4,000,000 COMMON UNITS REPRESENTING LIMITED PARTNER INTERESTS Underwriting Agreement
Exhibit 1.1
4,000,000 COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
June [__], 2006
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Deutsche Bank Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Calumet Specialty Products Partners, L.P., a Delaware limited partnership (the “Partnership”
or the “MLP”), proposes, subject to the terms and conditions stated herein, to issue and sell to
the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of 4,000,000 common
units representing limited partner interests in the Partnership (“Common Units”) and, at the
election of the Underwriters, up to 600,000 additional Common Units. The aggregate of 4,000,000
Common Units is herein called the “Firm Units” and the aggregate of 600,000 additional Common Units
is herein called the “Optional Units.” The Firm Units and the Optional Units that the Underwriters
elect to purchase pursuant to Section 2 hereof are herein collectively called the “Units.”
The Partnership owns and operates certain refineries, a terminal and certain storage
facilities for specialty hydrocarbon and fuel products in Louisiana and Illinois held by Calumet
Lubricants Co., Limited Partnership, an Indiana limited partnership (“Calumet”), and certain of its
subsidiaries, as described more particularly in the Prospectus. At each Time of Delivery (as
defined in Section 4), the Partnership operates its business through Calumet and its subsidiaries.
Calumet LP GP, LLC, a Delaware limited liability company (the “OLP GP”), is the general partner of
Calumet. Calumet Operating, LLC, a Delaware limited liability company (the “Operating Company” or
the “OLLC”), is the sole member of the OLP GP and the sole limited partner of Calumet. Calumet GP,
LLC, a Delaware limited liability company (the “General Partner”), is the general partner of the
Partnership. Calumet, the OLP GP, the General Partner, the Partnership and the Operating Company
are hereinafter referred to collectively as the “Calumet Parties.” The General Partner, the
Partnership, the Operating Company, Calumet, the OLP GP and the Operating Subsidiaries (as defined
below) are hereinafter referred to collectively as the “Partnership Entities.”
Calumet Shreveport, LLC, an Indiana limited liability company (“Calumet Shreveport”), through
its ownership of Calumet Shreveport Lubricants & Waxes, LLC, an Indiana limited liability
company (“Shreveport Lubes”), and Calumet Shreveport Fuels, LLC, an Indiana limited liability
company (“Shreveport Fuels”), holds all assets related to Calumet’s refinery in Shreveport,
Louisiana. Shreveport Lubes, Shreveport Fuels and Calumet Sales Company Incorporated, a Delaware
corporation (“Reseller”), are wholly owned subsidiaries of Calumet. Calumet Shreveport, Shreveport
Fuels and Shreveport Lubes are hereinafter referred to collectively as the “Operating LLCs.”
Calumet, the Operating LLCs and Reseller are hereinafter referred to collectively as the “Operating
Subsidiaries.”
Furthermore, as of the date hereof:
(a) The Heritage Group, an Indiana general partnership (“Heritage”), owns a 51% interest in
the General Partner, and a [___]% limited partner interest in the Partnership;
(b) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. and certain associated trusts (collectively, “▇▇▇▇▇▇▇▇▇▇”), own a
[___]% limited partner interest in the Partnership and a 19% interest in the General Partner; and
(c) F. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and an associated trust (collectively, “▇▇▇▇▇”), own a [___]% limited
partner interest in the Partnership and a 30% interest in the General Partner.
1. Representations, Warranties and Agreements of the Calumet Parties. The Calumet
Parties, jointly and severally, represent and warrant to, and agree with, each of the Underwriters
that:
(a) Registration. A registration statement on Form S-1 (File No. 333-134993) (the “Initial
Registration Statement”) in respect of the Units has been filed with the Securities and Exchange
Commission (the “Commission” or the “SEC”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any, increasing the size of the
offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under
the Act to be part of the Initial Registration Statement at the time it was declared effective,
each as amended at the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus dated
June [___], 2006 relating to the Units that was included in the Registration Statement immediately
prior to the Applicable Time (as defined below) is hereinafter called the “Pricing Prospectus”; the
final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the “Prospectus”; and any “issuer free writing prospectus” as defined in Rule
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433 under the Act relating to the Units is hereinafter called an “Issuer Free Writing
Prospectus”). For purposes of this Agreement, “Applicable Time” means [___] p.m. (New York City
time) on the date of this Agreement.
(b) No Stop Order. No order preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission.
(c) No Material Misstatements or Omissions in Registration Statement or Prospectus. The
Registration Statement conforms, and any further amendments or supplements to the Registration
Statement will, when they become effective, conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and do not and will not, as
of the applicable effective date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any supplement or amendment thereto will conform, when filed with
the Commission under Rule 424(b), in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. Notwithstanding the foregoing,
the representation and warranty in this Section 1(c) shall not apply to any statements or omissions
made in reliance upon and in conformity with written information furnished to the Partnership by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(d) No Material Misstatements or Omissions in Pricing Disclosure Package. The Pricing
Prospectus, as supplemented by those Issuer Free Writing Prospectuses and other documents, if any,
listed in Schedule II(A) hereto, taken together (collectively, the “Pricing Disclosure Package”),
as of the Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus listed in
Schedule II(A) or Schedule II(B) hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Each of the statements made by the Partnership in the
Pricing Prospectus, and to be made in the Prospectus and any further amendments or supplements to
the Registration Statement or Prospectus within the coverage of Rule 175(b) of the rules and
regulations under the Act, including (but not limited to) any projections of results of operations
or statements with respect to future available cash or future cash distributions of the Partnership
or the anticipated ratio of taxable income to distributions, was made or will be made with a
reasonable basis and in good faith. Notwithstanding the foregoing, the representation and warranty
in this Section 1(d) shall not apply to any statements or omissions made in the Registration
Statement, the Prospectus or the Pricing Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the Partnership by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
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(e) Formation and Qualification of the Partnership, Calumet, the General Partner, the OLP GP,
the Operating Company, the Operating LLCs and Reseller. At each Time of Delivery:
(i) Each of the Partnership and Calumet has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) and the Indiana Uniform Limited Partnership Act (the “Indiana Act”),
respectively, with full partnership power and authority necessary to enter into this Agreement, to
own or lease its properties to be owned or leased at the First Time of Delivery and to conduct its
business to be conducted at the First Time of Delivery, in each case in all material respects as
described in the Registration Statement and the Pricing Prospectus.
(ii) Each of the General Partner, the OLP GP and the Operating Company has been duly formed
and is validly existing in good standing as a limited liability company under the Delaware Limited
Liability Company Act (the “Delaware LLC Act”) with full limited liability company power and
authority to enter into this Agreement, to own or lease its properties to be owned or leased at the
First Time of Delivery and to conduct its business to be conducted at the First Time of Delivery,
and in the case of the General Partner and the OLP GP, to act as the general partner of the
Partnership and Calumet, respectively, in each case in all material respects as described in the
Pricing Prospectus.
(iii) Each of the Operating LLCs has been duly formed and is validly existing in good standing
as a limited liability company under the Indiana Business Flexibility Act (the “Indiana LLC Act”)
with full limited liability company power and authority to own or lease its properties to be owned
or leased at the First Time of Delivery and to conduct its business to be conducted at the First
Time of Delivery, in each case in all material respects as described in the Pricing Prospectus.
(iv) Reseller has been duly incorporated and is validly existing in good standing under the
Delaware General Corporation Law (the “DGCL”) with full corporate power and authority to own or
lease its properties to be owned or leased at the First Time of Delivery and to conduct its
business to be conducted at the First Time of Delivery, in each case in all material respects as
described in the Pricing Prospectus.
(f) Foreign Qualifications of the Partnership Entities. At each Time of Delivery, each of the
Partnership Entities is duly registered or qualified as a foreign limited partnership, limited
liability company or corporation, as the case may be, for the transaction of business under the
laws of each jurisdiction in which the character of the business conducted by it or the nature or
location of the properties owned or leased by it makes such registration or qualification
necessary, except where the failure so to register or qualify would not (i) have a material adverse
effect on the condition (financial or otherwise), business, prospects or results of operations of
the Partnership Entities taken as a whole (a “Material Adverse Effect”), or (ii) subject the
limited partners of the Partnership to any material liability or disability.
(g) Ownership of the General Partner Interest in the Partnership. At each Time of Delivery,
the General Partner is the sole general partner of the Partnership with a 2.0% general partner
interest in the Partnership; such general partner interest has been duly authorized and validly
issued in accordance with the partnership agreement of the Partnership (as the same may be amended
or restated at or prior to any Time of Delivery, the “Partnership Agreement”); and the General
Partner owns
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such general partner interest free and clear of all liens, encumbrances (except restrictions
on transferability as described in the Prospectus), security interests, charges or claims.
(h) Ownership of Sponsor Units and Incentive Distribution Rights. At each Time of Delivery,
(i) Heritage owns [___] Common Units and 7,414,176 Subordinated Units; (ii) ▇▇▇▇▇▇▇▇▇▇ owns
[___] Common Units and 1,633,250 Subordinated Units; (iii) ▇▇▇▇▇ owns [___] Common
Units and 2,676,173 Subordinated Units, and (iv) Calumet Inc. owns [___] Common Units and
[___] Subordinated Units (collectively, the “Sponsor Units”); and (v) the General Partner
owns all of the Incentive Distribution Rights; and all of such Sponsor Units and Incentive
Distribution Rights and the limited partner interests represented thereby have been duly authorized
and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such nonassessability may be
affected by matters described in the Pricing Prospectus under the caption “The Partnership
Agreement — Limited Liability”); and each of Heritage, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and Calumet Inc. own such
Sponsor Units, and the General Partner owns the Incentive Distribution Rights, free and clear of
all liens, encumbrances (except restrictions on transferability as described in the Prospectus),
security interests, charges or claims.
(i) Valid Issuance of the Units. At the First Time of Delivery or the Second Time of
Delivery, as the case may be, the Firm Units or the Optional Units, as the case may be, and the
limited partner interests represented thereby are duly authorized by the Partnership Agreement and,
when issued and delivered to the Underwriters against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid (to the extent required under the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by matters described in the
Pricing Prospectus under the caption “The Partnership Agreement — Limited Liability”).
(j) Ownership of the Membership Interest in Operating Company. At each Time of Delivery, the
Partnership owns a 100% membership interest in the Operating Company; such membership interest is
duly authorized and validly issued in accordance with the limited liability company agreement of
the Operating Company (as the same may be amended or restated at or prior to each Time of Delivery,
the “Operating Company Agreement”) and is fully paid (to the extent required under the Operating
Company Agreement) and nonassessable (except as such nonassessability may be affected by Section
18-607 of the Delaware LLC Act); and the Partnership owns such membership interest free and clear
of all liens, encumbrances (except restrictions on transferability as described in the Pricing
Prospectus), security interests, charges or claims, other than those arising under the Credit
Agreements.
(k) Ownership of the Membership Interests in the OLP GP. At each Time of Delivery, the
Operating Company owns a 100% membership interest in the OLP GP; such membership interest is duly
authorized and validly issued in accordance with the limited liability company agreement of the OLP
GP (as the same may be amended or restated at or prior to each Time of Delivery, the “OLP GP
Agreement”) and is fully paid (to the extent required under the OLP GP Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and
the Operating Company owns such membership interest free and clear of all liens, encumbrances
(except restrictions on transferability as described in the Pricing Prospectus), security
interests, charges or claims, other than those arising under the Credit Agreements.
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(l) Ownership of the General Partner Interest in Calumet. At each Time of Delivery, the OLP
GP is the sole general partner of Calumet with a 10% general partner interest in Calumet; such
general partner interest is duly authorized and validly issued in accordance with the partnership
agreement of Calumet (as the same may be amended or restated at or prior to each Time of Delivery,
the “Calumet Agreement”); and the OLP GP owns such general partner interest free and clear of all
liens, encumbrances (except restrictions on transferability as described in the Pricing
Prospectus), security interests, charges or claims, other than those arising under the Credit
Agreements.
(m) Ownership of the Limited Partner Interest in Calumet. At each Time of Delivery, the
Operating Company is the sole limited partner of Calumet with a 90% limited partner interest in
Calumet; such limited partner interest is duly authorized and validly issued in accordance with the
Calumet Agreement and will be fully paid (to the extent required under the Calumet Agreement) and
nonassessable (except as such nonassessability may be affected by IC 23-16-2-2 in the Indiana Act);
and the Operating Company owns such limited partner interest free and clear of all liens,
encumbrances, security interests, charges or claims, other than those arising under the Credit
Agreements.
(n) Ownership of the Membership Interests in the General Partner. At each Time of Delivery,
Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ own a 51%, 30% and 19% membership interest in the General Partner,
respectively; such membership interests are duly authorized and validly issued in accordance with
the limited liability company agreement of the General Partner (as the same may be amended or
restated at or prior to each Time of Delivery, the “General Partner Agreement”) and are fully paid
(to the extent required under the General Partner Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and Heritage, ▇▇▇▇▇
and ▇▇▇▇▇▇▇▇▇▇ own such membership interests free and clear of all liens, encumbrances (except
restrictions on transferability contained in the General Partner Agreement), security interests,
charges or claims.
(o) Ownership of Calumet Shreveport. At each Time of Delivery, Calumet owns a 100% membership
interest in Calumet Shreveport; such membership interests are duly authorized and validly issued in
accordance with the respective limited liability company agreements of Calumet Shreveport (as the
same may be amended or restated at or prior to each Time of Delivery, the “Calumet Shreveport
Agreement”) and are fully paid (to the extent required under the Calumet Shreveport Agreement) and
nonassessable (except as such nonassessability may be affected by IC 23-18-5-1(c) in the Indiana
LLC Act); and Calumet owns such membership interests free and clear of all liens, encumbrances,
security interests, charges or claims, other than those arising under the Credit Agreements.
(p) Ownership of Shreveport Lubes and Shreveport Fuels. At each Time of Delivery, Calumet
Shreveport owns a 100% membership interest in each of Shreveport Lubes and Shreveport Fuels; such
membership interests are duly authorized and validly issued in accordance with the respective
limited liability company agreements of Shreveport Lubes and Shreveport Fuels (as the same may be
amended or restated at or prior to each Time of Delivery, the “Shreveport Subsidiary Agreements”)
and are fully paid (to the extent required under the Shreveport Subsidiary Agreements) and
nonassessable (except as such nonassessability may be affected by IC 23-18-5-1(c) in the Indiana
LLC Act); and Calumet Shreveport owns such membership interests free and clear of all liens,
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encumbrances, security interests, charges or claims, other than those arising under the Credit
Agreements.
(q) Ownership of Reseller. At each Time of Delivery, Calumet owns 100% of the capital stock
of Reseller; such capital stock is duly authorized and validly issued in accordance with the
charter and bylaws of Reseller (as the same may be amended or restated at or prior to each Time of
Delivery, the “Reseller Charter Documents”) and is fully paid and nonassessable; and Calumet owns
such capital stock free and clear of all liens, encumbrances, security interests, charges or
claims, other than those arising under the Credit Agreements.
(r) No Other Subsidiaries. At each Time of Delivery, other than the Partnership’s ownership
of its 100% membership interest in the Operating Company, the Operating Company’s ownership of its
90% limited partner interest in Calumet and 100% membership interest in the OLP GP, the OLP GP’s
ownership of its 10% general partner interest in Calumet, Calumet’s ownership of its 100% equity
interest in Reseller and its 100% membership in Calumet Shreveport, and Calumet Shreveport’s 100%
membership interest in each of the Shreveport Subsidiaries, none of the Partnership, the Operating
Company, the OLP GP or the Operating Subsidiaries own, directly or indirectly, any equity or
long-term debt securities of any corporation, partnership, limited liability company, joint
venture, association or other entity.
(s) No Preemptive Rights, Registration Rights or Options. Except as described in the Pricing
Prospectus, and except for restrictions on transfer of units of the General Partner contained in
the General Partner Agreement, there are no options, warrants, preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer of, any partnership
or membership interests in any Partnership Entity, in each case pursuant to the Partnership
Agreement, the Operating Company Agreement, the General Partner Agreement, the OLP GP Agreement,
the Calumet Agreement, the Calumet Shreveport Agreement, the Shreveport Subsidiary Agreements and
the Reseller Charter Documents (all such agreements, collectively, the “Organizational Agreements”)
or the certificates of limited partnership or formation and other organizational documents of the
Partnership Entities (collectively with the Organizational Agreements, the “Organizational
Documents”) or any other agreement or instrument to which any of such entities is a party or by
which any one of them may be bound. Neither the filing of the Registration Statement nor the
offering and sale of the Units contemplated hereby gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership, other than (i) as described in
the Pricing Prospectus and the Partnership Agreement and (ii) as have been waived.
(t) Authority and Authorization. The Partnership has all requisite power and authority to
issue, sell and deliver the Units, in accordance with and upon the terms and conditions set forth
in this Agreement and the Partnership Agreement. At each Time of Delivery, all corporate,
partnership and limited liability company action, as the case may be, required to be taken by the
Partnership Entities or any of their stockholders, members or partners for the authorization,
issuance, sale and delivery of the Units, and the consummation of the transactions contemplated by
this Agreement shall have been validly taken.
(u) Due Execution and Delivery of Underwriting Agreement. This Agreement has been duly
executed and delivered by each of the Calumet Parties.
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(v) Enforceability of Other Agreements.
(i) The Partnership Agreement has been duly authorized, executed and delivered by the General
Partner, Heritage, Calumet Inc., ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ as the “Organizational Limited Partners” and
is a valid and legally binding agreement of the General Partner, Heritage, Calumet Inc., ▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ as the Organizational Limited Partners, enforceable against the General Partner,
Heritage, Calumet Inc., ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ as the Organizational Limited Partners in accordance
with its terms;
(ii) The Operating Company Agreement has been duly authorized, executed and delivered by the
Partnership and is a valid and legally binding agreement of the Partnership, enforceable against
the Partnership in accordance with its terms;
(iii) The OLP GP Agreement has been duly authorized, executed and delivered by the Operating
Company and is a valid and legally binding agreement of the Operating Company, enforceable against
the Operating Company in accordance with its terms;
(iv) The General Partner Agreement has been duly authorized, executed and delivered by
Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ and is a valid and legally binding agreement of Heritage, ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇▇, enforceable against Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ in accordance with its terms;
(v) Each of the Shreveport Subsidiary Agreements has been duly authorized, executed and
delivered by Calumet Shreveport and is a valid and legally binding agreement of Calumet Shreveport,
enforceable against Calumet Shreveport in accordance with its terms;
(vi) The Calumet Shreveport Agreement has been duly authorized, executed and delivered by
Calumet and is valid and legally binding agreements of Calumet, enforceable against Calumet in
accordance with its terms; and
(vii) The Calumet Agreement has been duly authorized, executed and delivered by the OLP GP and
the Partnership and is a valid and legally binding agreement of the OLP GP and the Partnership,
enforceable against the OLP GP and the Partnership in accordance with its terms;
provided that, with respect to each agreement described in this Section 1(v), the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws relating to or affecting creditors’ rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law); provided, further, that the indemnity and contribution provisions contained therein may be
limited by applicable laws or public policy.
(w) No Conflicts. None of the offering, issuance and sale by the Partnership of the Units,
the execution, delivery and performance of this Agreement by the Partnership Entities which are
parties hereto, or the consummation of the transactions contemplated hereby (i) conflicts or will
conflict with or constitutes or will constitute a violation of the Organizational Documents, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a
default under (or an event which, with notice or lapse of time or both, would constitute such a
default), any indenture, mortgage,
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deed of trust, loan agreement, lease or other agreement or instrument to which any of the
Partnership Entities is a party or by which any of them or any of their respective properties may
be bound or subject, (iii) violates or will violate any statute, law or regulation or any order,
rule, judgment, decree or injunction of any court or governmental agency or body having
jurisdiction over any of the Partnership Entities or any of their properties or (iv) results or
will result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of any of the Partnership Entities, which conflicts, breaches, violations or defaults, in
the case of clauses (ii), (iii) or (iv), would, individually or in the aggregate, have a Material
Adverse Effect or would materially impair the ability of any of the Partnership Entities to perform
their obligations under this Agreement.
(x) No Consents. No consent, approval, authorization, order, registration, filing or
qualification (“consent”) of or with any court, governmental agency or body having jurisdiction
over the Partnership Entities or their respective properties or assets is required for the
offering, issuance and sale by the Partnership of the Units, the execution, delivery and
performance of this Agreement by the Partnership Entities party thereto, or the consummation by the
Partnership Entities of the transactions contemplated by this Agreement, except (i) for such
consents required under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (ii) for such consents required under state securities or “Blue Sky” laws in
connection with the purchase and distribution of the Units by the Underwriters, (iii) for such
consents which have been, or prior to the First Time of Delivery will be, obtained, (iv) for such
consents which, if not obtained, would not, individually or in the aggregate, have a Material
Adverse Effect and (v) as disclosed in the Pricing Prospectus.
(y) No Default. None of the Partnership Entities is in (i) violation of its certificate or
agreement of limited partnership, limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents, (ii) violation of any law, statute,
ordinance, administrative or governmental rule or regulation applicable to it or of any decree of
any court or governmental agency or body having jurisdiction over it or (iii) breach, default (or
an event which, with notice or lapse of time or both, would constitute such a default) or violation
in the performance of any material obligation, agreement, covenant or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease
or other instrument to which it is a party or by which it or any of its properties may be bound,
which breach, default or violation, in the case of clauses (ii) and (iii), would, if continued,
have a Material Adverse Effect, or could materially impair the ability of any of the Partnership
Entities to perform their obligations under this Agreement. To the knowledge of the Calumet
Parties, no third party to any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which any of the Partnership Entities is a party or by which any of them
is bound or to which any of their properties is subject, is in default under any such agreement,
which breach, default or violation would, if continued, have a Material Adverse Effect.
(z) Conformity of Securities to Description in the Pricing Prospectus and the Prospectus. The
Units, when issued and delivered in accordance with the terms of the Partnership Agreement against
payment therefor as provided herein, will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(aa) Investment Company. None of the Partnership Entities is now, and after giving effect to
the offering and sale of the Units and the application of the proceeds thereof will be, an
“investment
9
company” or a company “controlled by” an “investment company” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”).
(bb) Independent Public Accountants. Ernst & Young LLP, who have certified certain audited
financial statements of Calumet, the Partnership and the General Partner included in the
Registration Statement, the Pricing Prospectus and the Prospectus (or any amendment or supplement
thereto) is an independent registered public accounting firm with respect to such entities as
required by the Act and the rules and regulations of the Commission thereunder.
(cc) Financial Statements. At March 31, 2006, the Partnership would have had, on the
consolidated pro forma basis indicated in the Prospectus (and any amendment or supplement thereto),
a capitalization as set forth therein. The historical financial statements (including the related
notes and supporting schedules) included in the Registration Statement, the Pricing Prospectus or
the Prospectus (and any amendment or supplement thereto) present fairly in all material respects
the financial position, results of operations and cash flows of the entities purported to be shown
thereby on the basis stated therein at the respective dates or for the respective periods to which
they apply and have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except to the extent disclosed therein. The
selected historical and pro forma financial information set forth in the Registration Statement,
the Pricing Prospectus and the Prospectus (and any amendment or supplement thereto) under the
caption “Selected Historical and Pro Forma Financial and Operating Data” is accurately presented in
all material respects and prepared on a basis consistent with the audited and unaudited historical
consolidated financial statements and pro forma financial statements from which it has been
derived. The pro forma financial statements of the Partnership included in the Registration
Statement, the Pricing Prospectus and the Prospectus (and any amendment or supplement thereto) have
been prepared in all material respects in accordance with the applicable accounting requirements of
Article 11 of Regulation S-X of the Commission; the assumptions used in the preparation of such pro
forma financial statements are, in the opinion of the management of the Calumet Parties,
reasonable; and the pro forma adjustments reflected in such pro forma financial statements have
been properly applied to the historical amounts in compilation of such pro forma financial
statements.
(dd) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. The Partnership is in compliance in all material respects
with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the Rules and Regulations
thereunder and the rules of the National Association of Securities Dealers Automated Quotations
National Market System (“NASDAQ”) that are effective and applicable to the Partnership.
(ee) No Material Changes. None of the Partnership Entities has sustained since the date of
the latest audited financial statements included in the Pricing Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, investigation,
order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus; and, since
the respective dates as of which information is given in the Pricing Prospectus, there has not been
any change in the capitalization or long-term debt of any of the Partnership Entities or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, partners’ capital, members’ equity,
or results of operations of any of the
10
Partnership Entities, taken as a whole, otherwise than as set forth or contemplated in the
Pricing Prospectus.
(ff) Title to Real Property. At each Time of Delivery, the Operating Company and the
Operating Subsidiaries, as the case may be, will have good and indefeasible title to all real
property (save and except “rights-of-way” (as defined in subsection (hh) below)) and good title to
all personal property owned by them, in each case free and clear of all (i) liens and security
interests except liens or security interests securing indebtedness incurred, assumed or agreed to
by the Operating Company, Calumet or any of the Operating Subsidiaries specifically listed in any
of the Contribution Documents or (ii) other claims and other encumbrances (other than liens or
security interests) except, in each case, (1) as described, and subject to the limitations
contained, in the Pricing Prospectus or (2) such as do not materially affect the value of such
property and do not materially interfere with the use of such properties taken as a whole as they
have been used in the past and are proposed to be used in the future, provided that, with respect
to any real property and buildings held under lease by the Operating Company, Calumet and the
Operating Subsidiaries, such real property and buildings are held under valid and subsisting and
enforceable leases with such exceptions as do not materially interfere with the use of the
properties of the Partnership Entities taken as a whole as they have been used in the past and are
proposed to be used in the future.
(gg) Rights-of-Way. At each Time of Delivery, each of the Partnership Entities has such
consents, easements, rights-of-way, permits or licenses from each person (collectively,
“rights-of-way”) as are necessary to conduct its business in the manner described, and subject to
the limitations contained, in the Pricing Prospectus, except for (i) qualifications, reservations
and encumbrances as may be set forth in the Pricing Prospectus which are not reasonably expected to
have a material adverse effect upon the ability of the Partnership Entities, taken as a whole, to
conduct their businesses in all material respects as currently conducted and as contemplated by the
Prospectus to be conducted and (ii) such rights-of-way that, if not obtained, would not have,
individually or in the aggregate, a material adverse effect upon the ability of the Partnership
Entities, taken as a whole, to conduct their businesses in all material respects as currently
conducted and as contemplated by the Pricing Prospectus to be conducted; other than as set forth,
and subject to the limitations contained, in the Pricing Prospectus, each of the Partnership
Entities has fulfilled and performed all its material obligations with respect to such
rights-of-way and no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or would result in any impairment of the rights of the holder of
any such rights-of-way, except for such revocations, terminations and impairments that would not
have a Material Adverse Effect upon the ability of the Partnership Entities, taken as a whole, to
conduct their businesses in all material respects as currently conducted and as contemplated by the
Prospectus to be conducted; and, except as described in the Pricing Prospectus, none of such
rights-of-way contains any restriction that is materially burdensome to the Partnership Entities,
taken as a whole.
(hh) Permits. Each of the Partnership Entities has such permits, consents, licenses,
franchises, certificates and authorizations of governmental or regulatory authorities (“permits”)
as are necessary to own its properties and to conduct its business in the manner described in the
Pricing Prospectus, subject to such qualifications as may be set forth in the Pricing Prospectus
and except for such permits which, if not obtained, would not, individually or in the aggregate,
have a Material Adverse Effect; each of the Partnership Entities has fulfilled and performed all
its material obligations with respect to such permits which are due to have been fulfilled and
performed by such date and no
11
event has occurred which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any impairment of the rights of the holder of any such permit,
except for such revocations, terminations and impairments that would not, individually or in the
aggregate, have a Material Adverse Effect.
(ii) Books and Records. The Partnership (i) makes and keeps books, records and accounts,
which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of
assets and (ii) maintains systems of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(jj) Tax Returns. Each of the Partnership Entities has filed (or has obtained extensions with
respect to) all material federal, state and foreign income and franchise tax returns required to be
filed through the date hereof, which returns are complete and correct in all material respects, and
has timely paid all taxes shown to be due pursuant to such returns, other than those (i) which, if
not paid, would not have a Material Adverse Effect, or (ii) which are being contested in good faith
and for which adequate reserves have been established in accordance with generally accepted
accounting principles.
(kk) Environmental Matters. Except as described in the Pricing Prospectus, the Partnership
Entities (i) are in compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety and the environment or
imposing liability or standards of conduct concerning any Hazardous Material (as hereinafter
defined) (“Environmental Laws”), (ii) have received all permits required of them under applicable
Environmental Laws to conduct their respective businesses as they are currently being operated,
(iii) are in compliance with all terms and conditions of any such permits, and (iv) to the
knowledge of the Calumet Parties, do not have any liability in connection with the release into the
environment of any Hazardous Material, except where such noncompliance with Environmental Laws,
failure to receive required permits, failure to comply with the terms and conditions of such
permits or liability in connection with such releases, would not, individually or in the aggregate,
have a Material Adverse Effect. The term “Hazardous Material” means (A) any “hazardous substance”
as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, (B) any “hazardous waste” as defined in the Resource Conservation and Recovery Act, as
amended, (C) any petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law.
(ll) No Labor Dispute. No labor dispute with the employees of the Partnership Entities
exists, or, to the knowledge of the Calumet Parties, is imminent that is reasonably likely to
result in a Material Adverse Effect.
(mm) Insurance. The Partnership Entities maintain, or are entitled to the benefits of,
insurance covering their properties, operations, personnel and businesses against such losses and
risks
12
as are reasonably adequate to protect them and their businesses. None of the Partnership
Entities has received notice from any insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order to continue such insurance, and
all such insurance is outstanding and duly in force on the date hereof and will be outstanding and
duly in force on each Time of Delivery.
(nn) Legal Proceedings or Contracts Required to be Described or Filed. Other than as set
forth in the Registration Statement and the Pricing Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Calumet Parties, threatened against any of the
Calumet Parties or to which any of the Partnership Entities is a party or of which any property of
any of the Partnership Entities is the subject that is required to be described in the Registration
Statement or the Pricing Prospectus but are not described as required; and there are no agreements,
contracts, indentures, leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required by the Act.
(oo) Trading. The Units have been approved for trading and quotation on the NASDAQ National
Market.
(pp) Not Ineligible Issuer. At the time of filing the Initial Registration Statement, the
Partnership was not and is not an “ineligible issuer,” as defined in Rule 405 under the Act.
2. Subject to the terms and conditions herein set forth, (a) the Partnership agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price per unit of $[___], the number
of Firm Units set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to purchase Optional
Units as provided below, the Partnership agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Partnership, at
the purchase price per unit set forth in clause (a) of this Section 2, that portion of the number
of Optional Units as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional units) determined by multiplying such number of Optional Units by a
fraction, the numerator of which is the maximum number of Optional Units which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and
the denominator of which is the maximum number of Optional Units that all of the Underwriters are
entitled to purchase hereunder.
The Partnership hereby grants to the Underwriters the right to purchase at their election up
to an aggregate of 600,000 Optional Units, at the purchase price per unit set forth in the
paragraph above, for the sole purpose of covering sales of units in excess of the number of Firm
Units. Any such election to purchase Optional Units may be exercised only by written notice from
you to the Partnership, given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Units to be purchased and the date on which such
Optional Units are to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless you and the Partnership otherwise
agree in writing, earlier than two or later than ten business days after the date of such notice.
13
3. Offering of Units by the Underwriters. Upon the authorization by you of the release of the
Firm Units, the several Underwriters propose to offer the Firm Units for sale upon the terms and
conditions set forth in the Prospectus.
4. Delivery and Payment for the Units. (a) The Units to be purchased by each Underwriter
hereunder, in book entry form, and in such authorized denominations and registered in such names as
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours’ prior notice to the Partnership,
shall be delivered by or on behalf of the Partnership to ▇▇▇▇▇▇▇, Sachs & Co., through the
facilities of The Depository Trust Company (“DTC”), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Partnership to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at
least forty-eight hours in advance. The Partnership will cause the certificates representing the
Units to be made available for checking and packaging at least twenty-four hours prior to the Time
of Delivery (as defined below) with respect thereto at the office of DTC or its designated
custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with
respect to the Firm Units, 9:30 a.m., New York City time, on July [___], 2006 or such other time and
date as ▇▇▇▇▇▇▇, Sachs & Co. and the Partnership may agree upon in writing, and, with respect to
the Optional Units, 9:30 a.m., New York time, on the date specified by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. in the
written notice given by ▇▇▇▇▇▇▇, Sachs & Co. of the Underwriters’ election to purchase such
Optional Units, or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Partnership may agree
upon in writing. Such time and date for delivery of the Firm Units is herein called the “First
Time of Delivery,” such time and date for delivery of the Optional Units, if not the First Time of
Delivery, is herein called the “Second Time of Delivery,” and each such time and date for delivery
is herein called a “Time of Delivery.”
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Units and any additional
documents requested by the Underwriters pursuant to Section 8(m) hereof, will be delivered at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the “Closing Location”), and
the Units will be delivered at the Designated Office, all at such Time of Delivery. A meeting will
be held at the Closing Location at 2:00 p.m., Houston time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. Further Agreements of the Calumet Parties. Each of the Calumet Parties agrees with each of
the Underwriters:
(a) Preparation of Prospectus and Registration Statement. To prepare the Prospectus in a form
approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission’s close of business on the second business day following the execution and delivery
of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus
which shall be disapproved by you promptly after reasonable notice thereof; to file promptly all
material required to be filed by the Partnership with the Commission pursuant to Rule 433(d) under
the
14
Act; to advise you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file
promptly all reports and any definitive proxy or information statements required to be filed by the
Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, or the rules and regulations of the Commission thereunder,
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with
the offering of the Units; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or other prospectus in respect of the Units, of the suspension of the
qualification of the Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Qualification of Securities. Promptly from time to time to take such action as you may
reasonably request to qualify the Units for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Units, provided that in connection therewith the Partnership shall not be
required to qualify as a foreign limited partnership or to file a general consent to service of
process in any jurisdiction;
(c) Copies of Documents to Underwriters. Prior to 10:00 A.M., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in connection with the offering
or sale of the Units and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus in order to comply
with the Act, to notify you and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) in connection with sales of any of the Units at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many written and electronic copies as you may request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
15
(d) Reports to Unitholders. To make generally available to its unitholders as soon as
practicable, but in any event not later than sixteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the
Partnership and its subsidiaries (which need not be audited) complying with Section 11(a) of the
Act and the rules and regulations thereunder (including, at the option of the Partnership, Rule
158);
(e) Lock-Up Period. During the period beginning from the date hereof and continuing to and
including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), not to offer,
sell, hedge, contract to sell, pledge, grant an option to purchase, make any short sale or
otherwise dispose of, except as provided hereunder, any Common Units or any securities of the
Partnership that are substantially similar to the Common Units, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the right to receive,
Common Units or any such substantially similar securities (other than pursuant to employee benefit
plans, qualified unit option plans or other employee compensation plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities outstanding as of, the date of
this Agreement), without your prior written consent; provided, however, that if (1) during the last
17 days of the Lock-Up Period, the Partnership releases earnings results or announces material news
or a material event or (2) prior to the expiration of the Lock-Up Period, the Partnership announces
that it will release earnings results during the 15-day period following the last day of the
Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of the earnings results or the
announcement of the material news or material event, as applicable, unless ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
waives, in writing, such extension; the Partnership will provide the representatives and any
co-managers and each unitholder subject to the Lock-Up Period pursuant to the lockup letters
described in Section 8(k) with prior notice of any such announcement that gives rise to an
extension of the Lock-up Period;
(f) Copies of Public Documents. During a period of two years from the effective date of the
Registration Statement, to furnish or make available to its unitholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet and statements of
income, partnership equity and cash flows of the Partnership and its consolidated subsidiaries
certified by independent public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to its unitholders a consolidated
summary financial information of the Partnership and its subsidiaries for such quarter in
reasonable detail;
(g) Copies of Reports. During a period of two years from the effective date of the
Registration Statement, to furnish or make available to you copies of all reports or other
communications (financial or other) furnished to its unitholders, and to deliver to you as soon as
they are available, copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities of the Partnership
is listed;
(h) Use of Proceeds. To use the net proceeds received by it from the sale of the Units
pursuant to this Agreement in the manner specified in the Pricing Prospectus and the Prospectus
under the caption “Use of Proceeds”;
16
(i) Rule 463. To file with the Commission such information on Form 10-Q or Form 10-K as may
be required by Rule 463 under the Act;
(j) Rule 462(b) Registration Statement. If the Partnership elects to rely upon Rule 462(b),
the Partnership shall file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the
Partnership shall at the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act;
(k) License. Upon request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Partnership’s trademarks, servicemarks and logo for use on
the website, if any, operated by such Underwriter for the purpose of facilitating the on-line
offering of the Units (the “License”); provided, however, that the License shall be used solely for
the purpose described above, is granted without any fee and may not be assigned or transferred; and
(l) No Fiduciary Duty. That (i) the purchase and sale of the Units pursuant to this Agreement
is an arm’s-length commercial transaction between the Partnership, on the one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the
Partnership or any of the other Partnership Entities, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Partnership or any of the other Partnership Entities
with respect to the offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Partnership or any of the other
Partnership Entities on other matters) or any other obligation to the Partnership except the
obligations expressly set forth in this Agreement and (iv) each of the Partnership Entities has
consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the
Calumet Parties agrees that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Partnership
or any of the other Partnership Entities, in connection with such transaction or the process
leading thereto.
6. Use of Free Writing Prospectus.
(a) Free Writing Prospectus. Each of the Calumet Parties represents and agrees that, without
the prior consent of ▇▇▇▇▇▇▇, Sachs & Co., it has not made and will not make any offer relating to
the Units that would constitute a “free writing prospectus,” as defined in Rule 405 under the Act;
each Underwriter represents and agrees that, without the prior consent of the Partnership and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., it has not made and will not make any offer relating to the Units that would
constitute a free writing prospectus; each of the Calumet Parties and the Underwriters each
represent and agree that any such free writing prospectus the use of which has been consented to by
the Partnership and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. is listed on Schedule II(A) or Schedule II(B) hereto.
(b) Use of Issuer Free Writing Prospectus. Each of the Calumet Parties represents and agrees
that it has complied and will comply with the requirements of Rule 433 under the Act applicable to
any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where
17
required and legending; and that it has satisfied and will satisfy the conditions under Rule
433 under the Act to avoid a requirement to file with the Commission any electronic road show.
(c) Information in Issuer Free Writing Prospectus. Each of the Calumet Parties represents and
agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event
occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then prevailing, not
misleading, to give prompt notice thereof to ▇▇▇▇▇▇▇, Sachs & Co. and, if requested by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., to prepare and furnish without charge to each Underwriter an Issuer Free Writing
Prospectus or other document that will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished
in writing to the Partnership by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use
therein.
7. Expenses. Each of the Calumet Parties covenants and agrees with one another and with the
several Underwriters that the Partnership will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Partnership’s counsel and accountants in connection with the
registration of the Units under the Act and all other expenses in connection with the preparation,
printing, reproduction and filing of the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Units; (iii) all expenses in connection with the
qualification of the Units for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey; (iv) all fees and expenses in
connection with listing the Units on NASDAQ; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the Units; (vi) the
cost of preparing certificates for the Units; (vii) the cost and charges of any transfer agent or
registrar; and (viii) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section 7. It is understood,
however, that, except as provided in this Section 7 and Sections 9 and 12 hereof, the Underwriters
(i) will pay all of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Units by them, and any advertising expenses connected with
any offers they may make, and (ii) will reimburse the Partnership for one-third of the itemized air
charter expenses incurred by the Calumet Parties in connection with the offering.
8. Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder, as
to the Units to be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of the Calumet Parties
herein are, at and as of such Time of Delivery, true and correct, the condition that the Calumet
Parties
18
shall have performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed pursuant to
Rule 433(d) under the Act shall have been filed with the Commission within the applicable time
period prescribed for such filing by Rule 433 under the Act; if the Partnership has elected to rely
upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission; no stop
order suspending or preventing the use of a Prospectus or any Issuer Free Writing Prospectus shall
have been initiated or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, shall have furnished to you such written
opinion or opinions, dated such Time of Delivery, with respect to the issuance and sale of the
Units, the Registration Statement and the Prospectus and other related matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Partnership, shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Partnership has been duly formed and is validly existing in good standing as a limited
partnership under the Delaware LP Act with all necessary limited partnership power and authority to
own or lease its properties and to conduct its business, in each case in all material respects as
described in the Registration Statement and the Prospectus. The Partnership is duly registered or
qualified as a foreign limited partnership for the transaction of business under the laws of the
jurisdictions set forth under its name on Annex I to this Agreement.
(ii) Each of the General Partner, the Operating Company and the OLP GP has been duly formed
and is validly existing in good standing as a limited liability company under the Delaware LLC Act
with all necessary limited liability company power and authority to own or lease its properties and
to conduct its business, and, in the case of the General Partner and the OLP GP, to serve as the
general partner of the Partnership and Calumet, respectively, in each case in all material respects
as described in the Registration Statement and the Prospectus. Each of the General Partner, the
Operating Company and the OLP GP is duly registered or qualified as a foreign limited liability
company for the transaction of business under the laws of the jurisdictions set forth under its
name on Annex I to this Agreement.
(iii) Reseller has been duly formed and is validly existing in good standing as a corporation
under the DGCL with all necessary corporate power and authority to own or lease its properties and
to conduct its business, in each case in all material respects as described in the
19
Registration
Statement and the Prospectus. Reseller is duly registered or qualified as a foreign corporation
for the transaction of business under the laws of the jurisdictions set forth under its name on
Annex I to this Agreement.
(iv) The General Partner is the sole general partner of the Partnership with a 2.0% general
partner interest in the Partnership; such general partner interest has been duly authorized and
validly issued in accordance with the Partnership Agreement; and the General Partner owns its
general partner interest free and clear of all liens, encumbrances (except restrictions on
transferability as described in the Prospectus), security interests, charges or claims (i) in
respect of which a financing statement under the Uniform Commercial Code of the State of Delaware
naming the General Partner as debtor is on file in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel, without independent investigation, other
than those created by or arising under the Delaware LP Act.
(v) The Sponsor Units, the Incentive Distribution Rights and the limited partner interests
represented thereby have been duly authorized and validly issued in accordance with the Partnership
Agreement, and are fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by matters described in the
Prospectus under the caption “The Partnership Agreement — Limited Liability”). Heritage owns
[___] Common Units and [___] Subordinated Units; ▇▇▇▇▇▇▇▇▇▇ owns [___] Common
Units and [___] Subordinated Units; ▇▇▇▇▇ owns [___] Common Units and [___]
Subordinated Units, Calumet Inc. owns [___] Common Units and [___] Subordinated Units
and the General Partner owns all of the Incentive Distribution Rights, in each case free and clear
of all liens, encumbrances (except restrictions on transferability described in the Prospectus),
security interests, charges or claims (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming Heritage, Fehsenfeld, Grube, Calumet Inc.
or the General Partner as debtor is on file in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel, without independent investigation, other than
those created by or arising under the Delaware LP Act.
(vi) The Units to be issued and sold to the Underwriters by the Partnership pursuant to this
Agreement and the limited partner interests represented thereby have been duly authorized by the
Partnership Agreement and, when issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued, fully paid (to the extent required
under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected
by matters described in the Prospectus under the caption “The Partnership Agreement — Limited
Liability”).
(vii) The Operating Company owns a 100% membership interest in the OLP GP; such membership
interest has been duly authorized and validly issued in accordance with the OLP GP Agreement, and
is fully paid (to the extent required under the OLP GP Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and the Operating
Company owns such membership interest free and clear of all liens, encumbrances, security
interests, charges or claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Operating Company as debtor is on file in the
office of the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel,
20
without independent investigation, other than those created by or arising under the Delaware LLC
Act and those arising in connection with the credit agreements filed as an exhibit to the
Registration Statement (collectively, the “Credit Agreements”).
(viii) The Partnership owns a 100% membership interest in the Operating Company; such
membership interest has been duly authorized and validly issued in accordance with the Operating
Company Agreement, and is fully paid (to the extent required under the Operating Company Agreement)
and nonassessable (except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and the Partnership owns such membership interest free and clear of all liens,
encumbrances (except restrictions on transferability as described in the Prospectus), security
interests, charges or claims (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office
of the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the Delaware LLC Act and
those arising in connection with the Credit Agreements.
(ix) Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ own a 51%, 30% and 19% membership interest in the General
Partner, respectively; such membership interests have been duly authorized and validly issued in
accordance with the General Partner Agreement, and are fully paid (to the extent required under the
General Partner Agreement) and nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act); and Heritage, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ own such membership
interests free and clear of all liens, encumbrances (except restrictions on transferability set
forth in the General Partner Agreement), security interests, charges or claims (i) in respect of
which a financing statement under the Uniform Commercial Code of the State of Delaware naming
Heritage, ▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇, as the case may be, as debtor is on file in the office of the
Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the Delaware LLC Act and
those arising in connection with the Credit Agreements.
(x) Calumet owns 100% of the capital stock of Reseller; such capital stock has been duly
authorized and validly issued in accordance with the Reseller Charter Documents and is fully paid
and nonassessable; and Calumet owns such capital stock free and clear of all liens, encumbrances,
security interests, charges or claims (i) in respect of which a financing statement under the
Uniform Commercial Code of the State of Delaware naming Calumet as debtor is on file in the office
of the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the DGCL and those arising
in connection with the Credit Agreements.
(xi) Except as described in the Prospectus, there are no options, warrants, preemptive rights
or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any partnership or membership interests in any of the Partnership, the Operating Company, the
OLP GP or Reseller (the “Delaware Partnership Entities”), in each case pursuant to the Partnership
Agreement, the Operating Company Agreement, the OLP GP Agreement and the Reseller Charter Documents
or, to the knowledge of such counsel, any other agreement or instrument listed as an exhibit to the
Registration Statement to which the Delaware Partnership Entities are a party or by which any of
them may be bound. To the knowledge of such counsel, neither the filing of the Registration
Statement
21
nor the offering or sale of the Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any Units or other securities of the Partnership
other than (i) as described in the Prospectus and Partnership Agreement and (ii) as have been
waived.
(xii) The Partnership has all necessary partnership power and authority to issue, sell and
deliver the Units, in accordance with and upon the terms and conditions set forth in this Agreement
and the Partnership Agreement.
(xiii) This Agreement has been duly authorized, executed and delivered by each of the Calumet
Parties.
(xiv) None of the offering, issuance and sale by the Partnership of the Units being delivered
at such Time of Delivery, the execution, delivery and performance of this Agreement by the
Partnership Entities which are parties thereto, or the consummation of the transactions
contemplated hereby (i) constitutes or will constitute a violation of the certificate of limited
partnership, agreement of limited partnership, certificate of formation, limited liability company
agreement certificate of incorporation or bylaws, as the case may be, of any of the Delaware
Partnership Entities, (ii) constitutes or will constitute a breach or violation of, or a default
(or an event which, with notice or lapse of time or both, would constitute such a default), or
result in a lien, under any other agreement filed as an exhibit to the Registration Statement or
any other agreement that the Partnership certifies is material as listed on an exhibit to such
counsel’s opinion, or (iii) violates or will violate the Delaware LP Act, the Delaware LLC Act, the
DGCL, federal law, or any order, judgment, decree or injunction known to such counsel of any
Delaware or federal court to which any of the Partnership Entities or any of their properties is
subject, which breach, violation, lien or default in the case of clause (ii) or (iii), would
reasonably be expected to have a Material Adverse Effect.
(xv) No permit, consent, approval, authorization, order, registration, filing or qualification
(“consent”) under the Delaware LP Act, the Delaware LLC Act, the DGCL or federal law is required
for the offering, issuance and sale by the Partnership of the Units, the execution, delivery and
performance of this Agreement by the Partnership Entities party thereto or the consummation by the
Partnership Entities of the transactions contemplated by this Agreement, except (i) for such
consents required under the Act, the Exchange Act and state securities or “Blue Sky” laws, as to
which such counsel need not express any opinion, (ii) for such consents which have been obtained or
made, (iii) for such consents which (A) are of a routine or administrative nature, (B) are not
customarily obtained or made prior to the consummation of transactions such as those contemplated
by this Agreement and (C) are expected in the reasonable judgment of the General Partner to be
obtained or made in the ordinary course of business, (iv) for such consents which, if not obtained,
would not, individually or in the aggregate, be reasonably expected to have a Material Adverse
Effect, and (v) as disclosed in the Prospectus.
(xvi) The statements set forth in the Registration Statement and the Prospectus under the
captions “How We Make Cash Distributions,” “Management’s Discussion and Analysis of Financial
Condition and Results of Operations—Liquidity and Capital Resources—Debt and Credit Facilities,”
“Certain Relationships and Related Party Transactions,” “Conflicts of Interest and Fiduciary
Duties,” “Description of the Common Units” and “The Partnership Agreement” fairly describe in all
material respects the portions of the documents addressed thereby and, insofar as they
22
purport to
constitute summaries of law or legal conclusions, are accurate in all material respects; the
description of the statutes and regulations set forth in the Registration Statement and the
Prospectus under the captions “Business—Environmental Matters” and “Investment in Calumet
Specialty Products Partners, L.P. by Employee Benefit Plans” fairly describe in all material
respects the portions of the
statutes and regulations addressed thereby; and the Common Units, the Subordinated Units and
the Incentive Distribution Rights conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus under the captions “Summary—The
Offering,” “How We Make Cash Distributions,” “Description of the Common Units,” and “The
Partnership Agreement.”
(xvii) The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. that is filed as Exhibit 8.1 to the Registration
Statement is confirmed, and the Underwriters may rely upon such opinion as if it were addressed to
them.
(xviii) The Registration Statement was declared effective under the Act on [___], 2006;
to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been instituted or threatened by
the Commission; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by such Rule.
(xix) The Registration Statement and the Prospectus and any further amendments and supplements
thereto made by the Partnership prior to such Time of Delivery (other than the financial
statements, notes or schedules included in the Registration Statement or Prospectus or other
financial data included in the Registration Statement or the Prospectus, as to which such counsel
need not express any opinion) comply as to form in all material respects with the requirements of
the Act and the rules and regulations promulgated thereunder.
(xx) None of the Partnership Entities is an “investment company” as such term is defined in
the Investment Company Act.
(xxi) To the knowledge of such counsel, (i) there are no legal or governmental proceedings
pending or threatened against any of the Partnership Entities or to which any of the Partnership
Entities is a party or to which any of their respective properties is subject that are required to
be described in the Registration Statement but are not so described as required and (ii) there are
no agreements, contracts, indentures, leases or other instruments that are required to be described
in the Registration Statement or to be filed as exhibits to the Registration Statement that are not
described or filed as required by the Act.
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the Partnership Entities and the independent public accountants of the
Partnership and your representatives, at which the contents of the Registration Statement, the
Pricing Disclosure Package and the Prospectus and related matters were discussed, and although such
counsel has not independently verified, is not passing upon, and is not assuming any responsibility
for the accuracy, completeness or fairness of the statements contained in, the Registration
Statement, the Pricing Disclosure Package and the Prospectus (except to the extent specified in the
foregoing opinion), based on the foregoing, no facts have come to such counsel’s attention that
lead such counsel
23
to believe that (A) the Registration Statement (other than (i) the financial
statements and related schedules, including the notes thereto and auditor’s report thereon, and
(ii) the other information of a financial nature included in the Registration Statement as to which
such counsel need not comment), as of its effective date, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, (B)
that the Pricing Disclosure Package, if any (other than (i) the financial statements and related
schedules, including the notes thereto and auditor’s report thereon, and (ii) the other information
of a financial nature included in the Pricing Disclosure Package as to which such counsel need not
comment), as of the Applicable Time, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that the price of the Units and
disclosures directly relating thereto and derived therefrom are included on the cover page of the
Prospectus or under the captions “Use of Proceeds,” “Capitalization” or “Underwriting,” in the
Prospectus or in the unaudited pro forma financial information included therein, or (C) that the
Prospectus (other than (i) the financial statements and related schedules, including the notes
thereto and auditor’s report thereon, and (ii) the other information of a financial nature included
in the Prospectus as to which such counsel need not comment), as of its issue date and as of such
Time of Delivery contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Partnership Entities and upon information obtained
from public officials, (B) assume that all documents submitted to them as originals are authentic,
that all copies submitted to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that their opinion is limited to federal laws,
the Delaware LP Act, the Delaware LLC Act and the DGCL, (D) with respect to the opinions expressed
in paragraphs (i), (ii) and (iii) above as to the due qualification or registration as a foreign
limited partnership, corporation or limited liability company, as the case may be, of the
Partnership, the Operating Company, the General Partner, the OLP GP and Reseller, state that such
opinions are based upon the opinions of counsel provided pursuant to (d) and (e) below and upon
certificates of foreign qualification or registration provided by the Secretary of State of the
States listed on Annex I to such opinion (each of which shall be dated as of a date not more than
fourteen days prior to such Time of Delivery and shall be provided to you), (E) state that they
express no opinion with respect to the accuracy of descriptions of real or personal property or
permits to own or operate any real or personal property, and (F) state that they express no opinion
with respect to state or local taxes or tax statutes to which any of the limited partners of the
Partnership or any of the Partnership Entities may be subject;
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, with respect to the State of Indiana, shall have furnished to you
their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Calumet has been duly formed and is validly existing as a limited partnership under the
Indiana Act, with full partnership power and authority to own or lease its properties and to
conduct its business, in each case in all respects as described in the Registration Statement and
the Prospectus. Calumet is duly registered or qualified as a foreign limited partnership for the
transaction of business under the laws of the jurisdictions set forth under its name on Annex I to
this Agreement.
24
(ii) Each of Calumet Shreveport and the Shreveport Subsidiaries has been duly formed and is
validly existing as a limited liability company under the Indiana LLC Act with all necessary
limited liability company power and authority to own or lease its properties and to conduct
its business, in each case in all material respects as described in the Registration Statement
and the Prospectus. Each of Calumet Shreveport and the Shreveport Subsidiaries is duly registered
or qualified as a foreign limited liability company for the transaction of business under the laws
of the jurisdictions set forth under its name on Annex I to this Agreement.
(iii) The OLP GP is the sole general partner of Calumet with a 10% general partner interest in
Calumet; such general partner interest is duly authorized and validly issued in accordance with the
Calumet Agreement; and the OLP GP owns such general partner interest free and clear of all liens,
encumbrances, security interests, charges or claims (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Indiana naming the OLP GP as debtor is on file in
the office of the Secretary of State of the State of Indiana or (ii) otherwise known to such
counsel, without independent investigation, other than those created by or arising under the
Indiana Act and those arising under the Credit Agreements.
(iv) The Operating Company is the sole limited partner of Calumet with a 90% limited partner
interest in Calumet; such limited partner interest has been duly authorized and validly issued in
accordance with the Calumet Agreement and is fully paid (to the extent required under the Calumet
Agreement) and nonassessable (except as such nonassessability may be affected by IC 23-16-6-2 in
the Indiana Act); and the Operating Company owns such limited partner interest free and clear of
all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of Indiana naming the Operating Company as
debtor is on file in the office of the Secretary of State of the State of Indiana or (ii) otherwise
known to such counsel, without independent investigation, other than those created by or arising
under the Indiana Act and those arising under the Credit Agreements.
(v) Calumet owns a 100% membership interest in Calumet Shreveport; such membership interest
has been duly authorized and validly issued in accordance with the Shreveport Agreement and is
fully paid (to the extent required under the Shreveport Agreement) and nonassessable (except as
such nonassessability may be affected by IC 23-18-5-1(c) in the Indiana LLC Act); and Calumet owns
such membership interest free and clear of all liens, encumbrances, security interests, charges or
claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State
of Indiana naming Calumet as debtor is on file in the office of the Secretary of State of the State
of Indiana or (ii) otherwise known to such counsel, without independent investigation, other than
those created by or arising under the Indiana LLC Act and other than those arising under the Credit
Agreements.
(vi) Calumet Shreveport owns a 100% membership interest in each of the Shreveport
Subsidiaries; such membership interests have been duly authorized and validly issued in accordance
with the Shreveport Subsidiary Agreements and are fully paid (to the extent required under the
Shreveport Subsidiary Agreements) and nonassessable (except as such nonassessability may be
affected by IC 23-18-5-1(c) in the Indiana LLC Act); and Calumet Shreveport owns such membership
interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in
respect of which a financing statement under the Uniform Commercial Code of the State of Indiana
naming
25
Calumet Shreveport as debtor is on file in the office of the Secretary of State of the State
of Indiana or (ii) otherwise known to such counsel, without independent investigation, other than
those created by or arising under the Indiana LLC Act and those arising under the Credit
Agreements.
(vii) The Partnership has been duly qualified or registered as a foreign limited partnership
for the transaction of business under the laws of the State of Indiana. Each of the General
Partner, the Operating Company, the OLP GP and the Operating LLCs has been duly qualified or
registered as a foreign limited liability company for the transaction of business under the laws of
the State of Indiana.
(viii) Except as described in the Prospectus, there are no options, warrants, preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any partnership or membership interests in any of Calumet, Calumet Shreveport or the
Shreveport Subsidiaries (collectively, the “Indiana Partnership Entities”), in each case pursuant
to Calumet Agreement, the Calumet Shreveport Agreement and the Shreveport Subsidiary Agreements or,
to the knowledge of such counsel, any other agreement or instrument to which such entities are a
party or by which any of them may be bound.
(ix) None of the offering, issuance and sale by the Partnership of the Units being delivered
at such Time of Delivery, the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby (i) constitutes or will constitute a violation
of the organizational documents of any of the Indiana Partnership Entities, (ii) constitutes or
will constitute a breach or violation of, or a default (or an event which, with notice or lapse of
time or both, would constitute such a default), or result in a lien, under any mortgage, deed of
trust, loan agreement, lease or other agreement or instrument known to such counsel to which any of
the Partnership Entities or their properties may be bound (other than any agreement filed as an
exhibit to the Registration Statement), or (iii) results or will result in any violation of the
Indiana Act, the Indiana LLC Act or the laws of the State of Indiana, or any order, judgment,
decree or injunction known to such counsel of any Indiana court or governmental agency or body to
which any of the Partnership Entities or any of their properties is subject, which breach,
violation, lien or default in the case of clause (ii) or (iii) would reasonably be expected to have
a material adverse effect on the financial condition, business or results of operations of the
Partnership Entities taken as a whole.
(x) Upon the consummation of Offering, (i) the liability of the Partnership for the
liabilities of Calumet arising solely from the status of the Partnership as the sole member of the
limited partner of Calumet will not be governed by the laws of the State of Indiana and (ii) the
liability of the Partnership’s unitholders for the liabilities of the Partnership or the Operating
Subsidiaries arising solely from the status of the Partnership’s unitholders as limited partners of
the Partnership will not be governed by the laws of the State of Indiana.
(xi) No permit, consent, approval, authorization, order, registration, filing or qualification
(“consent”) of or with any court, governmental agency or body of the State of Indiana having
jurisdiction over the Partnership Entities or any of their respective properties is required for
the issuance and sale of the Units by the Partnership, or for the conveyance of the properties
located in the State of Indiana purported to be conveyed to the Operating Subsidiaries pursuant to
the Contribution Documents, except (A) for such consents required under the Act, the Exchange Act
and state securities
26
or “Blue Sky” laws, as to which such counsel need not express any opinion, (B)
for such consents which have been obtained or made, (C) for such consents which (i) are of a
routine or administrative nature, (ii) are not customarily obtained or made prior to the
consummation of transactions such as those contemplated by this Agreement and (iii) are expected in
the reasonable judgment of the General
Partner to be obtained or made in the ordinary course of business, (D) for such consents
which, if not obtained or made, would not, individually or in the aggregate, have a material
adverse effect upon the operations conducted or to be conducted as described in the Prospectus in
the State of Indiana by the Partnership Entities or (E) as disclosed in the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Partnership Entities and upon information obtained
from public officials, (B) assume that all documents submitted to them as originals are authentic,
and all copies submitted to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that such opinions are limited to the laws of the
State of Indiana, excepting therefrom municipal and local ordinances and regulations, (D) state
that they express no opinion with respect to (i) state or local taxes or tax statutes to which any
of the limited partners of the Partnership or any of the Partnership Entities may be subject, (ii)
title to any real or personal property, (iii) the accuracy of descriptions or references to real or
personal property or (iv) permits to own or operate any real or personal property, and (E) with
respect to the opinion in paragraph (i) rely upon certificates of foreign qualification provided by
the Secretary of State of Indiana (each of which shall be dated as of the date not more than
fourteen days prior to such Time of Delivery and provided to you.)
In rendering such opinion, such counsel shall state that (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇
▇▇▇▇▇ L.L.P. are each authorized to rely upon such opinion letter in connection with the offering
as if such opinion letter were addressed and delivered to them on the date hereof and (B) subject
to the foregoing, such opinion letter may be relied upon only by the Underwriters and its counsel
in connection with the offering and no other use or distribution of this opinion letter may be made
without such counsel’s prior written consent;
(e) Cook, Yancey, King & ▇▇▇▇▇▇▇▇ APLC, with respect to the State of Louisiana, shall have
furnished to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Calumet has been duly qualified or registered as a foreign limited partnership for the
transaction of business under the laws of the State of Louisiana. Each of the Operating LLCs has
been duly qualified or registered as a foreign limited liability company for the transaction of
business
27
under the laws of the State of Louisiana. Reseller has been duly qualified or registered
as a foreign corporation for the transaction of business under the laws of the State of Louisiana.
(ii) Upon the consummation of the offering and sale of the Units contemplated hereby, (i) the
liability of the Partnership for the liabilities of Calumet arising solely from the status of
the Partnership as the sole member of the limited partner of Calumet will not be governed by
the laws of the State of Louisiana and (ii) the liability of the Partnership’s unitholders for the
liabilities of the Partnership or the Operating Subsidiaries arising solely from the status of the
Partnership’s unitholders as limited partners of the Partnership will not be governed by the laws
of the State of Louisiana.
(iii) No permit, consent, approval, authorization, order, registration, filing or
qualification (“consent”) of or with any court, governmental agency or body of the State of
Louisiana having jurisdiction over the Partnership Entities or any of their respective properties
is required for the issuance and sale of the Units by the Partnership, except (A) for such consents
required under the Act, the Exchange Act and state securities or “Blue Sky” laws, as to which such
counsel need not express any opinion, (B) for such consents which have been obtained or made, (C)
for such consents which (i) are of a routine or administrative nature, (ii) are not customarily
obtained or made prior to the consummation of transactions such as those contemplated by this
Agreement and (iii) are expected in the reasonable judgment of the General Partner to be obtained
or made in the ordinary course of business, (D) for such consents which, if not obtained or made,
would not, individually or in the aggregate, have a material adverse effect upon the operations
conducted or to be conducted as described in the Prospectus in the State of Louisiana by the
Partnership Entities or (E) as disclosed in the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Partnership Entities and upon information obtained
from public officials, (B) assume that all documents submitted to them as originals are authentic,
and all copies submitted to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that such opinions are limited to the laws of the
State of Louisiana, excepting therefrom municipal and local ordinances and regulations, (D) state
that they express no opinion with respect to (i) state or local taxes or tax statutes to which any
of the limited partners of the Partnership or any of the Partnership Entities may be subject, (ii)
title to any real or personal property, (iii) the accuracy of descriptions or references to real or
personal property or (iv) permits to own or operate any real or personal property, and (E) with
respect to the opinion in paragraph (i) rely upon certificates of foreign qualification provided by
the Secretary of State of Louisiana (each of which shall be dated as of the date not more than
fourteen days prior to such Time of Delivery and provided to you.)
In rendering such opinion, such counsel shall state that (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇
▇▇▇▇▇ L.L.P. are each authorized to rely upon such opinion letter in connection with the offering
as if such opinion letter were addressed and delivered to them on the date hereof and (B) subject
to the foregoing, such opinion letter may be relied upon only by the Underwriters and its counsel
in connection with the offering and no other use or distribution of this opinion letter may be made
without such counsel’s prior written consent.
28
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Ernst &
Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in Annex II hereto (the
executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex
II(a) hereto and a
draft of the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is attached as Annex II(b)
hereto);
(g) (i) None of the Partnership Entities shall have sustained since the date of the latest
audited financial statements included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the capitalization or long-term
debt of any of the Partnership Entities or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position, partners’ equity,
members’ equity or results of operations of any of the Partnership Entities otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Underwriters so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the Units being
delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(h) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating
accorded the debt securities of any Partnership Entity by any “nationally recognized statistical
rating organization,” as that term is defined by the Commission for purposes of Rule 463(g)(2)
under the Act, and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any of the debt
securities of any Partnership Entity;
(i) On or after the Applicable Time, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or NASDAQ; (ii) a suspension or material limitation in trading in the Partnership’s securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by Federal, New York
State or Indiana State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a national
emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Units being delivered at
such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(j) The Units to be sold at such Time of Delivery shall have been duly admitted for trading
and quotation on NASDAQ;
29
(k) The Partnership has obtained and delivered to the Underwriters executed copies of a letter
agreement from each officer and director of the General Partner and from each of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
and the Heritage Group substantially to the effect set forth in Subsection 5(e) hereof in form and
substance satisfactory to you;
(l) The Partnership shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of
this Agreement;
(m) The Partnership shall have furnished or caused to be furnished to you at such Time of
Delivery certificates of officers of the Calumet Parties satisfactory to you as to the accuracy of
the representations and warranties of the Calumet Parties herein at and as of such Time of
Delivery, as to the performance by the Calumet Parties all of their obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and
(h) of this Section and as to such other matters as you may reasonably request.
9. Indemnification.
(a) The Calumet Parties, jointly and severally, will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or “any issuer information” filed or required to be
filed by Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that each of the Calumet
Parties shall not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information furnished to the
Partnership by any Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Calumet Parties against any losses,
claims, damages or liabilities to which any of the Calumet Parties may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged
30
omission was made in the Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Partnership by such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein; and will reimburse the Calumet
Parties for any legal or other expenses reasonably incurred by the Calumet Parties in
connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Calumet Parties on
the one hand and the Underwriters on the other from the offering of the Units. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Calumet Parties on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Calumet Parties on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Partnership bear to the total underwriting
31
discounts and commissions
received by the Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Calumet Parties on the one hand
or the Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. Each of the Calumet
Parties and the Underwriters agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Units underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Calumet Parties under this Section 9 shall be in addition to any
liability which they may otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the Act and each
broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this
Section 9 shall be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and director of the
General Partner (including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the General Partner) and to each person, if any, who
controls any of the Calumet Parties within the meaning of the Act.
10. Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the Units which it has
agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Units on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Units, then the Partnership shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such Units on such terms.
In the event that, within the respective prescribed periods, you notify the Partnership that you
have so arranged for the purchase of such Units, or the Partnership notifies you that it has so
arranged for the purchase of such Units, you or the Partnership shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Partnership agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in
32
your opinion may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section 10 with like effect as if such person had originally been a party to
this Agreement with respect to such Units.
(b) If, after giving effect to any arrangements for the purchase of the Units of a defaulting
Underwriter or Underwriters by you and the Partnership as provided in subsection (a) above, the
aggregate number of such Units which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Units to be purchased at such Time of Delivery, then the Partnership
shall have the right to require each non-defaulting Underwriter to purchase the number of Units
which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on the number of
Units which such Underwriter agreed to purchase hereunder) of the Units of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Units of a defaulting
Underwriter or Underwriters by you and the Partnership as provided in subsection (a) above, the
aggregate number of such Units which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Units to be purchased at such Time of Delivery, or if the Partnership shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Units of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the
Partnership to sell the Optional Units) shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Partnership, except for the expenses to be borne by the
Partnership and the Underwriters as provided in Sections 7 and 12 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Partnership and the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Partnership, or any officer
or director or controlling person of the General Partner, and shall survive delivery of and payment
for the Units.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Partnership shall
not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof;
but, if for any other reason, any Units are not delivered by or on behalf of the Partnership as
provided herein, the Partnership will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Units not so delivered, but the Partnership shall then be under no further liability to any
Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on
33
behalf of any Underwriter made or given by you jointly or by ▇▇▇▇▇▇▇, Sachs & Co. on behalf of
you as the representatives of the several Underwriters.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives of the several Underwriters in care of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; and if to the
Partnership shall be delivered or sent by mail, telex or facsimile transmission to the address of
the Partnership set forth in the Registration Statement, Attention: Secretary; and if to a party to
the lockup letters described in Section 8(k) shall be delivered or sent by mail, telex or facsimile
transmission to the address set forth in such party’s lockup letter; provided, however, that
notices under Section 9(c) shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Partnership by you upon request;
provided, however, that notices under Section 5(e) shall be in writing, and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives at ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Control Room. Any such statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Calumet Parties and, to the extent provided in Sections 9 and 11 hereof, the
officers and directors of the General Partner and each person who controls the Partnership or any
Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Units from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
15. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Partnership and the Underwriters, or any of them, with respect to the subject
matter hereof.
16. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
17. Each of the Calumet Parties and each of the Underwriters hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
20. Notwithstanding anything herein to the contrary, the Partnership is authorized, subject to
applicable law, to disclose to any persons any and all aspects of this potential transaction that
are
34
necessary to support any U.S. federal and state income tax treatment and tax structure of the
potential transaction and all materials of any kind (including tax opinions and other tax analyses)
relating to such treatment and structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and tax structure shall remain
confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any
person to comply with applicable
securities laws. For this purpose, “tax structure” is limited to any facts that may be
relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and return to us seven
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters and each of the Calumet Parties. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Partnership for examination upon
request, but without warranty on your part as to the authority of the signers thereof.
[Signature page follows.]
35
| Very truly yours, | ||||||
| CALUMET SPECIALTY PRODUCTS PARTNERS, L.P. | ||||||
| By: Calumet GP, LLC, its general partner | ||||||
| By: | ||||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, II | |||||
| Title: | Vice President and Chief Financial Officer | |||||
| CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP | ||||||
| By: | Calumet, Incorporated, its general partner | |||||
| By: | ||||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, II | |||||
| Title: | Vice President and Chief Financial Officer | |||||
| CALUMET GP, LLC | ||||||
| By: | ||||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, II | |||||
| Title: | Vice President and Chief Financial Officer | |||||
| CALUMET OPERATING, LLC | ||||||
| By: Calumet Specialty Products Partners, L.P., its sole member | ||||||
| By: Calumet GP, LLC, its general partner | ||||||
| By: | ||||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, II | |||||
| Title: | Vice President and Chief Financial Officer | |||||
36
| CALUMET LP GP, LLC | ||||||
| By: | Calumet, Incorporated, its sole member | |||||
| By: | ||||||
| Name: | R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, II | |||||
| Title: | Vice President and Chief Financial Officer | |||||
37
Accepted as of the date hereof: |
||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
||
Deutsche Bank Securities Inc. |
||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. |
||
(▇▇▇▇▇▇▇, Sachs & Co.) |
||
On behalf of each of the Underwriters
|
38
SCHEDULE I
| Number of Optional | ||||||||
| Units to be | ||||||||
| Total Number of | Purchased if | |||||||
| Firm Units | Maximum Option | |||||||
| Underwriter | to be Purchased | Exercised | ||||||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
||||||||
Deutsche Bank Securities Inc. |
||||||||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. |
||||||||
Total |
4,000,000 | 600,000 | ||||||
SCHEDULE II(A)
Materials Other Than the Pricing Prospectus
That Comprise the Pricing Disclosure Package
That Comprise the Pricing Disclosure Package
[None.]
SCHEDULE II(B)
Issuer Free Writing Prospectuses Not Included
in the Pricing Disclosure Package
in the Pricing Disclosure Package
[1. The Calumet Specialty Products Partners, L.P. Institutional Electronic Roadshow made available
via Netroadshow at .]
[2. The Electronic Retail Roadshow for Calumet Specialty Products Partners, L.P. made available via
Netroadshow at .]
ANNEX I
FOREIGN QUALIFICATIONS
[Partnership to confirm.]
Indiana
Calumet Operating, LLC
Indiana
Calumet LP GP, LLC
Arkansas
California
Florida
Georgia
Illinois
Indiana
Massachusetts
Mississippi
Ohio
South Carolina
Texas
California
Florida
Georgia
Illinois
Indiana
Massachusetts
Mississippi
Ohio
South Carolina
Texas
Calumet Lubricants Co., Limited Partnership
Arkansas
California
Connecticut
Florida
Georgia
Illinois
Indiana
Kentucky
Louisiana
Massachusetts
Mississippi
Missouri
New Jersey
New York
Ohio
Pennsylvania
South Carolina
Texas
Utah
Virginia
California
Connecticut
Florida
Georgia
Illinois
Indiana
Kentucky
Louisiana
Massachusetts
Mississippi
Missouri
New Jersey
New York
Ohio
Pennsylvania
South Carolina
Texas
Utah
Virginia
Calumet Shreveport, LLC
Louisiana
Calumet Shreveport Lubricants & Waxes, LLC
Arkansas
California
Connecticut
Florida
Georgia
Illinois
Indiana
Kentucky
Louisiana
Mississippi
Missouri
New Jersey
Ohio
Texas
Virginia
California
Connecticut
Florida
Georgia
Illinois
Indiana
Kentucky
Louisiana
Mississippi
Missouri
New Jersey
Ohio
Texas
Virginia
Calumet Shreveport Fuels, LLC
Arkansas
Connecticut
Georgia
Illinois
Indiana
Kentucky
Louisiana
Mississippi
Missouri
Ohio
Texas
Virginia
Connecticut
Georgia
Illinois
Indiana
Kentucky
Louisiana
Mississippi
Missouri
Ohio
Texas
Virginia
Calumet Sales Company Incorporated
Louisiana
Calumet GP, LLC
Indiana
ANNEX II(a)
[Comfort Letter of Ernst & Young LLP]
ANNEX II(b)
[Bring-down Comfort Letter of Ernst & Young LLP]