AMENDMENT NO. 2 TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF CALUMET SPECIALTY PRODUCTS PARTNERS, L.P.
Exhibit 3.1
AMENDMENT NO. 2 TO
OF
This Amendment No. 2 (this “Amendment No. 2”) to the First Amended and Restated Agreement of
Limited Partnership (as amended, the “Partnership Agreement”) of Calumet Specialty Products
Partners, L.P. (the “Partnership”) is hereby adopted by Calumet GP, LLC, a Delaware limited
liability company (the “General Partner”), as general partner of the Partnership. Capitalized
terms used but not defined herein are used as defined in the Partnership Agreement.
WHEREAS, the General Partner desires to amend the Partnership Agreement to make certain
adjustments to certain allocation provisions and the definitions related thereto, which adjustments
shall be effective in accordance with Section 761(c) of the Code as of January 1, 2007; and
WHEREAS, acting pursuant to the power and authority granted to it under Section 13.1(d) of the
Partnership Agreement, the General Partner has determined that the following amendment to the
Partnership Agreement does not require the approval of any Limited Partner.
NOW THEREFORE, the General Partner does hereby amend the Partnership Agreement as follows:
Section 1. Amendment.
| (a) | Section 1.1 is hereby amended to add or amend and restate the following definitions: |
(i) “Disposed of Adjusted Property” has the meaning assigned to such term in
Section 6.1(d)(xii)(B).
(ii) “Net Termination Gain” means, for any taxable year, the sum, if positive,
of all items of income, gain, loss or deduction recognized by the Partnership (a)
after the Liquidation Date or (b) upon the sale, exchange or other disposition of
all or substantially all of the assets of the Partnership Group, taken as a whole,
in a single transaction or a series of related transactions (excluding any
disposition to a member of the Partnership Group). The items included in the
determination of Net Termination Gain shall be determined in accordance with
Section 5.5(b) and shall not include any items of income, gain or loss specially
allocated under Section 6.1(d).
(iii) “Net Termination Loss” means, for any taxable year, the sum, if
negative, of all items of income, gain, loss or deduction recognized by the
Partnership (a) after the Liquidation Date or (b) upon the sale, exchange or other
disposition of all or substantially all of the assets of the Partnership Group,
taken as a whole, in a single transaction or a series of related transactions
(excluding any disposition to a member of the Partnership Group). The items
included in the determination of Net Termination Loss shall be determined in
accordance with Section 5.5(b) and shall not include any items of income, gain or
loss specially allocated under Section 6.1(d).
| (b) | Section 5.5(d) is hereby amended and restated in its entirety as follows: |
(i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on an
issuance of additional Partnership Interests for cash or Contributed Property, the
issuance of Partnership Interests as consideration for the provision of services or
the conversion of the General Partner’s Combined Interest to Common Units pursuant
to Section 11.3(b), the Capital Accounts of all Partners and the Carrying Value of
each Partnership property immediately prior to such issuance shall be adjusted
upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable
to such Partnership property, as if such Unrealized Gain or Unrealized Loss had
been recognized on an actual sale of each such property for an amount equal to its
fair market value immediately prior to such issuance and had been allocated to the
Partners at such time pursuant to Section 6.1(c) in the same manner as any item of
gain or loss actually recognized following an event giving rise to the dissolution
of the Partnership would have been allocated. In determining such Unrealized Gain
or Unrealized Loss, the aggregate cash amount and fair market value of all
Partnership assets (including cash or cash equivalents) immediately prior to the
issuance of additional Partnership Interests shall be determined by the General
Partner using such method of valuation as it may adopt; provided, however, that the
General Partner, in arriving at such valuation, must take fully into account the
fair market value of the Partnership Interests of all Partners at such time. The
General Partner shall allocate such aggregate value among the assets of the
Partnership (in such manner as it determines) to arrive at a fair market value for
individual properties.
(ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f),
immediately prior to any actual or deemed distribution to a Partner of any
Partnership property (other than a distribution of cash that is not in redemption
or retirement of a Partnership Interest), the Capital Accounts of all Partners and
the Carrying Value of all Partnership property shall be adjusted upward or downward
to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership
property, as if such Unrealized Gain or Unrealized Loss had been recognized on an
actual sale of each such property immediately prior to such distribution for an
amount equal to its fair market value, and had been allocated to the Partners, at
such time, pursuant to Section 6.1(c) in the same manner as any item of gain or
loss actually recognized following an event giving rise to the dissolution of the
Partnership would have been allocated. In determining such Unrealized Gain or
Unrealized Loss the aggregate cash amount and fair market value of all Partnership
assets (including cash or cash equivalents) immediately prior to a distribution
shall (A) in the case of an actual distribution that is not made pursuant to
Section 12.4 or in the case of a deemed distribution, be determined and allocated
in the same manner as that provided in Section 5.5(d)(i) or (B) in the case of a
liquidating distribution pursuant to Section 12.4, be determined and allocated by
the Liquidator using such method of valuation as it may adopt.
| (c) | Section 6.1(d)(xii) is hereby amended and restated in its entirety as follows: |
| Corrective and Other Allocations. In the event of any allocation of Additional Book Basis Derivative Items or any Book-Down Event or any recognition of a Net Termination Loss, the following rules shall apply: |
(A) Except as provided in Section 6.1(d)(xii)(B), in the case of any
allocation of Additional Book Basis Derivative Items (other than an
allocation of Unrealized Gain or Unrealized Loss under Section 5.5(d)
hereof) with respect to any Partnership property, the General Partner
shall allocate such Additional Book Basis Derivative Items (1) to (aa) the
holders of Incentive Distribution Rights and (bb) the General Partner in
the same manner that the Unrealized Gain or Unrealized Loss attributable
to such property is allocated pursuant to Section 5.5(d)(i) or Section
5.5(d)(ii) and (2) to all Unitholders, Pro Rata, to the extent
that the Unrealized Gain or Unrealized Loss attributable to such
property is allocated to any Unitholders pursuant to Section 5.5(d)(i) or
Section 5.5(d)(ii).
(B) In the case of any allocation of Additional Book Basis Derivative
Items (other than an allocation of Unrealized Gain or Unrealized Loss
under Section 5.5(d) hereof or an allocation of Net Termination Gain or
Net Termination Loss pursuant to Section 6.1(c) hereof) as a result of a
sale or other taxable disposition of any Partnership asset that is an
Adjusted Property (“Disposed of Adjusted Property”), the General Partner
shall allocate (1) additional items of income and gain (aa) away from the
holders of Incentive Distribution Rights and the General Partner and (bb)
to the Unitholders, or (2) additional items of deduction and loss (aa)
away from the Unitholders and (bb) to the holders of Incentive
Distribution Rights and the General Partner, to the extent that the
Additional Book Basis Derivative Items allocated to the Unitholders exceed
their Share of Additional Book Basis Derivative Items with respect to such
Disposed of Adjusted Property. For this purpose, the Unitholders shall be
treated as being allocated Additional Book Basis Derivative Items to the
extent that such Additional Book Basis Derivative Items have reduced the
amount of income that would otherwise have been allocated to the
Unitholders under this Agreement (e.g., Additional Book Basis Derivative
Items taken into account in computing cost of goods sold would reduce the
amount of book income otherwise available for allocation among the
Partners). Any allocation made pursuant to this Section 6.1(d)(xii)(B)
shall be made after all of the other Agreed Allocations have been made as
if this Section 6.1(d)(xii) were not in this Agreement and, to the extent
necessary, shall require the reallocation of items that have been
allocated pursuant to such other Agreed Allocations.
(C) In the case of any negative adjustments to the Capital Accounts
of the Partners resulting from a Book-Down Event or from the recognition
of a Net Termination Loss, such negative adjustment (1) shall first be
allocated, to the extent of the Aggregate Remaining Net Positive
Adjustments, in such a manner, as determined by the General Partner, that
to the extent possible the aggregate Capital Accounts of the Partners will
equal the amount that would have been the Capital Account balance of the
Partners if no prior Book-Up Events had occurred, and (2) any negative
adjustment in excess of the Aggregate Remaining Net Positive Adjustments
shall be allocated pursuant to Section 6.1(c) hereof.
(D) In making the allocations required under this Section
6.1(d)(xii), the General Partner may apply whatever conventions or other
methodology it determines will satisfy the purpose of this Section
6.1(d)(xii).
Section 2. General Authority. The appropriate officers of the General Partner are
hereby authorized to make such further clarifying and conforming changes to the Partnership
Agreement as they deem necessary or appropriate, and to interpret the Partnership Agreement, to
give effect to the intent and purpose of this Amendment No. 2.
Section 3. Ratification of Partnership Agreement. Except as expressly modified and
amended herein, all of the terms and conditions of the Partnership Agreement shall remain in full
force and effect.
Section 4. Governing Law. This Amendment No. 2 will be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the General Partner has executed this Amendment No. 2 as of April 15,
2008.
| GENERAL PARTNER: CALUMET GP, LLC |
||||
| By: | /s/ R. XXXXXXX XXXXXX, II | |||
| Name: | R. Xxxxxxx Xxxxxx, II | |||
| Title: | Vice President and Chief Financial Officer | |||
