November 4, 2005
Mr. R. Patrick Murray, II, Vice President and Chief Financial
Officer
Calumet Specialty Products Partners, L.P.
2780 Waterfront
Pkwy E. Drive, Suite 200
Indianapolis, Indiana 46214
Re: Calumet Specialty Products Partners, L.P.
Registration Statement on Form S-1
Filed October 7, 2005
File No. 333-128880
Dear Mr. Murray:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation
as to why our comment is inapplicable or a revision is
unnecessary.
Please be as detailed as necessary in your explanation. In some
of
our comments, we may ask you to provide us with information so we
may
better understand your disclosure. After reviewing this
information,
we may raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We
look forward to working with you in these respects. We welcome
any
questions you may have about our comments or on any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form S-1
General
1. Many of our comments apply to disclosure that appears in more
than
one place. To eliminate the need for us to issue repetitive
comments,
please make corresponding changes to all affected disclosure,
wherever
it appears in your document.
2. We will need time to review all new disclosure, including any
additional proposed artwork or graphics and the intended price
range,
prior to completing our examination. Similarly, we will need time
to
review all omitted exhibits, including the opinion of counsel.
You
can expedite the review process by providing all this information
and
all these documents promptly. We may have additional comments.
3. We note the inclusion of a glossary. While this is helpful,
key
terms such as "subordination period" and "subordinated units,"
among
others, should also be defined the first time they are used rather
than requiring the reader to go back and forth within the
prospectus.
Revise your filing accordingly.
4. We remind you that as stated in Securities Act Release No.
5180, a
registrant is "in registration" at least from the time an issuer
reaches an undertaking with a broker-dealer to the period of 25-40
days during which dealers must deliver a prospectus. Interviews
conducted by your principals during this period may raise Section
5
concerns since they may be selling material. Any selling material
outside the statutory prospectus violates the Securities Act
unless a
final prospectus is delivered prior to or simultaneously with that
additional selling material. Please acknowledge the staff`s
position
in your response.
5. Please eliminate all unnecessary redundancy throughout your
prospectus. For example, you repeat much of your discussion of
competitive strengths, business strategy, and risks in the Summary
and
Risk Factors and again in MD&A.
6. We note that you omit information required by Regulation S-K.
Revise your filing to provide all information other than that
specified by Rule 430A under Regulation C. See pages 7, 36, 72,
112,
and 130 for example.
7. Please update your disclosure with each amendment to the most
recent practicable date. Also, provide an updated consent from
your
independent accountant in each subsequently filed amendment.
8. Monitor your need to update your financial statements, as
required
by Regulation S-X, Rule 3-12.
9. Please insert bold vertical lines to separate audited
information
from unaudited information wherever financial statements or charts
are
presented. Also label the columns "audited" or "unaudited."
Prospectus Cover Page
10. As there is no assurance that you will in fact pay the minimum
quarterly distribution you cite, and it is not required
information
under Item 501 of Regulation S-K, remove those numbers from the
cover
page.
11. Provide updated and current disclosure throughout the
prospectus.
For example, update the status of your application with the NASDAQ
National Market.
Prospectus Summary, page 1
12. We note your various claims of leadership, here and elsewhere
in
the prospectus, such as your statement that you are "one of the
largest producers of high-quality, specialty products and fuel
products." Provide with us with objective support for these types
of
statements and claims. If you cannot provide such support, delete
that language.
13. Explain the term "crack spread."
Organizational Structure After the Transactions, page 6
14. Identify, in the chart, the person(s) who control Calumet LP
GP,
LLC.
Non-GAAP Financial Measure, page 13
15. Please consider whether your non-GAAP measure EBITDA is a
liquidity measure. If it is a liquidity measure, it should be
reconciled to cash flows from operating activities as well as to
net
income. We note that it is used by your management and others to
assess your ability to generate cash, which indicates that it is
used
not just as a performance measure but also as a liquidity measure.
Risk Factors, page 14
16. All risk factors should be no longer than one or two short
paragraphs. Identify the risk, include a cross-reference to more
detailed disclosure elsewhere if appropriate, and eliminate all
excess
detail. Many of your risk factors are too detailed and contain
excessive bullet points, for example the first one. Where you
discuss
multiple risks under one caption, break the discussion into
separate
factors and include appropriate captions for each.
17. In a number of places in the risk factor section you use
variations of the phrase "material adverse effect." Please revise
to
add disclosure describing and expressing the specific and
immediate
effects to the investors. Also, rather than indicating that you
"cannot assure" a particular outcome, revise to state the risk
plainly
and directly.
18. We note your disclosure on page 24 concerning potential
increases
in your operating costs and disruptions to your ability to produce
and
ship certain products as a result of the recent hurricanes.
Please
expand your disclosure to quantify any material increases in costs
or
disruptions to date.
19. We note your disclosure on page 24 regarding a collective
bargaining agreement that expires in 2005. Please expand your
disclosure to elaborate on the status of that agreement.
We may not have sufficient cash from operations...., page 14
20. Indicate that, historically, you would not have been able to
make
the estimated cash distributions and your estimate cash available
for
distribution exceeds the estimated cash distribution by at most
1%.
We depend on key personnel...., page 24
21. Please indicate whether you carry key man insurance.
Use of Proceeds, page 35
22. Revise this section to provide, in tabular and quantified
form,
the sources and uses of the funds being raised in this offering
and
the borrowings under the current revolving credit facility and the
new
credit facilities.
Our Cash Distribution Policy and Restrictions on Distributions,
page
38
Rationale for Our Cash Distribution Policy, page 38
23. Revise this section to provide additional key facts about your
cash distribution policy, rather than simply offering a cross-
reference. For example, state the dividend amount, the attributes
including whether the dividends are cumulative, and whether you
historically have paid cash distributions.
Limitations on Cash Distributions..., page 38
24. Revise this section to add that not only is there no guarantee
that unitholders will receive quarterly distributions, but also
that
unitholders have no contractual or other legal right to the
quarterly
distributions.
25. Revise this section to add that the amount of the quarterly
distributions is also subject to covenant restrictions under your
current and anticipated credit facilities.
Pro Forma Cash Available for Distribution..., page 40
Unaudited Pro Forma Cash Available for Distribution, page 42
26. Since your historical excess cash available to pay
distributions
would have been insufficient to pay your expected distributions
per
unit, indicate in the table from where you would have obtained the
additional cash, such as through borrowings.
Estimated Cash Available for Distribution, page 43
27. Clarify whether you have included all operating subsidiaries
when
calculating your estimated cash available for distribution.
Assumptions and Considerations, page 46
28. Revise this section to ensure that each revenue or expense you
anticipate over the next four quarters is balanced with comparable
historical amounts. For example, in the third bullet point, it is
not
clear why you believe your average realized Gulf Coast 2/1/1 crack
spread will be $14.80 per barrel in light of the other amounts
presented.
29. As part of the tables entries, please include relevant
footnotes
to clarify the source and relevance of the figures for any entry
that
is not self-explanatory.
30. We note that your estimated cash available for distribution
exceeds the total minimum annual cash distribution by 1% or less
regardless of whether the over-allotment option is exercised.
Your
estimate assumes a 149.2% increase in Gross Profit, a 14% increase
in
Sales from Specialty Products and a 141.1% increase in sales from
Fuel
Products. It would appear that if you experienced a less than
significantly smaller increase in those areas, you would not be
able
to cover your estimated cash distribution. To the extent
determinable, include some sensitivity analysis for your
quantified
assumptions to indicate either a breakeven level for each or the
impact of level of change for each on your ability to pay the
estimated cash distribution.
31. Please clarify whether you would borrow, if necessary, to pay
the
expected minimum quarterly distributions. We note that your
partnership agreement permits you to borrow funds to pay the
distributions on all outstanding units in the event you have not
generated sufficient cash from operations.
Also, clarify whether you assume all debt will be refinanced as it
comes due since you do not intend to build-up cash to meet
repayment
obligations.
32. It is not clear whether your "replacement and environmental
capital expenditures" are the only maintenance and capital
expenditures that you anticipate. Please clarify and quantify any
other such expenditures.
33. Describe any debt covenants that would limit your ability to
make
the cash distributions and disclose whether you would be in
compliance
with those covenants based on your forward-looking operating
results
and expected cash flow information.
How We Make Cash Distributions, page 49
Intent to Distribute the Minimum Quarterly Distribution, page 49
34. Generally, when describing your distribution policy, please
revise
to state what it will be and what you will pay, rather than what
you
"intend" or "expect" to declare and pay. Please revise where
appropriate throughout your filing.
Subordination Period, page 51
35. This discussion is not clear to someone who is not already
familiar with the filing. Revise it to make clear who holds the
subordinated units, why their units are deemed to "subordinated"
and
the practical effect of the subordination period.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations
Sales Volumes, page 61
36. Explain why sales volumes are "driven by the volumes of crude
oil
and feedstocks that we run at our refineries." Intuitively, it
would
seem that sales volume is driven by demand rather than supply.
Contractual Obligations and Commercial Commitments, page 72
37. Please confirm to us that you have no obligations relating to
executive compensation, or amend your chart to include them.
Management, 97
38. We note that your partnership agreement limits your general
partner`s fiduciary duties to your unitholders. Please reiterate
that
each time you discuss how your general partner owes a fiduciary to
your unitholders.
Security Ownership of Certain Beneficial Owners and Management,
page
102
39. Please disclose the natural persons who exercise voting and/or
dispositive powers with respect to the securities held by each of
the
beneficial owners. See Exchange Act Rule 13d-3; Interpretation
I.60
of the July 1997 manual of publicly available CF telephone
interpretations, as well as interpretation 4S of the Regulation S-
K
portion of the March 1999 supplement to the CF telephone
interpretation manual.
Certain Relationships and Related Transactions, page 103
Sales to Bareco Joint Venture, page 105
40. Please disclose the reasons for the dissolution of the Bareco
joint venture in 2004. We note the extensive decrease in sales.
The Partnership Agreement, page 114
Voting Rights, page 115
41. We note that various matters require the approval of a "unit
majority." Please also identify the number of unitholders that
must
be present at a meeting to constitute a quorum.
Investment in Calumet Specialty Products Partners, L.P....,page
143
42. Revise your statement that the reader "should" consult with
his/her own counsel as the term "should" suggests obligation.
You
may replace the admonition with language to the effect that you
recommend or encourage that consultation.
Underwriting, page 134
43. We note that your underwriters may engage in an electronic
offer,
sale or distribution of the shares. Please describe their
procedures
to us. If you become aware of any additional members of the
underwriting syndicate that may engage in electronic offers, sales
or
distributions after you respond to this comment, promptly
supplement
your response to identify those members and provide us with a
description of their procedures. Briefly describe any electronic
distribution in the filing. Consult Release Nos. 33-7233 and 33-
7289
for guidance.
Also, in your discussion of your procedures, tell us how your
procedures ensure that the distribution complies with Section 5 of
the
Securities Act. In particular, address:
* the communications used;
* the availability of the preliminary prospectus;
* the manner of conducting the distribution and sale, such as the
use
of indications of interest or conditional offers;
* how offers and final confirmations will be made; and
* the funding of an account and payment of the purchase price.
We may comment further.
44. You indicate that a prospectus in electronic format may be
made
available on the websites maintained by one or more of the
underwriters. Identify the underwriters and the websites. If
agreements exist outlining these arrangements, provide us a copy
of
such agreements and describe their material terms. Provide us
with
copies of all information concerning your company or prospectus
that
has appeared or will appear on their websites. If you
subsequently
enter into any arrangements with a third party to host or access
your
preliminary prospectus on the Internet, promptly supplement your
response. We may comment further.
45. Please provide the following information with respect to your
directed unit program:
(a) Tell us the approximate percentage of common stock and dollar
value you plan to offer in this program.
(b) Clarify the types and number of parties that will be able to
participate in the program, including identifying whether any of
these
parties are venture capital firms.
(c) Provide a more detailed description of the Directed Unit
Program
and the mechanics of the offering.
(d) Specify the party or parties that will administer the program.
(e) Ensure that your beneficial ownership disclosure includes any
shares of common stock that may be acquired within 60 days.
(f) Discuss whether the program requires any related party
transaction
disclosure under Item 404 of Regulation S-K.
(g) Detail the timing and nature of any communications with
directed
share participants that have occurred or that you plan to make.
(h) Provide us with all materials sent and that you plan to send
to
potential direct unit participants.
(i) Describe in adequate detail any account funding requirements.
We may issue additional comments.
Unaudited Pro Forma Financial Statements, page F-2
46. Clarify which historical data is audited and which is
unaudited.
47. Please explain to us why you have not made an adjustment to
eliminate the revenues, expenses, and equity method
earnings/losses
relating to the Rouseville wax processing facility, the Reno wax
packaging facility, and the Bareco wax marketing joint venture.
48. Tell us whether or not your earnings per share is calculated
in
accordance with EITF 03-06 and why.
Financial Statements of Calumet Lubricants Co., Limited
Partnership,
page F-8
Consolidated Statements of Operations, page F-10
49. We note that you include a subtotal of operating costs and
expenses that excludes restructuring, decommissioning and asset
impairment expenses. It appears that this subtotal is a non-GAAP
measure. As such, it should be removed from the face of your
financial statement.
50. Please tell us what consideration you gave to including your
transportation costs as a component of costs of sales.
51. Please explain to us the consideration that you gave to
recording
the results of the Rouseville wax processing facility and the Reno
wax
packaging facility as discontinued operations.
52. Please explain to us whether you have recorded asset
retirement
obligation expense relating to the assets that will be contributed
to
Calumet Specialty Products Partners, L.P. Also, tell us what
consideration you gave to discussing FIN 47 as a new accounting
pronouncement in footnote 2.
Note 2 - Summary of Significant Accounting Policies, page F-13
Revenue Recognition, page F-16
53. You state that you recognize revenue when ownership and all
risks
of loss have been transferred to the buyer, which is normally upon
shipment. Please expand your disclosure to discuss when revenue
is
recognized when it is not recognized upon shipment.
Closing Comments
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing
includes all information required under the Securities Act of 1933
and
that they have provided all information investors require for an
informed investment decision. Since the company and its
management
are in possession of all facts relating to a company`s disclosure,
they are responsible for the accuracy and adequacy of the
disclosures
they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division
of Corporation Finance in connection with our review of your
filing or
in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering of
the securities specified in the above registration statement. We
will
act on the request and, pursuant to delegated authority, grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Sandra Eisen at (202) 551-3864 or Kimberly
Calder, Assistant Chief Accountant, at (202) 551-3701 if you have
questions regarding comments on the financial statements and
related
matters. Please contact Jason Wynn at (202) 551-3756 or me at
(202)
551-3740 with any other questions. Direct all correspondence to
the
following ZIP code: 20549-7010.
Sincerely,
H. Roger Schwall
Assistant Director
cc: S. Eisen
K. Calder
J. Wynn
via facsimile
David Oelman and Catherine Gallagher
Vinson & Elkins L.L.P.
(713) 615-5861
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Mr. R. Patrick Murray, II
Calumet Specialty Products Partners, L.P.
November 4, 2005
page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
MAIL STOP 7010