     (g) Inability to Pay Debts; Attachment. (i) Any 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 any Consolidated Party (other
than an Immaterial Subsidiary) or 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 any 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 Credit Documents; Guarantees. (i) Any provision of
any Credit Document (other than a Guaranty), at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or Full Payment of all the Obligations, ceases to be in full force and
effect; or any Obligor or any Affiliate thereof contests in any manner the validity
or enforceability of any provision of any Credit Document (other than a Guaranty) or
the perfection or priority of any Lien granted to Agent; or any Obligor denies that
it has any or further liability or obligation under any Credit Document (other than
a Guaranty), or purports to revoke, terminate or rescind any provision of any Credit
Document (other than a Guaranty), in each case, other than following Full Payment of
all the Obligations; 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) [Reserved]; or




     (l) Change of Control. There occurs any Change of Control; or




     (m) Loss of Collateral. Any (i) physical loss, theft, damage or
destruction occurs with respect to any tangible Property of any Borrower or
Borrowers constituting Collateral if the aggregate amount thereof not covered by
insurance exceeds $15,000,000



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or (ii) Involuntary Disposition(s) occur(s) with respect to which the owner of
the Collateral subject to such Involuntary Disposition(s) receive(s) compensation in
an aggregate amount, when combined with the aggregate amount thereof not covered by
insurance, which is less than the book value of such Collateral by more than
$15,000,000; 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 and is continuing with respect to any Consolidated Party or other Obligor, then to the
extent permitted by Applicable Law, all Obligations (other than Bank Product Indebtedness) shall
become automatically due and payable, all Commitments shall terminate and the obligation of
Borrowers under Section 2.3.3 to Cash Collateralize the LC Obligations shall automatically become
effective, 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 (other than Bank Product Indebtedness) 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 Applicable Law;




     (b) terminate, reduce or condition any Commitment, or make any adjustment to
the Borrowing Base;




     (c) require Obligors to Cash Collateralize LC Obligations, Bank Product
Indebtedness and other Obligations that are contingent or not yet due and payable,
and, if Obligors fail promptly to deposit such Cash Collateral, Lenders may (and
shall upon the direction of Required Lenders) advance the required Cash Collateral
as Revolver Loans (whether or not an Overadvance exists or is created thereby, or
the conditions in Section 6 are satisfied); and




     (d) exercise any other rights or remedies afforded under any agreement, by
Applicable 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



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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 Applicable 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, so long
as an Event of Default shall have occurred and be continuing, 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; provided,
however, that the IP License shall control in the event of any conflict between this
Section and the terms and provisions of the IP License. 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 Credit 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 Credit 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 in
writing 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 Credit
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 Credit 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
Credit 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 Credit 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 Credit 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
Credit Documents to which Agent is intended to be a party and accept all Collateral
Documents, for Agent’s benefit and the Pro Rata benefit of Secured Parties. Each Lender
agrees that any action taken by Agent or Required Lenders in accordance with the provisions
of the Credit 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 Credit Documents; (b) execute and deliver as Agent each Credit Document,
including any intercreditor or subordination agreement, and accept delivery of each Credit
Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties
for purposes of perfecting and administering Liens under the Credit 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
Credit 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 Credit 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 Credit Documents, nor be required to initiate or conduct any Enforcement Action
except to the extent directed to do so by Required Lenders while an Event of Default exists.
The conferral upon Agent of any right shall not imply a duty on Agent’s part to exercise
such right, unless instructed to do so by Required Lenders in accordance with this
Agreement.



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     12.1.3 Agent Professionals. Agent may perform its duties through agents and
employees. Agent may consult with and employ Agent Professionals, and shall be entitled to
act upon, and shall be fully protected in any action taken in good faith reliance upon, any
advice given by an Agent Professional. Agent shall not be responsible for the negligence or
misconduct of any agents or Agent Professionals selected by it with reasonable care.




     12.1.4 Instructions of Required Lenders. The rights and remedies conferred
upon Agent under the Credit 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 Credit 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 each
affected Lender, all Lenders or the Supermajority Lenders (as applicable) shall be required
in the circumstances described in Section 14.1.1(a)(i), (ii) and (iii), respectively, and in
no event shall Required Lenders, without the prior written consent of the requisite Lenders,
direct Agent to take any action which would require the consent of each affected Lender, all
Lenders or the Supermajority Lenders, as applicable. In no event shall Agent be required to
take any action that, in its opinion, is contrary to Applicable Law or any Credit 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 Required
Lenders (provided that the release of all or substantially all of the Collateral shall
require 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



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any Report, and shall not be liable for any information contained in or omitted from
any Report; (b) that the Reports are not intended to be comprehensive audits or
examinations, and that Agent or any other Person performing any audit or examination will
inspect only specific information regarding Obligations or the Collateral and will rely
significantly upon Borrowers’ books and records as well as upon representations of
Borrowers’ officers and employees; and (c) to keep all Reports confidential and strictly for
such Lender’s internal use, and not to distribute any Report (or the contents thereof) to
any Person (except to such Lender’s Participants, attorneys, accountants and other Persons
with whom such Lender has a confidential relationship) or use any Report in any manner other
than administration of the Loans and other Obligations. Each Lender agrees to indemnify and
hold harmless Agent and any other Person preparing a Report from any action such Lender may
take as a result of or any conclusion it may draw from any Report, as well as any Claims
arising in connection with any third parties that obtain all or any part of a Report through
such Lender.



     12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any certification, notice or other communication (including those by telephone,
telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person, and upon the advice and statements of Agent
Professionals.



     12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default
or Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has
received written notice from Borrower or Required Lenders specifying the occurrence and nature
thereof. If Agent receives such a notice or otherwise acquires actual knowledge of any Default or
Event of Default, or any failure of such conditions, 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 Credit Documents or with the written consent of Agent and Required
Lenders, it will not take any Enforcement Action, accelerate its Obligations (other than Bank
Product Indebtedness), 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. No Lender may set off against any Dominion Account without
the prior consent of Agent.



     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 Credit Documents), on a Pro Rata basis,
against all claims that may be incurred by or asserted against any Agent Indemnitee,
provided, that any such claim against an Agent Indemnitee relates to or arises from its
acting as or for Agent (in its capacity as



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Agent). 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 reasonable 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, Credit Documents or matters relating thereto, or otherwise to
obtain any other relief of any kind on account of any transaction relating to any Credit
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 reasonable 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 Credit Documents, except for losses directly
and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any
responsibility for any failure or delay in performance or any breach by any Obligor or Lender of
any obligations under the Credit Documents. Agent does not make to Lenders any express or implied
warranty, representation or guarantee with respect to any Obligations, Collateral, Credit Documents
or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements,
information, representations or warranties contained in any Credit Documents; the execution,
validity, genuineness, effectiveness or enforceability of any Credit 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
Credit Documents, or the satisfaction of any conditions precedent contained in any Credit
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 Borrower Agent. Upon receipt of such notice,
Required Lenders shall have the right to appoint a successor Agent which shall be (a) a
Lender (other than a Defaulting Lender) or an Affiliate of a Lender (other than a Defaulting
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 $500,000,000 and
(provided no Default or Event of Default exists) is reasonably acceptable to Borrower Agent.
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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 107





 









 









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 Credit 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
Credit 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 Credit Documents, the
Collateral and each Obligor as such Lender feels necessary. Each Lender further acknowledges and
agrees that the other Lenders and Agent have made no representations or warranties concerning any
Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Credit
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 Credit
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 Credit
Documents.



     AMENDED AND RESTATED CREDIT AGREEMENT — Page 108



 









 






     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, nor shall any Defaulting Lender be entitled to interest
on any amounts held by Agent pursuant to Section 4.2.




     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 Credit
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 Credit 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 Credit Documents as any other Lender, and the terms
“Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as
a Lender. Each of Bank of America and its Affiliates may accept deposits from, maintain deposits
or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under
indentures of, serve as financial or other advisor to, and generally engage in any kind of business
with, Obligors and their Affiliates, as if Bank of America were any other bank, without any duty to
account therefor (including any fees or other consideration received in connection therewith) to
the other Lenders. In their individual capacity, Bank of America and its Affiliates may receive
information regarding Obligors, their Affiliates and their Account Debtors (including information
subject to confidentiality obligations), and each Lender agrees that Bank of America and its
Affiliates shall be under no obligation to provide such information to Lenders, if acquired in such
individual capacity and not as Agent hereunder.



     12.13 Agent Titles. Each Lender, other than Bank of America, that is designated (on
the cover page of this Agreement or otherwise) by Bank of America as an “Agent” or “Arranger” of
any type shall not have any right, power, responsibility or duty under any Credit 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 Bank Product Providers. Each holder of Bank Product Indebtedness, by delivery
of a notice to Agent of a Bank Product, agrees to be bound by Section 5.6 and this Section 12.
Each holder of Bank Product Indebtedness shall indemnify and hold harmless Agent Indemnitees, to
the extent not reimbursed by Obligors, against all Claims that may be incurred by or asserted
against any Agent Indemnitee in connection with such provider’s Bank Product Indebtedness.



     12.15 No Third Party Beneficiaries. This Section 12 shall survive Full Payment of the
Obligations. 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 Credit Documents or with respect to any Obligations 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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 109





 











 




shall have the right to assign its rights or delegate its obligations under any Credit
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 Credit Documents. Despite any sale by a Lender of participating
interests to a Participant, such Lender’s obligations under the Credit 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 Credit
Documents. Each Lender shall be solely responsible for notifying its Participants of any
matters under the Credit 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 and such Participant agrees, for the benefit of
Borrowers, to comply with Section 5.9 as though it were a Foreign Lender.




     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
Credit 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 all or substantially all of the Collateral.




     13.2.3 Benefit of Set-Off. Borrowers agree that each Participant shall have a
right of set-off in respect of its participating interest to the same extent as if such
interest were owing directly to a Lender, and each Lender shall also retain the right of
set-off with respect to any participating interests sold by it. By exercising any right of
set-off, a Participant agrees to share with Lenders all amounts received through its
set-off, in accordance with Section 12.5 as if such Participant were a Lender.



     13.3 Assignments.




     13.3.1 Permitted Assignments. A Lender may assign to any Eligible Assignee any
of its rights and obligations under the Credit 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 Credit 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


AMENDED AND RESTATED CREDIT AGREEMENT — Page 110




 









 









pledge or assign as security any rights under the Credit Documents to any Federal
Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A
of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank;
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. Each transferee Lender shall comply with all of its
obligations as a Lender hereunder and shall deliver, upon request, an administrative
questionnaire satisfactory to Agent.




     13.3.2 Effect; Effective Date. Upon satisfaction of Section 13.3.1 and Agent’s
receipt of a processing fee of $5,000, such assignment shall become effective and Agent
shall deliver a notice of such assignment in the form of Exhibit D. From the effective date
of such assignment, the Eligible Assignee shall for all purposes be a Lender under the
Credit Documents, and shall have all rights and obligations of a Lender thereunder;
provided, however, that, unless an Event of Default has then occurred and is continuing (in
which case this proviso shall not apply), any such Eligible Assignee which is a Foreign
Lender shall either be exempt from any applicable withholding Taxes by the applicable
Governmental Authority or Borrowers shall have no obligation pursuant to Section 5.9 to
gross-up any payments for such withholding Taxes to such Eligible Assignee. 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 Credit 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 Code assets of any “plan” as defined in Section 3(3) of ERISA or Section 4975
of the Code and the interests of such Lender in and under the Credit 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 Credit Document to the contrary, no amendment or waiver of any
provision of this Agreement or any other Credit 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
CSPP, each other Obligor and the Required Lenders and delivered to Agent, or, in the
case of any other Credit 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:


AMENDED AND RESTATED CREDIT AGREEMENT — Page 111





 









 









          (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
Credit Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any
other Credit Document (other than optional prepayments) 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 Credit 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 to release Collateral described therein
to the extent the release thereof is permitted by the terms of this
Agreement) or this Section 14.1.1;




                    (B) amend the definitions of Pro Rata, Required Lenders or
Supermajority 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 the total Commitments (other than any increase
resulting from an Incremental Revolving Facility incurred pursuant to
Section 2.2);




                    (D) release all or substantially all of the Collateral, except
as contemplated by the Credit Documents; or




                    (E) release any Obligor from liability for any Obligations, if
such Obligor is Solvent at the time of the release, except in
connection with the permitted sale, liquidation or dissolution of
such Obligor;


AMENDED AND RESTATED CREDIT AGREEMENT — Page 112




 









 









               (iii) no such amendment, waiver or consent shall, without the consent
of the Supermajority Lenders:




                    (A) 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);




                    (B) amend the definition of Borrowing Base or the defined terms
used in such definition in a manner such that Availability would be
higher after giving effect to such amendment; or




                    (C) subordinate (other than release) any of the Obligations or
any Liens securing any of the Obligations;




               (iv) no amendment, waiver or consent shall, unless in writing and
signed by Issuing Bank in addition to the Lenders required by the applicable
provisions of clause (i), (ii) or (iii) above, affect the LC Obligations,
the rights or duties of Issuing Bank under this Agreement, including Section
2.3, or any LC Document;




               (v) no amendment, waiver or consent shall, unless in writing and signed
by Agent in addition to the Lenders required by the applicable provisions of
clause (i), (ii) or (iii) above, affect the rights or duties of Agent under
this Agreement or any other Credit Document; and




               (vi) the Fee Letters 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 Credit 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 Credit 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 respect to any modification of any Credit 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. Borrowers shall indemnify each Indemnitee (and any sub agent
of Agent) against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements of one outside
counsel for Agent (plus one local counsel for Agent in each jurisdiction of formation or
organization of any Obligor), and


AMENDED AND RESTATED CREDIT AGREEMENT — Page 113





 









 







one outside counsel retained by the Lenders or any steering committee or similar group acting
on behalf of the Lenders as a group (and such additional counsel as the Agent, any Lender, any
group of Lenders or any such steering committee determines in good faith are necessary in light of
actual or potential conflicts of interest or the availability of different claims or defenses)
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower
or any other Obligor arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Credit 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 Credit 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, (A) 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 material breach or breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Credit 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 or (B) include any allocated costs of internal
counsel for any such Indemnitee. If any Taxes (other than Excluded Taxes) shall be payable by any
party due to the execution, delivery, issuance or recording of any Credit 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 Borrowers for any reason fail to
indefeasibly pay any amount required under Section 14.2 to be paid by them 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), subject to Section 14.4.4, all notices, demands 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:


AMENDED AND RESTATED CREDIT AGREEMENT — Page 114





 









 









          (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 Section 14.4.2
shall be effective as provided in such Section. Notwithstanding the foregoing, no
notice to Agent pursuant to Section 2.1.4, 2.3, 3.1.2 or 4.1.1 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, any Borrower or Borrower Agent
may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications.



     Unless Agent otherwise prescribes, (a) 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 (b) 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 (a) of notification
that such notice or communication is available and identifying the website address therefor.
Notices given to Agent by electronic mail or submitted through Agent’s website shall be
deemed to have been given in writing.



     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


AMENDED AND RESTATED CREDIT AGREEMENT — Page 115



 









 








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 in accordance with this Section 14.4. 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
accordance with this Section 14.4. In addition, each Lender agrees to notify Agent from
time to time to ensure that Agent has on record (a) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (b) 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 and believed in good faith to have been given by or on behalf of the
Borrowers even if (a) 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
(b) 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; provided
that such indemnity shall not, as to any such Indemnitee, (i) be available to the extent
that such losses, costs or expenses (A) 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 (B) result from a claim brought by a Borrower or any other
Obligor against such Indemnitee for material breach or breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Credit 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, or (ii) include any allocated costs of
internal counsel for any such Indemnitee. All telephonic notices to and other telephonic
communications with Agent may be recorded by Agent, and each of the parties hereto hereby
consents to such recording.




     14.4.6 Non-Conforming Communications. Agent and Lenders may rely upon any
notices (including telephonic communications) purportedly given by or on behalf of any
Borrower even if such notices were not made in a manner specified herein, were incomplete or
were not confirmed, or if the terms thereof, as understood by the recipient, varied from a
later confirmation. Each Borrower shall indemnify and hold harmless each Indemnitee from
any liabilities, losses, costs and expenses arising from any telephonic communication
purportedly given by or on behalf of a Borrower; provided that such indemnity shall
not, as to any such Indemnitee, (a) be available to the extent that such liabilities,
losses, costs or expenses (i) 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 (ii) result from a


AMENDED AND RESTATED CREDIT AGREEMENT — Page 116



 









 








claim brought by a Borrower or any other Obligor against such Indemnitee for material
breach or breach in bad faith of such Indemnitee’s obligations hereunder or under any other
Credit 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, or
(b) include any allocated costs of internal counsel for any such Indemnitee.



     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 Credit Documents or otherwise lawfully requested by Agent to (a) enforce any Credit
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 interest rate
(including, if applicable, 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 Credit 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 Credit 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 Credit 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 Credit Documents are
cumulative. The parties acknowledge that the Credit 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 Credit 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
Credit Document, the provision herein shall govern and control.



     14.9 Counterparts; Facsimile Signatures. 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.
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.



     Any Credit Document may be executed in counterparts (and by different parties thereto in
different counterparts), each of which shall constitute an original but all of which when taken
together shall constitute one instrument. Executed counterparts of a signature page to this
Agreement or any of the other Credit Documents may be delivered by facsimile or electronic
messaging system, and if so delivered shall have the same force and effect as manually signed
originals for all purposes. Agent may


AMENDED AND RESTATED CREDIT AGREEMENT — Page 117




 









 







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 Credit Documents.



     14.11 Obligations of Lenders. The obligations of each Lender hereunder are several,
and no Lender shall be responsible for the obligations or Commitment 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 Credit 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 Credit 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 Credit 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 Credit Document or any
action or proceeding relating to this Agreement or any other Credit 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 provider (or its advisors) of any Bank Product (other than such a provider of
Interest Rate Swaps) relating to any Obligor 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 an Obligor.



     For purposes of this Section, “Information” means all information received from or on
behalf of any Consolidated Party relating to any Consolidated Party or other Obligor or any of
their respective securities or 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


AMENDED AND RESTATED CREDIT AGREEMENT — Page 118




 









 







and (C) it 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 PARTY HERETO 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 PARTY HERETO 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.


AMENDED AND RESTATED CREDIT AGREEMENT — Page 119



 









 








          EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 14.4. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.



     14.16 Waivers by Borrowers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
BORROWER WAIVES (A) THE RIGHT TO TRIAL BY JURY (WHICH AGENT AND EACH LENDER HEREBY ALSO WAIVES) IN
ANY PROCEEDING, CLAIM OR COUNTERCLAIM OF ANY KIND RELATING IN ANY WAY TO ANY LOAN DOCUMENTS,
OBLIGATIONS OR COLLATERAL; (b) presentment, demand, protest, notice of presentment, default,
non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial
paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time
held by Agent on which a Borrower may in any way be liable, and hereby ratifies anything Agent may
do in this regard; (c) notice prior to taking possession or control of any Collateral; (d) any bond
or security that might be required by a court prior to allowing Agent to exercise any rights or
remedies; (e) the benefit of all valuation, appraisement and exemption laws; (f) any claim against
Agent or any Lender, on any theory of liability, for special, indirect, consequential, exemplary or
punitive damages (as opposed to direct or actual damages) in any way relating to any Enforcement
Action, Obligations, Credit 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 party hereto 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 (a) any Lender requests compensation under
Section 3.6 or Section 3.7, (b) 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, (c) a
Lender does not consent to a proposed change, waiver, discharge or termination with respect to any
Credit Document that requires unanimous consent of all Lenders or Supermajority Lenders and, in
each case, that has been approved by the Required Lenders, (d) any Lender delivers a notice
pursuant to Section 3.5, or (e) any Lender is a Defaulting Lender, then Borrowers may, at the sole
expense and effort of Borrowers, upon notice to such Lender and Agent, require such Lender to
promptly 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 Credit Documents to an Eligible Assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:




          (i) the Borrowers shall have paid to Agent the assignment fee specified in
Section 13.3.2;


AMENDED AND RESTATED CREDIT AGREEMENT — Page 120



 









 








          (ii) 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 Credit 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);




          (iii) in the case of any such assignment resulting from a claim for
compensation under Section 3.6 or payments required to be made pursuant to Section
5.9, such assignment will result in a reduction in such compensation or payments
thereafter;




          (iv) such assignment does not conflict with Applicable Laws; and




          (v) 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
Credit 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.



     14.20 No Advisory or Fiduciary Relationship. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Credit Document), each Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding
this Agreement provided by the Agent and the Arrangers, are arm’s-length commercial transactions
between such Borrower and its Affiliates, on the one hand, and the Agent and the Arrangers, on the
other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions contemplated hereby
and by the other Credit Documents; (b)(i) the Agent and the Arrangers are and have been acting
solely as a principal and, except as expressly agreed in writing by the relevant parties, have not
been, are not and will not be acting as an advisor, agent or fiduciary, for the Borrowers or any of
their respective Affiliates or any other Person and (ii) neither the Agent has nor the Arrangers
have any obligation to the Borrowers or any of their Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Credit
Documents; and (c) the Agent and the Arrangers and their respective Affiliates may be engaged in


AMENDED AND RESTATED CREDIT AGREEMENT — Page 121



 









 






a broad range of transactions that involve interests that differ from those of the Borrowers
and their Affiliates, and neither the Agent nor the Arranger has any obligation to disclose any of
such interests to the Borrowers or their Affiliates. To the fullest extent permitted by Applicable
Law, each of Borrowers hereby waives and releases any claims that it may have against Agent or
Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transaction contemplated hereby.




     14.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
ENTIRE FINAL AGREEMENT AMONG THE PARTIES AND SUPERSEDE AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



     14.22 Amendment and Restatement. Upon the effectiveness of this Agreement and
effective as of the Closing Date, this Agreement shall constitute an amendment and restatement of,
but not an extinguishment of any of the “Loans” (as defined in the Original Credit Agreement),
“Obligations” (as defined in the Original Credit Agreement) or other indebtedness, liabilities
and/or obligations of any one or more of Obligors under, the Original Credit Agreement.



     14.23 Ratification of Existing Liens and IP License. Each of Obligors hereby (a)
ratifies, confirms and reaffirms any and all Liens that it previously granted to Agent pursuant to
the “Credit Documents” (as defined in the Original Credit Agreement) to the extent that (i) such
Obligor continues to have an interest in the property or assets in which any such Lien was granted
and (ii) such Lien is required hereunder or under a Collateral Document to be granted to Agent, (b)
acknowledges an agrees that none of such Liens has expired or has been terminated or released,
except if and to the extent, if any, expressly provided in such “Credit Documents” or as may have
been previously and expressly terminated or released by Agent, and (c) acknowledges and agrees that
each of such Liens is valid and enforceable in accordance with its terms and continues in full
force and effect to secure the payment and performance of the Obligations. Each of the Obligors
hereby (i) ratifies, confirms and reaffirms all of its obligations under the IP License, (ii)
acknowledges and agrees that (A) none of such obligations has expired or has been terminated or
released, (B) the term “Credit Agreement” as used therein includes this Agreement, and (C) the term
“Liens” referred to therein includes each Lien and all Liens created or granted pursuant to the
Collateral Documents, and (iii) acknowledges and agrees that each of such obligations is valid and
enforceable in accordance with its terms and continues in full force and effect in favor of Agent
and Lenders.



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



AMENDED AND RESTATED CREDIT AGREEMENT — Page 122





 












 





     IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set
forth above.



	 	 	 	 	 
	BORROWERS: 	 CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.

 	 
	 	By:  	
Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	 Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 



	 	 	 	 	 
	 	CALUMET LP GP, LLC

 	 
	 	By:  	                Calumet Operating, LLC, its sole member
 	 



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



					
	 	
 	 
	 	By:  	                Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	                /S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief
Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 
	 	 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 123






 









 








	 	 	 	 	 
	 	CALUMET OPERATING, LLC

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



					
	 	
 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 



	 	 	 	 	 
	 	CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP
 	 



	 	 	 	 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



					
	 	
 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief
Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 124




 









 








	 	 	 	 	 
	 	CALUMET SHREVEPORT, LLC

 	 
	 	By:  	Calumet Lubricants Co., Limited Partnership,
its sole member
 	 



					
	 	
 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



					
	 	
 	 
	 	By:  	Calumet GP, LLC,
its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief
Financial Officer 	 
	 



	 	 	 	 	 
	 	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:  	Calumet Shreveport, LLC, its sole member
 	 



					
	 	
 	 
	 	By:  	Calumet Lubricants Co., Limited Partnership, its sole member
 	 



					
	 	
 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



					
	 	
 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and
Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	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

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 125



 









 







	 	 	 	 	 
	 	CALUMET SHREVEPORT FUELS, LLC

 	 
	 	By:  	Calumet Shreveport, LLC, its sole member
 	 



					
	 	
 	 
	 	By:  	Calumet Lubricants Co., Limited Partnership, its sole member
 	 



					
	 	
 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



					
	 	
 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 



	 	 	 	 	 
	 	CALUMET SALES COMPANY INCORPORATED

 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 126




 









 








	 	 	 	 	 
	 	CALUMET PENRECO, LLC

 	 
	 	By:  	Calumet Lubricants Co., Limited Partnership, its sole member
 	 



	 	 	 	 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 





					
	 	
 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



					
	 	
 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



					
	 	
 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 



	 	 	 	 	 
	 	CALUMET FINANCE CORP.

 	 
	 	By:  	/S/ R. Patrick Murray, II
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	Address:

2780 Waterfront Parkway East Drive, Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: 317-328-5676

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 127





 









 








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

as Agent and a Lender

 	 
	 	By:  	/S/ Hance VanBeber
 	 
	 	 	Name:  	Hance VanBeber 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Address:

Bank of America, N.A.

901 Main Street, 11th Floor

Dallas, Texas 75202

Mail Code: TX1-492-11-23

Attention: Hance VanBeber

Telecopy: 214-209-4766

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 128







 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agent and a Lender

 	 
	 	By:  	/S/ Christy West
 	 
	 	 	Name:  	Christy West 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

JPMorgan Chase Bank, N.A.

2200 Ross Ave., 9th Floor

TX1-2921

Dallas, TX 75201

Attention: Christy West

Telecopy: 214-965-2594

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 129





 









 








	 	 	 	 	 
	 	







WELLS FARGO BANK, NATIONAL

ASSOCIATION,

as a Lender

 	 
	 	By:  	/S/ Brant Murdock
 	 
	 	 	Name:  	Brant Murdock 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

Wells Fargo Capital Finance, LLC

301 S. College Street

Charlotte, NC 28202

Attention: Brant Murdock

Telecopy: 704-374-2703

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 130





 









 








	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agent and a Lender

 	 
	 	By:  	/S/ W. Reed Paden
 	 
	 	 	Name:  	W. Reed Paden 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

PNC Bank, National Association

4720 Piedmont Row

Suite 300

Charlotte, NC 28210

Attention: W. Reed Paden

Telecopy: 704-643-7918

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 131






 









 








	 	 	 	 	 
	 	SUNTRUST BANK, as Co-Documentation

Agent and a Lender

 	 
	 	By:  	                    /S/ Jamie Hurley
 	 
	 	 	Name:  	James Hurley 	 
	 	 	Title:  	Director 	 
	 
	 	Address:

SunTrust Bank

303 Peachtree St., NE, 23rd Floor

Atlanta, GA 30308

Attention: Steve Metts

Telecopy: 404-813-6453

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 132







 









 








	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender

 	 
	 	By:  	/S/ Michael Getz
 	 
	 	 	Name:  	Michael Getz 	 
	 	 	Title:  	Vice Presiedent 	 
	 
	 	 	 
	 	By:  	                        /S/ Evelyn Thierry
 	 
	 	 	Name:  	Evelyn Thierry 	 
	 	 	Title:  	Director 	 
	 
	 	Address:

Deutsche Bank Trust Company Americas

5022 Gate Parkway, Suite 200

Jacksonville, FL 32256

Attention: Shoba Kenchappa

Telecopy: 866-240-3622

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 133





 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/S/ Christopher Fudge
 	 
	 	 	Name:  	Christopher Fudge 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

425 Walnut Street

Cincinnati, OH 45202

Attention: Christopher Fudge

Telecopy: 513-632-2040

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 134







 









 








	 	 	 	 	 
	 	REGIONS BANK, as a Lender

 	 
	 	By:  	/S/ Jon Eckhouse
 	 
	 	 	Name:  	Jon Eckhouse 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

Regions Bank

201 Milan Pkwy

ALBH70109A

Birmingham, AL 35211

Attention: Valencia M. Jackson

Telecopy: 205-261-7069

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 135







 









 








	 	 	 	 	 
	 	NATIXIS, as a Lender

 	 
	 	By:  	/S/ Louis P. Laville, III
 	 
	 	 	Name:  	Louis P. Laville, III 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                       /S/ Daniel Payer
 	 
	 	 	Name:  	Daniel Payer 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 Address:

1251 Avenue of the Americas, 34thFloor

New York, New York 10020

Attention: Paula Bongiovanni

Telecopy: 347-402-3021

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 136







 









 








	 	 	 	 	 
	 	COMPASS BANK, as a Lender

 	 
	 	By:  	/S/ Michael Sheff
 	 
	 	 	Name:  	Michael Sheff 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Address:

8080 North Central Expressway

Suite 400

Dallas, Texas 75206

Attention: Michael Sheff

Telecopy: 214-706-8059

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 137






 









 








	 	 	 	 	 
	 	CAPITAL ONE LEVERAGE FINANCE CORP.,

as a Lender

 	 
	 	By:  	/S/ Todd Kemme
 	 
	 	 	Name:  	Todd Kemme 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address:

Capital One Leverage Finance Corp.

5420 LBJ Freeway, #630

Dallas, TX 75240

Attention: Shanna Culver

Telecopy: 972-770-2671

 	 


AMENDED AND RESTATED CREDIT AGREEMENT — Page 138





 











 





EXHIBIT A




FORM OF REVOLVER NOTE



			
	$___________
	 	June 24, 2011






     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 Revolver
Loan from time to time made by the Lender to (or otherwise owed to the Lender by) the Borrowers
under that certain Amended and Restated Credit Agreement dated as of June 24, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing at any time and from time to time,
the “Agreement”) among Calumet Specialty Products Partners, L.P., a Delaware limited partnership (“CSPP”),
Calumet LP GP, LLC, a Delaware limited liability company (“CLP”), Calumet Operating, LLC, a Delaware
limited liability company (“Operating”), Calumet Lubricants Co., Limited Partnership, an Indiana limited
partnership (the “Calumet Lubricants”), Calumet Shreveport, LLC, an Indiana limited liability company
(“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited liability company
(“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability company (“CSF”), Calumet Sales Company
Incorporated, a Delaware corporation (“Calumet Sales”), Calumet Penreco, LLC, a Delaware limited liability
company (“Calumet Penreco”), and Calumet Finance Corp., a Delaware corporation (“Calumet Finance” and
together with CSPP, CLP, Operating, Calumet Lubricants, Calumet Shreveport, CSLW, CSF, Calumet Sales and
Calumet Penreco, the “Borrowers”) the financial institutions from time to time party thereto (the “Lenders”)
and Bank of America, N.A., as Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Agreement.



     The Borrowers promise, jointly and severally, to pay interest on the unpaid principal amount of each Revolver
Loan from the date of such 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 designated by the Agent from
time to time. 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 Revolver Note is one of the 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 Revolver
Note shall become, or may be declared to be, immediately due and payable, all as provided in the Agreement. 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 Revolver Note and endorse thereon the date, amount and maturity of
its 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 Revolver Note.



[Intentionally left blank — Signatures appear on following page]


EXHIBIT A — REVOLVER NOTE — Page 1















 








     THIS REVOLVER NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.



	 	 	 	 	 
	 	CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.

 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




	 	 	 	 	 
	 	CALUMET LP GP, LLC

 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



	 	 	 	 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

                 Vice President and Chief Financial Officer

Telecopy: (317) 328-5676



REVOLVER NOTE — Page 2














 





	 	 	 	 	 
	 	CALUMET OPERATING, LLC

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



	 	 	 	 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




	 	 	 	 	 
	 	CALUMET LUBRICANTS CO., LIMITED

PARTNERSHIP

 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



	 	 	 	 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




REVOLVER NOTE — Page 3














 








	 	 	 	 	 
	 	CALUMET SHREVEPORT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




	 	 	 	 	 
	 	CALUMET SHREVEPORT LUBRICANTS &

WAXES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




	 	 	 	 	 
	 	CALUMET SHREVEPORT FUELS, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676





REVOLVER NOTE — Page 4













 








	 	 	 	 	 
	 	CALUMET SALES COMPANY INCORPORATED

 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




	 	 	 	 	 
	 	CALUMET PENRECO, LLC

 	 
	 	By:  	Calumet Lubricants Co., Limited Partnership, its sole member
 	 



	 	 	 	 	 
	 	By:  	Calumet LP GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	Calumet Operating, LLC, its sole member
 	 



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



	 	 	 	 	 
	 	By:  	Calumet GP, LLC, its general partner
 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  R. Patrick Murray, II	 
	 	 	Title:  Vice President and Chief Financial Officer 	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676





REVOLVER NOTE — Page 5













 








	 	 	 	 	 
	 	CALUMET FINANCE CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


Address:

2780 Waterfront Parkway East Drive

Suite 200

Indianapolis, Indiana 46214

Attention: R. Patrick Murray, II

Vice President and Chief Financial Officer

Telecopy: (317) 328-5676




REVOLVER NOTE — Page 6















 





EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE



_________, 20___



Financial Statement Date: ________________



To: Bank of America, N.A., as Agent



Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of June 24,
2011 (as amended, restated, extended, supplemented or otherwise modified in writing at any time and
from time to time, the “Agreement”) among Calumet Specialty Products Partners, L.P., a
Delaware limited partnership (“CSPP” or the “Company”), Calumet LP GP, LLC, a
Delaware limited liability company (“CLP”), Calumet Operating, LLC, a Delaware limited
liability company (“Operating”), Calumet Lubricants Co., Limited Partnership, an Indiana
limited partnership (the “Calumet Lubricants”), Calumet Shreveport, LLC, an Indiana limited
liability company (“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an
Indiana limited liability company (“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana
limited liability company (“CSF”), Calumet Sales Company Incorporated, a Delaware
corporation (“Calumet Sales”), Calumet Penreco, LLC, a Delaware limited liability company
(“Calumet Penreco”), and Calumet Finance Corp., a Delaware corporation (“Calumet
Finance” and together with CSPP, CLP, Operating, Calumet Lubricants, Calumet Shreveport, CSLW,
CSF, Calumet Sales and Calumet Penreco, the “Borrowers”), the financial institutions from
time to time party thereto and Bank of America, N.A., as Agent. Capitalized terms used but not
otherwise defined herein have the meanings provided in the Agreement.



     The undersigned Senior Officer of [Calumet GP, LLC, a Delaware limited liability company and
the general partner of CSPP (the “MLP General Partner”)] [CSPP], on behalf of the
Consolidated Parties, hereby certifies as of the date hereof that he/she is the
____________________ of [the MLP General Partner] [CSPP], and that, as such, he/she is authorized
to execute and deliver this Compliance Certificate on behalf of [the MLP General Partner] [CSPP] 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 financial statement 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 and
portion of the Fiscal Year ended as of the above financial statement date. Such financial
statements fairly present the financial condition, results of operations, partners’ capital and
cash flows of the Consolidated Parties for such Fiscal Quarter and portion of such Fiscal Year in
accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.


EXHIBIT B — COMPLIANCE CERTIFICATE — Page 1




 









 








     [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
and for the portion of the Fiscal Year ended as of the above financial statement date. Such
financial statements fairly present the financial condition, results of operations, partners’
capital and cash flows of the Consolidated Parties for such month and portion of such Fiscal Year
in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.



     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 Credit
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 Annex A contains a list of each Default and
a description of its nature and status.]



     5. Attached hereto as Schedule 2 are calculations demonstrating compliance with the
financial covenant(s) set forth in Section 10.3 of the Agreement as of the last day of such
fiscal period.



[Signature Page Follows]


EXHIBIT B — COMPLIANCE CERTIFICATE — Page 2





 









 








     IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of the date
first written above.



	 	 	 	 	 
	 	[CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.

 	 
	 	By:  	Calumet GP, LLC, its general partner]
 	 
	 	

[CALUMET GP, LLC]
 	 



	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


EXHIBIT B — COMPLIANCE CERTIFICATE — Page 3





 









 








Schedule 1

to Compliance Certificate



SCHEDULE 1 TO COMPLIANCE CERTIFICATE — Cover Page





 









 








Annex A

to Compliance Certificate



ANNEX A TO COMPLIANCE CERTIFICATE — Cover Page







 









 








Schedule 2

to Compliance Certificate



SCHEDULE 2 TO COMPLIANCE CERTIFICATE — Cover Page








 









 








EXHIBIT C




FORM OF ASSIGNMENT AND ACCEPTANCE




     This Assignment and Acceptance (the “Assignment and Acceptance”) 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 Acceptance 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,
including, without limitation, the Credit Documents, 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,
including, without limitation, the Credit Documents, 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 Acceptance, without
representation or warranty by the Assignor. From and after the Effective Date, the Assignee shall
be a party to and be bound by the provisions of the Agreement.



	 	 	 	 	 

	1.

	 	Legal Name of Assignor:
	 	____________________________
	 
	 	 	 	 
	2.

	 	Legal Name of Assignee:
	 	____________________________
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]]
	 
	 	 	 	 
	3.

	 	Address of Assignee
for Notice:
	 	            
                 
                  
                  
               
	 

	 	 	 	            
                 
                 
                 
                 
	 

	 	 	 	              
                   
            
                   
                
	 

	 	 	 	Attn:             
                  
                     
                     
	 

	 	 	 	Telecopy:              
                  
                 
                
	 
	 	 	 	 
	4.

	 	Borrowers:
	 	Calumet Specialty Products Partners, L.P., a Delaware limited partnership
(“CSPP”), Calumet LP GP, LLC, a Delaware limited liability company (“CLP”),
Calumet Operating, LLC, a Delaware limited liability company (“Operating”), Calumet
Lubricants Co., Limited Partnership, an Indiana limited partnership (“Calumet
Lubricants”), Calumet Shreveport, LLC, an Indiana limited liability






EXHIBIT C — ASSIGNMENT AND ACCEPTANCE — Page 1
 









 






	 	 	 	 	 

	 

	 	 	 	company (“Calumet Shreveport”), Calumet Shreveport
Lubricants & Waxes, LLC, an Indiana limited liability company
(“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana
limited liability company (“CSF”), Calumet Sales
Company Incorporated, a Delaware corporation (“Calumet
Sales”), Calumet Penreco, LLC, a Delaware limited
liability company (“Calumet Penreco”), and Calumet
Finance Corp., a Delaware corporation (“Calumet
Finance” and together with CSPP, CLP, Operating, Calumet
Lubricants, Calumet Shreveport, CSLW, CSF, Calumet Sales and
Calumet Penreco, the “Borrowers”).
	 
	 	 	 	 
	5.

	 	Agent:
	 	Bank of America, N.A., as the Agent under the Agreement.
	 
	 	 	 	 
	6.

	 	Agreement:
	 	Amended and Restated Credit Agreement dated as of June 24, 2011 (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.
	 
	 	 	 	 
	7.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	Percentage	 	 
	 	 	Amount of	 	Amount of	 	Amount of LC	 	Assigned of	 	 
	 	 	Commitment/Loans	 	Commitment/Loans	 	Obligations	 	Commitment/Loans and LC	 	 
	Facility Assigned	 	for all Lenders	 	Assigned	 	Assigned	 	Obligations	 	CUSIP Number
	Revolver Loans
	 	$_______________	 	$_______________	 	$___________	 	_____________%*	 	N/A





[8. Trade Date: ______________]



9. Effective Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




[Signature Page Follows]





 




			
	*	 	Complete to five decimal places.




EXHIBIT C — ASSIGNMENT AND ACCEPTANCE — Page 2






 









 








     The terms set forth in this Assignment and Acceptance are hereby agreed to effective for all
purposes as of the Effective Date:



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


[Consented to and] Accepted:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BANK OF AMERICA, N.A,

as Issuing Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.,

as Borrower Agent



By: Calumet GP, LLC, its general partner




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	R. Patrick Murray, II 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 


EXHIBIT C — ASSIGNMENT AND ACCEPTANCE — Page 3





 











 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE



          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 Acceptance 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
Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any collateral thereunder, (iii) the financial condition of any
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by any Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any Credit 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
Acceptance 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 Acceptance 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) attached to the Assignment and Acceptance 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 Credit Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit 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 Acceptance shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
This Assignment and Acceptance 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 Acceptance by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the law of the State of New York.




ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE — Page 1






 









 








EXHIBIT D




ASSIGNMENT NOTICE



Date: ___________, 20___



To: ______________, as Assignor and ______________, as Assignee:



Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of June 24,
2011 (as amended, restated, extended, supplemented or otherwise modified at any time and from time
to time, the “Agreement”) among Calumet Specialty Products Partners, L.P., a Delaware
limited partnership (“CSPP”), Calumet LP GP, LLC, a Delaware limited liability company
(“CLP”), Calumet Operating, LLC, a Delaware limited liability company
(“Operating”), Calumet Lubricants Co., Limited Partnership, an Indiana limited partnership
(the “Calumet Lubricants”), Calumet Shreveport, LLC, an Indiana limited liability company
(“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited
liability company (“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana limited liability
company (“CSF”), Calumet Sales Company Incorporated, a Delaware corporation (“Calumet
Sales”), Calumet Penreco, LLC, a Delaware limited liability company (“Calumet
Penreco”), and Calumet Finance Corp., a Delaware corporation (“Calumet Finance” and
together with CSPP, CLP, Operating, Calumet Lubricants, Calumet Shreveport, CSLW, CSF, Calumet
Sales and Calumet Penreco, 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 one or more (as Agent
may request) executed counterparts of a completed Assignment and Acceptance in the form of
Exhibit C to the Agreement. Terms defined in such Assignment and Acceptance are used as
therein defined.



     Pursuant to such Assignment and Acceptance, you are advised that the Effective Date will be
____________, ___.



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACCEPTED FOR RECORDATION

IN REGISTER:



[Copy to Borrower Agent]




EXHIBIT D — ASSIGNMENT NOTICE — Page 1







 









 








EXHIBIT E




FORM OF NOTICE OF BORROWING/CONVERSION/CONTINUATION



Date: ___________, 20___



To: Bank of America, N.A., as Agent



Ladies and Gentlemen:





     Reference is made to that certain Amended and Restated Credit Agreement, dated as of June 24,
2011 (as amended, restated, extended, supplemented or otherwise modified in writing at any time and
from time to time, the “Agreement”) among Calumet Specialty Products Partners, L.P., a
Delaware limited partnership (“CSPP” or the “Company”), Calumet LP GP, LLC, a
Delaware limited liability company (“CLP”), Calumet Operating, LLC, a Delaware limited
liability company (“Operating”), Calumet Lubricants Co., Limited Partnership, an Indiana
limited partnership (the “Calumet Lubricants”), Calumet Shreveport, LLC, an Indiana limited
liability company (“Calumet Shreveport”), Calumet Shreveport Lubricants & Waxes, LLC, an
Indiana limited liability company (“CSLW”), Calumet Shreveport Fuels, LLC, an Indiana
limited liability company (“CSF”), Calumet Sales Company Incorporated, a Delaware
corporation (“Calumet Sales”), Calumet Penreco, LLC, a Delaware limited liability company
(“Calumet Penreco”), and Calumet Finance Corp., a Delaware corporation (“Calumet
Finance” and together with CSPP, CLP, Operating, Calumet Lubricants, Calumet Shreveport, CSLW,
CSF, Calumet Sales and Calumet Penreco, 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):




	 	o	 	A Borrowing of [General][Distribution] Revolver Loans
	 
	 	o	 	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(a) of the Agreement.



	 	 	 	 	 
	 	CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.



By: Calumet GP, LLC, its general partner

 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT E — FORM OF NOTICE OF BORROWING/CONVERSION/CONTINUATION — Page 1







 









 








EXHIBIT F




FORM OF BORROWING BASE CERTIFICATE



See attached.



EXHIBIT F — BORROWING BASE CERTIFICATE — Cover Page






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	BANK OF AMERICA, N.A

CONSOLIDATED CERTIFICATE #: ___
	 	
As of
	 	 	 	
ROA
	 	
Prepared on:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	ACCOUNTS RECEIVABLE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	2

	 	PLUS SALES A BEGINNING B	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 	 	 	 	 	 	 
	3

	 	LESS CREDITS AS OF	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 	 	 	 	 	 	 
	4

	 	LESS GROSS COLLECTIONS AS OF	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 	 	 	 	 	 	 
	5

	 	ADJUSTMENTS	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	6

	 	ENDING BALANCE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	7

	 	INELIGIBLE	 	 	 	 	 	 	 	 			 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	8

	 	ELIGIBLE	 	 	 	 	 	 	 	85%	 		 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 
	 	 
	 	 	 	 
	9

	 	Other AR reserve	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 
	 	 	 	 	 	 
	10

	 	TOTAL ELIGIBLE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	PERPETUAL INVENTORY	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	11

	 	Crude	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	12

	 	LESS: INELIGIBLE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	13

	 	ELIGIBLE	 	 	 	 	 	 	 	80%	 		 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 
	 	 
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	14

	 	Fuels	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	15

	 	LESS: INELIGIBLE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	16

	 	ELIGIBLE	 	 	 	 	 	 	 	80%	 		 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 
	 	 
	 	 	 	 
	17

	 	Specialty	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	18

	 	LESS: INELIGIBLE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	19

	 	ELIGIBLE1	 	 	 	 	 	 	 	70%	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	20

	 	INVENTORY RESERVES	 	 	 	 	 	 	 		 		 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 
	 	 
	 	 	 	 
	21

	 	TOTAL INV. AVAILABILITY	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	22

	 	MERCHANDISE L/C NOT TO EXCEED:	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	23

	 	RESTRICTED ACCOUNT BALANCE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	24

	 	TOTAL AVAILABILITY	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	LOAN ACTIVITY	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	25

	 	BALANCE AS SHOWN ON LAST REPORT (LINE 32)	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	26

	 	LESS: REMITTANCES	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	27

	 	PLUS: ADVANCE REQUEST AS OF	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 
	28

	 	PLUS: WIRE CHARGE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	29

	 	PLUS: FEES	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	30

	 	PLUS: INTEREST	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	31

	 	ADJUSTMENTS	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	32

	 	OUTSTANDING LOAN BALANCE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	REVOLVING LOAN AVAILABILITY	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	33

	 	CALCULATED AVAILABILITY (LINE 24)	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	34

	 	LESS: OUTSTANDING LOAN BALANCE (LINE 32)	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	35

	 	LESS: MERCHANDISE L/C	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	36

	 	LESS: STANDBY L/C	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	37

	 	LESS BANKERS ACCEPTANCES	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	38

	 	NET AVAILABLE	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 




THE UNDERSIGNED REPRESENTS AND WARRANTS THAT THE INFORMATION SET FORTH ABOVE IS TRUE AND
COMPLETE AND THAT THE FOREGOING IS AN ACCURATE DETERMINATION OF THE BORROWING BASE AS OF THE
DATE SET FORTH ABOVE (SUBJECT TO ANY ADJUSTMENTS AND AVAILABILITY RESERVES WHICH MAY BE MADE
OR ESTABLISHED BY AGENT IN ACCORDANCE WITH THE CREDIT AGREEMENT).




	 	 	 

	BORROWER AGENT: CALUMET SPECIALTY PRODUCTS

     PARTNERS, L.P.

	 	BANK OF AMERICA, N.A., AS AGENT
	 
	 	 
	AUTHORIZED SIGNATURE: ________________________

	 	RECEIVED BY:_________________________
	TITLE: _________________________________________
	 	 






NOTE: REPRESENTATION SECTION SHOULD NOT BE MODIFIED






 




			
	1	 	Line 19 to include the lesser of 70% of Specialty and 85% of the NOLV Percentage of Specialty





BORROWING BASE CERTIFICATE — Solo Page




 









 








SCHEDULE 1.1A

to

Amended and Restated Credit Agreement




COMMITMENTS OF LENDERS



	 	 	 	 	 
	 	 	Revolver	 
	Lender	 	Commitment2	 
	Bank of America, N.A.
	 	$	100,000,000	 
	JPMorgan Chase Bank, N.A.
	 	$	75,000,000	 
	Wells Fargo Bank, National Association
	 	$	75,000,000	 
	PNC Bank, National Association
	 	$	60,000,000	 
	SunTrust Bank
	 	$	42,500,000	 
	Deutsche Bank Trust Company Americas
	 	$	42,500,000	 
	U.S. Bank National Association
	 	$	42,500,000	 
	Regions Bank
	 	$	42,500,000	 
	NATIXIS
	 	$	30,000,000	 
	Compass Bank
	 	$	25,000,000	 
	Capital One Leverage Finance Corp.
	 	$	15,000,000	 
	Total
	 	$	550,000,000	 








 




			
	2	 	These amounts are subject to increase and/or
reduction as provided in the Agreement, including as provided in the
definitions of the term “Revolver Commitment.”





SCHEDULE 1.1A — Solo Page