UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark one)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 2020
or
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 001-36137
Sprague Resources LP
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
45-2637964
(I.R.S. Employer
Identification No.)
185 International Drive
Portsmouth, New Hampshire 03801
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (800) 225-1560
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Units Representing Limited Partner Interests
Trading Symbol(s)
SRLP
Name of each exchange on which registered
New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90
days. Yes x No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during
the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth
company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange
Act.
Large accelerated filer
Non-accelerated filer
o
o
Accelerated filer
Smaller reporting company
Emerging growth company
x
o
o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by checkmark if the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting
under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. x
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.): Yes ☐ No x
The aggregate market value of common units held by non-affiliates of the registrant was approximately $150 million as of June 30, 2020 (the last business day of its most
recently completed second fiscal quarter), based on the last sale price of such units as quoted on the New York Stock Exchange. This determination of affiliate status is not
necessarily a conclusive determination for other purposes.
The registrant had 22,946,305 common units outstanding as of March 4, 2021.
Documents Incorporated by Reference: None
Table of Contents
SPRAGUE RESOURCES LP
ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
PART I
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
PART II
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
PART III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
PART IV
Item 15.
Item 16.
Signatures
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships, Related Transactions and Director Independence
Principal Accounting Fees and Services
Exhibits and Financial Statement Schedules
Form 10-K Summary
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K ("Annual Report") and any information incorporated by reference, contains statements that we believe are
“forward-looking statements”. Forward looking statements are statements that express our belief, expectations, estimates, or intentions, as well as those
statements we make that are not statements of historical fact. Forward-looking statements provide our current expectations and contain projections of results
of operations, or financial condition, and/ or forecasts of future events. Words such as “may”, “assume”, “forecast”, “position”, “seek”, “predict”,
“strategy”, “expect”, “intend”, “plan”, “estimate”, “anticipate”, “believe”, “project”, “budget”, “outlook”, “potential”, “will”, “could”, “should”, or
“continue”, and similar expressions are used to identify forward-looking statements. They can be affected by assumptions used or by known or unknown
risks or uncertainties which could cause our actual results to differ materially from those contained in any forward-looking statement. Consequently, no
forward-looking statements can be guaranteed. You are cautioned not to place undue reliance on any forward-looking statements.
Factors that could cause actual results to differ from those in the forward-looking statements include, but are not limited to: (i) changes in federal,
state, local, and foreign laws or regulations including those that permit us to be treated as a partnership for federal income tax purposes, those that govern
environmental protection and those that regulate the sale of our products to our customers; (ii) changes in the marketplace for our products or services
resulting from events such as dramatic changes in commodity prices, increased competition, increased energy conservation, increased use of alternative
fuels and new technologies, changes in local, domestic or international inventory levels, seasonality, changes in supply, weather and logistics disruptions, or
general reductions in demand; (iii) security risks including terrorism and cyber-risk, (iv) adverse weather conditions, particularly warmer winter seasons
and cooler summer seasons, climate change, environmental releases and natural disasters; (v) adverse local, regional, national, or international economic
conditions, including but not limited to, public health crises that reduce economic activity, affect the demand for travel (public and private), as well as
impacting costs of operation and availability of supply (including the coronavirus COVID-19 outbreak), unfavorable capital market conditions and
detrimental political developments such as the inability to move products between foreign locales and the United States; (vi) nonpayment or nonperformance
by our customers or suppliers; (vii) shutdowns or interruptions at our terminals and storage assets or at the source points for the products we store or sell,
disruptions in our labor force, as well as disruptions in our information technology systems; (viii) unanticipated capital expenditures in connection with the
construction, repair, or replacement of our assets; (ix) our ability to integrate acquired assets with our existing assets and to realize anticipated cost savings
and other efficiencies and benefits; and (x) our ability to successfully complete our organic growth and acquisition projects and/or to realize the anticipated
financial and operational benefits. These are not all of the important factors that could cause actual results to differ materially from those expressed in our
forward-looking statements. Other known or unpredictable factors could also have material adverse effects on future results. Consequently, all of the
forward-looking statements made in this Annual Report are qualified by these cautionary statements, and we cannot assure you that actual results or
developments that we anticipate will be realized or, even if realized, will have the expected consequences to or effect on us or our business or operations. In
light of these risks, uncertainties and assumptions, the forward-looking events discussed in this Annual Report may not occur.
When considering these forward-looking statements, please note that we provide additional cautionary discussion of risks and uncertainties in
Part I, Item 1A “Risk Factors”, in Part II, Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, and in Part
II, Item 7A “Quantitative and Qualitative Disclosures About Market Risk” of this Annual Report. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in this Annual Report may not occur.
Forward-looking statements contained in this Annual Report speak only as of the date of this Annual Report (or other date as specified in this Annual
Report) or as of the date given if provided in another filing with the U.S. Securities and Exchange Commission ("SEC"). We undertake no obligation, and
disclaim any obligation, to publicly update, review or revise any forward-looking statements to reflect events or circumstances after the date of such
statements. All forward looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary
statements contained or referred to in this Annual Report and our other existing and future periodic reports filed with the SEC.
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Item 1. Business
PART I
As used in this Annual Report, unless the context otherwise requires, references to “Sprague Resources,” the “Partnership,” “we,” “our,” “us,” or
like terms, refer to Sprague Resources LP and its subsidiaries; references to our "General Partner" refer to Sprague Resources GP LLC; references to "Axel
Johnson" or the "Sponsor" refer to Axel Johnson Inc. and its controlled affiliates, collectively, other than Sprague Resources, its subsidiaries and its General
Partner; and references to "Sprague Holdings" refer to Sprague Resources Holdings LLC, a wholly owned subsidiary of Axel Johnson and the owner of our
General Partner. Our General Partner is a wholly owned subsidiary of Axel Johnson.
Our Partnership
We are a Delaware limited partnership formed in June 2011 by Sprague Holdings and our General Partner. We engage in the purchase, storage,
distribution and sale of refined products and natural gas, and provide storage and handling services for a broad range of materials. In October 2013, we
became a publicly traded master limited partnership ("MLP") and our common units representing limited partner interests are listed on the New York Stock
Exchange ("NYSE") under the ticker symbol “SRLP".
Our Predecessor was founded in 1870 as the Charles H. Sprague Company in Boston, Massachusetts; and, in 1905, the company opened the Penobscot
Coal and Wharf Company, a tidewater terminal located in Searsport, Maine. By World War II, the company was operating eleven terminals and a fleet of two
dozen vessels transporting coal and other products throughout the world. As fuel needs diversified in the United States, the company expanded its product
offerings and invested in terminals, tankers, and product handling activities. In 1959, the company expanded its oil marketing activities via entry into the
distillate oil market. In 1970, the company was sold to Royal Dutch Shell’s Asiatic Petroleum subsidiary; and, in 1972, Royal Dutch Shell sold the company
to Axel Johnson Inc., a member of the Axel Johnson Group of Stockholm, Sweden.
We are one of the largest independent wholesale distributors of refined products in the Northeast United States based on aggregate terminal capacity.
We own, operate and/or control a network of refined products and materials handling terminals and storage facilities predominantly located in the Northeast
United States from New York to Maine and in Quebec, Canada that have a combined storage tank capacity of approximately 14.6 million barrels for refined
products and other liquid materials, as well as approximately 2.0 million square feet of materials handling capacity. We also have access to approximately 43
third-party terminals in the Northeast United States through which we sell or distribute refined products pursuant to rack, exchange and throughput
agreements.
We operate under four business segments: refined products, natural gas, materials handling and other operations. See Part II, Item 7 - "Management’s
Discussion and Analysis of Financial Condition and Results of Operations—Results of Operations" for a discussion of financial results by segment and see
Segment Reporting included under Note 17 to our Consolidated Financial Statements for a presentation of financial results by reportable segment.
As of December 31, 2020, our Sponsor, through its ownership of Sprague Holdings, owned 12,951,236 common units, representing 56.4% of the
limited partner interest in the Partnership. Sprague Holdings also owns our General Partner, which in turn owns a non-economic interest in the Partnership.
Sprague Holdings currently holds all of our incentive distribution rights ("IDRs"), which entitle it to receive increasing percentages, up to a maximum of
50.0%, of the cash the Partnership distributes from distributable cash flow in excess of $0.4744 per unit per quarter. The maximum IDR distribution of
50.0% does not include any distributions that Sprague Holdings may receive on any limited partner units that it owns.
On February 11, 2021, Sprague Holdings provided notice to the Partnership that Sprague Holdings had made an IDR Reset Election (the “IDR Reset
Election”), as defined in our partnership agreement. Pursuant to the IDR Reset Election, the Partnership will issue 3,107,248 common units to Sprague
Holdings, the minimum quarterly distribution amount will be increased from $0.4125 per common unit per quarter to $0.6675 per common unit per quarter
and the levels at which the incentive distribution rights participate in distributions will be reset at higher amounts based on current common unit distribution
rates and a formula in our partnership agreement. The IDR Reset Election is expected to be consummated on March 5, 2021. Upon consummation of the
IDR Reset Election, Sprague Holdings will own 16,058,484 common units, representing 61.6% of the limited partner interest in the Partnership.
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We furnish or file with the SEC our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to
those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act. We make these
documents available free of charge on our website as soon as reasonably practicable after we electronically file such material with, or furnish such material
to, the SEC. Our internet address is www.spragueenergy.com. Information on our website is not incorporated into this Annual Report on Form 10-K or our
other filings with the SEC and is not a part of them.
Business Strategies
Our primary business objective is to increase distributable cash flow per unit over time by executing the following strategies:
•
•
•
Increase our business with our existing assets and customers. We will make investments in our existing asset base to handle additional
products and provide new services to customers. We also intend to win additional business by better serving customers' need for certainty of
supply, reduced commodity price risk and high quality customer service.
Acquire additional terminals and marketing and distribution businesses that are accretive. We intend to grow our asset and customer base by
acquiring additional marine and inland terminals (both refined products and materials handling) within and adjacent to the geographic markets
we currently serve. We also intend to acquire additional refined products and natural gas marketing businesses that can leverage our existing
investment in our logistics capabilities and customer service systems to further increase our cash flow.
Limit our exposure to commodity price risk and volatility. We take title to the products we sell in our refined products and natural gas
segments, while our materials handling business does not take title to products and is operated predominantly under fixed-fee, multi-year
contracts. We will continue to manage our exposure to commodity prices and seek to protect our sales margins by maintaining a balanced
position in our purchases and sales through the use of derivatives and forward contracts. Our hedging activities are bounded by specific limits
established by the board of directors of our General Partner, which are monitored and reported to senior management on a daily basis by our
risk group.
• Maintain our operational excellence. We intend to maintain our long history of safe, cost-effective operations and environmental stewardship
by investing in the maintenance of our assets and providing training programs for our personnel. We will work diligently to meet
environmental regulations and we will continue to enhance our safety programs as our business grows and operating conditions change.
Refined Products
Overview
The products we sell in our refined products segment can be grouped into the following categories: distillates, gasoline and residual fuel oil and
asphalt. Our refined products segment accounted for 86%, 89% and 89% of our total net sales for the years ended December 31, 2020, 2019 and 2018,
respectively. Of our total volume sold in our refined products segment in 2020, distillates accounted for 78%, gasoline accounted for 13% and residual fuel
oil and asphalt accounted for 9%.
Distillates. We sell four kinds of distillates: heating oil (both unbranded and our proprietary premium HeatForce® heating oil brand), diesel fuel (both
unbranded and our proprietary premium RoadForce® diesel fuel brand), kerosene and jet fuel. In 2020, heating oil accounted for 57%, diesel fuel accounted
for 41%, and other distillates accounted for 2% of the total volume of distillates we sold. We have the capability at several of our facilities to blend biodiesel
with distillates in order to sell heating oil and diesel fuel with wide varieties of biodiesel content. In 2020, biofuel blended products accounted for 19% of the
distillate fuel volumes sold. Distillate volumes accounted for 78%, 79%, and 78% of our total refined products sales for the years ended December 31, 2020,
2019 and 2018, respectively.
Gasoline. We also sell unbranded gasoline. Gasoline volumes accounted for 13%, 10% and 10% of our total refined products sales for the years ended
December 31, 2020, 2019 and 2018, respectively.
Residual Fuel Oil and Asphalt. We sell various sulfur grades of residual fuel oil, blended to meet customer requirements. Residual fuel oil and asphalt
volumes accounted for 9%, 11% and 12% of our total refined products sales for the years ended December 31, 2020, 2019 and 2018, respectively.
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Customers, Contracts and Pricing
We sell heating oil, diesel fuel, kerosene, unbranded gasoline, jet fuel, and residual fuel oil to wholesalers, retailers and commercial customers. The
majority of these sales are made free on board, or FOB, at the bulk terminal or inland storage facility we own and/or operate or at facilities with which we
have storage and throughput arrangements. In a FOB sale, the price of products sold includes the cost of delivering such product to the FOB location and any
further shipping expenses are borne by the purchaser.
Heating oil sales are made to approximately 900 wholesale distributors and retailers through the Sprague RealTime® pricing platform, under rack
agreements based upon our posted price, contracts with index-based pricing provisions, and fixed price forward contracts. Diesel fuel sales are made to
approximately 600 wholesalers and transportation fuel distributors. We also sell unbranded gasoline at Partnership-owned and at third-party locations,
primarily to resellers. Residual fuel oil is sold to approximately 110 commercial and industrial accounts under rack agreements and contracts with index-
based pricing provisions.
Our commercial customers include federal and state agencies, municipalities, regional transit authorities, large industrial companies, real estate
management companies, natural gas resource development companies and educational institutions. Most of these sales are made on a delivered basis,
whereby we either deliver the product with our own trucks and barges or arrange with third-party haulers to make deliveries. We also deliver distillate and
residual fuel oil by truck to marine customers.
Public sector entities also purchase our heating oil, diesel fuel, unbranded gasoline and residual fuel oil through competitive bidding processes. We
currently have contracts with the U.S. government as well as with numerous states, municipalities, agencies and educational institutions.
For the year ended December 31, 2020, no customer represented more than 10% of net sales for our refined products segment.
Natural Gas
Overview
We purchase, sell and distribute natural gas to approximately 15,000 commercial and industrial customer locations across 13 states in the Northeast
and Mid-Atlantic United States. Our natural gas segment accounted for 11%, 9% and 9% of our total net sales for the years ended December 31, 2020, 2019
and 2018, respectively. We deliver natural gas to customers through utility interconnections of pipelines and manage interactions with utilities on behalf of
our customers. We sell natural gas pursuant to fixed price, floating price and other structured pricing contracts. We utilize physical purchase instruments as
well as financial and derivative instruments both over the counter and through exchanges such as the Intercontinental Exchange Inc. ("ICE") and the New
York Mercantile Exchange ("NYMEX"), to manage our natural gas commodity price risk.
In order to manage our supply commitments to our customers and provide operational flexibility and logistic opportunities, we enter into supply
contracts, commitments for pipeline transportation capacity, leases for storage space and other physical delivery services for various terms. We believe that
entering into these types of arrangements provides us with potential opportunities to grow our existing customer relationships and to pursue additional
relationships.
Customers
Our natural gas customers operate in the industrial and commercial sectors in the Northeast and Mid-Atlantic United States, with the highest
concentration in New England and New York. Examples of customers include industrial users of varying sizes (e.g., pulp and paper, chemicals,
pharmaceutical and metals plants) to various commercial customers (e.g., hospitals, universities, apartment buildings and retail establishments). The
industrial customers have a high concentration of process load to support their manufacturing requirements, with the largest uses by the commercial
customers typically for heating, cooling, lighting, cooking and drying.
For the year ended December 31, 2020, no customer represented more than 10% of net sales for our natural gas segment.
Contracts/Pricing
We use various types of contracts for the sale and delivery of natural gas to our customers, with terms ranging from month-to-month to over two years.
We provide a wide range of pricing options to our customers, including daily pricing and long-term fixed pricing. For example, we may offer a contract that
permits the customer to lock in a basis or location differential relative to the Henry Hub delivery location and then fix the price at a later date based on the
prevailing market pricing. There are various other alternatives such as “capped” pricing (essentially setting a maximum) or daily pricing based on
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a differential to a published market index. Due to the commodity price risk associated with uncertain customer usage patterns, we limit the number of
transactions that require a single price for all volumes delivered, with the pricing of the non-contractual volumes primarily based on prevailing market
economics. For any transaction where the competitive dynamics require a single price for all volumes delivered, we seek to manage the risk by, for instance,
including appropriate increases in the cost build-up to reflect higher hedging costs.
Materials Handling
Overview
Materials handling consists of the movement of raw materials and finished goods through our waterfront terminals. We utilize our terminal network to
offload, store and/or prepare for delivery a large number of liquid products, bulk and break bulk materials and provide heavy lift services and other handling
services to some of the same customers that we supply with refined products and natural gas. Our materials handling segment accounted for 2% of our total
net sales for each of the years ended December 31, 2020, 2019 and 2018.
We are capable of providing numerous types of materials handling services, including ship handling, crane operations, pile building, warehouse
operations, scaling and, in some cases, transportation to the final customer. Because the products we handle are generally owned by our customers, we have
minimal to no working capital requirements, commercial risk or inventory risk. Our materials handling activity is generally conducted under multi-year
agreements as either fee-based activities or as leasing arrangements when the right to use an identified asset (such as storage tanks or storage locations) has
been conveyed in the agreement.
Major Types of Materials Handling and Services
The type of materials handling and services we provide can be divided into three major categories:
Liquid. In a manner similar to our refined products operation our terminal network of marine docks, product pipelines and storage tanks are utilized to
store and trans-load various other third party owned liquid products to and from ocean vessels, railcars and tanker trucks. Examples of liquid materials
handled include crude oil, refined products, asphalt and clay slurry. Liquid handling activities include securing the vessel, attaching product lines from ship
pipes to dock product lines, supervising discharge into tanks, measuring tank quantities, storing product, loading product into authorized trucks or railcars
and in some cases transporting the product. Some products require heated storage allow for flow at ambient temperatures. The operations of Kildair Service
ULC, our Canadian subsidiary ("Kildair"), include materials handling contracts involving trans-loading and storage of various petroleum products including
crude, liquid asphalt and vacuum gas oil ("VGO").
Bulk. Bulk materials are typically aggregate materials that are moved in large vessels configured with multiple holds that store unpackaged products.
Examples of bulk material include salt, petroleum coke, gypsum, and coal. Bulk load vessels are normally offloaded using cranes that can reside either on
the vessel or on the dock of the terminal. In a typical discharge, the services performed include: securing the vessel to the dock, operating the vessel cranes,
transferring products to trucks via large dock hoppers, transporting the materials to a holding pad, building materials up into large storage piles, covering the
piles with protective tarps, storing the product, loading the product into trucks or railcars, scaling the loaded trucks and sometimes transporting the product
to its final destination.
Break bulk. Break bulk materials are shipped in less than bulk quantities, normally with some type of secondary packaging. Examples of break bulk
materials include one-ton sacks of raw materials, pallets of stones, bales of raw wood pulp and rolls of paper. Another subcategory of break bulk materials is
large construction project cargo such as windmill components, often referred to as heavy lift. Break bulk handling activities include securing vessels,
unloading or loading vessels either with cranes or specialty fork trucks, transferring products into warehouses or onto pads for storage, reloading products
onto trucks or railcars and sometimes transporting products to their final destinations.
Customers
Our materials handling operations can service multiple customer types during any single operation, including: ocean shippers, multiple logistics firms,
trucking firms and the materials supplier or consumer. Materials we handle normally fall into three major categories. The first category involves raw
materials or finished goods shipped by water into local markets to support local production, manufacturing or construction firms. Examples of these products
include asphalt for road construction, gypsum rock for drywall manufacturing, road salt for local road treatment, petroleum coke or utility fuels for energy
demand and clay slurry for finished paper treatment. The second category of materials we handle are materials manufactured locally for export via vessel to
other countries. These materials include wood pulp for paper manufacture in Asia or Europe and tallow for biodiesel production in Europe. The third
category of materials we handle are both crude oil and refined products sourced either in Canada, U.S. or internationally for a range of use in local refineries
and/or for further export to the U.S. or elsewhere.
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Contracts/Pricing
The typical contract term for our materials handling services varies depending on the frequency and type of service. For bulk and liquid services, the
commodity is normally a raw materials input for industrial production (clay slurry) or construction of roads (asphalt) or wallboard (gypsum rock). As such,
the demand is more ratable and the customer is normally in need of guaranteed space within a terminal. These customers typically enter into term contracts
that can range from one to 20 years depending on the relative importance of the material to their production and the amount of any capital infrastructure that
we need to develop for such customers. As of December 31, 2020, the weighted-average life of our materials handling contracts was eight years, with a
weighted-average remaining term of three years, each calculated using adjusted gross margin as defined in Item 7 - "Management’s Discussion and Analysis
of Financial Condition and Results of Operations-How Management Evaluates Our Results of Operations-Adjusted Gross Margin and Adjusted EBITDA”,
attributable to these contracts.
Historically, our customers have paid for terminal improvements for specialty handling systems such as a clay slurry screening plant, while we pay for
more generic infrastructure improvements such as storage pads.
For container and break bulk services, it is typical for the user of that material to contract on an individual shipment basis. For example, a typical pulp
merchant may choose to sell its pulp domestically or to users in Europe or Asia depending on the highest delivered value it can yield. As such, its choice of
delivery mode and terminal will be driven by the location of its final customer. Therefore, we normally maintain a published rate for most generic services,
subject to change depending on market conditions.
Other Operations
Our other operations segment primarily includes the marketing and distribution of coal out of our Portland, Maine terminal and certain commercial
trucking activities conducted by Kildair. For the years ended December 31, 2020, 2019 and 2018 our other operations segment accounted for less than 1% of
our total net sales.
Commodity Risk Management
Because we take title to the refined products and natural gas that we sell, we are exposed to commodity risk. Our materials handling business is a fee-
based business and, accordingly, our operations in that business segment have only limited exposure to commodity risk. Commodity risk is the risk of
market fluctuations in the price of commodities such as refined products and natural gas. We endeavor to limit commodity price risk in connection with our
daily operations. Generally, as we purchase and/or store refined products, we reduce commodity risk through hedging by selling futures contracts on
regulated exchanges or using other derivatives, and close out the hedges as we sell the product for physical delivery to third parties. Products are generally
purchased and sold at spot prices, fixed prices or indexed prices. While we seek to use these transactions to maintain a position that is substantially balanced
between purchased volumes and sales volumes through regulated exchanges or derivatives, we may experience net unbalanced positions for short periods of
time as a result of variances in daily sales and transportation and delivery schedules, as well as logistical issues associated with inclement weather conditions
or infrastructure disruptions. Our general practice is to not hold refined products futures contracts or other derivative products and instruments for the sole
purpose of speculating on price changes. While our policies are designed to limit market risk, some degree of exposure to unforeseen fluctuations in market
conditions remains.
Our operating results are sensitive to a number of commodity risk factors. Such factors include commodity location, grades of product, individual
customer demand for grades or location of product, localized market price structures, availability of transportation facilities, daily delivery volumes that vary
from expected quantities and timing and costs to deliver the commodity to the customer. The term “basis risk” is used to describe the inherent market price
risk created when a commodity of certain grade or location is purchased, sold or exchanged as compared to a purchase, sale or exchange of that commodity
at a different time or place, including, without limitation, transportation costs and timing differentials. We attempt to reduce our exposure to basis risk by
grouping our purchase and sale activities by geographical region and commodity quality in order to stay balanced within such designated region.
With respect to the pricing of commodities, we enter into derivative positions to limit or hedge the impact of market fluctuations on our purchases and
forward fixed price sales of refined products and natural gas. All hedge positions are reflected in our results of operations.
With respect to refined products, we primarily use a combination of futures contracts, over-the-counter swaps and forward purchases and sales to
hedge our price risk. For light oils (gasoline and distillates), we primarily utilize the actively traded futures contracts on the regulated NYMEX to hedge our
positions. Heavy oils are typically hedged with fixed-for-floating price residual fuel oil swaps contracts, which are either balanced by offsetting positions or
financially settled.
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With respect to natural gas, we generally use fixed-for-floating price swaps contracts that trade on the Intercontinental Exchange ("ICE") for hedging.
As an alternative, we may use NYMEX natural gas futures for such purposes. In addition, we use natural gas basis swaps to hedge our basis risk.
For both refined products and natural gas, if we trade in any derivatives that are not cleared on an exchange, we strive to enter into derivative
agreements with counterparties that we believe have a strong credit profile and/or provide us with trade credit to limit counterparty risk and margin
requirements.
Our risk management policies, and the specific limits therein, are intended to prevent unauthorized trading and to maintain substantial balance
between purchases and sales or future delivery obligations. However, these steps may not detect and/or prevent all violations of such risk management
policies, processes and procedures, particularly if deception or other intentional misconduct is involved.
Storage and Distribution
Marine terminals and inland storage facilities play a key role in the distribution of product to our customers. Our facilities are equipped to provide
terminalling, storage and distribution of both solid and liquid products to serve our refined products and materials handling businesses. Each facility has
capabilities that are unique to the local markets served. A number of facilities are used to handle liquid, dry bulk, break bulk and refined products at the same
terminal and in most cases across the same dock, providing flexibility to fully utilize terminal assets to meet a variety of fuel and third-party cargo handling
demands.
The marine terminals and inland storage facilities from which we distribute product are supplied by ship, barge, truck, pipeline or rail. Our customers
receive product from our network of marine terminals and inland storage facilities via truck, barge, rail or pipeline.
Our marine terminals consist of multiple storage tanks and automated truck loading equipment. These automated systems monitor terminal access,
volumetric allocations, credit control and carrier certification through the electronic identification of customers. In addition, some of the marine and inland
terminals are equipped with truck loading racks capable of providing automated blending and additive packages that meet our customers’ specific
requirements. Many of our marine and inland terminals operate 24 hours per day.
Throughput arrangements allow storage of our product at terminals owned by others. These arrangements permit our customers to receive product at
third-party terminals while we pay terminal owners fees for services rendered in connection with the receipt, storage and handling of the product. Payments
we make to terminal owners may be fixed or fluctuate based upon the volume of product that is delivered and sold at the terminal.
Exchange agreements allow our customers to take delivery of product at a terminal or facility that is not owned or leased by us. An exchange is a
contractual agreement pursuant to which the parties exchange product at their respective terminals or facilities. For example, we (or our customers) receive
product that is owned by the other party from such party’s facility or terminal and we deliver the same volume of product to such party (or to such party’s
customers) out of one of the terminals in our terminal network. Generally, both parties to an exchange transaction pay a handling fee (similar to a throughput
fee) and often one party also pays a location differential that covers any excess transportation costs incurred by the other party in supplying product to the
location at which the first party receives product. Costs incurred in exchanges may also include product value differentials.
Our Terminals and Storage Facilities
As of December 31, 2020, we owned, operated, and/or controlled a network of refined products and material handling terminals and storage facilities
predominantly located in the Northeast United States from New York to Maine and in Quebec, Canada that have a combined storage tank capacity of
approximately 14.6 million barrels for refined products and other liquid materials, as well as approximately 2.0 million square feet of materials handling
capacity. We also have access to approximately 43 third-party terminals in the Northeast United States through which we sell or distribute refined products
pursuant to rack, exchange and throughput agreements.
On December 23, 2020, we sold the Mt. Vernon terminal to an unaffiliated buyer. In connection with the sale, we recorded a net gain on the sale of
$8.1 million for the year ended December 31, 2020, which is included within other operating income in the consolidated statements of income. Pursuant to a
post-closing escrow and access agreement, we have deposited $1.2 million in an escrow account to secure our fulfillment of various environmental
remediation regulatory requirements.
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For a more detailed description of our terminals and storage facilities, please read Part I, Item 2 - "Properties.”
Competition
We encounter varying degrees of competition in the marketing of our refined products based on product type and geographic location. In our primary
Northeast United States market, we compete in various product lines and for a range of customer types. The principal methods of competition in our refined
products operations are pricing, service offerings to customers, credit support and certainty of supply. Our competitors include terminal companies, major
integrated oil companies and their marketing affiliates and independent marketers of varying sizes, financial resources and experience. We believe that our
being one of the largest independent wholesale distributors of refined products in the Northeast United States (based on aggregate terminal capacity), our
ownership of various marine-based terminals and our reputation for reliability and strong customer service allow us to be competitive in marketing refined
products in the areas in which we operate.
Competitors of our natural gas sales operations generally include natural gas suppliers and distributors of varying sizes, financial resources and
experience, including producers, pipeline companies, utilities and independent marketers. The principal methods of competition in our natural gas operations
are in obtaining supply, pricing optionality for customers and effective support services, such as scheduling and risk management. We believe that our
sizable market presence and strong customer service and offerings allow us to be competitive in marketing natural gas in the areas in which we operate.
In our materials handling operations, we primarily compete with public and private port operators. Although customer decisions are substantially
based on location, additional points of competition include types of services provided and pricing. We believe that our ability to provide materials handling
services at a number of our refined products terminals and our demonstrated ability to handle a wide range of products provides us a competitive advantage
in competing for products-related handling services in the areas in which we operate.
Seasonality
Demand for natural gas and some refined products, specifically heating oil and residual fuel oil for space heating purposes, is generally higher during
the period of November through March than during the period of April through October. Therefore, our results of operations for the first and fourth calendar
quarters are generally stronger than for the second and third calendar quarters. For example, over the 36-month period ended December 31, 2020, we
generated an average of 77% of our total heating oil and residual fuel oil net sales during the months of November through March.
Employees
As of December 31, 2020, our General Partner employed approximately 663 full-time employees who supported our operations, 73 of whom were
covered by six collective bargaining agreements. One of these agreements, covering 38 employees, is up for renewal on June 30, 2021. Our Canadian
subsidiary had 102 employees as of December 31, 2020, 39 of whom were covered by one collective bargaining agreement which expires on March 18,
2021. Overall we believe that our relationships with full-time employees and labor unions are generally good.
Health and Safety
We maintain a culture of safety grounded on the premise of eliminating workplace incidents, risks and hazards. We have a Health, Safety,
Environment and Sustainability department ("HSE") to implement processes to help eliminate high-risk actions and identified safety hazards. We strive to
provide all employees with a safe work environment and the necessary skills, training, knowledge, equipment, and management to perform their
responsibilities in the healthiest and safest manner possible. We track safety performance using industry standard metrics and work continuously to improve
safety across our businesses. In 2020, Sprague’s company-wide Recordable Injury Frequency ("RIF") was calculated to be 1.68, down from 3.60 in March of
2019, and below its industry peer group. Our 2021 goal is to reduce Occupational Safety and Health Administration ("OSHA") recordable incidents by 25%
year over year. In response to the global novel coronavirus pandemic ("COVID-19"), we have implemented and continue to implement safety measures in all
our facilities. The ongoing COVID-19 pandemic has led to unique challenges, and we are striving to ensure the health, safety and general well-being of our
employees. We continue to evolve our programs to meet our employees’ health and wellness needs, which we believe is essential to attract and retain
employees of the highest level, and we offer a competitive benefits package focused on fostering work/life integration.
Inclusion, Equity and Diversity
We make it a priority to embrace diversity and collaboration in our workforce, our ways of thinking, and our business experiences. Our goal is to
create a culture where we value, respect, and provide fair treatment and equal opportunities for all employees. We encourage employees to consider all
points of view to help deliver better results. Inclusion, equity and diversity
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("IE&D") is vital to our business as whole, not strictly a human resources initiative. We continue to build IE&D into our culture with a focus on continuous
improvement, and have identified several key objectives that guide our effort and by which we will demonstrate our commitment to fostering inclusion,
equity and diversity, including:
•
•
Promoting a work environment that enables employees to feel safe to express their ideas and perspectives and feel they belong to our team; and,
Recruiting, developing and retaining diverse top talent.
Corporate social and environmental responsibility
Our values, rooted in trust, integrity, and collaboration, lay the foundation for our commitment to corporate social and environmental responsibility.
We are committed to conducting business in an environmentally sensitive manner and we seek to comply with all applicable local, state, provincial, and
federal environmental regulatory requirements. Beyond providing energy solutions that solve our customers' current energy challenges, we believe that to be
truly successful, it's crucial that we do our part to continually adapt to the ever changing energy landscape by seeking out initiatives that reduce our
environmental footprint, helping to improve the world for current and future generations. For us, that means we are committed to: protecting our planet by
minimizing the environmental impact associated with our operations; striving to contribute our time, talent and resources to strengthen the communities
where we live and work; and engaging in ethical practices. We're all in this together; we believe when our local communities succeed, we succeed. We and
our employees live this mantra with various initiatives focused on supporting our communities both financially and with employee time.
Compensation programs and employee benefits
The main objective of our compensation program is to provide a compensation package that will attract, retain, motivate and reward employees. In
addition to competitive base salaries, we accomplish this compensation objective through our Thrift 401(k) plan match program and contributions to a
Defined Contribution plan. Employees are also eligible for annual bonus amounts tied to our incentive plan metrics and objectives.
We are committed to providing comprehensive benefit options and it is our intention to offer benefits that will allow our employees and their families
to live healthier and more secure lives. Some examples of the wide ranging benefits we offer are: medical insurance, prescription drug benefits, dental
insurance, vision insurance, parental leave, short-term disability, long-term disability, health rewards, employee assistance programs, health savings accounts
and flexible spending accounts.
Environment
General
Our petroleum product terminal and supply operations are subject to extensive and stringent environmental laws. As part of our business, we own and
operate petroleum storage and distribution facilities and a fleet of petroleum trucks, and must comply with environmental laws at the federal, state and local
levels, which increase the cost of operating terminals and our business generally. These laws include statutes, such as the Clean Water Act and the Clean Air
Act, and regulations, which are frequently modified or revised to impose new obligations that are applicable to our operations, including the acquisition of
permits to conduct certain activities limiting or preventing the release of materials from our facilities, managing wastes generated by our operations, the
installation of pollution control equipment, responding to releases of process materials or wastes from our operations, and the risk of substantial liabilities for
pollution resulting from our operations. However, we do not believe that we are affected in a significantly different manner by these laws and regulations
than are our competitors.
Our operations also utilize a number of petroleum storage facilities and distribution facilities that we do not own or operate, but at which refined
products are stored. We utilize these facilities through several different contractual arrangements, including leases, throughput and terminalling services
agreements. If facilities with which we contract that are owned and operated by third parties fail to comply with environmental laws, they could be shut
down, requiring us to incur costs to use alternative facilities.
Environmental laws and regulations can restrict or impact our business in several ways, such as:
•
•
•
Requiring capital expenditures to comply with environmental control requirements;
Requiring remedial action to mitigate releases of hydrocarbons, hazardous substances or wastes caused by our operations or attributable to former
operators; and,
Curtailing the operations of facilities deemed in non-compliance with environmental laws and regulations.
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Failure to comply with environmental laws and regulations may trigger a variety of administrative, civil and criminal enforcement measures, including
the assessment of monetary penalties, the imposition of remedial requirements and the issuance of orders enjoining future operations. Certain environmental
statutes impose strict, joint and several liability for costs required to clean up and restore sites where hydrocarbons, hazardous substances or wastes have
been released or disposed. Moreover, neighboring landowners and other third parties may file claims for personal injury and property damage allegedly
caused by the release of hydrocarbons, hazardous substances or other wastes into the environment.
The trend in environmental regulation is to place more restrictions and limitations on activities that may affect the environment. For example, shortly
after taking office in January 2021, President Biden issued a series of executive orders designed to address climate change and requiring agencies to review
environmental actions taken by the Trump administration, as well as a memorandum to departments and agencies to refrain from proposing or issuing rules
until a departmental or agency head appointed or designated by the Biden administration has reviewed and approved the rule. President Biden’s executive
orders, as well as reentry into the Paris Agreement as discussed below, may result in the development of additional regulations or changes to existing
regulations. As a result, there can be no assurance as to the amount or timing of future expenditures for environmental compliance or remediation and actual
future expenditures may be different from the amounts we currently anticipate. We try to anticipate future regulatory requirements that might be imposed
and to plan accordingly to remain in compliance with changing environmental laws and regulations and to minimize the costs of such compliance.
We do not believe that compliance with federal, state or local environmental laws and regulations will have a material adverse effect on our business,
financial position or results of operations. However, we can provide no assurance that future events, such as changes in existing laws, changes in the
interpretation of existing laws, promulgation of new laws, or the development or discovery of new facts or conditions will not cause us to incur significant
costs or will not have a material adverse effect on our financial position, results of operations or cash available for distribution to our unitholders.
Hazardous Substances and Releases
Our business is subject to laws relating to the release of hazardous substances into the water or soils, which include requirements to control pollution
of the environment. For instance, the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, also known as CERCLA or
the Superfund law, and comparable state laws impose liability, without regard to fault or the legality of the original conduct, on certain classes of persons
who are considered to be responsible for the release of a hazardous substance into the environment. These persons include the owner or operator of the site
where the release occurred and companies that disposed or arranged for the disposal of the hazardous substances. Under the Superfund law, these persons
may be subject to joint and several liability for the costs of cleaning up the hazardous substances that have been released into the environment, for damages
to natural resources and for the costs of certain health studies. The Superfund law also authorizes the EPA, and in some instances third parties, to act in
response to threats to the public health or the environment and to seek to recover from the responsible persons the costs they incur. It is possible for
neighboring landowners and other third parties to file claims for personal injury and property damage allegedly caused by hazardous substances or other
pollutants released into the environment. In the course of our ordinary operations, we may generate substances that fall within the Superfund law’s definition
of a hazardous substance and, as a result, we may be jointly and severally liable under the Superfund law for all or part of the costs required to clean up sites
at which those hazardous substances have been released into the environment.
We currently own, lease or use storage or distribution facilities where hydrocarbons are being or have been handled for many years. Although we have
used operating and disposal practices that were standard in the industry at the time, hydrocarbons or other wastes may have been disposed of or released on,
under or from the properties owned or leased by us or on or under other locations where we have contractual arrangements or where these wastes have been
taken for disposal. In addition, many of these properties have been operated by third parties whose treatment and disposal or release of hydrocarbons or other
wastes was not under our control. These properties and wastes disposed thereon may be subject to the Superfund law or other federal and state laws. Under
these laws, we could be required to remove or remediate previously disposed wastes, including wastes disposed of or released by prior owners or operators,
to clean up contaminated property, including groundwater contaminated by prior owners or operators, or to make capital improvements to prevent future
contamination.
Our operations generate a variety of wastes, including some hazardous wastes that are subject to the federal Resource Conservation and Recovery Act,
as amended ("RCRA") and comparable state laws. These regulations impose detailed requirements for the handling, storage, treatment and disposal of
hazardous waste. Our operations also generate solid wastes which are regulated under state law or the less stringent solid waste requirements of the federal
Solid Waste Disposal Act. We believe that our operations are in substantial compliance with the existing requirements of RCRA, the Solid Waste Disposal
Act and similar state and local laws, and the cost involved in complying with these requirements is not material. We are also incurring ongoing costs for
monitoring groundwater at several facilities that we operate. We believe that these costs will not have a material impact on our financial condition or results
of operations.
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Above-Ground Storage Tanks
Above-ground tanks that contain petroleum and other hazardous substances are subject to comprehensive regulation under environmental laws.
Generally, these laws impose liabilities for releases and require secondary containment systems for tanks or require the operators take alternative precautions
to ensure that no contamination results from tank leaks or spills. We believe we are in substantial compliance with environmental laws and regulations
applicable to above-ground storage tanks.
The Oil Pollution Act of 1990, or OPA, addresses three principal areas of oil pollution-prevention, containment and cleanup. In order to handle, store
or transport oil, we are required to file oil spill response plans with the United States Coast Guard (for marine facilities) and the EPA. States in which we
operate have enacted laws similar to OPA. We maintain such plans, and when required have submitted plans and received federal and state approvals
necessary to comply with the OPA, the Clean Water Act and related regulations. We believe we are in substantial compliance with regulations promulgated
under OPA and similar state laws.
Under OPA and comparable state laws, responsible parties for a regulated facility from which oil is discharged may be subject to strict, joint and
several liability for removal costs and certain other consequences of an oil spill such as natural resource damages, where the spill is into navigable waters or
along shorelines. Under the authority of the federal Clean Water Act, the EPA imposes specific requirements for Spill Prevention, Control, and
Countermeasure, or SPCC, plans that are designed to prevent, and minimize the impacts of, releases from above ground storage tanks. We believe we are in
substantial compliance with regulations pursuant to OPA, the Clean Water Act and similar state laws.
From time to time, we experience spills and releases during various phases of our operations, and some of these releases can reach waters that
applicable federal and state laws would define as navigable. As a result we may be responsible for fines and penalties as well as required capital
expenditures and for implementation of compliance and maintenance programs.
Water Discharges
The federal Clean Water Act, or CWA, and analogous state laws impose strict controls on the discharge of pollutants, including spills and leaks of oil
and other substances, into waters of the United States. This law and comparable state laws prohibit the discharge of pollutants into regulated waters, except
in accordance with the terms of a permit issued by the EPA or analogous state agency and impose substantial liabilities for noncompliance. The EPA and
U.S. Army Corps of Engineers (“Corps”) previously issued a final rule in May 2015 defining the scope of the EPA’s and the Corps’ jurisdiction, i.e., the
scope of “Waters of the United States”; however, in October 2019, the EPA and the Corps published a final rule repealing the 2015 rule and re-codifying the
longstanding regulatory text that existed prior to the 2015 rule. In January 2020, the EPA and the Corps finalized a new rule to replace the 2015 rule. The
2020 rule is currently subject to a number of legal challenges. Moreover, the January 2020 rule has been identified by the Biden Administration as one of the
actions that will be reviewed to determine whether it is consistent with the policies of the Biden Administration and may be subject to suspension, revision
or rescission. Modification of the 2020 rule may result in broader applicability of the CWA.
The CWA also regulates the discharge of storm water runoff from certain industrial facilities. Accordingly, several of our facilities are required to
obtain and maintain storm water discharge permits, which require monitoring and sampling of storm water runoff from such facilities. We believe we hold
the required permits and operate in substantial compliance with those permits. While we have experienced permit discharge exceedances at some of our
terminals, we do not expect any non-compliance with existing permits and foreseeable new permit requirements to have a material adverse effect on our
financial position or results of operations.
Air Emissions
Our operations are subject to the federal Clean Air Act, or CAA, and comparable state and local laws. Under such laws, permits are typically required
to emit pollutants into the atmosphere above certain thresholds. We believe we currently hold or have applied for all necessary air permits and that we are in
substantial compliance with applicable air laws and regulations. The trend in air emissions regulation is to place more restrictions and limitations on
activities that may affect the environment. If more restrictive air laws and regulations are enacted in the future, they may have a material adverse effect on
our financial condition or results of operations.
Various federal, state and local agencies have the authority to prescribe product quality specifications for the refined products that we sell, largely in an
effort to reduce air pollution. Failure to comply with these regulations can result in substantial penalties. Although we can give no assurances, we believe we
are currently in substantial compliance with these regulations.
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Changes in product quality specifications could require us to incur additional handling costs or reduce our throughput volume. For instance, different
product specifications for different markets could require the construction of additional storage. Also, states in which we operate have either started or plan
to limit the sulfur content of home heating oil, which could also increase our costs to purchase such oil or limit our ability to sell heating oil.
Changing sulfur regulations also impact the residual fuel oil business. Restrictions on certain grades of product and in certain cases, banning residual
fuel oil in certain municipalities or regions, will force us to reconfigure existing tanks that are in residual fuel oil service.
Climate Change
In response to the April 2007 United States Supreme Court ruling in Massachusetts, et al. v. EPA that the EPA has authority to regulate carbon dioxide
emissions under the CAA, the EPA has taken several steps towards implementing regulations regarding the emission of greenhouse gases, or GHGs. In 2009,
the EPA issued a final rule declaring that six GHGs “endanger both the public health and the public welfare of current and future generations.” The issuance
of this “endangerment finding” allows the EPA to begin regulating GHG emissions under existing provisions of the federal Clean Air Act. In addition, the
EPA has issued rules requiring the reporting of GHG emissions from specified large GHG emission sources in the United States, beginning in 2011 for
emissions occurring in 2010. Certain state jurisdictions also have similar GHG reporting requirements. While our operations fall below the thresholds that
would characterize large sources, we are required to implement systems to track certain purchases of product and we believe we are in material compliance
with the regulations.
Overall, there has been a trend towards increased regulation of GHGs and initiatives, both domestically and internationally, to limit GHG emissions.
Future efforts to limit emissions associated with transportation fuels and heating fuels could reduce the market for, or pricing of, our products, and thus
adversely impact our business. In addition, it should be noted that some scientists have concluded that increasing concentrations of GHG in the earth’s
atmosphere may produce climate changes that have significant physical effects, such as increased frequency and severity of storms, droughts, and floods and
other climatic events. If any of those effects were to occur, they could have an adverse effect on our assets and operations. In addition, in 2015, the United
States participated in the United Nations Conference on Climate Change, which led to the creation of the Paris Agreement. In April 2016, the United States
signed the Paris Agreement, which requires countries to review and “represent a progression” in their nationally determined contributions, which set
emissions reduction goals, every five years. Although the United States State Department formally informed the United Nations of the United States’
withdrawal from the Paris Agreement in November 2019 and finalized that withdrawal in 2020, the United States re-entered the Paris Agreement, effective
January 20, 2021, pursuant to President Biden’s executive order. Several states and geographic regions in the United States have adopted legislation and
regulations to reduce emissions of GHGs. Additional legislation or regulation by these states and regions, the EPA, and/or any international agreements to
which the United States may become a party, that control or limit GHG emissions or otherwise seek to address climate change could adversely affect our
operations. The cost of complying with any new law, regulation or treaty will depend on the details of the particular program. Any direct and indirect costs
of meeting these requirements may adversely affect our business, financial condition, results of operations and our ability to make quarterly distributions to
our unitholders.
In addition to the regulatory efforts described above, activists concerned about the potential effects of climate change have, in certain instances,
directed their attention at sources of funding for fossil-fuel energy companies. This could make it more difficult to secure funding for projects. Members of
the investment community have recently increased their focus on sustainability practices, including practices related to GHGs and climate change, in the oil
and natural gas industry. As a result, we and others in our industry have come under increasing pressure to improve our sustainability practices. Additionally,
members of the investment community have begun to screen companies such as ours for sustainability performance before investing in our common units. If
we are unable to establish adequate sustainability practices, our common unit price may be negatively impacted, our reputation may be negatively affected,
and it may be more difficult for us to compete effectively. Our efforts to improve our sustainability practices in response to these pressures may increase our
costs, and we may be forced to implement technologies that are not economically viable in order to improve our sustainability performance and to perform
services for certain customers.
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Item 1A. Risk Factors
Common units are inherently different from the capital stock of a corporation, although many of the business risks to which we are subject are similar
to those that would be faced by a corporation engaged in a similar business.
If any of the following risks were actually to occur, our business, financial condition, results of operations and ability to pay distributions to our
unitholders could be materially adversely affected. Additional risks and uncertainties not currently known to us or that we currently consider to be
immaterial may also materially adversely affect our business, financial condition, results of operations and ability to make quarterly distributions to our
unitholders.
Risks Related to Our Business
We may not have sufficient distributable cash flow following the establishment of cash reserves and payment of fees and expenses, including cost
reimbursements to our General Partner and its affiliates, to enable us to pay the minimum quarterly distribution to our unitholders.
In order to pay the minimum quarterly distribution of $0.4125 per unit per quarter, or $1.65 per unit on an annualized basis, we will require distributable
cash flow of $9.5 million per quarter, or $37.9 million per year, based on the number of common units currently outstanding. We may not have sufficient
distributable cash flow each quarter to enable us to pay the minimum quarterly distribution. The amount of cash we can distribute on our units principally
depends upon the amount of cash we generate from our operations and our borrowing capacity, which will fluctuate from quarter to quarter based on, among
other things:
•
Competition from other companies that sell refined products, natural gas, renewable fuels and material handling businesses in the Northeast
United States and eastern Canada as well as demand for such products and services;
• Absolute price levels, and volatility of prices, of refined products and natural gas in both the spot and futures markets;
•
•
Seasonal variation in temperature, which affects demand for natural gas and refined products such as heating oil and residual fuel oil (to the
extent that it is used for space heating); and
Prevailing economic and regulatory conditions.
In addition, the actual amount of distributable cash flow that we distribute will depend on other factors such as:
•
•
•
•
•
The level of maintenance capital expenditures we make;
The level of operating and general and administrative expenses, including reimbursements to our General Partner and certain of its affiliates for
services provided to us;
Fluctuations or changes in federal, state, local and foreign tax rates, including Canadian income and withholding tax rates;
The restrictions contained in our Credit Agreement (as defined herein), including borrowing base limitations and limitations on distributions as
well as debt service requirements;
Fluctuations in our working capital needs;
• Our ability to access capital markets and to borrow under our Credit Agreement to make distributions to our unitholders; and
The COVID-19 outbreak could adversely impact our business, financial condition and results of operations.
The global outbreak of COVID-19 was declared a pandemic by the World Health Organization and a national emergency by the U.S. Government in
March 2020 and has negatively affected the U.S. and global economy, resulted in significant travel and transport restrictions, including mandated closures
and orders to “shelter-in-place”. The extent of the impact of the COVID-19 pandemic on our operational and financial performance is uncertain and cannot
be predicted. However, we have experienced decline in volumes of natural gas and petroleum products sold and anticipate a further decline in the next
several months until the pandemic response moves through Phase I, II and Phase III along with a corresponding reduction in revenue, gross margin and
EBITDA. We continue to assess possible implications to our business, supply chain and customers, and to take actions in an effort to mitigate adverse
consequences.
Our business is seasonal and generally our financial results are lower in the second and third quarters of the calendar year which may result in an
increased need to borrow money in order to make quarterly distributions to our unitholders during these quarters.
Demand for natural gas and some refined products, specifically home heating oil and residual fuel oil for space heating purposes, is generally higher
during the period of November through March than during the period of April through October.
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Therefore, our results of operations for the first and fourth calendar quarters are generally better than for the second and third calendar quarters. For example,
over the 36-month period ended December 31, 2020, we generated an average of 77% of our total heating oil and residual fuel oil net sales during the
months of November through March in the Northeast United States and Canada. With reduced cash flow during the second and third calendar quarters, we
may be required to borrow money in order to pay the minimum quarterly distribution to unitholders. Any restrictions on our ability to borrow could restrict
our ability to make quarterly distributions to unitholders.
A significant decrease in demand for refined products, natural gas or our materials handling services in the areas we serve would adversely affect
our business, financial condition, results of operations and ability to make quarterly distributions to unitholders.
A significant decrease in demand for refined products, natural gas or our materials handling services in the areas that we serve would significantly
reduce net sales and, therefore, adversely affect our business, financial condition, results of operations, our ability to borrow and make quarterly distributions
to our unitholders. Factors that could lead to a decrease in market demand for refined products or natural gas include:
•
Recession or other adverse economic conditions, including but not limited to, public health crises that reduce economic activity, affect the
demand for travel (public and private), as well as impact costs of operation and availability of supply (including the coronavirus COVID-19
outbreak);
• Unseasonably warm temperatures or higher prices;
•
•
Increased conservation, technological advances and the availability of alternative energy, whether as a result of industry changes, governmental
or regulatory actions or otherwise; and,
Conversion from consumption of heating oil or residual fuel oil to natural gas as such switching and conversions could reduce our sales of
heating oil and residual fuel oil.
Factors that could lead to a decrease in demand for our materials handling services include weakness in the housing and construction industries and the
economy generally.
Certain of our operating costs and expenses are fixed and do not vary with the volumes we store, distribute and sell. These costs and expenses may not
decrease ratably, or at all, should we experience a reduction in volumes stored, distributed and sold. As a result, we may experience declines in operating
margin if our volumes decrease.
Our business, financial condition, results of operations and ability to make quarterly distributions to unitholders are influenced by changes in
demand for, and therefore indirectly by changes in the prices of, refined products and natural gas, which could adversely affect our profit margins, our
customers’ and suppliers’ financial condition, contract performance, trade credit and the amount and cost of borrowing under our Credit Agreement.
Financial and operating results from our purchasing, storing, terminalling and selling operations are influenced by price volatility in the markets for
refined products and natural gas. When prices for refined products and natural gas rise, some of our customers may have insufficient credit to purchase
supply from us at their historical purchase volumes, and their customers, in turn, may adopt conservation measures which reduce consumption, thereby
reducing demand for product. Furthermore, when prices increase rapidly and dramatically, we may be unable to promptly pass our additional costs to our
customers, resulting in lower margins for a period of time before margins expand to cover the incremental costs. Significant increases in the costs of refined
products can materially increase our costs to carry inventory. We use the working capital facility in our Credit Agreement, which limits the amounts that we
can borrow, as the primary source of financing for our working capital requirements. Lastly, higher prices for refined products or natural gas may
(1) diminish our access to trade credit support or cause it to become more expensive and (2) decrease the amount of borrowings available for working capital
as a result of total available commitments, borrowing base limitations and advance rates thereunder.
Restrictions in our Credit Agreement could adversely affect our business, financial condition, results of operations and ability to make quarterly
distributions to unitholders as well as the value of our common units.
We are dependent upon the earnings and cash flow generated by operations in order to meet our debt service obligations and to allow us to make cash
distributions to unitholders. The operating and financial restrictions and covenants in our Credit Agreement and any future financing agreements could
restrict our ability to finance future operations or capital needs or to expand or pursue business, which may, in turn, adversely affect our business, financial
condition, results of operations and ability to make quarterly distributions to unitholders. Our Credit Agreement contains covenants requiring us to maintain
certain financial ratios. The provisions of the Credit Agreement may affect our ability to obtain future financing for and pursue attractive business
opportunities and maintain flexibility in planning for, and reacting to, changes in business conditions. In addition, a failure to comply with the provisions of
the Credit Agreement could result in an event of default which could enable our lenders, subject to the terms and conditions of our Credit Agreement, to
declare the outstanding principal of that debt, together with accrued interest, to be immediately due and payable. If we were unable to repay the accelerated
amounts, our
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lenders could proceed against the collateral granted to them to secure such debt. If the payment of our debt is accelerated, defaults under our other debt
instruments, if any, may be triggered and our assets may be insufficient to repay such debt in full, and the holders of our units could experience a partial or
total loss of their investment. See Part II, Item 7 - "Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and
Capital Resources."
Debt we incur in the future may limit our flexibility to obtain financing and to pursue other business opportunities.
Our future level of debt could have important consequences to us, including the following:
• Our ability to obtain additional financing, if necessary, for working capital, capital expenditures or other purposes may be impaired, or such
financing may not be available on favorable terms;
• Our funds available for operations, future business opportunities and distributions to unitholders will be reduced by that portion of our cash
flow required to make required debt service payments;
• We may be more vulnerable to competitive pressures or a downturn in our business or the economy generally; and
• Our flexibility in responding to changing business and economic conditions may be limited.
Our ability to service debt will depend upon, among other things, future financial and operating performance, which will be affected by prevailing
economic conditions and financial, business, regulatory and other factors, some of which are beyond our control. If operating results are not sufficient to
maintain our indebtedness, we will be forced to take actions such as reducing distributions, reducing or delaying business, acquisitions, investments or
capital expenditures, selling assets or issuing equity. We may not be able to affect any of these actions on satisfactory terms or at all.
Changes in currency exchange rates could adversely affect our operating results.
Because we are a U.S. dollar reporting company and also conduct a portion of our Canadian operations in Canadian dollars, we are exposed to
currency fluctuations and exchange rate risks that may adversely affect the U.S. dollar value of our earnings, cash flow and partners’ capital under applicable
accounting rules.
Warmer weather conditions during winter could adversely affect our business, financial condition, results of operations and ability to make
quarterly distributions to unitholders.
Weather conditions during winter have an impact on the demand for heating oil, residual fuel oil and natural gas. Because we supply distributors
whose customers depend on heating oil, residual fuel oil and natural gas during the winter, warmer-than-normal temperatures during the first and fourth
calendar quarters in one or more regions in which we operate can decrease the total volume we sell and the adjusted gross margin realized on those sales
and, consequently, our business, financial condition, results of operations and ability to make quarterly distributions to unitholders.
Our risk management policies, processes and procedures cannot eliminate all commodity price risk or basis risk, which could adversely affect our
business, financial condition, results of operations and ability to make quarterly distributions to unitholders. In addition, any noncompliance with our
risk management policies, processes and procedures could result in significant financial losses.
While our risk management policies, processes and procedures are designed to limit commodity price risk, some degree of exposure to unforeseen
fluctuations in market conditions remains. For example, we change our hedged position daily in response to movements in our inventory. If we overestimate
or underestimate sales from inventory, we may be unhedged for the amount of the overestimate or underestimate. Although we monitor policies, processes
and procedures designed to prevent unauthorized trading and to maintain substantial balance between purchases and sales or future delivery obligations, we
can provide no assurance that these steps will detect and/or prevent all violations of such risk management policies, processes and procedures.
We are exposed to risks of loss in the event of nonperformance by our customers, suppliers and counterparties.
We are subject to risk of nonperformance by our customers, suppliers and counterparties. Even if our credit review and analysis mechanisms work
properly, we may experience financial losses in our dealings with these third parties. Furthermore, our access to trade credit support could diminish or
become more expensive. Our ability to continue to receive sufficient trade credit on commercially acceptable terms could be adversely affected by, among
other things, fluctuations in refined product, natural gas and renewable fuel prices or disruptions in the credit markets.
Some of our refined products and natural gas competitors have capital resources many times greater than ours and control greater supplies.
Competitors able to supply customers with products and services at a lower price could adversely affect our business, financial condition, results of
operations and ability to make quarterly distributions to unitholders.
Our competitors include terminal companies, major integrated oil companies and their marketing affiliates and independent marketers of varying size,
financial resources and experience. Some of our competitors are substantially larger than
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us, have capital resources many times greater than ours, control greater supplies of refined products and natural gas than us and/or control substantially
greater storage capacity than us.
Security breaches and other disruptions could compromise our information and expose us to liability, which would cause our business and
reputation to suffer.
In the ordinary course of business, we collect and store sensitive data, including intellectual property, our proprietary business information and that of
our customers, suppliers and business partners, and personally identifiable information of our customers and employees, in data centers and on our networks.
The secure maintenance of this information is critical to our operations. Despite our security measures, information technology and infrastructure may be
vulnerable to attacks by hackers or breached due to employee error, malfeasance or other disruptions. Any such breach could compromise our networks and
the information stored there could be accessed, publicly disclosed, lost or stolen. Any such access, disclosure or other loss of information could result in
legal claims or proceedings, liability under laws that protect the privacy of personal information, regulatory penalties, disrupt operations and the services we
provide to customers, damage our reputation, and cause a loss of confidence in our products and services, which could adversely affect business/operating
margins, revenues and competitive position.
A principal focus of our business strategy is to grow and expand our business through acquisitions. If we do not make acquisitions on
economically acceptable terms, our future growth may be limited and any acquisitions we make may reduce, rather than increase, our cash generated
from operations on a per unit basis.
A principal focus of our business strategy is to grow and expand our business through acquisitions. Our ability to grow depends, in part, on our ability
to make accretive acquisitions that result in an increase in cash from operations generated per unit. If we are unable to make accretive acquisitions, either
because we are (1) unable to identify attractive acquisition candidates or negotiate acceptable purchase contracts, (2) unable to obtain financing for these
acquisitions on economically acceptable terms or (3) outbid by competitors, then our future growth and ability to increase distributions will be limited.
Furthermore, even if we do make acquisitions that we believe will be accretive, such acquisitions may nevertheless result in a decrease in the cash generated
from operations per unit.
Any acquisition involves potential risks, including, among other things:
• Mistaken assumptions about volumes, cash flows, net sales and costs, including synergies;
• An inability to successfully integrate the businesses we acquire;
• An inability to hire, train or retain qualified personnel to manage and operate our newly acquired assets;
•
The assumption of unknown liabilities;
• Unforeseen difficulties operating in new product areas or new geographic areas; and
•
Customer or key employee losses at the acquired businesses.
A portion of our net sales is generated under contracts that must be renegotiated or replaced periodically. If we are unable to successfully
renegotiate or replace these contracts, our business, financial condition, results of operations and ability to make quarterly distributions to unitholders
could be adversely affected.
Most of our contracts with refined products customers are for a single season or on a spot basis, while most of our contracts with natural gas customers
are for a term of one year or less. As these contracts and our materials handling contracts expire from time to time, they must be renegotiated or replaced.
While our materials handling contracts are generally long-term, they are also subject to periodic renegotiation or replacement. If we cannot successfully
renegotiate or replace any of our contracts, or if we renegotiate or replace them on less favorable terms, net sales and margins from these contracts could
decline and our business, financial condition, results of operations and ability to make quarterly distributions to unitholders could be adversely affected.
Due to our lack of geographic diversification, adverse developments in the terminals we use or in our operating areas would adversely affect
results of operations and distributable cash flow.
Our operations are largely located in the Northeast United States and eastern Canada. Due to our lack of geographic diversification, an adverse
development in the businesses or areas in which we operate, including adverse developments due to catastrophic events, weather or decreases in demand for
refined products or materials handling services, could have a significantly greater impact on our results of operations and distributable cash flow than if we
operated in more diverse locations.
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Our operations are subject to operational hazards and unforeseen interruptions for which we may not be able to maintain adequate insurance
coverage.
We are not fully insured against all risks incident to our business. Our operations are subject to many operational hazards and unforeseen interruptions
inherent in our business. If any event of a substantial nature were to occur, we could incur substantial losses because of personal injury or loss of life, severe
damage to and destruction of property and equipment, and pollution or other environmental damage resulting in curtailment or suspension of related
operations.
We may be unable to maintain or obtain insurance of the type and amount we believe to be appropriate for our business at reasonable rates or at all. As
a result of market conditions, premiums and deductibles for certain of our insurance policies could increase or escalate further. In some instances, certain
insurance could become unavailable or available only for reduced amounts of coverage. Certain types of risks, such as fines and penalties, or remediation or
damages claims from environmental pollution, are either not covered by insurance or applicable insurance may be unavailable for particular claims based on
exclusions or limitations in the policies.
Our terminalling and materials handling operations are subject to federal, state and local laws and regulations relating to environmental
protection and operational safety that require us to incur substantial costs and that may become more stringent over time.
A fundamental risk inherent in terminalling and materials handling operations is that we may incur substantial environmental costs and liabilities. In
particular, our terminalling operations involve the receipt, storage and redelivery of refined products and are subject to stringent federal, state and local laws
and regulations regulating environmental matters including the discharge of materials into the environment, or otherwise relating to the protection of the
environment, operational safety and related matters. We also face laws and regulations that impact product quality specifications that could have a material
adverse effect on our business.
Compliance with these laws and regulations increases our overall cost of business, including our capital costs to maintain and upgrade equipment and
facilities. Further, we may incur increased costs because of stricter pollution control requirements or liabilities resulting from noncompliance with required
operating or other regulatory permits. Failure to comply with environmental laws and regulations may trigger a variety of administrative, civil and criminal
enforcement measures, including the assessment of monetary penalties, the imposition of remedial requirements and the issuance of orders enjoining future
operations.
We utilize a number of terminals that are owned and operated by third parties who are also subject to these stringent federal, state and local
environmental laws in their operations. Compliance with these requirements by such third parties could increase the cost of doing business with these
facilities and there can be no assurances as to the timing and type of such changes or what the ultimate costs might be. If such third parties fail to comply
with environmental laws, they could be shut down, requiring us to incur costs to use alternative facilities.
The trend in environmental regulation has been to place more restrictions and limitations on activities that may affect the environment over time. As a
result, there can be no assurance as to the amount or timing of future expenditures for environmental compliance or remediation, and actual future
expenditures may be different from the amounts we currently anticipate.
We can provide no assurance that future events, such as changes in existing laws (including changes in the interpretation of existing laws), the
promulgation of new laws, or the development or discovery of new facts or conditions will not cause us to incur significant costs or have a material adverse
effect on our business, financial condition, results of operations and ability to make quarterly distributions to our unitholders.
The risks of spills and releases and the associated liabilities for investigation, remediation and third-party claims, if any, are inherent in
terminalling operations, and the liabilities that we incur may be substantial.
Our operation of refined products terminals and storage facilities as well as our transportation and logistics activities are inherently subject to the risks
of spills, discharges or other inadvertent releases of petroleum or other hazardous substances. If any of these events have previously occurred or occur in the
future, whether in connection with any of our storage facilities or terminals, any other facility to which we send or have sent wastes or by-products for
treatment or disposal or on any property which we own or have owned, we could be liable for all costs, jointly and severally, and administrative, civil and
criminal penalties associated with the investigation and remediation of such facilities under federal, state and local environmental laws or the common law.
We may also be held liable for damages to natural resources, personal injury or property damage claims from third parties, including the owners of
properties located near our terminals and those with whom we do business, alleging contamination from spills or releases from our facilities or operations.
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Increased physical damage and regulation related to climate change could result in increased operating costs and reduced demand for refined
products as a fuel source, which could in turn reduce demand for our products and adversely affect our business, financial condition, results of
operations and ability to make quarterly distributions to unitholders.
Risks related to climate change include both physical and regulatory risks. Physical risks from climate change may include direct damage to our assets
and from the increased frequency and severity of extreme weather events and/or chronic impacts to our operations from longer-term shifts in precipitation
patterns and extreme variability in weather patterns. These effects could adversely affect the financial performance of our assets and operations.
Regulatory actions around climate change also continue to evolve and are particularly relevant for our products and business. We may become subject
to more stringent legislation and regulation regarding climate change and compliance with any new rules could be difficult and costly. Due to the uncertainty
in the regulatory and legislative processes, as well as the scope of such requirements and initiatives, we cannot currently determine the effect such legislation
and regulation may have on our business, financial condition, results of operations and ability to make quarterly distributions to unitholders. Additionally, we
could face increased costs related to defending and resolving legal claims and other litigation related to climate change and the alleged impact of our
operations on climate change.
As noted above, the United States re-entered the Paris Agreement, effective January 20, 2021, pursuant to President Biden’s executive order. Several
states and geographic regions in the United States have adopted legislation and regulations to reduce emissions of GHGs, and the United States’ re-entry into
the Paris Agreement, in combination with executive orders signed by President Biden intended to address climate change, may result in additional legislation
and regulations. Additional legislation or regulation by these states and regions, the EPA, and/or any international agreements to which the United States
may become a party, that control or limit GHG emissions or otherwise seek to address climate change could adversely affect our operations.
Kildair is subject to both Canadian federal and provincial environmental regulations relating to climate change, GHG emissions, fuel content
requirements, and energy policies, including, without limitation, regulations that require the purchase of emission allowances, credits and/or compliance
units needed to cover emissions attributable to the combustion of some fossil fuels it sells for consumption or otherwise related to the renewable fuel content
of such fuels. These laws and regulations are currently under review by the federal and provincial authorities and, as a result, modifications to the regulatory
framework is expected in the near future, notably involving the imposition of a carbon levy on products sold by Kildair as well as carbon intensity reduction
requirements on such products. To comply with these laws and regulations, Kildair must, and will, incur costs such as, for example, the cost to purchase
allowances, credits and compliance units, that allow Kildair to continue operations at its current or increased levels. Increased costs may result in increased
prices for Kildair’s products or decreased profitability. Increased product price as well as the laws and regulations applicable to Kildair's customers, who are
themselves subject to laws and regulations relating to climate change, GHG emissions, and energy policies, could result in a reduction of demand for
Kildair’s product and therefore reduce our revenues. Additional risks include the inability of Kildair to acquire the required amount of emission allowances,
credits or compliance units to offset emissions and/or meet the renewable fuel content which would subject Kildair to various fines.
Overall, there has been a trend at the federal and state level towards increased regulation of GHGs and carbon pollution, both domestically and
internationally, to limit emissions. A number of states including, but not limited to Connecticut, Maine, New Hampshire, New York and Pennsylvania, have
introduced legislation to establish taxes or assessments on the carbon content of fuels. Future efforts to limit emissions associated with transportation fuels
and heating fuels could increase costs, reduce the market for, or impact the pricing of, our products, and thus adversely impact our business.
Additionally, activists concerned about the potential effects of climate change have recently directed their attention at sources of funding for fossil-fuel
energy companies, which has resulted in certain financial institutions, funds and other sources of capital restricting or eliminating their investment in oil and
natural gas activities. Members of the investment community have recently increased their focus on sustainability practices, including practices related to
GHGs and climate change, in the oil and natural gas industry. As a result, we and others in our industry have come under increasing pressure to improve our
sustainability practices. Additionally, members of the investment community have begun to screen companies such as ours for sustainability performance
before investing in our common units. If we are unable to establish adequate sustainability practices, our common unit price may be negatively impacted, our
reputation may be negatively affected, and it may be more difficult for us to compete effectively. Our efforts to improve our sustainability practices in
response to these pressures may increase our costs, and we may be forced to implement technologies that are not economically viable in order to improve
our sustainability performance and to perform services for certain customers. Ultimately, this could make it more difficult to secure funding for energy
infrastructure projects, such as our terminal facilities.
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We are subject to federal, state and local laws and regulations that govern the product quality specifications of the refined products we purchase,
store, transport and sell.
Various federal, state and local government agencies have the authority to prescribe specific product quality specifications to the sale of commodities.
Changes in product quality specifications, such as reduced sulfur content in refined products, or other more stringent requirements for fuels, could reduce
our ability to procure or create products of various specifications and limit purchase and storage opportunities associated with market dislocations and
discrepancies. Changes in product specifications may require us to incur additional handling costs and capital expenditures. If we are unable to procure
product or recover these costs through increased sales, our business would be negatively impacted and we may not be able to meet our financial obligations.
We depend on unionized labor for our operations in Bronx, Lawrence, and Albany, New York; Providence, Rhode Island; and Sorel-Tracy
Quebec, Canada. Work stoppages or labor disturbances at these facilities could disrupt our business.
Work stoppages or labor disturbances by our unionized labor force could have an adverse effect on our business, financial condition, results of
operations and ability to make quarterly distributions to unitholders. In addition, employees who are not currently represented by labor unions may seek
representation in the future, and renegotiation of collective bargaining agreements may result in agreements with terms that are less favorable to us than our
current agreements.
We rely on our information technology systems to manage numerous aspects of our business, and a disruption of these systems could adversely
affect our business, financial condition, results of operations and ability to make quarterly distributions to unitholders.
We depend on our information technology, or IT, systems to manage numerous aspects of our business and to provide analytical information to
management. Our IT systems are an essential component of our business and growth strategies, and a serious disruption to our IT systems could limit our
ability to manage and operate our business efficiently. These systems are vulnerable to, among other things, damage and interruption from power loss or
natural disasters, computer system and network failures, loss of telecommunication services, physical and electronic loss of data, security breaches and
computer viruses. We employ back-up IT facilities and have disaster recovery plans; however, these safeguards may not entirely prevent delays or other
complications that could arise from an IT systems failure, a natural disaster or a security breach. Significant failure or interruption in our IT systems could
cause our business and competitive position to suffer and damage our reputation, which would adversely affect our business, financial condition, results of
operations and ability to make quarterly distributions to unitholders.
Risks Inherent in an Investment in Us
We distribute significant portions of our distributable cash flow, which could limit our ability to grow and make acquisitions.
We rely primarily upon external financing sources, including commercial bank borrowings and the issuance of debt and equity securities, to fund our
acquisitions and expansion capital expenditures. As a result, to the extent we are unable to finance growth externally, our cash distribution policy will
significantly impair our ability to grow. In addition, because we distribute a significant portion of our distributable cash flow, our growth may not be as fast
as that of businesses that reinvest their available cash to expand ongoing operations. To the extent we issue additional units in connection with any
acquisitions or expansion capital expenditures, the payment of distributions on those additional units may increase the risk that we will be unable to maintain
or increase our per unit distribution level. There are no limitations in the partnership agreement or Credit Agreement on our ability to issue additional units,
including units ranking senior to the common units. The incurrence of additional commercial borrowings or other debt to finance our growth strategy would
result in increased interest expense, which, in turn, may adversely impact the cash that we have available to distribute to unitholders.
Axel Johnson indirectly controls our General Partner, which has sole responsibility for conducting our business and managing our operations. Our
General Partner and its affiliates, including Axel Johnson, may have conflicts of interest with us and have limited duties to us and our common
unitholders, and they may favor their own interests to the detriment of us and our common unitholders.
As of March 4, 2021, Axel Johnson, through its ownership of Sprague Holdings, indirectly owns a 56.4% limited partner interest in us and indirectly
owns and controls our General Partner. Although our General Partner has a fiduciary duty to manage us in good faith, the directors and officers of our
General Partner have a fiduciary duty to manage our General Partner in a manner that is beneficial to its owner, Sprague Holdings, which is a wholly owned
subsidiary of Axel Johnson. Furthermore, certain directors and officers of our General Partner are directors and/or officers of affiliates of our General
Partner. Conflicts of interest may arise between our General Partner and its affiliates, including Axel Johnson, on the one hand, and us and our unitholders,
on the other hand. In resolving these conflicts, our General Partner may favor its own interests and
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the interests of its affiliates, including Axel Johnson, over the interests of our common unitholders. These conflicts include, among others, the following
situations:
• Our General Partner is allowed to take into account the interests of parties other than us, such as its affiliates, including Axel Johnson, in
resolving conflicts of interest, which has the effect of limiting its duty to our unitholders.
• Affiliates of our General Partner, including Axel Johnson and Sprague Holdings, may engage in competition with us.
• Neither our partnership agreement nor any other agreement requires Axel Johnson or Sprague Holdings to pursue a business strategy that
favors us. Axel Johnson’s directors and officers have a fiduciary duty to make decisions in the best interests of the stockholders of Axel
Johnson.
•
Some officers of our General Partner who provide services to us devote time to affiliates of our General Partner.
• Our partnership agreement limits the liability of and reduces the duties owed by our General Partner to us and our common unitholders, and
also restricts the remedies available to our unitholders for actions that, without such limitations, might constitute breaches of fiduciary duty.
•
Except in limited circumstances, our General Partner has the power and authority to conduct our business without unitholder approval.
• Our General Partner determines the amount and timing of asset purchases and sales, borrowings, issuances of additional partnership securities
and the creation, reductions or increases of cash reserves, each of which can affect the amount of cash that is available for distribution to our
unitholders and to the holders of the incentive distribution rights.
• Our General Partner determines the amount and timing of any capital expenditures and whether a capital expenditure is classified as a
maintenance capital expenditure, which reduces distributable cash flow. Such determination can affect the amount of distributable cash flow
available to the holders of our common units and to the holders of the incentive distribution rights. Our partnership agreement does not limit
the amount of maintenance capital expenditures that our General Partner can cause us to make.
• Our partnership agreement and the services agreement allow our General Partner to determine, in good faith, the expenses that are allocable to
us. Our partnership agreement and the services agreement do not limit the amount of expenses for which our General Partner and its affiliates
may be reimbursed. These expenses include salary, incentive compensation and other amounts paid to persons, including affiliates of our
General Partner, who perform services for us or on our behalf.
• Our General Partner may cause us to borrow funds in order to permit the payment of cash distributions, including incentive distributions.
• Our partnership agreement permits us to distribute up to $25.0 million as distributable cash flow, even if it is generated from sources that would
otherwise constitute capital surplus, and this cash may be used to fund the incentive distributions.
• Our partnership agreement does not restrict our General Partner from entering into additional contractual arrangements with any of its affiliates
on our behalf.
• Our General Partner intends to limit its liability regarding our contractual and other obligations.
• Our General Partner may exercise its right to call and purchase all of the common units not owned by it and its affiliates if it and its affiliates
own more than 80% of all outstanding common units.
• Our General Partner controls the enforcement of obligations owed to us by our General Partner and its affiliates.
• Our General Partner decides whether to retain separate counsel, accountants or others to perform services for us.
•
Sprague Holdings, or any transferee holding a majority of the incentive distribution rights, may elect to cause us to issue common units to it in
connection with a resetting of the target distribution levels related to the incentive distribution rights without the approval of the conflicts
committee of the board of directors of our General Partner or unitholders. This election may result in lower distributions to common
unitholders in certain situations.
Under the terms of our partnership agreement, the doctrine of corporate opportunity, or any analogous doctrine, does not apply to our General Partner
or any of its affiliates, including their executive officers, directors and owners. Other than as provided in our omnibus agreement, any such person or entity
that becomes aware of a potential transaction, agreement, arrangement or other matter that may be an opportunity for us will not have any duty to
communicate or offer such opportunity to us. Any such person or entity will not be liable to us or to any limited partner for breach of any fiduciary duty or
other duty by reason of the fact that such person or entity pursues or acquires such opportunity for itself, directs such opportunity to another person or entity
or does not communicate such opportunity or information to us. This may create actual and potential conflicts of interest between us and affiliates of our
General Partner and result in less than favorable treatment of us and our unitholders.
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Our General Partner intends to limit its liability regarding our obligations.
Our General Partner intends to limit its liability under contractual arrangements so that the counterparties to such arrangements have recourse only
against our assets and not against our General Partner or its assets. Our General Partner may therefore cause us to incur indebtedness or other obligations that
are nonrecourse to our General Partner. Our partnership agreement provides that any action taken by our General Partner to limit its liability is not a breach
of our General Partner’s duty to act in good faith, even if we could have obtained more favorable terms without the limitation on liability. In addition, we are
obligated to reimburse or indemnify our General Partner to the extent that it incurs obligations on our behalf. Any such reimbursement or indemnification
payments would reduce the amount of distributable cash flow otherwise available for distribution to unitholders.
Our partnership agreement limits our General Partner’s duties to our unitholders.
Our partnership agreement contains provisions that modify and reduce the standards to which our General Partner would otherwise be held under state
fiduciary duty law. For example, our partnership agreement permits our General Partner to make a number of decisions in its individual capacity, as opposed
to in its capacity as our General Partner, or otherwise free of fiduciary duties to us and our unitholders. This entitles our General Partner to consider only the
interests and factors that it desires and relieves it of any duty or obligation to give any consideration to any interest of, or factors affecting, us, our affiliates
or our limited partners. Examples of decisions that our General Partner may make in its individual capacity include:
• How to allocate business opportunities among us and its other affiliates;
• Whether to exercise its limited call right;
• How to exercise its voting rights with respect to any units it owns;
• Whether to exercise its registration rights with respect to any units it owns; and
• Whether to consent to any merger or consolidation of the partnership or amendment to the partnership agreement.
By purchasing a common unit, a unitholder is treated as having consented to the provisions in the partnership agreement, including the provisions
discussed above.
Our partnership agreement restricts the remedies available to our unitholders for actions taken by our General Partner that might otherwise
constitute breaches of fiduciary duty.
Our partnership agreement contains provisions that restrict the remedies available to unitholders for actions taken by our General Partner that might
otherwise constitute breaches of fiduciary duty under state fiduciary duty law. For example, our partnership agreement:
•
•
•
•
•
Provides that whenever our General Partner makes a determination or takes, or declines to take, any other action in its capacity as our General
Partner, our General Partner is required to make such determination, or take or decline to take such other action, in good faith and will not be
subject to any other or different standard imposed by our partnership agreement, Delaware law or any other law, rule or regulation, or at equity;
Provides that a determination, other action or failure to act by our General Partner, the board of directors of our General Partner or any
committee thereof (including the conflicts committee) will be deemed to be in good faith unless our General Partner, the board of directors of
our General Partner or any committee thereof believed such determination, other action or failure to act was adverse to the interests of the
partnership;
Provides that our General Partner will not have any liability to us or our unitholders for decisions made in its capacity as a General Partner so
long as it acted in good faith;
Provides that our General Partner and its officers and directors will not be liable for monetary damages to us or our limited partners resulting
from any act or omission unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining
that our General Partner or its officers and directors, as the case may be, acted in bad faith or, in the case of a criminal matter, acted with
knowledge that the conduct was criminal; and
Provides that our General Partner will not be in breach of its obligations under the partnership agreement or its duties to us or our limited
partners if a transaction with an affiliate or the resolution of a conflict of interest is:
1. Approved by the conflicts committee of the board of directors of our General Partner, although our General Partner is not obligated to
seek such approval; or
2. Approved by the vote of a majority of the outstanding common units, excluding any common units owned by our General Partner and
its affiliates.
In connection with a situation involving a transaction with an affiliate or a conflict of interest, any determination by our General Partner must be made
in good faith. If an affiliate transaction or the resolution of a conflict of interest is not approved by our common unitholders or the conflicts committee then it
will be presumed that, in making its decision, taking any action or
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failing to act, the board of directors acted in good faith, and in any proceeding brought by or on behalf of any limited partner or the partnership, the person
bringing or prosecuting such proceeding will have the burden of overcoming such presumption.
Cost reimbursements and fees due to our General Partner and its affiliates for services provided to us or on our behalf, which may be determined in
our General Partner’s sole discretion, may be substantial and will reduce our distributable cash flow.
Under our partnership agreement, prior to making any distribution on the common units, our General Partner and its affiliates shall be reimbursed for
all costs and expenses that they incur on our behalf for managing and controlling our business and operations. Pursuant to the terms of the services
agreement, our General Partner has agreed to provide certain general and administrative services and operational services to us, and we have agreed to
reimburse our General Partner and its affiliates for all costs and expenses incurred in connection with providing such services to us, including salary,
incentive compensation, insurance premiums and other amounts allocable to the employees and directors of our General Partner or its affiliates that perform
services on our behalf. Our General Partner and its affiliates also may provide us other services for which we may be charged fees as determined by our
General Partner. Our partnership agreement and the services agreement do not limit the amount of expenses for which our General Partner and its affiliates
may be reimbursed. Payments to our General Partner and its affiliates may be substantial and will reduce the amount of distributable cash flow.
Unitholders have limited voting rights and, even if they are dissatisfied, cannot remove our General Partner without its consent.
Unlike the holders of common stock in a corporation, unitholders have only limited voting rights on matters affecting our business and, therefore,
limited ability to influence management’s decisions regarding our business. Unitholders did not elect our General Partner or the board of directors of our
General Partner and will have no right to elect our General Partner or the board of directors of our General Partner on an annual or other continuing basis.
The board of directors of our General Partner is chosen by Sprague Holdings, a wholly-owned subsidiary of Axel Johnson and the sole member of our
General Partner. Furthermore, if the unitholders are dissatisfied with the performance of our General Partner, they will have little ability to remove our
General Partner. As a result of these limitations, the price at which our common units will trade could be diminished because of the absence or reduction of a
takeover premium in the trading price.
The unitholders will be unable to remove our General Partner without its consent because our General Partner and its affiliates own sufficient units to
be able to prevent its removal. The vote of the holders of at least 66 2⁄3% of all outstanding common units is required to remove our General Partner. As of
March 4, 2021, Sprague Holdings owned 56.4% of our common units.
Furthermore, unitholders’ voting rights are further restricted by the partnership agreement provision providing that any units held by a person that
owns 20% or more of any class of units then outstanding, other than our General Partner, its affiliates, their transferees and persons who acquired such units
resulting in ownership of at or in excess of such levels with the prior approval of the board of directors of our General Partner, cannot vote on any matter.
Our partnership agreement also contains provisions limiting the ability of unitholders to call meetings or to acquire information about our operations,
as well as other provisions limiting the unitholders’ ability to influence the manner or direction of management.
Our General Partner interest or the control of our General Partner may be transferred to a third party without unitholder consent.
Our General Partner may transfer its General Partner interest to a third party in a merger or in a sale of all or substantially all of its assets without the
consent of the unitholders. Furthermore, there is no restriction in the partnership agreement on the ability of Sprague Holdings to transfer its membership
interest in our General Partner to a third party. The new members of our General Partner would then be in a position to replace the board of directors and
officers of our General Partner with their own choices and to control the decisions taken by the board of directors and officers.
The incentive distribution rights held by Sprague Holdings may be transferred to a third party without unitholder consent.
Sprague Holdings may transfer the incentive distribution rights to a third party at any time without the consent of our unitholders. If Sprague Holdings
transfers the incentive distribution rights to a third party but retains its ownership interest in our General Partner, our General Partner may not have the same
incentive to grow our partnership and increase quarterly distributions to unitholders over time as it would if Sprague Holdings had retained ownership of the
incentive distribution rights. For example, a transfer of incentive distribution rights by Sprague Holdings could reduce the likelihood of Axel Johnson
accepting offers made by us relating to assets owned by it, as Axel Johnson would have less of an economic incentive to grow our business, which in turn
may impact our ability to grow our asset base.
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We may issue additional units without unitholder approval, which would dilute unitholder interests.
At any time, we may issue an unlimited number of limited partner interests of any type without the approval of our unitholders. Further, neither the
partnership agreement nor the Credit Agreement prohibits the issuance of equity securities that may effectively rank senior to our common units. The
issuance by us of additional common units or other equity interests of equal or senior rank will have the following effects:
• Our unitholders’ proportionate ownership interest in us will decrease;
•
•
•
•
The amount of distributable cash flow on each unit may decrease;
The ratio of taxable income to distributions may increase;
The relative voting strength of each previously outstanding unit may be diminished; and
The market price of our common units may decline.
Sprague Holdings may sell units in the public or private markets, and such sales could have an adverse impact on the trading price of the common
units.
As of March 4, 2021, Sprague Holdings held 12,951,236 common units. We have agreed to provide Sprague Holdings with certain registration rights
(which may facilitate the sale by Sprague Holdings of its common units into the public markets). The sale of these units in the public or private markets, or
the perception that such sales might occur, could have an adverse impact on the price of the common units or on any trading market that may develop.
We rely on the master limited partnership ("MLP") structure and its appeal to investors for accessing debt and equity markets to finance our growth
and repay or refinance our debt. The volatility in energy prices over the past few years has, among other factors, caused increased volatility and
contributed to a dislocation in pricing for MLPs.
The volatility in pricing for MLPs and other energy companies may be adversely affected by a lower energy prices environment. A number of MLPs
have reduced or eliminated their distributions to unitholders. A protracted deterioration in the valuation of our common units would increase our cost of
capital, make any equity issuance significantly dilutive and may affect our ability to access capital markets and, as a result, our capacity to pay distributions
to our unitholders and service or refinance our debt.
An increase in interest rates may cause the market price of our common units to decline.
Like all equity investments, an investment in our common units is subject to certain risks. In exchange for accepting these risks, investors may expect
to receive a higher rate of return than would otherwise be obtainable from lower-risk investments. Accordingly, as interest rates rise, the ability of investors
to obtain higher risk-adjusted rates of return on government-backed debt securities may cause a corresponding decline in demand for riskier investments
generally, including yield-based equity investments such as publicly traded limited partnership interests. Reduced demand for our common units resulting
from investors seeking other more favorable investment opportunities may cause the trading price of our common units to decline.
Our General Partner’s discretion in establishing cash reserves may reduce the amount of distributable cash flow that we distribute.
The partnership agreement permits our General Partner to reduce the amount of distributable cash flow distributed to our unitholders by establishing
cash reserves for the proper conduct of our business, to comply with applicable law or agreements to which we are a party or to provide funds for future
distributions to partners.
Our General Partner may cause us to borrow funds in order to make cash distributions, even where the purpose or effect of the borrowing benefits
our General Partner or its affiliates.
In some instances, our General Partner may cause us to borrow funds from its affiliates, including Axel Johnson, or from third parties in order to
permit the payment of cash distributions. These borrowings are permitted even if the purpose and effect of the borrowing is to enable us to make incentive
distributions.
Our General Partner has a limited call right that may require you to sell your common units at an undesirable time or price.
If at any time our General Partner and its affiliates own more than 80% of our common units, our General Partner will have the right, but not the
obligation, which it may assign to any of its affiliates or to us, to acquire all, but not less than all, of the common units held by unaffiliated persons. As a
result, you may be required to sell your common units at an undesirable time or price, including at a price below the then-current market price, and may not
receive any return on your investment. You may also incur a tax liability upon a sale of your units. As of March 4, 2021, Sprague Holdings and its affiliates
owned 56.4% of our common units.
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Your liability may not be limited if a court finds that unitholder action constitutes control of our business.
A general partner of a partnership generally has unlimited liability for the obligations of the partnership, except for those contractual obligations of the
partnership that are expressly made without recourse to the general partner. Our partnership is organized under Delaware law, and we conduct business in a
number of other states. The limitations on the liability of holders of limited partner interests for the obligations of a limited partnership have not been clearly
established in some jurisdictions. You could be liable for our obligations as if you were a general partner if a court or government agency were to determine
that:
• We were conducting business in a state but had not complied with that particular state’s partnership statute; or
• Your right to act with other unitholders to remove or replace the general partner, to approve some amendments to our partnership agreement or
to take other actions under our partnership agreement constitutes “control” of our business.
Unitholders may have liability to repay distributions that were wrongfully distributed to them.
Under certain circumstances, unitholders may have to repay amounts wrongfully returned or distributed to them. Under Section 17-607 of the
Delaware Revised Uniform Limited Partnership Act, or the Delaware Act, we may not make a distribution to you if the distribution would cause our
liabilities to exceed the fair value of our assets. Delaware law provides that for a period of three years from the date of the impermissible distribution, limited
partners who received the distribution and who knew at the time of the distribution that it violated Delaware law will be liable to the limited partnership for
the distribution amount. Transferees of common units are liable for the obligations of the transferor to make contributions to the partnership that are known
to the transferee at the time of the transfer and for unknown obligations if the liabilities could be determined from the partnership agreement. Liabilities to
partners on account of their partnership interest and liabilities that are non-recourse to the partnership are not counted for purposes of determining whether a
distribution is permitted.
Sprague Holdings, or any transferee holding a majority of the incentive distribution rights, may elect to cause us to issue common units to it in
connection with a resetting of the target distribution levels related to the incentive distribution rights, without the approval of the conflicts committee of
the board of directors of our General Partner or the holders of our common units. This could result in lower distributions to our unitholders.
The holder or holders of a majority of the incentive distribution rights (currently Sprague Holdings) have the right, in their discretion and without the
approval of the conflicts committee of the board of directors of our General Partner or the holders of our common units, at any time when the holders
received distributions on their incentive distribution rights at the highest level to which they are entitled (50.0%) for each of the prior four consecutive fiscal
quarters, to reset the initial target distribution levels at higher levels based on distributions at the time of the exercise of the reset election. At December 31,
2020, Sprague Holdings had the right to reset the initial target distribution levels. Following a reset election, the minimum quarterly distribution will be
adjusted to equal the reset minimum quarterly distribution, and the target distribution levels will be reset to correspondingly higher levels based on
percentage increases above the reset minimum quarterly distribution. Sprague Holdings has the right to transfer the incentive distribution rights at any time,
in whole or in part, and any transferee holding a majority of the incentive distribution rights shall have the same rights as Sprague Holdings relative to
resetting target distributions.
In the event of a reset of target distribution levels, the holders of the incentive distribution rights will be entitled to receive a number of common units
equal to the number of common units that would have entitled the holders to an average aggregate quarterly cash distribution in the prior two quarters equal
to the average of the distributions on the incentive distribution rights in the prior two quarters. We anticipate that Sprague Holdings would exercise this reset
right in order to facilitate acquisitions or internal growth projects that would not be sufficiently accretive to cash distributions per common unit without such
conversion. It is possible, however, that Sprague Holdings or a transferee could exercise this reset election at a time when it is experiencing, or expects to
experience, declines in the cash distributions it receives related to its incentive distribution rights and may, therefore, desire to be issued common units rather
than retain the right to receive distributions based on the initial target distribution levels. This risk could be elevated if our incentive distribution rights have
been transferred to a third party. As a result, a reset election may cause our common unitholders to experience a reduction in the amount of cash distributions
that they would have otherwise received had we not issued new common units in connection with resetting the target distribution levels.
The New York Stock Exchange (NYSE) does not require a publicly traded limited partnership like us to comply with certain of its corporate
governance requirements.
As a limited partnership, we are not required to have a majority of independent directors on our General Partner’s board of directors or to establish a
compensation committee or a nominating and corporate governance committee, as is required for other NYSE-listed entities. Accordingly, unitholders do not
have the same protections afforded to certain entities, including most corporations that are subject to all of the NYSE corporate governance requirements.
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Tax Risks to Common Unitholders
Our tax treatment depends on our status as a partnership for U.S. federal income tax purposes, as well as our not being subject to a material amount
of entity-level taxation by individual states. If the Internal Revenue Service ("IRS") were to treat us as a corporation for U.S. federal income tax
purposes, or we become subject to entity level taxation for state tax purposes, our cash available for distribution would be substantially reduced. The tax
treatment of publicly traded partnerships or an investment in our units could be subject to potential legislative, judicial or administrative changes or
differing interpretations, possibly applied on a retroactive basis.
The anticipated after-tax economic benefit of an investment in our common units depends largely on our being treated as a partnership for U.S. federal
income tax purposes. A publicly traded partnership such as us may be treated as a corporation for U.S. federal income tax purposes unless it satisfies a
“qualifying income” requirement. Based upon our current operations, we believe we satisfy the qualifying income requirement. However, no ruling has been
or will be requested regarding our treatment as a partnership for U.S. federal income tax purposes. Failing to meet the qualifying income requirement or a
change in current law could cause us to be treated as a corporation for U.S. federal income tax purposes or otherwise subject us to taxation as an entity.
If we were treated as a corporation for U.S. federal income tax purposes, we would pay U.S. federal income tax on our taxable income at the corporate
tax rate, and would likely pay additional state income tax at varying rates. Distributions to our unitholders would generally be taxed again as corporate
distributions, and no income, gains, losses or deductions would flow through to our unitholders. Because a tax would be imposed upon us as a corporation,
our cash available for distributions to our unitholders would be substantially reduced. Therefore, treatment of us as a corporation would result in a material
reduction in the anticipated cash flow and after-tax return to our unitholders, likely causing a substantial reduction in the value of our common units.
The present U.S. federal income tax treatment of publicly traded partnerships, including us, or an investment in our common units, may be modified
by administrative, legislative or judicial changes or differing interpretations at any time. From time to time, members of Congress have proposed and
considered substantive changes to the existing U.S. federal income tax laws that would affect publicly traded partnerships. Although there is no current
legislative proposal, a prior legislative proposal would have eliminated the qualifying income exception to the treatment of all publicly traded partnerships as
corporations upon which we rely for our treatment as a partnership for U.S. federal income tax purposes.
Any modification to the U.S. federal income tax laws or other applicable tax laws may be applied retroactively and could make it more difficult or
impossible for us to meet the exception for certain publicly traded partnerships to be treated as partnerships for U.S. federal income tax purposes. We are
unable to predict whether any of these changes or other proposals will ultimately be enacted. Any similar or future legislative changes could negatively
impact the value of an investment in our common units. You are urged to consult with your own tax advisor with respect to the status of regulatory or
administrative
developments and proposals and their potential effect on your investment in our common units.
In addition to U.S. federal income tax, we are currently subject to entity level taxes and fees in a number of states and such taxes and fees reduce our
distributable cash flow. Changes in current state and local laws may subject us to additional entity-level taxation by individual states and local governments.
Additionally, unitholders may be subject to other state and local taxes that are imposed by various jurisdictions in which the unitholder resides or in which
we conduct business or own property.
Our partnership agreement provides that if a law is enacted, or existing law is modified or interpreted in a manner, that subjects us to taxation as a
corporation or otherwise subjects us to entity-level taxation for U.S. federal, state, local or non-U.S. income tax purposes, the minimum quarterly
distribution amount and the target distribution amounts may be adjusted to reflect the impact of that law on us.
Notwithstanding our treatment for U.S. federal income tax purposes, we are subject to certain non-U.S. taxes. If a taxing authority were to
successfully assert that we have more tax liability than we anticipate or legislation were enacted that increased the taxes to which we are subject, our
distributable cash flow would be further reduced.
A material amount of our business operations and subsidiaries are subject to income, withholding and other taxes in the non-U.S. jurisdictions in
which they are organized or from which they receive income, reducing the amount of our distributable cash flow. In computing our tax obligation in these
non-U.S. jurisdictions, we are required to take various tax accounting and reporting positions on matters that are not entirely free from doubt and for which
we have not received rulings from the governing tax authorities, such as whether withholding taxes will be reduced by the application of certain tax treaties.
Upon review of these positions, the applicable authorities may not agree with our positions. A successful challenge by a tax authority could result in
additional tax being imposed on us. In addition, changes in our operations or ownership could result in higher than anticipated tax being imposed in
jurisdictions in which we are organized or from which we receive income. Any such
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increases in tax imposed on us would further reduce our distributable cash flow. Although these taxes may be properly characterized as foreign income taxes,
unitholders may not be able to credit them against their liability for U.S. federal income taxes on their share of our earnings.
Our unitholders are required to pay taxes on their share of our income even if they do not receive any cash distributions from us.
Our unitholders are required to pay any U.S. federal income taxes and, in some cases, state and local income taxes on their share of our taxable income
whether or not they receive cash distributions from us. For example, if we sell assets and use the proceeds to repay existing debt or fund capital
expenditures, unitholders may be allocated taxable income and gain resulting from the sale and our cash available for distribution would not increase.
Similarly, taking advantage of opportunities to reduce our existing debt, such as debt exchanges, debt repurchases, or modifications of our existing debt
could result in “cancellation of indebtedness income” being allocated to our unitholders as taxable income without any increase in our cash available for
distribution. Our unitholders may not receive cash distributions from us equal to their share of our taxable income or even equal to the actual tax liability that
results from that income.
Tax gain or loss on the disposition of our common units could be more or less than our unitholders expect.
If a unitholder sells common units, such unitholder will recognize gain or loss equal to the difference between the amount realized and the unitholder’s
tax basis in those units. Because distributions in excess of the unitholder’s allocable share of our net taxable income decrease its tax basis in its common
units, the amount, if any, of such prior excess distributions with respect to the units being sold will, in effect, become taxable income to the unitholder if it
sells such units at a price greater than its tax basis in those units, even if the price received is less than the unitholder’s original cost. In addition, because the
amount realized includes a unitholder’s share of our nonrecourse liabilities, if a unitholder sells units, such unitholder may incur a tax liability in excess of
the amount of cash received from the sale.
A substantial portion of the amount realized from the sale of your units, whether or not representing gain, may be taxed as ordinary income to you due
to potential recapture items, including depreciation recapture. Thus, you may recognize both ordinary income and capital loss from the sale of your units if
the amount realized on a sale of your units is less than your adjusted basis in the units. Net capital loss may only offset capital gains and, in the case of
individuals, up to $3,000 of ordinary income per year. In the taxable period in which you sell your units, you may recognize ordinary income from our
allocations of income and gain to you prior to the sale and from recapture items that generally cannot be offset by any capital loss recognized upon the sale
of units.
Unitholders may be subject to limitation on their ability to deduct interest expense incurred by us.
In general, we are entitled to a deduction for interest paid or accrued on indebtedness properly allocable to our trade or business during our taxable
year. However, our deduction for "business interest" is limited to the sum of our business interest income and 30% of our "adjusted taxable income." For the
purposes of this limitation, our adjusted taxable income is computed without regard to any business interest expense or business interest income, and in the
case of taxable years beginning before January 1, 2022, any deduction allowable for depreciation, amortization, or depletion. For our 2020 taxable year, the
Coronavirus Aid, Relief, and Economic Security Act increases the 30% adjusted taxable income limitation to 50%, unless we elect not to apply such
increase, and for purposes of determining our 50% adjusted taxable income limitation, we may elect to substitute our 2020 adjusted taxable income with our
2019 adjusted taxable income.
Tax-exempt entities face unique tax issues from owning common units that may result in adverse tax consequences to them.
Investment in our common units by tax-exempt entities, such as employee benefit plans and individual retirement accounts ("IRAs"), raises issues
unique to them. For example, virtually all of our income allocated to organizations that are exempt from U.S. federal income tax, including IRAs and other
retirement plans, will be unrelated business taxable income and will be taxable to them. Further, a tax-exempt entity with more than one unrelated trade or
business (including by attribution from investment in a partnership such as ours that is engaged in one or more unrelated trades or businesses) is required to
compute the unrelated business taxable income of such tax-exempt entity separately with respect to each such trade or business (including for purposes of
determining any net operating loss deduction). As a result, it may not be possible for tax-exempt entities to utilize losses from an investment in our
partnership to offset unrelated business taxable income from another unrelated trade or business and vice versa. If you are a tax exempt entity, you should
consult your tax advisor before investing in our common units.
Non-U.S. unitholders will be subject to U.S. taxes and withholding with respect to their income and gain from owning our units.
Non-U.S. unitholders are generally taxed and subject to income tax filing requirements by the United States on income effectively connected with a
U.S. trade or business ("effectively connected income"). Income allocated to our unitholders and
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any gain from the sale of our units will generally be considered to be "effectively connected" with a U.S. trade or business. As a result, distributions to a non-
U.S. unitholder will be subject to withholding at the highest applicable effective tax rate and a non-U.S. unitholder who sells or otherwise disposes of a unit
will also be subject to U.S. federal income tax on the gain realized from the sale or disposition of that unit.
The Tax Cuts and Jobs Act imposes a withholding obligation of 10% of the amount realized upon a non-U.S. unitholder's sale or exchange of an
interest in a partnership that is engaged in a U.S. trade or business, and we are required to deduct and withhold from the transferee amounts that should have
been withheld by the transferee but were not withheld. However, the U.S. Department of the Treasury and the IRS suspended these rules for transfers of
certain publicly traded partnership interests, including transfers of our common units, that occur before January 1, 2022. Under recently finalized Treasury
Regulations, such withholding will be required on open market transactions, but in the case of a transfer made through a broker, a partner’s share of
liabilities will be excluded from the amount realized. In addition, the obligation to withhold will be imposed on the broker instead of the transferee (and we
will generally not be required to withhold from the transferee amounts that should have been withheld by the transferee but were not withheld). These
withholding obligations will apply to transfers of our common units occurring on or after January 1, 2022. If you are a non-U.S. person, you should consult
your tax adviser before investing in our common units.
If a tax authority contests the tax positions we take, the market for our common units may be adversely affected and the cost of any such contest
would reduce our distributable cash flow.
We have not requested a ruling from the IRS with respect to our treatment as a partnership for U.S. federal income tax purposes. Tax authorities may
adopt positions that differ from the positions we take. It may be necessary to resort to administrative or court proceedings to sustain some or all of the
positions we take. A court may not agree with some or all of the positions we take. Any contest with a tax authority may materially and adversely affect the
market for our common units and the price at which they trade. Our costs of any contest with a tax authority will be borne indirectly by our unitholders and
our General Partner because the costs will reduce our distributable cash flow.
If the IRS makes audit adjustments to our income tax returns, it (and some states) may assess and collect any taxes (including any applicable
penalties and interest) resulting from such audit adjustments directly from us, in which case our cash available for distribution to our unitholders might
be substantially reduced and our current and former unitholders may be required to indemnify us for any taxes (including any applicable penalties and
interest) resulting from such audit adjustments that were paid on such unitholders' behalf.
If the IRS makes audit adjustments to our income tax returns, it (and some states) may assess and collect any taxes (including any applicable penalties
and interest) resulting from such audit adjustments directly from us. To the extent possible under the new rules, our General Partner may elect to either pay
the taxes (including any applicable penalties and interest) directly to the IRS or, if we are eligible, issue a revised information statement to each unitholder
and former unitholder with respect to an audited and adjusted return. Although our General Partner may elect to have our unitholders and former unitholders
take such audit adjustment into account and pay any resulting taxes (including applicable penalties or interest) in accordance with their interests in us during
the tax year under audit, there can be no assurance that such election will be practical, permissible or effective in all circumstances. As a result, our current
unitholders may bear some or all of the tax liability resulting from such audit adjustment, even if such unitholders did not own units in us during the tax year
under audit. If, as a result of any such audit adjustment, we are required to make payments of taxes, penalties and interest, our cash available for distribution
to our unitholders might be substantially reduced and our current and former unitholders may be required to indemnify us for any taxes (including any
applicable penalties and interest) resulting from such audit adjustments that were paid on such unitholders' behalf. Additionally, we may be required to
allocate an adjustment disproportionately among our unitholders, causing our publicly traded units to have different capital accounts, unless the IRS issues
further guidance.
In the event the IRS makes an audit adjustment to our income tax return and we do not or cannot shift the liability to our unitholders in accordance
with their interests in us during the year under audit, we will generally have the ability to request that the IRS reduce the determined underpayment by
reducing the suspended passive loss carryovers of our unitholders (without any compensation from us to such unitholders), to the extent such underpayment
is attributable to a net decrease in passive activity losses allocable to certain partners. Such reduction, if approved by the IRS, will be binding on any affected
unitholders.
We treat each purchaser of our common units as having the same tax benefits without regard to the common units actually purchased. The IRS may
challenge this treatment, which could adversely affect the value of the common units.
Due to a number of factors including our inability to match transferors and transferees of common units, we have adopted certain methods for
allocating depreciation and amortization that may not conform to all aspects of existing Treasury Regulations. A successful IRS challenge to the use of these
methods could adversely affect the amount of tax benefits available to our unitholders. It also could affect the timing of these tax benefits or the amount of
gain from any sale of common units and could have a negative impact on the value of our common units or result in audit adjustments to our unitholders’ tax
returns.
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We generally prorate our items of income, gain, loss and deduction between transferors and transferees of our units each month based upon the
ownership of our units on the first day of each month, instead of on the basis of the date a particular unit is transferred. The IRS may challenge this
treatment, which could change the allocation of items of income, gain, loss and deduction among our unitholders.
We generally prorate our items of income, gain, loss and deduction between transferors and transferees of our common units each month based upon
the ownership of our common units on the first day of each month (the "Allocation Date"), instead of on the basis of the date a particular common unit is
transferred. Similarly, we generally allocate certain deductions for depreciation of capital additions, gain or loss realized on a sale or other disposition of our
assets and, in the discretion of our General Partner, any other extraordinary item of income, gain, loss or deduction based upon ownership on the Allocation
Date. Treasury Regulations allow a similar monthly simplifying convention, but such regulations do not specifically authorize all aspects of our proration
method. If the IRS were to challenge our proration method, we may be required to change the allocation of items of income, gain, loss, and deduction among
our unitholders.
A unitholder whose common units are the subject of a securities loan (e.g. a loan to a “short seller” to cover a short sale of common units) may be
considered to have disposed of those common units. If so, such unitholder would no longer be treated for tax purposes as a partner with respect to those
common units during the period of the loan and could recognize gain or loss from the disposition.
Because there are no specific rules governing the U.S. federal income tax consequences of loaning a partnership interest, a unitholder whose common
units are the subject of a securities loan to the short seller may be considered to have disposed of the loaned units. In that case, such unitholder may no
longer be treated for tax purposes as a partner with respect to those common units during the period of the loan and the unitholder may be required to
recognize gain or loss from such disposition. Moreover, during the period of the loan, any of our income, gain, loss or deduction with respect to those
common units may not be reportable by the unitholder and any cash distributions received by the unitholder as to those common units could be fully taxable
as ordinary income. Unitholders desiring to assure their status as partners and avoid the risk of gain recognition from a securities loan are urged to consult a
tax advisor to determine whether it is advisable to modify any applicable brokerage account agreements to prohibit their brokers from borrowing their
common units.
We have adopted certain valuation methodologies in determining a unitholder’s allocations of income, gain, loss and deduction. The IRS may
challenge these methodologies or the resulting allocations, which could adversely affect the value of our common units.
In determining the items of income, gain, loss and deduction allocable to our unitholders, we must routinely determine the fair market value of our
assets. Although we may, from time to time, consult with professional appraisers regarding valuation matters, we make many fair market value estimates
using a methodology based on the market value of our common units as a means to measure the fair market value of our assets. The IRS may challenge these
valuation methods and the resulting allocations of income, gain, loss and deduction.
A successful IRS challenge to these methods or allocations could adversely affect the timing or amount of taxable income or loss being allocated to
our unitholders. It also could affect the amount of gain recognized from our unitholders’ sale of common units and could have a negative impact on the value
of the common units or result in audit adjustments to our unitholders’ tax returns without the benefit of additional deductions.
Our unitholders will likely be subject to state and local taxes and income tax return filing requirements in jurisdictions where they do not live as a
result of investing in our common units.
In addition to U.S. federal income taxes, unitholders will likely be subject to other taxes, including foreign, state and local taxes, unincorporated
business taxes and estate, inheritance or intangible taxes that are imposed by the various jurisdictions in which we conduct business or own property now or
in the future, even if they do not live in any of those jurisdictions. Our unitholders will likely be required to file state and local income tax returns and pay
state and local income taxes in some or all of these various jurisdictions. Further, unitholders may be subject to penalties for failure to comply with those
requirements. We conduct business and own property in numerous states, in the United States most of which impose a personal income tax as well as an
income tax on corporations and other entities. We may own property or conduct business in other U.S. states or non-U.S. countries that impose a personal
income tax in the future. It is the unitholder’s responsibility to file all U.S. federal, state, local and non-U.S. tax returns.
Item 1B. Unresolved Staff Comments
None.
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Item 2. Properties
The following tables set forth information with respect to our owned, operated and/or controlled terminals as of December 31, 2020.
Liquids Storage Terminals
** Sorel-Tracy Quebec, Canada
** Newington, NH: River Road
** Searsport, ME
* Bridgeport, CT
* Albany, NY
** South Portland, ME
* East Providence, RI
** Bronx, NY
** Newington, NH: Avery Lane
* Quincy, MA
* New Haven, CT (1)
** Providence, RI
*** Everett, MA
* Quincy, MA: TRT (2)
* Springfield, MA
*** Oswego, NY
* Lawrence, NY
* Stamford, CT
* New Bedford, MA (3)
* Inwood, NY
* Washington, PA area - four locations
Total
Dry Storage Terminals
** Searsport, ME
** Newington, NH: River Road
*** Portland, ME (4)
** South Portland, ME
** Providence, RI
Total
Number of
Storage Tanks
Storage Tank
Capacity (Bbls)
27
29
17
13
9
24
9
18
12
9
11
4
4
4
10
3
8
3
1
2
20
237
3,282,600
1,157,325
1,141,186
1,335,000
1,103,600
910,484
970,436
907,500
722,000
657,000
557,815
484,000
317,600
304,200
268,200
209,800
148,000
46,600
30,000
26,000
9,071
14,588,417
Number of Storage
Pads and Warehouses
Storage Capacity
(Square Feet)
2 warehouses;
15 pads
3 pads
7 warehouses;
3 pads
3 pads
1 pad
9 warehouses;
25 pads
90,000
872,000
390,000
215,000
95,000
230,000
75,000
1,967,000
Principal Products and Materials
refined products; asphalt, crude oil
refined products; asphalt; tallow
refined products; caustic soda; asphalt
refined products
refined products
refined products; asphalt; clay slurry
refined products
refined products; asphalt
refined products, asphalt
refined products
refined products
refined products; asphalt
asphalt
refined products
refined products
asphalt
refined products
refined products
refined products
refined products
refined products
Principal Products and Materials
break bulk; salt; petroleum coke;
heavy lift
salt; gypsum
break bulk; dry bulk; coal;
salt
salt; coal
salt
*Refined Product activities; **Refined Products and Materials Handling activities; *** Materials Handling activities
(1) These tanks are controlled via a storage and throughput agreement with no expiration.
(2) Operating assets and real estate are leased from an unaffiliated third party through April 30, 2025.
(3) Operating assets and real estate are leased from a subsidiary of Sprague Holdings through October 30, 2023.
(4) One storage warehouse is leased from an unaffiliated third party and the balance of the property is owned by us.
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On December 23, 2020, we sold the Mt. Vernon terminal to an unaffiliated buyer. In connection with the sale, we recorded a net gain on the sale of $8.1
million for the year ended December 31, 2020, which is included within other operating income in the consolidated statements of income. Pursuant to a post-
closing escrow and access agreement, we have deposited $1.2 million in an escrow account to secure our fulfillment of various environmental remediation
regulatory requirements.
Item 3. Legal Proceedings
From time to time, we are a party to various legal proceedings or claims arising in the ordinary course of business. For information related to legal
proceedings, see the discussion under the caption Legal, Environmental and Other Proceedings in Note 19 - Commitments and Contingencies to our
consolidated financial statements included in Part II, Item 8 of this Annual Report, which information is incorporated by reference into this Item 3.
Item 4. Mine Safety Disclosures
Not applicable.
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Part II
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Our public common units began trading on the NYSE under the symbol “SRLP” on October 25, 2013. As of March 4, 2021, Sprague Holdings owned
12,951,236 common units, which represents 56.4% of the limited partner interest in us. We have gathered tax information for our known unitholders and
from brokers/nominees and, based on the information collected, we have estimated that the number of our beneficial common unitholders was 12,492 at
December 31, 2020 and was 6,000 at December 31, 2019.
Certain Information from Our Partnership Agreement
Set forth below is a summary of certain provisions of our partnership agreement that relate to cash distributions and incentive distribution rights.
Our Cash Distribution Policy
It is our intent to distribute, within 45 days after the end of each fiscal quarter, the minimum quarterly distribution of $0.4125 per unit on all our units
($1.65 per unit on an annualized basis) to the extent we have sufficient cash from our operations after the establishment of cash reserves and payment of our
expenses. The board of directors of our General Partner will determine the amount of our quarterly distributions and may change our distribution policy at
any time. The board of directors of our General Partner may determine to reserve or reinvest excess cash in order to permit gradual or consistent increases in
quarterly distributions and may borrow to fund distributions in quarters when we generate less distributable cash flow than necessary to sustain or grow our
cash distributions per unit.
There is no guarantee that unitholders will receive quarterly cash distributions from us. We do not have a legal obligation to pay distributions at our
minimum quarterly distribution rate or at any other rate. Uncertainties regarding future cash distributions to our unitholders include, among other things, the
following factors:
• Our cash distribution policy may be affected by restrictions on distributions under our Credit Agreement as well as by restrictions in future debt
agreements that we enter into. Specifically, our Credit Agreement contains financial tests and covenants that we must satisfy. Should we be
unable to satisfy these restrictions or if we are otherwise in default under our Credit Agreement, we may be prohibited from making cash
distributions notwithstanding our stated cash distribution policy.
• Our General Partner has the authority to establish cash reserves for the prudent conduct of our business and for future cash distributions to our
unitholders, and the establishment of or increase in those reserves could result in a reduction in cash distributions from levels we currently
anticipate pursuant to our stated cash distribution policy.
• Under Section 17-607 of the Delaware Act we may not make a distribution if the distribution would cause our liabilities to exceed the fair
value of our assets.
• We may lack sufficient cash to make distributions to our unitholders due to a number of operational, commercial and other factors or increases
in our operating costs, general and administrative expenses, principal and interest payments on our outstanding debt and working capital
requirements.
•
If we make distributions out of capital surplus, as opposed to distributable cash flow, any such distributions would constitute a return of capital
and would result in a reduction in the minimum quarterly distribution and the target distribution levels. We do not anticipate that we will make
any distributions from capital surplus.
• Our ability to make distributions to our unitholders depends on the performance of our subsidiaries and their ability to distribute cash to us. The
ability of our subsidiaries to make distributions to us may be restricted by, among other things, the provisions of future indebtedness, applicable
state partnership, limited liability company and corporate laws and other laws and regulations.
See Part I, Item 1A - Risk Factors —Risk Related to our Business.
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General Partner Interest
Our General Partner owns a non-economic general partner interest in us, which does not entitle it to receive cash distributions. However, our General
Partner may in the future own common units or other equity interests in us and will be entitled to receive distributions on any such interest.
Incentive Distribution Rights
Sprague Holdings currently holds incentive distribution rights that entitle it to receive increasing percentages, up to a maximum of 50.0%, of the cash
we distribute from distributable cash flow in excess of $0.4744 per unit per quarter. After the IDR Reset Election, which has an expected commencement
date of March 5, 2021, this threshold will be increased from $0.4744 per unit per quarter to $0.7676 per unit per quarter. The maximum IDR distribution of
50.0% does not include any distributions that our Sponsor may receive on any limited partner units that it owns.
Issuer Purchases of Equity Securities
None.
Item 6. Selected Financial Data
We have elected to not provide information responsive to this Item as we are choosing to voluntary comply with the revisions to Item 6 of Form 10-
K contained in SEC Release No. 33-10890, which eliminated the disclosure requirements contained in Item 301 of Regulation S-K.
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our Consolidated
Financial Statements and notes to the Consolidated Financial Statements included elsewhere in this report, as well as the other financial information
appearing elsewhere in this Annual Report. This section of this Form 10-K generally includes comparisons of certain 2020 financial information to the same
information for 2019. Year-to-year comparisons of the 2019 financial information to the same information for 2018 that are not included in this Form 10-K
are contained in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 of the Partnership’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on March 5, 2020, which comparative information is incorporated by
reference herein.
A reference to a “Note” herein refers to the accompanying Notes to Consolidated Financial Statements contained in Part IV, Item 15 - “Exhibits and
Financial Statement Schedules” of this Annual Report.
Overview
We are a Delaware limited partnership formed in June 2011 by Sprague Holdings and our General Partner. We engage in the purchase, storage,
distribution and sale of refined products and natural gas, and provide storage and handling services for a broad range of materials. In October 2013, we
became a publicly traded master limited partnership ("MLP") and our common units representing limited partner interests are listed on the New York Stock
Exchange ("NYSE") under the ticker symbol “SRLP".
Our Predecessor was founded in 1870 as the Charles H. Sprague Company in Boston, Massachusetts; and, in 1905, the company opened the Penobscot
Coal and Wharf Company, a tidewater terminal located in Searsport, Maine. By World War II, the company was operating eleven terminals and a fleet of two
dozen vessels transporting coal and other products throughout the world. As fuel needs diversified in the United States, the company expanded its product
offerings and invested in terminals, tankers, and product handling activities. In 1959, the company expanded its oil marketing activities via entry into the
distillate oil market. In 1970, the company was sold to Royal Dutch Shell’s Asiatic Petroleum subsidiary; and, in 1972, Royal Dutch Shell sold the company
to Axel Johnson Inc., a member of the Axel Johnson Group of Stockholm, Sweden.
We are one of the largest independent wholesale distributors of refined products in the Northeast United States based on aggregate terminal capacity.
We own, operate and/or control a network of refined products and materials handling terminals and storage facilities predominantly located in the Northeast
United States from New York to Maine and in Quebec, Canada that have a combined storage tank capacity of approximately 14.6 million barrels for refined
products and other liquid materials, as well as approximately 2.0 million square feet of materials handling capacity. We also have access to approximately 43
third-party terminals in the Northeast United States through which we sell or distribute refined products pursuant to rack, exchange and throughput
agreements.
We operate under four business segments: refined products, natural gas, materials handling and other operations. See Note 17 - Segment Reporting to
our Consolidated Financial Statements for a presentation of financial results by reportable segment and see Part II, Item 7 "Management’s Discussion and
Analysis of Financial Condition and Results of Operations—Results of Operations" for a discussion of financial results by segment.
In our refined products segment we purchase a variety of refined products, such as heating oil, diesel fuel, residual fuel oil, kerosene, jet fuel and
gasoline (primarily from refining companies, trading organizations and producers), and sell them to our customers. We have wholesale customers who resell
the refined products we sell to them and commercial customers who consume the refined products directly. Our wholesale customers consist of
approximately 1,100 home heating oil retailers and diesel fuel and gasoline resellers. Our commercial customers include federal and state agencies,
municipalities, regional transit authorities, drill sites, large industrial companies, real estate management companies, hospitals, educational institutions, and
asphalt paving companies. In addition, as a result of our acquisition of Coen Energy in 2017, our customers include businesses engaged in the development
of natural gas resources in Pennsylvania and surrounding states.
In our natural gas segment we purchase natural gas from natural gas producers and trading companies and sell and distribute natural gas to
approximately 15,000 commercial and industrial customer locations across 13 states in the Northeast and Mid-Atlantic United States.
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Our materials handling segment is generally conducted under multi-year agreements as either fee-based activities or as leasing arrangements when the
right to use an identified asset (such as storage tanks or storage locations) has been conveyed in the agreement. We offload, store and/or prepare for delivery
a variety of customer-owned products, including asphalt, clay slurry, salt, gypsum, crude oil, residual fuel oil, coal, petroleum coke, caustic soda, tallow,
pulp and heavy equipment. Historically, a majority of our materials handling activity has generated qualified income.
Our other operations segment primarily includes the marketing and distribution of coal conducted in our Portland, Maine terminal, and commercial
trucking activity conducted by our Canadian subsidiary.
We take title to the products we sell in our refined products and natural gas segments. In order to manage our exposure to commodity price
fluctuations, we use derivatives and forward contracts to maintain a position that is substantially balanced between product purchases and product sales. We
do not take title to any of the products in our materials handling segment.
Our foreign sales, primarily sales of refined products and natural gas to customers in Canada, were $185.1 million, $255.5 million and $290.4 million
for the years ended December 31, 2020, 2019 and 2018, respectively. Long-lived assets (exclusive of intangible and other assets, net, and goodwill)
classified by geographic location were as follows:
United States
Canada
Total
COVID-19
As of December 31,
2020
2019
$
$
266,469 $
68,827
335,296 $
278,820
69,219
348,039
The global outbreak of the novel coronavirus (COVID-19) was declared a pandemic by the World Health Organization and a national emergency by the
U.S. Government in March 2020 and has negatively affected the U.S. and global economy, disrupted global supply chains, resulted in significant travel and
transport restrictions, including mandated closures and orders to “shelter-in-place,” and created significant disruption of the financial markets.
Beginning in the quarterly period ended March 31, 2020, a wide array of sectors including but not limited to the energy, transportation, manufacturing
and commercial, along with global economic conditions generally, have been significantly disrupted by the pandemic. A growing number of the
Partnership’s customers in these industries have experienced substantial reductions in their operations due to travel restrictions as well as the extended
shutdown of various businesses in affected regions. Furthermore, government measures have also led to a precipitous decline in fuel prices in response to
concerns about demand for fuel.
The pandemic and associated impacts on economic activity had an adverse effect on the Partnership’s operating results for the year ended December 31,
2020, specifically, the Partnership has seen a decline in demand and related sales volume as large sectors of the global economy have been adversely
impacted by the crisis. In response to these developments, the Partnership took swift action to ensure the safety of employees and other stakeholders, and
initiated a number of initiatives relating to cost reduction, liquidity and operating efficiencies.
The Partnership makes estimates and assumptions that affect the reported amounts on these consolidated financial statements and accompanying notes
as of the date of the financial statements. The Partnership assessed accounting estimates that require consideration of forecasted financial information,
including, but not limited to, the allowance for credit losses, the carrying value of goodwill, intangible assets, and other long-lived assets. This assessment
was conducted in the context of information reasonably available to the Partnership, as well as consideration of the future potential impacts of COVID-19 on
the Partnership’s business as of December 31, 2020. At this time, the Partnership is unable to predict with specificity the ultimate impact of the crisis, as it
will depend on the magnitude, severity and duration of the pandemic, as well as how quickly, and to what extent, normal economic and operating conditions
resume on a sustainable basis globally. Accordingly, if the impact is more severe or longer in duration than the Partnership has assumed, such impact could
potentially result in impairments and increases in credit allowances.
IDR Reset Election
On February 11, 2021, Sprague Holdings provided notice to Partnership that Sprague Holdings had made an IDR Reset Election, as defined in our
partnership agreement. Pursuant to the IDR Reset Election, Sprague Holdings will relinquish the
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right to receive incentive distribution payments based on the minimum quarterly and target cash distribution levels set at the time of the Partnership’s initial
public offering and the Partnership will issue 3,107,248 common units to Sprague Holdings. Pursuant to the IDR Reset Election, the minimum quarterly
distribution amount will be increased from $0.4125 per common unit per quarter to $0.6675 per common unit per quarter and the levels at which the
incentive distribution rights participate in distributions will be reset at higher amounts based on current common unit distribution rates and a formula in our
partnership agreement. The IDR Reset Election is expected to be consummated on March 5, 2021. Upon consummation of the IDR Reset Election, Sprague
Holdings will own 16,058,484 common units, representing 61.6% of the limited partner interest in the Partnership.
On March 1, 2021, the General Partner, entered into Amendment No. 3 (“Amendment No. 3”) to our partnership agreement. Amendment No. 3 provides
for certain adjustments to the carrying value of Partnership property in connection with an issuance of common units in connection with an IDR Reset
Election. A copy of Amendment No. 3 is filed as an exhibit to this annual report and is incorporated by reference herein.
How Management Evaluates Our Results of Operations
Our management uses a variety of financial and operational measurements to analyze our performance. These measurements include: (1) adjusted
EBITDA and adjusted gross margin, (2) operating expenses, (3) selling, general and administrative (or SG&A) expenses and (4) heating degree days.
EBITDA, adjusted EBITDA and adjusted gross margin used in this Annual Report are non-GAAP financial measures. We also present maintenance
capital expenditures and expansion capital expenditures, additional non-GAAP financial measures, as described in "Liquidity and Capital Resources -
Capital Expenditures" of this Annual Report.
EBITDA and Adjusted EBITDA
Management believes that adjusted EBITDA is an aid in assessing repeatable operating performance that is not distorted by non-recurring items or
market volatility and the ability of our assets to generate sufficient revenue, that when rendered to cash, will be available to pay interest on our indebtedness
and make distributions to our unitholders.
We define EBITDA as net income (loss) before interest, income taxes, depreciation and amortization. We define adjusted EBITDA as EBITDA
adjusted for the change in unrealized hedging gains (losses) with respect to refined products and natural gas inventory, and natural gas transportation
contracts, adjusted for changes in the fair value of contingent consideration, adjusted for the impact of acquisition related expenses, extraordinary gains, and
adjusted for the impact of biofuel excise tax credits resulting from retroactive tax legislation changes that occurred in 2018.
EBITDA and adjusted EBITDA are used as supplemental financial measures by external users of our financial statements, such as investors, trade
suppliers, research analysts and commercial banks to assess:
•
•
•
•
The financial performance of our assets, operations and return on capital without regard to financing methods, capital structure or historical
cost basis;
The ability of our assets to generate sufficient revenue, that when rendered to cash, will be available to pay interest on our indebtedness and
make distributions to our equity holders;
Repeatable operating performance that is not distorted by non-recurring items or market volatility; and
The viability of acquisitions and capital expenditure projects.
EBITDA and adjusted EBITDA are not prepared in accordance with GAAP and should not be considered alternatives to net income (loss) or operating
income (loss), or any other measure of financial performance presented in accordance with GAAP. EBITDA and adjusted EBITDA exclude some, but not
all, items that affect net income (loss) and operating income (loss).
The GAAP measure most directly comparable to EBITDA and adjusted EBITDA is net income (loss). EBITDA and adjusted EBITDA should not be
considered as alternatives to net income (loss) or cash provided by (used in) operating activities, or any other measure of financial performance or liquidity
presented in accordance with GAAP. EBITDA and adjusted EBITDA are not presentations made in accordance with GAAP and have important limitations
as analytical tools and should not be considered in isolation or as substitutes for analysis of our results as reported under GAAP. Because EBITDA and
adjusted EBITDA exclude some, but not all, items that affect net income (loss) and are defined differently by different
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companies, our definitions of EBITDA and adjusted EBITDA may not be comparable to similarly titled measures of other companies.
We recognize that the usefulness of EBITDA and adjusted EBITDA as evaluative tools may have certain limitations, including:
•
•
•
•
•
•
EBITDA and adjusted EBITDA do not include interest expense. Because we have borrowed money in order to finance our operations, interest
expense is a necessary element of our costs and impacts our ability to generate profits and cash flows. Therefore, any measure that excludes
interest expense may have material limitations;
EBITDA and adjusted EBITDA do not include depreciation and amortization expense. Because capital assets, depreciation and amortization
expense is a necessary element of our costs and ability to generate profits, any measure that excludes depreciation and amortization expense
may have material limitations;
EBITDA and adjusted EBITDA do not include provision for income taxes. Because the payment of income taxes is a necessary element of our
costs, any measure that excludes income tax expense may have material limitations;
EBITDA and adjusted EBITDA do not reflect capital expenditures or future requirements for capital expenditures or contractual commitments;
EBITDA and adjusted EBITDA do not reflect changes in, or cash requirements for, working capital needs; and
EBITDA and adjusted EBITDA do not allow us to analyze the effect of certain recurring and non-recurring items that materially affect our net
income or loss.
Adjusted Gross Margin
Management purchases, stores and sells energy commodities that experience market value fluctuations. To manage the Partnership’s underlying
performance, including its physical and derivative positions, management utilizes adjusted gross margin. In determining adjusted gross margin, management
adjusts its segment results for the impact of unrealized gains and losses with regard to refined products and natural gas inventory, and natural gas
transportation contracts, which are not marked to market for the purpose of recording unrealized gains or losses in net income (loss). Adjusted gross margin
is also used by external users of our consolidated financial statements to assess our economic results of operations and our commodity market value
reporting to lenders.
We define adjusted gross margin as net sales less cost of products sold (exclusive of depreciation and amortization) adjusted for the impact of
unrealized gains and losses with respect to refined products and natural gas inventory, and natural gas transportation contracts, which are not marked to
market for the purpose of recording unrealized gains or losses in net income. Adjusted gross margin has no impact on reported volumes or net sales.
Adjusted gross margin is used as a supplemental financial measure by management to describe our operations and economic performance to investors,
trade suppliers, research analysts and commercial banks to assess:
•
•
•
The economic results of our operations;
The market value of our inventory and natural gas transportation contracts for financial reporting to our lenders, as well as for borrowing base
purposes; and
Repeatable operating performance that is not distorted by non-recurring items or market volatility.
Adjusted gross margin is not prepared in accordance with GAAP and should not be considered as an alternative to net income (loss) or operating
income (loss) or any other measure of financial performance presented in accordance with GAAP.
We define adjusted unit gross margin as adjusted gross margin divided by units sold, as expressed in gallons for refined products, and in MMBtus for
natural gas.
For a reconciliation of adjusted gross margin and adjusted EBITDA to the GAAP measures most directly comparable, see the reconciliation tables
included in Results of Operations. See Segment Reporting included under Note 17 to our Consolidated Financial Statements for a presentation of our
financial results by reportable segment.
Management evaluates our segment performance based on adjusted gross margin. Based on the way we manage our business, it is not reasonably
possible for us to allocate the components of operating expenses, selling, general and administrative expenses and depreciation and amortization among the
operating segments.
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Operating Expenses
Operating expenses are costs associated with the operation of the terminals and truck fleet used in our business. Employee wages, pension and 401(k)
plan expenses, boiler fuel, repairs and maintenance, utilities, insurance, property taxes, services and lease payments comprise the most significant portions of
our operating expenses. Employee wages and related employee expenses included in our operating expenses are incurred on our behalf by our General
Partner and reimbursed by us. These expenses remain relatively stable independent of the volumes through our system but can fluctuate depending on the
activities performed during a specific period.
Selling, General and Administrative Expenses
Selling, general and administrative expenses ("SG&A") include employee salaries and benefits, discretionary bonus, marketing costs, corporate
overhead, professional fees, information technology and office space expenses. Employee wages, related employee expenses and certain rental costs
included in our SG&A expenses are incurred on our behalf by our General Partner and reimbursed by us.
Heating Degree Days
A “degree day” is an industry measurement of temperature designed to evaluate energy demand and consumption. Degree days are based on how
much the average temperature departs from a human comfort level of 65°F. Each degree of temperature above 65°F is counted as one cooling degree day,
and each degree of temperature below 65°F is counted as one heating degree day. Degree days are accumulated over the course of a year and can be
compared to a monthly or a long-term average ("normal") to see if a month or a year was warmer or cooler than usual. Degree days are officially observed
by the National Weather Service and archived by the National Climate Data Center. In order to incorporate more recent average information and to better
reflect the geographic locations of our customer base, we report degree day information for Boston and New York City (weighted equally) with a historical
average for the same geographic locations over the previous ten-year period.
Hedging Activities
We hedge our inventory within the guidelines set in our risk management policies. In a rising commodity price environment, the market value of our
inventory will generally be higher than the cost of our inventory. For GAAP purposes, we are required to value our inventory at the lower of cost or net
realizable value. The hedges on this inventory will lose value as the value of the underlying commodity rises, creating hedging losses. Because we do not
utilize hedge accounting, GAAP requires us to record those hedging losses in our income statements. In contrast, in a declining commodity price market we
generally incur hedging gains. GAAP requires us to record those hedging gains in our income statements.
The refined products inventory market valuation is calculated using daily independent bulk market price assessments from major pricing services
(either Platts or Argus). These third-party price assessments are primarily based in large, liquid trading hubs including but not limited to, New York Harbor
(NYH) or US Gulf Coast (USGC), with our inventory values determined after adjusting these prices to the various inventory locations by adding expected
cost differentials (primarily freight) compared to one of these supply sources. Our natural gas inventory is limited, with the valuation updated monthly based
on the volume and prices at the corresponding inventory locations. The prices are based on the most applicable monthly Inside FERC, or IFERC,
assessments published by Platts near the beginning of the following month.
Similarly, we can hedge our natural gas transportation assets (i.e., pipeline capacity) within the guidelines set in our risk management policy. Although
we do not own any natural gas pipelines, we secure the use of pipeline capacity to support our natural gas requirements by either leasing capacity over a
pipeline for a defined time period or by being assigned capacity from a local distribution company for supplying our customers. As the spread between the
price of gas between the origin and delivery point widens (assuming the value exceeds the fixed charge of the transportation), the market value of the natural
gas transportation contracts assets will typically increase. If the market value of the transportation asset exceeds costs, we may seek to hedge or “lock in” the
value of the transportation asset for future periods using available financial instruments. For GAAP purposes, the increase in value of the natural gas
transportation assets is not recorded as income in the income statements until the transportation is utilized in the future (i.e., when natural gas is delivered to
our customer). If the value of the natural gas transportation assets increase, the hedges on the natural gas transportation assets lose value, creating hedging
losses in our income statements. The natural gas transportation assets market value is calculated daily based on the volume and prices at the corresponding
pipeline locations. The daily prices are based on trader assessed quotes which represent observable transactions in the market place, with the end-month
valuations primarily based on Platts prices where available or adding a location differential to the price assessment of a more liquid location.
As described above, pursuant to GAAP, we value our commodity derivative hedges at the end of each reporting period based on current commodity
prices and record hedging gains or losses, as appropriate. Also as described above, and pursuant to
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GAAP, our refined products and natural gas inventory and natural gas transportation contract rights, to which the commodity derivative hedges relate, are
not marked to market for the purpose of recording gains or losses. In measuring our operating performance, we rely on our GAAP financial results, but we
also find it useful to adjust those numbers to reflect the unrealized gains and losses with regard to refined products and natural gas inventory, and natural gas
transportation contracts. By making such adjustments, as reflected in adjusted gross margin and adjusted EBITDA, we believe that we are able to align more
closely hedging gains and losses to the period in which the revenue from the sale of inventory and income from transportation contracts relating to those
hedges is realized.
Trends and Factors that Impact our Business
This section identifies certain factors and industry-wide trends that may affect our financial performance and results of operations.
• New, stricter environmental laws and regulations are increasing the compliance cost of terminal operations, which could adversely affect
our results of operations and financial condition. Our operations are subject to federal, state, local and foreign laws and regulations regulating
product quality specifications, emissions in the air, discharges to land and water, and the generation, handling, treatment, and disposal of
hazardous waste and other materials. The trend in environmental regulation is to place more restrictions and limitations on activities that may
affect the environment. Compliance with laws and regulations may increase our overall cost of business, including our capital cost to maintain
and upgrade equipment and facilities.
•
•
•
•
•
Seasonality and weather conditions. Our financial results are impacted by seasonality in our businesses and are generally better during the
winter months, primarily because a material part of our business consists of supplying heating oil, residual fuel oil and natural gas for space
heating purposes during the winter. For example, over the 36-month period ended December 31, 2020, we generated an average of 77% of our
total heating oil and residual fuel oil net sales during the months of November through March in the Northeast United States. In addition,
weather conditions, particularly during these five months, have a significant impact on the demand for our products. Warmer-than-normal
temperatures during these months in our areas of operations can decrease the total volume of heating oil, residual fuel oil and natural gas we
sell and the adjusted gross margins realized on those sales, whereas colder-than-normal temperatures increase demand for those products and
the associated adjusted gross margins.
Evolution of the shale gas industry in the Marcellus and Utica formations, among other U.S. regions, can have volatile effects on our
financial results. Increased natural gas production can alter the supply and demand balance, price curves, and margin expectations of the
Northeastern markets that we serve both in the near and over the long term. The amount of drilling and fracking operations can ebb and flow
within these areas. In addition, technology-driven changes such as automated fueling or the use of electric fleets can impact the fuel and
manual support required at these operations. Consequently, we may experience variability in the revenue we receive from this business
segment. We can also see variability in the commercial segment such as in the construction industry, at times related to the increase or decrease
in fracking and natural gas production, leading to further volatility.
Absolute price increase or decreases can impact demand and credit risk. Commodity prices in both our refined products and natural gas
segments can vary sharply due to market conditions. As commodity product prices rise, we can experience reduced demand as customers
engage in conservation efforts, are exposed to a higher level of credit risk to meet customer requirements, and incur increased working capital
costs for holding inventory and accounts receivable. In a lower commodity price environment our customers are generally less prone to engage
in conservation efforts, we experience lower credit risk, and working capital costs to hold inventory and finance accounts receivable.
The impact of the market structure on our hedging strategy. We typically hedge our exposure to commodity price moves with NYMEX
futures contracts and "over the counter" or "OTC" swaps. In markets where futures prices are higher than spot prices (typically referred to as
contango), we generate positive margins when rolling our inventory hedges to successive months. In markets where futures prices are lower
than spot prices (typically referred to as backwardation), we realize losses when rolling our inventory hedges to successive months. In
backwardated markets, we operate with lower inventory levels and, as a result, have reduced hedging and financing requirements, thereby
limiting losses.
Energy efficiency, new technology and alternative fuels could reduce demand for our products. Increased conservation and technological
advances have adversely affected the demand for heating oil and residual fuel oil. Consumption of residual fuel oil, in particular, has steadily
declined in recent years, primarily due to customers converting from other fuels to natural gas, weak industrial demand and tightening of
environmental regulations.
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Use of natural gas is expected to continue to displace other fuels, which we believe will favorably impact our natural gas volumes and margins.
•
Interest rates could rise. Interest rates could be higher than current levels, causing our financing costs to increase accordingly. During the 24
months ended December 31, 2020, we hedged approximately 47% of our floating-rate debt with fixed-for-floating interest rate swaps.
Although higher interest rates could limit our ability to raise funds in the debt capital markets, we expect to remain competitive with respect to
acquisitions and capital projects, as our competitors would face similar circumstances. As with other yield-oriented securities, our unit price is
impacted by the level of our cash distributions and implied distribution yield. The distribution yield is often used by investors to compare and
rank related yield-oriented securities for investment decision-making purposes. Therefore, changes in interest rates, either positive or negative,
may affect the yield requirements of investors who invest in our common units, and a rising interest rate environment could have an adverse
impact on our unit price and our ability to issue additional equity to make acquisitions, reduce debt or for other purposes.
38
Table of Contents
Results of Operations
Overview
Our current and future results of operations may not be comparable to our historical results of operations. Our results of operations may be impacted
by, among other things, swings in commodity prices, primarily in refined products and natural gas, and acquisitions or dispositions. We use economic hedges
to minimize the impact of changing prices on refined products and natural gas inventory. As a result, commodity price increases at the end of a year can
create lower gross margins as the economic hedges, or derivatives, for such inventory may lose value, whereas an increase in the value of such inventory is
disregarded for GAAP financial reporting purposes and recorded at the lower of cost or net realizable value. Please read “How Management Evaluates Our
Results of Operations.”
The following tables set forth information regarding our results of operations for the periods presented:
Net sales
Cost of products sold (exclusive of depreciation and amortization)
Operating expenses
Selling, general and administrative
Depreciation and amortization
Total operating costs and expenses
Other operating income
Operating income
Other income (expense)
Interest income
Interest expense
Income before income taxes
Income tax provision
Net income
Net sales
Cost of products sold (exclusive of depreciation and amortization)
Operating expenses
Selling, general and administrative
Depreciation and amortization
Total operating costs and expenses
Operating income
Other (expense) income
Interest income
Interest expense
Income before income taxes
Income tax provision
Net income
Years Ended December 31,
2019
2020
Increase/(Decrease)
$
%
($ in thousands)
2,335,983 $
2,071,805
77,070
81,514
34,066
2,264,455
8,094
79,622
1,948
299
(40,669)
41,200 $
(7,389)
33,811 $
3,502,410 $
3,228,003
84,924
78,135
34,015
3,425,077
—
77,333
(378)
555
(42,944)
34,566 $
(3,310)
31,256 $
(1,166,427)
(1,156,198)
(7,854)
3,379
51
(1,160,622)
8,094
2,289
2,326
(256)
2,275
6,634
(4,079)
2,555
Years Ended December 31,
2018
2019
Increase/(Decrease)
$
%
($ in thousands)
3,502,410 $
3,228,003
84,924
78,135
34,015
3,425,077
77,333
(378)
555
(42,944)
34,566 $
(3,310)
31,256 $
3,771,133 $
3,445,385
88,659
80,799
33,378
3,648,221
122,912
293
577
(38,931)
84,851 $
(5,032)
79,819 $
(268,723)
(217,382)
(3,735)
(2,664)
637
(223,144)
(45,579)
(671)
(22)
(4,013)
(50,285)
1,722
(48,563)
(33)%
(36)%
(9)%
4 %
— %
(34)%
N/A
3 %
(615)%
(46)%
(5)%
19 %
123 %
8 %
(7)%
(6)%
(4)%
(3)%
2 %
(6)%
(37)%
(229)%
(4)%
10 %
(59)%
(34)%
(61)%
$
$
$
$
$
$
39
Table of Contents
Reconciliation to Adjusted Gross Margin, EBITDA and Adjusted EBITDA
The following table sets forth a reconciliation of our consolidated operating income to our total adjusted gross margin, a non-GAAP measure, for the
periods presented and a reconciliation of our consolidated net income to EBITDA and Adjusted EBITDA, non-GAAP measures, for the periods presented.
See above "Management’s Discussion and Analysis of Financial Condition and Results of Operations - EBITDA and Adjusted EBITDA" of this report. The
table below also presents information on weather conditions for the periods presented.
Reconciliation of Operating Income to Adjusted Gross Margin:
2020
Years Ended December 31,
2019
($ in thousands)
2018
Operating income
79,622
Operating costs and expenses not allocated to operating segments:
77,070
81,514
34,066
(8,094)
Operating expenses
Selling, general and administrative
Depreciation and amortization
$
Other operating income (5)
Add/(deduct):
Change in unrealized gain (loss) on
inventory (1)
Change in unrealized value on natural
gas transportation contracts (2)
Total adjusted gross margin (3):
Adjusted Gross Margin by Segment:
Refined products
Natural gas
Materials handling
Other operations
Total adjusted gross margin
Reconciliation of Net Income to Adjusted
EBITDA
Net income
Add:
Interest expense, net
Tax provision
Depreciation and amortization
EBITDA (4):
Add/(deduct):
Change in unrealized gain (loss) on
inventory (1)
Change in unrealized value on natural
gas transportation contracts (2)
Biofuel tax credit (4)
Gain on sale of fixed assets not in the
ordinary course of business including gain on
insurance recoveries (5)
Asset impairments (6)
Acquisition related expenses (7)
Other adjustments (8)
Adjusted EBITDA
Other Data:
Ten Year Average Heating Degree Days
Heating Degree Days (9)
Variance from average heating degree
Variance from prior period heating degree
(9)
days
days
$
$
$
$
$
$
20,148
(9,565)
274,761
171,626
40,741
56,185
6,209
274,761
33,811
40,370
7,389
34,066
115,636
20,148
(9,565)
—
(8,094)
(1,947)
1
564
116,743
4,870
4,546
(7)
(6)
%
%
40
$
77,333
$
122,912
84,924
78,135
34,015
—
12,814
(19,289)
267,932
150,124
54,288
56,616
6,904
267,932
31,256
42,389
3,310
34,015
110,970
12,814
(19,289)
—
—
—
14
1,042
105,551
4,906
4,862
(1)
(3)
$
$
$
$
$
$
88,659
80,799
33,378
—
(32,960)
(19,114)
273,674
150,965
57,875
57,515
7,319
273,674
79,819
38,354
5,032
33,378
156,583
(32,960)
(19,114)
(4,022)
—
—
747
771
102,005
4,907
5,020
$
$
$
$
$
$
%
%
2
4
%
%
Table of Contents
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Inventory is valued at the lower of cost or net realizable value. The adjustment related to change in unrealized gain on inventory which is not
included in net income (loss), represents the estimated difference between inventory valued at the lower of cost or net realizable value as compared
to market values. The fair value of the derivatives we use to economically hedge our inventory declines or appreciates in value as the value of the
underlying inventory appreciates or declines, which creates unrealized hedging losses (gains) with respect to the derivatives that are included in net
income (loss).
Represents our estimate of the change in fair value of the natural gas transportation contracts which are not recorded in net income (loss) until the
transportation is utilized in the future (i.e., when natural gas is delivered to the customer), as these contracts are executory contracts that do not
qualify as derivatives. As the fair value of the natural gas transportation contracts decline or appreciate, the offsetting physical or financial
derivative will also appreciate or decline creating unmatched unrealized hedging losses (gains) in net income (loss).
For a discussion of the non-GAAP financial measures EBITDA, adjusted EBITDA and adjusted gross margin, see “How Management Evaluates
Our Results of Operations.”
On December 20, 2019, the U.S. federal government enacted legislation that reinstated an excise tax credit program available for certain of our
biofuel blending activities retroactive to the beginning of 2018 and through 2022. During the year ended December 31, 2019, we recorded excise
tax credits of approximately $4.4 million that related to blending activities that occurred during the year ended December 31, 2018. We record the
credit in the period the legislation was enacted as a reduction of cost of products sold (exclusive of depreciation and amortization) resulting in an
increase in adjusted gross margin. We did not show an adjustment to our adjusted EBITDA related to this reinstatement as the timing was such that
the 2018 Annual Report was filed prior to the legislative action.
On December 23, 2020, we sold the Mt. Vernon terminal to an unaffiliated buyer. In connection with the sale, we recorded a net gain on the sale of
$8.1 million for the year ended December 31, 2020, which is included within other operating income in the consolidated statements of income.
Pursuant to a post-closing escrow and access agreement, we have deposited $1.2 million in an escrow account to secure our fulfillment of various
environmental remediation regulatory requirements.
On November 1, 2019, a fire occurred at the Kildair Tracy Terminal which impacted certain buildings and equipment at the facility. The resulting
damage was covered by insurance coverage in place at the time of the incident, net of applicable deductibles. In connection with the insurance
reimbursement for the asset losses from the fire, the Partnership recorded $1.9 million in gains on involuntary nonmonetary asset conversions for
the year ended December 31, 2020, representing the insurance proceeds in excess of the remaining book value of impacted property, plant and
equipment. This gain was included within other income in the consolidated statements of income.
We incur expenses in connection with acquisitions and given the nature, variability of amounts, and the fact that these expenses would not have
otherwise been incurred as part of our continuing operations, adjusted EBITDA excludes the impact of acquisition related expenses.
Represents the change in the fair value of contingent consideration related to the 2017 Coen Energy acquisition and other expense.
We use heating degree day amounts as reported by the NOAA Regional Climate Center. Prior to April 1, 2018, we reported degree day information
utilizing the New England oil home heating region and for comparison purposes we used historical degree day information for the New England oil
home heating region over the period of 1981-2010. Commencing April 1, 2018, we report degree day information for Boston and New York City
(weighted equally) with a historical average for the same locations over the previous ten-year period. We made these changes to incorporate more
recent average information and to better reflect the geographic locations of our customer base. All degree day amounts in this document have been
revised to conform to this presentation.
Analysis of Consolidated Operating Results
For the year ended December 31, 2020 our operating income increased $2.3 million, or 3%, to $79.6 million, as compared to $77.3 million for the year
ended December 31, 2019. For the years ended December 31, 2020 and 2019, our operating income includes unrealized commodity derivative gains and
(losses) with respect to refined products and natural gas inventory and natural gas transportation contracts of $(10.6) million and $6.5 million, respectively,
which decreased operating income for the year ended December 31, 2020 by $17.1 million. Offsetting this decrease to operating income for the year ended
December 31, 2020, was higher adjusted gross margins, lower operating costs primarily due to cost reduction efforts and a net gain of $8.1 million on the
sale of the Mt. Vernon terminal.
See "Analysis of Operating Segments" and "Liquidity and Capital Resources" below for additional details on changes in our operating results.
41
Table of Contents
Analysis of Operating Segments
The following tables set forth information regarding our results of operating segments for the periods presented:
Years Ended December 31,
Increase/(Decrease)
2020
2019
$
%
($ and volumes in thousands, except adjusted unit gross margin)
Volumes:
Refined products (gallons)
Natural gas (MMBtus)
Materials handling (short tons)
Materials handling (gallons)
Net Sales:
Refined products
Natural gas
Materials handling
Other operations
Total net sales
Adjusted Gross Margin:
Refined products
Natural gas
Materials handling
Other operations
Total adjusted gross margin
Adjusted Unit Gross Margin:
Refined products
Natural gas
Volumes:
Refined products (gallons)
Natural gas (MMBtus)
Materials handling (short tons)
Materials handling (gallons)
Net Sales:
Refined products
Natural gas
Materials handling
Other operations
Total net sales
Adjusted Gross Margin:
Refined products
Natural gas
Materials handling
Other operations
Total adjusted gross margin
Adjusted Unit Gross Margin:
Refined products
Natural gas
$
$
$
$
$
$
$
$
$
$
$
$
1,364,474
55,746
2,316
410,754
1,998,197 $
261,358
56,347
20,081
2,335,983 $
171,626 $
40,741
56,185
6,209
274,761 $
0.126 $
0.731 $
1,530,356
62,266
2,496
480,659
3,112,924 $
307,952
56,655
24,879
3,502,410 $
150,124 $
54,288
56,616
6,904
267,932 $
0.098 $
0.872 $
(165,882)
(6,520)
(180)
(69,905)
(1,114,727)
(46,594)
(308)
(4,798)
(1,166,427)
21,502
(13,547)
(431)
(695)
6,829
0.028
(0.141)
Years Ended December 31,
Increase/(Decrease)
2019
2018
$
%
($ and volumes in thousands, except adjusted unit gross margin)
1,580,838
60,385
2,627
488,972
3,357,769 $
332,038
57,509
23,817
3,771,133 $
150,965 $
57,875
57,515
7,319
273,674 $
0.095 $
0.958 $
(50,482)
1,881
(131)
(8,313)
(244,845)
(24,086)
(854)
1,062
(268,723)
(841)
(3,587)
(899)
(415)
(5,742)
0.003
(0.086)
1,530,356
62,266
2,496
480,659
3,112,924 $
307,952
56,655
24,879
3,502,410 $
150,124 $
54,288
56,616
6,904
267,932 $
0.098 $
0.872 $
42
(11)%
(10)%
(7)%
(15)%
(36)%
(15)%
(1)%
(19)%
(33)%
14 %
(25)%
(1)%
(10)%
3 %
29 %
(16)%
(3)%
3 %
(5)%
(2)%
(7)%
(7)%
(1)%
4 %
(7)%
(1)%
(6)%
(2)%
(6)%
(2)%
3 %
(9)%
Table of Contents
Year Ended December 31, 2020 Compared to Year Ended December 31, 2019
Refined Products
Refined products net sales decreased $1.1 billion, or 36% as compared to 2019 due to a combination of a 28% decrease in the average sales price and a
11% reduction in product volume. The reduction in average sales price reflects the substantially lower market price environment in 2020 compared to last
year, with the key factors being surplus supply in the early part of the year driven by the key global producers and lower demand due to the impact of the
pandemic. The decline in volume was primarily due to a reduction in distillates, with a decrease in heavy oil also a contributor. The lower distillate volumes
were due primarily to a combination of less supportive winter weather affecting heating oil demand and a reduction in diesel fuel requirements driven by the
COVID-19 slowdown. The decreased heavy oil volumes was a combination of lower demand with the milder winter weather limiting the number of natural
gas interruptions and the pandemic-driven economic slowdown affecting industrial and marine bunker requirements. Gasoline volumes increased, with sales
to new customers more than offsetting weaker overall market demand.
Refined products adjusted gross margin in 2020 increased $21.5 million or 14% as compared to 2019, as the 29% increase in adjusted unit gross
margins more than offset the lower volumes. The key factor leading to the improvement in adjusted unit gross margin was the improved market structure to
purchase, store and hedge oil inventory that ensued in the spring in conjunction with the surplus supply and weakened demand environment. Another
significant factor in the improved results was higher adjusted unit gross margins on sales in our Canadian operations.
Natural Gas
Natural gas net sales in 2020 declined by $46.6 million, or 15%, compared to 2019, driven by a 10% decrease in volume as well as a 5% reduction in
average sales price in the lower natural gas price environment. The volume decrease was primarily a result of the economic slowdown associated with the
COVID-19 pandemic.
Natural gas adjusted gross margin in 2020 decreased $13.5 million, or 25%, primarily as a result of a 16% reduction in average adjusted unit gross
margin, with the volume decline also a contributor. The lower unit margins were due principally to a combination of increased competitive intensity in the
reduced demand, well-supplied markets and fewer optimization opportunities for pipeline capacity.
Materials Handling
Materials handling net sales and adjusted gross margin decreased by $0.3 million and $0.4 million, respectively, or 1% for each, compared to the same
period last year. The decrease was driven by a reduction at Kildair, as the decline due to the expiration of the crude handling contract at the end of May 2019
was more than the gains from additional activity with other customers. Revenues and margins in Sprague’s U.S. operations were up modestly as handling
gains from windmill components due to Sprague’s first land-based wind project since 2017, were significantly offset by reduced activity in support of the
paper industry, partly due to our exit from newsprint handling.
Other Operations
Net sales from other operations decreased by $4.8 million, or 19%, with a reduction in adjusted gross margin of $0.7 million, or 10%. The decline in
adjusted gross margin was a result of a decrease in coal, primarily due to an adjustment following a physical inventory reconciliation.
43
Table of Contents
Operating Costs and Expenses
The following tables set forth information regarding our results of operating costs and expenses for the periods presented:
Operating expenses
Selling, general and administrative expenses
Depreciation and amortization
Interest expense, net
Operating expenses
Selling, general and administrative expenses
Depreciation and amortization
Interest expense, net
Years Ended December 31,
2020
2019
($ in thousands)
77,070 $
81,514 $
34,066 $
40,370 $
84,924 $
78,135 $
34,015 $
42,389 $
Years Ended December 31,
2019
2018
($ in thousands)
84,924 $
78,135 $
34,015 $
42,389 $
88,659 $
80,799 $
33,378 $
38,354 $
$
$
$
$
$
$
$
$
Increase/(Decrease)
$
%
(7,854)
3,379
51
(2,019)
Increase/(Decrease)
$
%
(3,735)
(2,664)
637
4,035
(9)%
4 %
— %
(5)%
(4)%
(3)%
2 %
11 %
Operating Expenses. Operating expenses decreased $7.9 million, or 9%, compared to the same period last year, primarily reflecting a decrease of $4.7
million of employee-related expenses, $1.3 million in utilities and boiler fuel, $1.2 million of COVID-19 related expense reductions, and a $0.9 million
decrease in repairs and maintenance expense.
Selling, General and Administrative Expenses. Selling, general and administrative expenses increased $3.4 million, or 4%, led by $7.2 million increase
in incentive compensation. The increase was partially offset by a $2.0 million decrease in corporate overhead items related to the impact of COVID-19, a
$0.8 million reduction in our accretion expense, and a $0.8 million decrease in employee related expenses.
Depreciation and Amortization. Depreciation and amortization increased $0.1 million, or 0%, as no significant changes occurred during the year.
Interest Expense, net. Interest expense, net decreased $2.0 million, or 5%, compared to the same period last year primarily due to decreased net
borrowing rates.
44
Table of Contents
Liquidity and Capital Resources
Liquidity
Our primary liquidity needs are to fund our working capital requirements, operating expenses, capital expenditures and quarterly distributions. Cash
generated from operations, our borrowing capacity under our Credit Agreement (as defined below) and potential future issuances of additional partnership
interests or debt securities are our primary sources of liquidity. At December 31, 2020, our working capital was $(8.9) million.
As of December 31, 2020, the undrawn borrowing capacity under the working capital facilities of our Credit Agreement was $104.0 million and the
undrawn borrowing capacity under the acquisition facility was $32.2 million. We enter our seasonal peak period during the fourth quarter of each year,
during which inventory, accounts receivable and debt levels increase. As we move out of the winter season at the end of the first quarter of the following
year, typically inventory is reduced, accounts receivable are collected and converted into cash and debt is paid down. During the twelve months ended
December 31, 2020, the amount drawn under the working capital facilities of our Credit Agreement fluctuated from a high of $452.9 million to a low of
$205.8 million.
We believe that we have sufficient liquid assets, cash flow from operations and borrowing capacity under our Credit Agreement to meet our financial
commitments, debt service obligations, contingencies and anticipated capital expenditures. However, we are subject to business and operational risks that
could adversely affect our cash flow. A material decrease in our cash flow would likely have an adverse effect on our ability to meet our financial
commitments and debt service obligations.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements.
Capital Expenditures
Our terminals require investments to maintain, expand, upgrade or enhance existing assets and to comply with environmental and operational
regulations. Our capital requirements primarily consist of maintenance capital expenditures and expansion capital expenditures. We define maintenance
capital expenditures as capital expenditures made to replace assets, or to maintain the long-term operating capacity of our assets or operating income.
Examples of maintenance capital expenditures are expenditures required to maintain equipment reliability, terminal integrity and safety and to address
environmental laws and regulations. Costs for repairs and minor renewals to maintain facilities in operating condition and that do not extend the useful life
of existing assets will be treated as maintenance expenses as we incur them. We define expansion capital expenditures as capital expenditures made to
increase the long-term operating capacity of our assets or our operating income whether through construction or acquisition of additional assets. Examples of
expansion capital expenditures include the acquisition of equipment and the development or acquisition of additional storage capacity, to the extent such
capital expenditures are expected to expand our operating capacity or our operating income.
The following table summarizes expansion and maintenance capital expenditures for the periods indicated. This information excludes property, plant
and equipment acquired in business combinations.
Years Ended December 31,
(1)
2020
2019
2018
(2)
Expansion
Capital Expenditures
Maintenance
($ in thousands)
Total
$
$
$
3,810
6,474
6,825
$
$
$
6,193 $
7,818 $
9,577 $
10,003
14,292
16,402
(1) Excludes approximately $2.1 million for building and equipment expenditures related to replacement of assets at Kildair Tracy Terminal due to
property, plant and equipment losses from the November 1, 2019 fire.
(2) Excludes approximately $0.8 million of land acquired in 2018 in connection with the 2017 Coen Energy acquisition.
We anticipate that future maintenance capital expenditures will be funded with cash generated by operations and that future expansion capital
requirements will be provided through long-term borrowings or other debt financings and/or equity offerings.
45
Table of Contents
Contractual Obligations
We have contractual obligations that are required to be settled in cash. The amounts of our contractual obligations at December 31, 2020 were as
follows:
Operating lease obligations (1)
Finance lease obligations (including interest)
Credit facilities (including interest) (2)
Product purchases (3)
Transportation and storage (4)
Deferred consideration (5)
Total
Total
13,426
17,916
767,279
147,163
45,178
24,181
1,015,143
$
$
Less than
1 year
Payments due by period
1-3 years
(in thousands)
$
$
6,985
3,862
381,874
141,107
26,144
3,818
563,790
$
$
5,082
6,482
385,405
6,056
18,561
7,636
429,222
$
$
4-5 years
More than
5 years
1,072
3,376
—
—
473
7,636
12,557
$
$
287
4,196
—
—
—
5,091
9,574
(1) We have leases for a refined products terminal, refined products storage, maritime charters, office and plant facilities that are accounted for as
operating leases.
(2) Amounts include principal and interest on our working capital revolving credit facility and our acquisition line revolving credit facility at
December 31, 2020. The Credit Agreement has a contractual maturity of May 19, 2022, and no scheduled principal payments are required prior to
that date. However, we repay amounts outstanding and borrow funds based on our working capital requirements. The current portion of Credit
Agreement represents the amounts of the working capital facility. Interest is calculated using the rates in effect as of December 31, 2020, and we
assume a ratable payment of the current portion of the working capital revolving credit facility through the expiration date.
(3) Product purchases include estimated purchase commitments for refined products and natural gas. The value of these future supply commitments, if
not fixed in price, will fluctuate based on prevailing market prices. The prices at which we purchase refined products and natural gas are determined
by reference to published market prices prevailing at the time of purchase. The value of our product purchase commitments were computed based
on contractual prices.
(4) Transportation and storage commitments include refined products throughput agreements at third-party terminals and natural gas pipeline
transportation and storage agreements that have minimum usage requirements.
(5) Deferred consideration payments are related to the Carbo acquisition (see Note 14 - Other Obligations, of Part II, Item 8 of this Annual Report on
Form 10-K).
Cash Flows
Net cash provided by (used in) operating activities
Net cash provided by (used in) investing activities
Net cash (used in) provided by financing activities
Operating Activities
2020
Years Ended December 31,
2019
(in thousands)
$
$
$
154,466 $
514 $
(156,552) $
(65,365) $
(13,886) $
77,068 $
2018
158,979
(16,855)
(141,315)
Net cash provided by operating activities for the year ended December 31, 2020 was $154.5 million and was favorably impacted by net income of
$33.8 million, a decrease of $9.1 million in derivative instruments as a result of the increase in commodity prices in refined products during the year, a
decrease of $88.1 million in accounts receivable driven by a combination of lower sales prices and volumes, a decrease of $37.7 million in inventories
largely due to reductions in the cost of inventory purchases, as well as gain on the sale of the Mount Vernon terminal of $8.1 million included in the gain on
sale of assets and insurance recoveries of $10.0 million. Cash flows from operations were negatively impacted as a result of a reduction of $52.8 million in
accounts payable and accrued liabilities primarily relating to the timing of invoice payments for product purchases.
Net cash used in operating activities for the year ended December 31, 2019 was $65.4 million and was favorably impacted by net income of $31.3
million, a decrease of $48.1 million in derivative instruments as a result of the increase in commodity prices in refined products during the year. Cash flows
from operations were negatively impacted by an increase of
46
Table of Contents
$11.9 million in accounts receivable, primarily related to higher commodity prices, an increase of $33.7 million in inventory, a decrease of $85.7 million in
accounts payable and accrued liabilities, as well as an increase of $50.2 million in other assets due to year end timing.
Investing Activities
Net cash provided by investing activities for the year ended December 31, 2020 was $0.5 million and consisted primarily of $6.2 million related to
maintenance capital expenditures, $3.8 million related to expansion capital expenditures across our terminal system offset by $12.7 million related to
proceeds largely driven by the proceeds of approximately $10.3 million from the sale of the Mount Vernon terminal.
Net cash used in investing activities for the year ended December 31, 2019 was $13.9 million and consisted primarily of $7.8 million related to
maintenance capital expenditures and $6.5 million related to expansion capital expenditures across our terminal system.
Financing Activities
Net cash used in financing activities for the year ended December 31, 2020 was $156.6 million, and primarily resulted from $70.6 million of net
payments under our Credit Agreement due to reduced financing requirements from accounts receivable levels and the reduction of inventory levels as well
as distributions of $67.3 million.
Net cash provided by financing activities for the year ended December 31, 2019 was $77.1 million, and primarily resulted from $150.4 million of net
borrowings under our Credit Agreement due to increased financing requirements from higher commodity prices, year-end timing of accounts receivable
levels and average higher inventory levels. These were offset by distributions to unitholders of $66.9 million.
Credit Agreement
On May 19, 2020, Sprague Operating Resources LLC (the "U.S. Borrower") and Kildair, (the "Canadian Borrower" and, together with the U.S.
Borrower, the “Borrowers”), wholly owned subsidiaries of the Partnership, entered into a second amended and restated credit agreement (the “Credit
Agreement”), which replaced the amended and restated credit agreement, dated December 9, 2014 (the “Previous Credit Agreement”). Upon the effective
date, the Credit Agreement was accounted for as a modification of a syndicated loan arrangement with partial extinguishment to the extent of the decrease in
the borrowing capacity. The Credit Agreement matures on May 19, 2022. The Partnership and certain of its subsidiaries (the “Subsidiary Guarantors”) are
guarantors of the obligations under the Credit Agreement. Obligations under the Credit Agreement are secured by substantially all of the assets of the
Partnership, the Borrowers and the Subsidiary Guarantors (collectively, the “Loan Parties”).
As of December 31, 2020, the revolving credit facilities under the Credit Agreement contained, among other items, the following:
• A committed U.S. dollar revolving working capital facility of up to $465.0 million, subject to borrowing base limits, to be used for working
capital loans and letters of credit;
• An uncommitted U.S. dollar revolving working capital facility of up to $200.0 million, subject to borrowing base limits and the sole discretion
of the lenders, to be used for working capital loans and letters of credit;
• A multicurrency revolving working capital facility of up to $85.0 million, subject to borrowing base limits, to be used for working capital loans
and letters of credit;
• A revolving acquisition facility of up to $430.0 million, subject to borrowing base limits, to be used for loans and letters of credit to fund
capital expenditures and acquisitions and other general corporate purposes; and
•
Subject to certain conditions, including the receipt of additional commitments from lenders, the ability to increase the U.S. dollar revolving
working capital facility to up to $1.2 billion and the multicurrency revolving working capital facility to up to $320.0 million, subject to a
maximum combined increase in commitments for both facilities of $470.0 million in the aggregate. Additionally, subject to certain conditions,
the revolving acquisition facility may be increased to up to $750.0 million.
Indebtedness under the Credit Agreement bears interest, at the Borrowers' option, at a rate per annum equal to either (i) the Eurocurrency Rate (which
is the LIBOR Rate for loans denominated in U.S. dollars and CDOR for loans denominated in Canadian dollars, in each case adjusted for certain regulatory
costs, and in each case with a floor of 0.50%) for interest periods of one, two, three or six months plus a specified margin or (ii) an alternate rate plus a
specified margin.
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For loans denominated in U.S. dollars, the alternate rate is the Base Rate which is the highest of (a) the U.S. Prime Rate as in effect from time to time,
(b) the greater of the Federal Funds Effective Rate and the Overnight Bank Funding Rate as in effect from time to time plus 0.50% and (c) the one-month
Eurocurrency Rate for U.S. dollars as in effect from time to time plus 1.00%.
For loans denominated in Canadian dollars, the alternate rate is the Prime Rate which is the higher of (a) the Canadian Prime Rate as in effect from
time to time and (b) the one-month Eurocurrency Rate for U.S. dollars as in effect from time to time plus 1.00%.
The specified margins for the working capital revolving facilities vary based on the utilization of the working capital facilities as a whole, measured on
a quarterly basis. On or prior to November 19, 2020, the specified margin for (x) the committed U.S. dollar revolving working capital facility ranged from
1.25% to 1.75% for loans bearing interest at the Base Rate and from 2.25% to 2.75% for loans bearing interest at the Eurocurrency Rate, (y) the
uncommitted U.S. dollar revolving working capital facility ranged from 1.00% to 1.50% for loans bearing interest at the Base Rate and 2.00% to 2.50% for
loans bearing interest at the Eurocurrency Rate and (z) the multicurrency revolving working capital facility ranged from 1.25% to 1.75% for loans bearing
interest at the Base Rate and 2.25% to 2.75% for loans bearing interest at the Eurocurrency Rate. After November 19, 2020, the specified margin for (x) the
committed U.S. dollar revolving working capital facility will range from 0.75% to 1.25% for loans bearing interest at the Base Rate and from 1.75% to
2.25% for loans bearing interest at the Eurocurrency Rate, (y) the uncommitted U.S. dollar revolving working capital facility will range from 0.50% to
1.00% for loans bearing interest at the Base Rate and 1.50% to 2.00% for loans bearing interest at the Eurocurrency Rate and (z) the multicurrency revolving
working capital facility will range from 0.75% to 1.25% for loans bearing interest at the Base Rate and 1.75% to 2.25% for loans bearing interest at the
Eurocurrency Rate.
The specified margin for the revolving acquisition facility varies based on the consolidated total leverage of the Loan Parties. The specified margin for
the revolving acquisition facility will range from 1.25% to 2.25% for loans bearing interest at the Base Rate and from 2.25% to 3.25% for loans bearing
interest at the Eurocurrency Rate.
In addition, the Borrowers will incur a commitment fee on the unused portion of (x) the committed U.S. dollar revolving working capital facility and
multicurrency revolving working capital facility ranging from 0.375% to 0.500% per annum and (y) the revolving acquisition facility at a rate ranging from
0.35% to 0.50% per annum. Overdue amounts bear interest at the applicable rates described above plus an additional margin of 2%.
The Credit Agreement contains various covenants and restrictive provisions that, among other things, prohibit the Partnership from making
distributions to unitholders if any event of default occurs or would result from the distribution or if the Loan Parties would not be in pro forma compliance
with the financial covenants after giving effect to the distribution. In addition, the Credit Agreement contains various covenants that are usual and customary
for a financing of this type, size and purpose, including, but not limited to, covenants that require the Loan Parties to maintain: a minimum consolidated
EBITDA-to fixed-charge ratio, a minimum consolidated net working capital amount and a maximum consolidated total leverage-to-EBITDA ratio. The
Credit Agreement also limits the Loan Parties ability to incur debt, grant liens, make certain investments or acquisitions, enter into affiliate transactions and
dispose of assets. The Partnership was in compliance with the covenants under the Credit Agreement at December 31, 2020.
The Credit Agreement also contains events of default that are usual and customary for a financing of this type, size and purpose including, among
others, non-payment of principal, interest or fees, violation of certain covenants, material inaccuracy of representations and warranties, bankruptcy and
insolvency events, cross-payment default and cross-acceleration, material judgments and events constituting a change of control. If an event of default exists
under the Credit Agreement, the lenders will be able to terminate the lending commitments, accelerate the maturity of the Credit Agreement and exercise
other rights and remedies with respect to the collateral.
Impact of Inflation
Inflation in the United States and Canada has been relatively low in recent years and did not have a material impact on our results of operations for the
years ended December 31, 2020, 2019 and 2018.
Foreign Currency
Our most significant foreign operations are conducted by Kildair, our Canadian subsidiary. The functional currency of Kildair is the U.S. Dollar.
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Kildair converts receivables and payables denominated in other than their functional currency at the exchange rate as of the balance sheet date. Kildair
utilizes forward currency contracts to manage its exposure to currency fluctuations of certain of its transactions that are denominated in Canadian dollars.
These forward currency exchange contracts are recorded at fair value at the balance sheet date and changes in fair value are recognized in net income (loss)
as these forward currency contracts have not been designated as hedges. Transaction exchange gains or losses net of the impact of the forward currency
exchange contracts, except for certain transaction gains or losses related to intercompany receivable and payables, are recorded in cost of products sold
(exclusive of depreciation and amortization).
Transaction gains and losses related to intercompany receivables and payables not anticipated to be settled in the foreseeable future are excluded from
the determination of net income (loss) and are recorded as a translation adjustment to accumulated other comprehensive income (loss) as a component of
unitholders’ equity. As of December 31, 2020, all intercompany receivables or payables are anticipated to be settled in the foreseeable future and therefore,
no amounts are included in accumulated other comprehensive income (loss).
Critical Accounting Policies and Estimates
Use of Estimates
The Partnership’s Consolidated Financial Statements have been prepared in accordance with GAAP. The preparation of these consolidated financial
statements requires the Partnership to make estimates and assumptions that affect the reported amounts of assets and liabilities in the balance sheet and
reported net sales and expenses in the income statement. Actual results could differ from those estimates. Among the estimates made by the Partnership are
assets and liabilities valuations as part of an acquisition, the fair value of derivative assets and liabilities, valuation of the reporting units within the goodwill
quantitative impairment assessment, and if necessary long-lived asset impairments and environmental and legal obligations.
These estimates are based on our knowledge and understanding of current conditions and actions that we may take in the future. Changes in these
estimates will occur as a result of the passage of time and the occurrence of future events. Subsequent changes in these estimates may have a significant
impact on our financial condition and results of operations and are recorded in the period in which they become known. We have identified the following
estimates that, in our opinion, are subjective in nature, require the exercise of judgment and involve complex analysis:
Derivatives
As a matter of policy, refined products and natural gas businesses utilize futures contracts, forward contracts, swaps, options and other derivatives in
an effort to minimize the impact of commodity price fluctuations. On a selective basis and within our risk management policy’s guidelines, we utilize futures
contracts, forward contracts, swaps, options and other derivatives to generate profits from changes in market prices.
We record all derivative instruments as either assets or liabilities in the statement of financial position and measure those instruments at fair value. We
recognize changes in the fair value of our commodity derivative instruments currently in earnings as cost of products sold (exclusive of depreciation and
amortization).
We do not offset fair value amounts recognized for the right to reclaim cash collateral (a receivable) or the obligation to return cash collateral (a
payable) against fair value amounts, including amounts that approximate fair value, recognized for derivative instruments executed with the same
counterparty under the same master netting arrangement.
We also use interest rate swaps to convert a portion of our floating rate debt to fixed rates. These interest rate swaps are designated as cash flow hedges
and the changes in fair value of the swaps are included as a component of comprehensive income (loss) and accumulated other comprehensive loss, net of
tax, respectively.
Our derivative instruments are recorded at fair value, with changes in fair value recognized in net income (loss) or other comprehensive income (loss)
each period, as appropriate. Fair value measurements are determined using the market approach and include non-performance risk and time value of money
considerations. Counterparty credit is considered for receivable balances, and our credit is considered for payable balances.
We determine fair value based on a hierarchy for the inputs used to measure the fair value of financial assets and liabilities based on the source of the
input, which generally range from quoted prices for identical instruments in a principal trading market (Level 1) to estimates determined using significant
unobservable inputs (Level 3). Multiple inputs may be used to measure fair value; however, the level of fair value is based on the lowest significant input
level within this fair value hierarchy.
Details on the methods and assumptions used to determine the fair values are as follows:
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Fair value measurements based on Level 1 inputs: Measurements that are most observable and are based on quoted prices of identical instruments
obtained from the principal markets in which they are traded. Closing prices are both readily available and representative of fair value. Market transactions
occur with sufficient frequency and volume to assure liquidity.
Fair value measurements based on Level 2 inputs: Measurements derived indirectly from observable inputs or from quoted prices from markets that
are less liquid are considered Level 2. Measurements based on Level 2 inputs include over-the-counter ("OTC") derivative instruments that are priced on an
exchange traded curve, but have contractual terms that are not identical to exchange traded contracts. We utilize fair value measurements based on Level 2
inputs for our fixed forward contracts, over-the-counter commodity price swaps, interest rate swaps and forward currency contracts.
Fair value measurements based on Level 3 inputs: Measurements that are least observable are estimated from significant unobservable inputs
determined from sources with little or no market activity for comparable contracts or for positions with longer durations.
Goodwill
Goodwill is defined as the excess of cost over the fair value of assets acquired and liabilities assumed in a business combination. We test goodwill at
the reporting unit level annually as of October 31 or on an as needed basis, for indicators of impairment at each reporting unit that has recorded goodwill. In
performing the test, we either use a qualitative assessment or a single step quantitative approach. Under the qualitative approach we consider a number of
factors, including the amount by which the previous quantitative test's fair value exceeded the carrying value of the reporting units, actual performance as
compared to internal forecasts used in the previous quantitative test, an evaluation of discount rates, and an evaluation of current economic factors for both
the worldwide economy and specifically the oil and gas industry, and any significant changes in customer and supplier relationships. We weigh these factors
to determine if it is more likely than not that the fair value of the reporting unit exceeds its carrying value. If after performing a qualitative assessment,
indicators are present, or we identify factors that cause us to believe it is appropriate to perform a more precise calculation of fair value, we would move
beyond the qualitative assessment and perform a quantitative impairment test.
Under the quantitative impairment test, we perform a comparison of the reporting unit’s carrying value to its fair value. We estimate the fair value of a
reporting unit based upon future net discounted cash flows (Level 3 measurement). In calculating these estimates, we develop a discounted cash flow model
based on forecasted operating results, discount rates, and growth rates, which contemplate business, market and overall economic conditions. Further, the
discount rates used require estimates of the cost of equity and debt financing. The estimates of fair value of these reporting units could change if actual
operating results or discount rates vary from these estimates. We performed sensitivity analyses on the fair values resulting from the discounted cash flows
valuation utilizing more conservative assumptions that reflect reasonably likely future changes in the discount rates and perpetual growth rate in each of the
reporting units. Based upon our 2020 annual impairment testing analyses, including the consideration of reasonably likely adverse changes in assumptions
described above, the Partnership determined that there have been no goodwill impairments to date.
Revenue Recognition
Revenue is recognized when performance obligations under the terms of a contract with a customer are satisfied. The majority of our revenue is generated
from refined products and natural gas contracts that have a single performance obligation which is the delivery of the related energy product. Accordingly,
we recognize revenue for refined products and natural gas when title and control have been transferred to the customer which is generally at the time of
shipment or delivery of products. Revenue for our materials handling segment is recorded on a straight-line basis under leasing arrangements or as services
are performed.
Revenue is measured as the amount of consideration we expect to receive in exchange for transferring products or providing services and is generally
based upon a negotiated index, formula, list or fixed price. An allowance for doubtful accounts is recorded to reflect an estimate of the ultimate realization of
the accounts receivable and includes an assessment of the customers’ creditworthiness and the probability of collection. The provision for the allowance for
doubtful accounts is included in cost of products sold (exclusive of depreciation and amortization) and has not been significant in the past. Estimated
discounts are included in the transaction price of the contracts with customers as a reduction to net sales. We sell our products or provide services directly to
commercial customers and wholesale distributors generally under agreements with payment terms typically less than 30 days.
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We account for shipping and handling as activities to fulfill the promise to transfer the good. As such, shipping and handling fees billed to customers in a
sales transaction are recorded in net sales and shipping and handling costs incurred are recorded in cost of products sold (exclusive of depreciation and
amortization). We exclude from net sales any value add, sales and other taxes which it collects concurrently with revenue-producing activities.
The majority of our revenue is derived from (i) contracts with an original expected length of one year or less and (ii) contracts for which we recognize
revenue at the amount in which we have the right to invoice the customer as product is delivered.
Recent Accounting Pronouncements
For information on recent accounting pronouncements impacting our business, see Recent Accounting Pronouncements included under Note 1 -
Description of Business and Summary of Significant Accounting Policies to our Consolidated Financial Statements (Part II, Item 8 of this Annual Report).
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Item 7A. Quantitative and Qualitative Disclosures about Market Risk
Market risk is the risk of loss arising from adverse changes in market rates and prices. The principal market risks to which we are exposed are
commodity price risk, interest rate risk and market/credit risk. We utilize various derivative instruments to manage exposure to commodity risk and swaps to
manage exposure to interest rate risk.
Commodity Price Risk
We use various financial instruments as we seek to hedge our commodity price risk. We sell our refined products and natural gas primarily in the
Northeast. We hedge our refined products positions primarily with a combination of futures contracts that trade on the NYMEX, and fixed-for-floating price
swaps in the form of bilateral contracts that are traded “over-the-counter” or "OTC". Although there are some notable differences between futures and the
fixed-for-floating price swaps, both can provide a fixed price while the counterparty receives a price that fluctuates as market prices change.
As indicated in the table below, we primarily use futures contracts to hedge light oil transactions and swaps contracts for hedging residual fuel oils.
There are no residual fuel oil futures contracts that actively trade in the United States. Each of the financial instruments trade by month for many months
forward, allowing us the ability to hedge future contractual commitments.
Product Group
Gasolines
Distillates
Residual Fuel Oils
Primary Financial Hedging Instrument
NYMEX RBOB futures contract
NYMEX Ultra Low Sulfur Diesel futures contract
New York Harbor 1% Sulfur Residual Fuel Oil Swaps
In addition to the financial instruments listed above, we may periodically use the ethanol futures contract that trades on the Chicago Board of Trade, or
CBOT, to hedge ethanol that is used for blending into our gasoline. This ethanol contract is based on Chicago delivery. There are also swaps alternatives
available in the market to hedge ethanol. In addition, we also use Rotterdam Barge 0.1% Sulfur Gasoil swaps as the primary means to hedge Kildair's marine
gas oil positions.
For natural gas, there are no quality differences that need to be considered when hedging. Our primary hedging requirements relate to fixed price and
basis (location) exposure. We largely hedge our natural gas fixed price exposure using fixed-for-floating price swaps that trade on the ICE with the prices
based on the Henry Hub location near Erath, Louisiana. The Henry Hub is the most active natural gas trading location in the United States. Although we
typically use swaps, there is also an actively traded NYMEX Henry Hub natural gas futures contract that we can use. We primarily use ICE basis swaps as
the key financial instrument type to hedge our natural gas basis risk. Similar to the natural gas futures and ICE Henry Hub swaps, basis swaps for major
locations trade actively for many months. These swaps are financially settled, typically using prices quoted by Platts. We also directly hedge our price
exposure in oil and natural gas by using forward purchases or sales that require physical delivery of the product.
The following table presents total realized and unrealized gains (losses) on derivative instruments utilized for commodity risk management purposes.
Such amounts are included in cost of products sold (exclusive of depreciation and amortization) for the years ended December 31, 2020, 2019 and 2018:
Refined products contracts
Natural gas contracts
Total
2020
2019
(in thousands)
2018
$
$
15,434 $
46,024
61,458 $
(26,194) $
38,513
12,319 $
54,616
(1,353)
53,263
Substantially all of our commodity derivative contracts outstanding as of December 31, 2020 will settle prior to June 30, 2022.
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Interest Rate Risk
We enter into interest rate swaps to manage exposures in changing interest rates. We swap the variable LIBOR interest rate payable under our Credit
Agreement for fixed LIBOR interest rates. These interest rate swaps meet the criteria to receive cash flow hedge accounting treatment. Counterparties to our
interest rate swaps are large multi-national banks and we do not believe there is a material risk of counterparty nonperformance. Additionally, we may enter
into seasonal swaps which are intended to manage our increase in borrowings during the winter, as a result of higher inventory and accounts receivable
levels.
Our interest rate swap agreements outstanding as of December 31, 2020 were as follows (in thousands):
Beginning
January 2020
April 2020
January 2021
April 2021
January 2022
April 2022
January 2023
January 2024
Interest Rate Swap Agreements
Ending
January 2021
April 2021
January 2022
April 2022
January 2023
April 2023
January 2024
January 2025
$
$
$
$
$
$
$
$
Notional Amount
300,000
25,000
300,000
25,000
250,000
25,000
250,000
50,000
During the two year period ended December 31, 2020, we hedged approximately 47% of our floating rate debt with fixed-for-floating interest rate
swaps. We expect to continue to utilize interest rate swaps to manage our exposure to LIBOR interest rates. Based on a sensitivity analysis for the year ended
December 31, 2020, we estimate that if short-term interest rates increase 100 basis points or decrease to zero, our interest expense would increase by $3.7
million and decrease by $1.6 million, respectively. These amounts were estimated by considering the effect of the hypothetical short-term interest rates on
variable-rate debt outstanding, adjusted for interest rate hedges.
Derivative Instruments
The following tables present our derivative assets and derivative liabilities measured at fair value on a recurring basis as of December 31, 2020:
Derivative assets:
Commodity fixed forwards
Commodity swaps and options
Commodity derivatives
Total derivative assets
Derivative liabilities:
Commodity fixed forwards
Commodity swaps and options
Commodity derivatives
Interest rate swaps
Currency swaps
Total derivative liabilities
Fair Value
Measurement
Active
Markets
Level 1
Observable
Inputs
Level 2
Unobservable
Inputs
Level 3
(in thousands)
$
$
64,514 $
101,464
165,978
165,978 $
25,973
133,809
159,782
14,559
4
$
174,345 $
— $
101,464
101,464
101,464 $
—
133,743
133,743
—
—
133,743 $
64,514 $
—
64,514
64,514 $
25,973
66
26,039
14,559
4
40,602 $
—
—
—
—
—
—
—
—
—
—
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Market and Credit Risk
The risk management activities for our refined products and natural gas segments involve managing exposures to the impact of market fluctuations in
the price and transportation costs for commodities through the use of derivative instruments. The prices for energy commodities can be significantly
influenced by market liquidity and changes in seasonal demand, weather conditions, transportation availability, and federal and state regulations. We monitor
and manage our exposure to market risk on a daily basis in accordance with approved policies.
We maintain a control environment under the direction of our Chief Risk Officer through our risk management policy, processes and procedures,
which our senior management has approved. Control measures include volumetric, value at risk, and stop loss limits, as well as contract term limits. Our
Chief Risk Officer and Risk Management Committee must approve the use of new instruments or new commodities. Risk limits are monitored and reported
daily to senior management. Our risk management department also performs independent verifications of sources of fair values. These controls apply to all
of our commodity risk management activities.
We use a value at risk model to monitor commodity price risk within our risk management activities. The value at risk model uses both linear and
simulation methodologies based on historical information, with the results representing the potential loss in fair value over one day at a 95% confidence
level. Results may vary from time to time as hedging coverage, market pricing levels and volatility change.
We have a number of financial instruments that are potentially at risk including cash and cash equivalents, receivables and derivative contracts. Our
primary exposure is credit risk related to our receivables and counterparty performance risk related to the fair value of derivative assets, which is the loss that
may result from a customer’s or counterparty’s non-performance. We use credit policies to control credit risk, including utilizing an established credit
approval process, monitoring customer and counterparty limits, employing credit mitigation measures such as analyzing customer financial statements,
credit insurance with a third party provider and accepting personal guarantees and forms of collateral. We believe that our counterparties will be able to
satisfy their contractual obligations. Credit risk is limited by the large number of customers and counterparties comprising our business and their dispersion
across different industries.
Cash is held in demand deposit and other short-term investment accounts placed with federally insured financial institutions. Such deposit accounts at
times may exceed federally insured limits. We have not experienced any losses on such accounts.
The following table presents the value at risk for our refined products and natural gas marketing and risk management commodity derivatives
activities:
At December 31
Average
High
Low
$
2020
228
675
2,448
13
Refined Products
2019
(in thousands)
119
$
127
461
27
$
2018
2020
$
193
54
193
12
Natural Gas
2019
(in thousands)
502
$
381
657
120
711
424
738
151
2018
$
309
358
740
172
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Item 8. Financial Statements and Supplementary Data
See Part IV, Item 15 - "Exhibits and Financial Statement Schedule—Index to Consolidated Financial Statements''.
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
Disclosure controls and procedures are designed to ensure that information required to be disclosed in the Partnership's reports filed or submitted
under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure
controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the Partnership's
reports under the Exchange Act is accumulated and communicated to the Partnership's management, including the President, Chief Executive Officer and the
Chief Financial Officer of Sprague Resources GP LLC (the Partnership's general partner), or persons performing similar functions, as appropriate to allow
timely decisions regarding required disclosure.
As of December 31, 2020, the Partnership carried out an evaluation, under the supervision and with the participation of management (including the
President, Chief Executive Officer and the Chief Financial Officer of the Partnership's general partner) of the effectiveness of the design and operation of the
Partnership's disclosure controls and procedures pursuant to Exchange Act Rule 13a-15. Based on this evaluation, the general partner's President, Chief
Executive Officer and Chief Financial Officer concluded that the Partnership's disclosure controls and procedures were effective as of December 31, 2020.
Management’s Report Regarding Internal Control Over Financial Reporting
Management of the general partner, including the President, Chief Executive Officer and the Chief Financial Officer of the Partnership's general
partner, is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is a
process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
reporting purposes in accordance with accounting principles generally accepted in the United States of America. Because of its inherent limitations, internal
control over financial reporting may not prevent or detect misstatements. Further, because of changes in conditions, effectiveness of internal control over
financial reporting may vary over time.
Management has assessed the effectiveness of Sprague Resources LP’s internal control over financial reporting as of December 31, 2020. In making its
assessment, management has utilized the criteria set forth by the Committee of Sponsoring Organizations (COSO) of the Treadway Commission in Internal
Control—Integrated Framework (2013 Framework). Management concluded that based on its assessment, the Partnership's internal control over financial
reporting was effective as of December 31, 2020. Ernst & Young LLP, Registered Public Accounting Firm, has issued an attestation report on our internal
control over financial reporting which is included in this annual report on page F-4.
Changes In Internal Control Over Financial Reporting
There have been no changes in our system of internal control over financial reporting during the three months ended December 31, 2020 that have
materially affected, or are reasonably likely to materially affect, the Partnership’s internal control over financial reporting.
Item 9B. Other Information
None.
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Item 10. Directors, Executive Officers and Corporate Governance
Executive Officers and Directors of our General Partner
Part III
Our General Partner oversees our operations and activities on our behalf through its board of directors. The board of directors of our General Partner
appoints our officers, all of whom are employed by our General Partner and manage our day-to-day affairs. Neither our General Partner, nor the board of
directors of our General Partner, is elected by our unitholders and neither will be subject to re-election in the future. Rather, the directors of our General
Partner are appointed by Sprague Holdings, which owns 100% of our General Partner. The board of directors of our General Partner met four times during
the 2020 fiscal year and each of its directors attended 100% of the meetings. The audit committee of the board of directors of our General Partner met seven
times during the 2020 fiscal year, of which Mr. Harper and Ms. Bowman attended seven, and Mr. Hennelly attended six. The conflicts committee of the
board of directors of our General Partner also met during the 2020 fiscal year.
The following table provides information as of March 4, 2021 for the executive officers and directors of our General Partner. References to “our
officers,” “our directors,” or “our board” refer to the officers, directors, and board of directors of our General Partner. Directors are appointed to hold office
until their successors have been elected or qualified or until the earlier of their death, resignation, removal or disqualification. Executive officers serve at the
discretion of the board.
Name
Michael D. Milligan
Beth A. Bowman
C. Gregory Harper
Ben J. Hennelly
Gary A. Rinaldi
Sally A. Sarsfield
David C. Glendon*
David C. Long*
Thomas F. Flaherty*
Steven D. Scammon*
Paul A. Scoff*
Joseph S. Smith*
James A. Therriault*
Thomas E. Carey
Brian W. Weego*
Age
Position with our General Partner
57 Chairman of the Board of Directors
64 Director
56 Director
50 Director
63 Director
61 Director
55 President, Chief Executive Officer and Director
47 Chief Financial Officer
65 Vice President, Refined Products
59 Vice President, Chief Risk Officer
61 Vice President, General Counsel, Chief Compliance Officer and Secretary
64 Vice President, Corporate Development & IT
60 Vice President, Materials Handling
63 Vice President, Operations
54 Vice President, Natural Gas
*
Indicates an “executive officer” for purposes of Item 401(b) of Regulation S-K.
Michael D. Milligan - Mr. Milligan was appointed chairman of the board of directors of our General Partner in July 2011. Mr. Milligan formerly
served as a member of the board of directors of our Predecessor and is the President & Chief Executive Officer of Axel Johnson, a position he has held since
2003. Prior to joining Axel Johnson, Mr. Milligan spent 17 years as a partner and member of the board of directors of Monitor Group, a global consulting
and merchant banking group. While at Monitor Group, Mr. Milligan’s activities covered a broad range of disciplines and industry sectors, including oil and
gas, communications technology, specialty chemicals and retail and consumer products. Mr. Milligan also serves on the board of ConforMIS Inc., a medical
technology company. Mr. Milligan holds a Bachelor of Arts degree from Bowdoin College and a Master's in Business Administration from Harvard
University. We believe that Mr. Milligan’s more than 20 years of experience in the energy industry, as well as his extensive management skills he acquired
through his involvement in the strategy, operations and governance of Axel Johnson, brings substantial perspective and leadership to our board.
Beth A. Bowman - Ms. Bowman was appointed to the board of directors of our General Partner in October 2014. Ms. Bowman served at Shell Energy
North America for 17 years where she was the Senior Vice President of Sales and Origination North America, until her retirement in September 2015. Prior
to joining Shell, Ms. Bowman held management positions at Sempra Energy Trading and Sempra’s San Diego Gas & Electric utility. Ms. Bowman has
served as a director at
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Targa Resources Corp., Targa Resources Partners LP and Targa Resources GP LLC since September 2018. In 2014, Ms. Bowman was named one of the Top
50 Most Powerful Women in Oil and Gas in the U.S. by the National Diversity Council. Ms. Bowman served on the boards of the California Power
Exchange and the California Foundation of Energy and Environment. Ms. Bowman received her Bachelor of Science degree Civil Engineering from the
University of Illinois, a Master’s degree in Civil Engineering from San Diego State University and a Master’s degree in Business Administration Finance
from University of San Diego. We believe that Ms. Bowman’s extensive energy industry background, particularly her experience in senior leadership roles
and board positions of other energy companies, provide the board of directors of our General Partner with valuable knowledge and skill.
C. Gregory Harper - Mr. Harper was appointed to the board of directors of our General Partner in October 2013 in connection with our IPO. Mr. Harper
was appointed President and CEO of Blue Mountain Midstream and a Director of its parent Riviera Resources in April 2018. On April 1, 2017, Mr. Harper
retired from Enbridge Inc. where he served as President, Gas Pipelines and Processing. Before joining Enbridge, Mr. Harper was appointed principal
executive officer of Midcoast Holdings L.L.C in 2014, and served as Senior Vice President of Midstream with Southwestern Energy Company, from August
2013 to January 2014. Prior to joining Southwestern Energy, Mr. Harper served as Senior Vice President and Group President of CenterPoint Energy
Pipelines and Field Services from December 2008 to June 2013. Before joining CenterPoint Energy in 2008, Mr. Harper served as President, Chief
Executive Officer and as a Director of Spectra Energy Partners, LP from March 2007 to December 2008. From January 2007 to March 2007, Mr. Harper was
Group Vice President of Spectra Energy Corp., and he was Group Vice President of Duke Energy from January 2004 to December 2006. Mr. Harper served
as Senior Vice President of Energy Marketing and Management for Duke Energy North America from January 2003 until January 2004 and Vice President
of Business Development for Duke Energy Gas Transmission and Vice President of East Tennessee Natural Gas, LLC from March 2002 until January 2003.
Mr. Harper currently serves on the board of directors of the Interstate Natural Gas Association of America. Mr. Harper received his Bachelor’s degree in
Mechanical Engineering from the University of Kentucky and his Master’s degree in Business Administration from the University of Houston. We believe
Mr. Harper’s extensive industry background, particularly his financial reporting and oversight expertise, will bring important experience and skill to the
board of directors of our General Partner.
Ben J. Hennelly - Mr. Hennelly was appointed to the board of directors of our General Partner in July 2011 and was appointed as a member of the audit
committee in February 2019. On February 26, 2021, Mr. Hennelly resigned his membership in the audit committee and the conflicts committee of the board
of directors. Mr. Hennelly, currently President of The Agrippa Works, Inc., a strategy and technology consultancy, served as President and Chief Executive
Officer of Decisyon, Inc., an Axel Johnson portfolio company from December 2014 through July 2017. Mr. Hennelly previously served as Chief Financial
Officer for Axel Johnson during the period of March 2007 through June 2012 and as Executive Vice President for Axel Johnson from June 2012 through
December 2014. Mr. Hennelly has held various positions within the Axel Johnson Group since joining our Predecessor in April 2003, including Vice
President, Business Development of our Predecessor and, more recently, Vice President, Corporate Development at Axel Johnson. Before joining the Axel
Johnson Group, Mr. Hennelly was on the founding management team of EPIK Communications, a provider of broadband telecommunication services, and
previously was a consultant with the Monitor Group, a global management strategy consulting firm, where he advised clients across a range of industries,
including the energy industry. Mr. Hennelly holds a Bachelor of Arts degree from Cornell University and a Ph.D from Brown University. We believe that
Mr. Hennelly’s 20 years of consulting and management experience in a variety of industries, together with his deep understanding of our business from
nearly three years of service at our Predecessor, make Mr. Hennelly well-suited to serve on the board of directors of our General Partner.
Gary A. Rinaldi - Mr. Rinaldi was appointed to the board of directors of our General Partner in July 2011. Until his retirement from his role as an
executive officer of our General Partner on December 31, 2018, Mr. Rinaldi served as Senior Vice President, Chief Operating Officer and Chief Financial
Officer of our Predecessor from January 2008 and, in July 2011, was named to this position with our General Partner. Prior to his retirement from his role as
an executive officer of our General Partner, Mr. Rinaldi had been continuously employed by the predecessors the Partnership (collectively, our
"Predecessor") and the General Partner since April 2003. Before joining our Predecessor, Mr. Rinaldi was Managing Director and Chief Financial Officer for
the SUN Group. Prior to that, Mr. Rinaldi held several senior financial and operational management positions at Phibro Energy, a division of Salomon Inc.,
including Vice President and Chief Financial Officer and Director of Phibro Energy Production Inc. Mr. Rinaldi received his Bachelor’s degree in
Economics with a concentration in Accounting from The Wharton School, the University of Pennsylvania and is a former Certified Public Accountant. We
believe that Mr. Rinaldi’s experience with our Predecessor plus his 22 years of prior experience in a variety of senior financial and operational management
roles in the energy industry, when combined with his past service on multiple boards of directors, including currently serving on the board of directors of an
Axel Johnson Inc. company, Brazeway, allows him to bring substantial experience and leadership skills to the board of directors of our General Partner.
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Sally A. Sarsfield - Ms. Sarsfield was appointed to the board of directors of our General Partner in February 2015. She currently serves as Chief
Financial Officer of Axel Johnson, a position she has held since June 2012. Ms. Sarsfield initially joined Axel Johnson as the VP Finance and
Administration in July, 2010. Previously Ms. Sarsfield was the Chief Financial Officer of RA Capital Management, LLC, an investment management firm
operating a long/short equity healthcare hedge fund. Prior to that, Ms. Sarsfield was a Partner and Co-Founder of BlueStar Capital Management LP, a firm
specializing in healthcare investing via hedge funds where she served as Chief Financial Officer, Partner and Investment Analyst for seven years.
Ms. Sarsfield spent the first seven years of her career in a variety of roles with W.R. Grace & Co. including Senior Financial Analyst, Project Manager,
Business Development and Director of Financial Planning and Analysis for one of its operating groups. Ms. Sarsfield holds a Bachelor of Arts in Biology
from the University of Virginia. She spent a year in the University of Chicago Division of Biological Sciences Ph.D. program in Molecular Genetics before
going on to get a Master’s in Business Administration from the University of Chicago. We believe the combination of Ms. Sarsfield’s years of business and
investment management experience, in addition to her expertise in financial oversight, prepare her well to serve on the board of directors of our General
Partner.
David C. Glendon - Mr. Glendon was appointed to the board of directors of our General Partner and was named President and Chief Executive Officer
of our General Partner in July 2011, a position he held with our Predecessor since January 15, 2008. Mr. Glendon was hired by our Predecessor on June 30,
2003 as the Senior Vice President of Oil and Materials Handling, focusing on driving the execution of a customer-centric approach across all elements of the
business. Prior to joining our Predecessor, Mr. Glendon was a partner and global account manager at Monitor Group. He was also a founder and managing
director of Monitor Equity Advisors, which worked with leading private capital providers in evaluating transactions and enhancing the strategic positions of
their portfolio investments. Mr. Glendon received a Bachelor’s degree, cum laude, in Psychology from Williams College and a Master’s degree in Business
Administration from the Stanford Graduate School of Business. As a result of his professional background, we believe Mr. Glendon brings executive-level
strategic and financial skills along with significant operational experience that, when combined with his 15 years of consulting experience in a variety of
industries and a deep knowledge of our business, make Mr. Glendon well-suited to serve on the board of directors of our General Partner.
David C. Long - Mr. Long joined our General Partner in December 2018 and assumed the role of Chief Financial Officer in January 2019. From June
2013 until December 2018, Mr. Long served as Senior Vice President with Kinetico Incorporated, a subsidiary of Axel Johnson, Inc., during which he was
responsible for marketing, sales and business development activity in North America. From February 2008 through June 2013, Mr. Long served as Senior
Vice President and Chief Financial Officer of Kinetico Incorporated where he led the finance and accounting organization. From 1998 through 2008, Mr.
Long held a variety of roles with our Predecessor, most recently as Managing Director of Sales, Refined Products. Mr. Long holds a Bachelor’s degree from
the University of Maine and a Master of Finance degree from Boston College.
Thomas F. Flaherty - Mr. Flaherty was appointed Vice President, Refined Products of our General Partner in February, 2014 with responsibility for all
activities in the business unit including Marketing, Supply, and Pricing. Previously, Mr. Flaherty was appointed to the position of Vice President, Sales of our
General Partner in July 2011, a position he held with our Predecessor since November 28, 2006. In that role, Mr. Flaherty was responsible for all refined
products sales and marketing activities. Mr. Flaherty has served in various roles during his continuous tenure with our Predecessor since he was hired as an
Account Executive in Coal Sales in July 1983, including Vice President, Commercial Sales and subsequently Vice President, Industrial Marketing.
Mr. Flaherty received his Bachelor’s degree in Management from the University of Massachusetts and a Master’s degree in Business Administration from
the Whittemore School of Business, University of New Hampshire.
Steven D. Scammon - Mr. Scammon was appointed Vice President, Chief Risk Officer of our General Partner in February, 2014 with duties including
overseeing risk management and related control processes, including all middle office activities and insurance groups. Previously, Mr. Scammon was
appointed to the position of Vice President, Trading and Pricing of our General Partner in July 2011, a position he held with our Predecessor since
January 28, 2008. In that role, Mr. Scammon was responsible for refined products trading and pricing. Mr. Scammon also managed customer service until
February 2013 at which time he was moved into marketing. Mr. Scammon joined our Predecessor as Vice President, Clean Products on December 26, 2000
and has been continuously employed by our Predecessor since then. Prior to joining our Predecessor, Mr. Scammon served as Senior Vice President with the
Consolidated Natural Gas Energy Services Co. Prior to that, Mr. Scammon served in several positions with Louis Dreyfus Corporation including as Global
Position Manager and Manager - National Accounts. Mr. Scammon received his Bachelor’s degree in Economics from Denison University.
Paul A. Scoff - Mr. Scoff was appointed Vice President, General Counsel, Chief Compliance Officer and Secretary of our General Partner in July
2011, a position he held with our Predecessor since June 1, 2011. Mr. Scoff has been continuously employed by our Predecessor since December 1999,
serving as Vice President, General Counsel and Secretary during such
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time. Prior to joining our Predecessor, Mr. Scoff was the Vice President and General Counsel of Genesis Energy L.P., a publicly traded master limited
partnership. Prior to Genesis, Mr. Scoff served as Senior Counsel with Basis Petroleum (formerly known as Phibro Energy U.S.A. Inc., a division of
Salomon Inc.). He also served as Senior Counsel with The Coastal Corporation prior to joining Basis Petroleum. He received his Juris Doctor from the
University of Houston Law Center and his Bachelor’s degree, cum laude, in Political Science and English from Washington and Jefferson College.
Joseph S. Smith - Mr. Smith was appointed Vice President, Corporate Development & IT of our General Partner in February 2019. In this role he has
oversight responsibility for Kildair, Coen Energy, and Information Technology, as well as leading Sprague's acquisition sourcing and integration efforts.
Prior to this appointment, Mr. Smith served as Vice President, Business Development from February 2014 to January 2019. Mr. Smith also served as Vice
President, Chief Risk Officer and Strategic Planning of our General Partner from July 2011 to January 2014, a position he held with our Predecessor since
July 2006. In such role, Mr. Smith was tasked with oversight responsibility for risk management and related control processes. Mr. Smith has been an
employee of our Predecessor since April 2001 when he joined as Vice President, Corporate Planning and Development and was subsequently promoted to
Vice President, Pricing and Performance Management. Prior to joining our Predecessor, Mr. Smith was a Principal with Arthur D. Little, Inc.’s international
energy consulting practice. He also worked in various positions for Mobil Oil Corporation, including in the areas of sales and supply and research and
development. Mr. Smith received his Bachelor’s degree in Chemical Engineering from the University of Maine. He received a Master’s degree in Chemical
Engineering from Pennsylvania State University and a Master’s degree in Business Administration in Finance from Drexel University.
James A. Therriault - Mr. Therriault was appointed Vice President, Materials Handling of our General Partner in July 2011, a position he held with
our Predecessor since October 2003. As Vice President, Materials Handling, Mr. Therriault is responsible for the sales and business development efforts of
our materials handling business unit. Mr. Therriault has held a variety of business and financial positions since joining our Predecessor in 1984.
Mr. Therriault graduated from The University of New Hampshire with a Bachelor of Arts degree in Economics and from the University of Southern New
Hampshire with a Master’s degree in Business Administration.
Thomas E. Carey - Mr. Carey was appointed Vice President, Operations, on June 24, 2020. He is responsible for the safe, environmentally responsible
and cost-efficient operation of our terminals and fleet. Mr. Carey joined Sprague in 2014. Prior to joining Sprague, Mr. Carey served as Senior Vice
President of Operations for Castle Oil Corporation. Mr. Carey began his career in the oil industry in January 1979. In that time, he has continuously served in
various positions including responsibility for terminals, fleet, safety, regulatory compliance, engineering and material handling.
Brian W. Weego - Mr. Weego was appointed Vice President, Natural Gas of our General Partner in July 2011, a position he held with our Predecessor
since June 7, 2010. As Vice President, Natural Gas, Mr. Weego is responsible for all elements of the natural gas business unit. Mr. Weego has been
continuously employed by our Predecessor since he was hired on December 7, 1998, having served as Manager, Natural Gas Supply Operations; Director,
Natural Gas Marketing; and Managing Director, Natural Gas Marketing. Prior to joining our Predecessor, Mr. Weego spent 11 years in various segments in
the natural gas industry and has worked for the Coastal Corporation (wholesale natural gas origination and sales), O&R Energy (natural gas supply and
trading) and Commonwealth Gas Company (natural gas utility supply planning and acquisition). Mr. Weego received a Bachelor of Science degree in
Management from Lesley University and a Master’s degree in Business Administration from the University of New Hampshire Whittemore School of
Business and Economics.
Director Independence
NYSE rules do not require that the board of directors of our General Partner be composed of a majority of independent directors. Nonetheless, the
board of directors of our General Partner has affirmatively determined that Ms. Bowman and Mr. Harper meet the independence standards established by the
NYSE.
Committees of the Board of Directors
The board of directors of our General Partner has an audit committee and a conflicts committee. Each of the standing committees of the board of
directors has the composition and responsibilities described below. NYSE rules do not require us to have a compensation committee or a
nominating/corporate governance committee. Ms. Bowman and Mr. Harper are members of the audit committee and the conflicts committee.
Audit Committee
We are required to have an audit committee of at least three members and all its members are required to meet the independence and experience
standards established by the NYSE and the Exchange Act. Ms. Bowman and Mr. Harper are the
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current members of our audit committee. The board of directors of our General Partner has determined that each director appointed to the audit committee is
“financially literate,” and Mr. Harper, who serves as chairman of the audit committee, has “accounting or related financial management expertise” and
constitutes an audit committee financial expert in accordance with SEC and NYSE rules and regulations. The audit committee of the board of directors of
our General Partner serves as our audit committee and will assist the board in its oversight of the integrity of our consolidated financial statements and our
compliance with legal and regulatory requirements and partnership policies and controls. The audit committee operates under a written charter and has the
sole authority to (1) retain and terminate our independent registered public accounting firm, (2) approve all auditing services and related fees and the terms
thereof performed by our independent registered public accounting firm, and (3) pre-approve any non-audit services and tax services to be rendered by our
independent registered public accounting firm. The audit committee is also responsible for confirming the independence and objectivity of our independent
registered public accounting firm. Our independent registered public accounting firm has been given unrestricted access to the audit committee and our
management, as necessary. The audit committee met seven times during 2020.
On February 26, 2021, Mr. Hennelly resigned his membership in the audit committee and the conflicts committee of the board of directors because he
no longer qualified as independent under the NYSE listing standards. Mr. Hennelly remains a director of the board of directors. Mr. Hennelly’s resignation
from the audit committee of the board leaves the board’s audit committee with only two directors, each of whom are independent under the NYSE listing
standards. In response to the Partnership's prior notice and a written affirmation filed on March 1, 2021 disclosing the Partnership's non-compliance with
Section 303A.07(a) of the NYSE Listed Company Manual requiring audit committees to be comprised of at least three independent directors, the NYSE
notified the Partnership on March 3, 2021 that it was deficient in meeting the Section 303A.07(a) requirement for three independent members on an audit
committee.
The Partnership is undertaking a search for a new independent director and expects to announce a replacement as soon as reasonably practicable. Upon
appointing a new member of the audit committee that meets the independence requirements of Section 10A-3 of, and Rule 10A-3 under, the Securities
Exchange Act of 1934, as amended, and Section 303A.02 of the NYSE Listed Company Manual, the Partnership will regain compliance with the applicable
NYSE listing standard.
Conflicts Committee
The board of directors of our General Partner established a conflicts committee to review specific matters that the board of directors believes may
involve conflicts of interest. The conflicts committee will determine if the resolution of any such conflict of interest is fair and reasonable to us. The board of
directors of our General Partner may, but is not required to, seek the approval of such resolution from the conflicts committee. The conflicts committee will
determine if the resolution of the conflict of interest is fair and reasonable to us. The committee consists of a minimum of two members, none of whom can
be officers or employees of our General Partner or directors, officers or employees of its affiliates (other than as directors of our subsidiaries) and each of
whom must meet the independence standards for service on an audit committee established by the NYSE and the SEC. Ms. Bowman and Mr. Harper are the
independent members of the conflicts committee. Any matters approved by the conflicts committee will be conclusively deemed to be fair and reasonable to
us, approved by all of our unitholders, and not a breach by our General Partner of any duties it may owe us or our unitholders. The conflicts committee met
32 times during fiscal year 2020. Ms. Bowman and Mr. Harper attended all of these meetings.
If the board of directors of our General Partner does not seek approval from the conflicts committee, and the board of directors of our General Partner
approves the resolution or course of action taken with respect to the conflict of interest, then it will be presumed that, in making its decision, the board of
directors of our General Partner acted in good faith, and in any proceeding brought by or on behalf of us or any unitholder, the person bringing or
prosecuting such proceeding will have the burden of overcoming such presumption.
Corporate Code of Business Conduct and Ethics
The board of directors of our General Partner has approved a Corporate Code of Business Conduct and Ethics which is applicable to all directors,
officers and employees of our General Partner, including the principal executive officer and the principal financial officer. The Corporate Code of Business
Conduct and Ethics is available on the “Investor Relations—Corporate Governance” section of our website at https://investors.spragueenergy.com/corporate-
governance and in print without charge to any unitholder who sends a written request to our secretary at our principal executive offices. We intend to post
any amendments of this code or waivers of its provisions applicable to directors or executive officers of our General Partner, including its principal executive
officer and principal financial officer, at the above referenced Corporate Governance location on our website.
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Procedures for Review, Approval and Ratification of Related Person Transactions
Under our Corporate Code of Business Conduct and Ethics, the board of directors of our General Partner or its authorized committee will periodically
review all related-person transactions that are required to be disclosed under SEC rules and, when appropriate, initially authorize or ratify all such
transactions. Our Code of Business Conduct and Ethics and Partnership Agreement set forth policies and procedures with respect to transactions with related
persons and potential conflicts of interest which, when taken together, provide a structure for the review and approval of transactions with related persons. In
the event that the board of directors of our General Partner or its authorized committee considers ratification of a related-person transaction and determines
not to so ratify, management will make all reasonable efforts to cancel or annul the transaction.
The conflicts committee is authorized to review, evaluate and approve any potential conflicts of interest between the General Partner or its affiliates
(excluding the Partnership), on one hand, and the Partnership, its subsidiaries, or any limited partner of the Partnership, on the other hand; and, the conflicts
committee may engage consultants, attorneys, independent accountants and/or other service providers to assist in the evaluation of quantitative and/or
qualitative material conflicts matters. Any such approval by the conflicts committee will constitute approval of such matter and no other action of the board
of directors is required.
In determining whether or not to recommend the initial approval or ratification of a related person transaction, the board of directors of our General
Partner or its authorized committee may consider all of the relevant facts and circumstances available, including (if applicable) but not limited to: (i) whether
there is an appropriate business justification for the transaction; (ii) the benefits that accrue to us as a result of the transaction; (iii) the terms available to
unrelated third parties entering into similar transactions; (iv) the impact of the transaction on a director’s independence (in the event the related person is a
director, an immediate family member of a director or an entity in which a director or an immediate family member of a director is a partner, shareholder,
member or executive officer); (v) the availability of other sources for comparable products or services; (vi) whether it is a single transaction or a series of
ongoing, related transactions; and (vii) whether entering into the transaction would be consistent with the Corporate Code of Business Conduct and Ethics.
Current conflicts committee members include Ms. Bowman and Mr. Harper and these two members qualify as independent directors, satisfying the
SEC and NYSE standards for independence as of the date hereof.
Available Information
Our Audit Committee charter, Conflicts Committee charter, Corporate Code of Business Conduct and Ethics, Corporate Governance Guidelines,
Financial Code of Ethics, Insider Trading Policy, Short-Swing Trading and Reporting Policy and Whistleblower Policy are available, free of charge within
the “Investor Relations—Corporate Governance” section of our website at https://investors.spragueenergy.com/corporate-governance and in print to any
unitholder who so requests. Requests for print copies may be directed to: Investor Relations, Sprague Resources LP, 185 International Drive, Portsmouth,
New Hampshire 03801 or made by telephone by calling (800) 225-1560. The information contained on or connected to our website is not incorporated by
reference into this Annual Report and should not be considered part of this or any other report that we file with or furnish to the SEC.
Pursuant to our Corporate Governance Guidelines, Mr. Milligan is the lead, non-management director and will preside over regularly scheduled
executive sessions of the board of directors without management ("Lead Director"). To view the designated Lead Director and the method for
communicating directly with the Lead Director, please see the “Investor Relations—Corporate Governance” section of our website at
https://investors.spragueenergy.com/corporate-governance.
Section 16(a) Beneficial Ownership Reporting Compliance
Each director, executive officer (and, for a specified period, certain former directors and executive officers) of our General Partner and each holder of
more than 10 percent of a class of our equity securities is required to report to the SEC his or her pertinent position or relationship, as well as transactions in
those securities, by specified dates. Based solely upon a review of reports on Forms 3 and 4 (including any amendments) furnished to us during our most
recent fiscal year, reports on Form 5 (including any amendments) furnished to us with respect to our most recent fiscal year, and written representations from
officers and directors of our General Partner, we believe that all filings applicable to our General Partner’s officers and directors, and our beneficial owners,
required by Section 16(a) of the Exchange Act were filed on a timely basis with respect to our most recent fiscal year.
Employee, Officer and Director Hedging
Per the Short-Swing Trading and Reporting Policy of the General Partner adopted on October 14, 2013, no director, Section 16 officer, or employee
who beneficially owns 10% or more of the Partnership's common units, (together, "insiders"),
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nor an immediate family member of an insider, nor any other relative of an insider living in the insider's home, may make any short sales of any Partnership
securities. Also, such persons may not buy or sell puts, calls or options in respect of the Partnership's securities at any time.
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Item 11. Executive Compensation
Compensation Committee Report
Neither we nor our General Partner has a compensation committee. The non-management members of our board of directors of our General Partner,
listed below, reviewed and discussed with management the section of this report entitled “Compensation Discussion and Analysis” and based on that review
and discussion, approved its inclusion herein.
THE NON-MANAGEMENT MEMBERS
OF THE BOARD OF DIRECTORS
Michael D. Milligan, Chairman
Beth A. Bowman
C. Gregory Harper
Ben J. Hennelly
Sally A. Sarsfield
Gary A. Rinaldi
Compensation Discussion and Analysis
Introduction
Our General Partner has sole responsibility for conducting our business and for managing our operations and its board of directors and officers make
decisions on our behalf. We reimburse our General Partner for the expenses associated with the services its employees provide to us, including compensation
expenses for executive officers and directors of our General Partner. The board of directors of our General Partner has responsibility for establishing and
evaluating the pay for the executive officers of our General Partner.
The purpose of this Compensation Discussion and Analysis is to explain our philosophy for determining the compensation program for the Chief
Executive Officer, the Chief Financial Officer and the three other most highly compensated executive officers of our General Partner for 2020, referred to in
this report as the “Named Executive Officers,” and to discuss why and how the 2020 compensation package for these executives was implemented.
Disclosure regarding our Named Executive Officers’ compensation for the 2020 fiscal year is disclosed in the tables below and discussed in this
Compensation Discussion and Analysis.
The Named Executive Officers for the fiscal year ending December 31, 2020 are as follows:
David C. Glendon
David C. Long
Thomas F.
President and Chief Executive Officer
Chief Financial Officer
Vice President, Refined Products
Steven D.
Vice President, Chief Risk Officer
Brian W. Weego
Vice President, Natural Gas
Flaherty
Scammon
Objectives of Our Executive Compensation Program
Our executive compensation program is based on the following principles:
• The compensation paid to our executives should be competitive with that paid to the executives of those companies with which we compete for
executive talent so that we attract and retain a skilled and experienced management team.
• Incentive compensation should be a material portion of total compensation so that our executives are properly motivated to achieve or exceed our
financial and business goals.
• Incentive compensation should align the interests of the executive team with those of the unitholders.
The board of directors believes these objectives are best met by providing a mix of competitive base salaries in combination with short- and long-term
incentive compensation. This mix of compensation elements has provided us with a successful compensation program that has allowed us to attract and
retain a quality team of executives while motivating them to provide a high level of performance.
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Setting Executive Compensation
The board of directors has the responsibility and authority to make all decisions with regard to the compensation of our Named Executive Officers.
When making determinations about each element of compensation for our Named Executive Officers, other than Mr. Glendon, our board of directors
requests and carefully considers recommendations from Mr. Glendon. The board of directors may also ask Mr. Glendon and certain of our other executives
to assess the design of, and make recommendations regarding, compensation and benefit programs and the performance measures and targeted levels of
performance established thereunder. The board of directors is under no obligation to implement the recommendations received from these executives but
may take them into consideration when making compensation decisions.
Components of Compensation
For the fiscal year ending December 31, 2020, the compensation for our Named Executive Officers consisted of the following elements:
Base salary;
•
• Annual cash incentive bonus;
•
• Other benefits, including retirement, health and welfare, and related benefits and, in certain instances, the use of a
Long-term equity incentive awards; and,
car or a car allowance.
Base Salary
Each Named Executive Officer’s base salary is a fixed component of compensation and does not vary depending on the level of performance achieved.
Base salaries for the Named Executive Officers were historically set at levels deemed appropriate to retain their services. When establishing and evaluating
base salary levels the board of directors generally considers the responsibilities associated with each Named Executive Officer’s position, experience, skill,
education, and potential to contribute to our overall success. For example, when the board of directors evaluates Mr. Glendon’s role as President and Chief
Executive Officer, the board of directors considers his current and prior performance. In establishing the base salaries for the rest of our Named Executive
Officers, the board of directors also considers the extent to which the particular individual has the skills to help us solve the challenges we face and the
expertise to help us meet our future business goals. Finally, the board of directors considers the other employment opportunities available to the executive
and earning potential associated with those opportunities.
Base salaries for each Named Executive Officer are reviewed annually by the board of directors as well as at the time of any promotion or significant
change in job responsibilities. In connection with each review, individual and company performance over the course of the year are also considered.
Mr. Glendon makes recommendations with regard to base salary levels for our Named Executive Officers other than himself, and the board of directors takes
these recommendations into account when reviewing base salary levels.
The following 2020 Base Salary increases for the Named Executive Officers became effective on April 6, 2020.
Name
David C. Glendon
David C. Long
Thomas F. Flaherty
Steven D. Scammon
Brian W. Weego
2019 Base Salaries
$371,413
$255,000
$272,695
$284,436
$265,720
2020 Base Salaries
$375,000
$260,024
$275,014
$286,001
$270,000
Percentage Increase
1.0%
2%
0.9%
0.6%
1.6%
We believe that the competitive base salaries we pay to our Named Executive Officers help us to satisfy the objectives of our executive compensation
program by attracting and retaining experienced executive talent. Additionally, by providing our Named Executive Officers with competitive base salaries,
we mitigate risk by providing those individuals with a portion of their income that is not subject to change based on our financial performance.
Annual Incentive Bonus
While base salaries offer an important retention tool by providing a fixed level of compensation to our employees, we also seek to incentivize and
motivate employees to strive for both individual and overall company success by providing a substantial portion of their compensation in the form of a
discretionary annual incentive bonus. Further, we feel that our industry has
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historically relied heavily on performance-based bonuses to compensate executive officers, and we want our compensation program to be consistent with
industry trends and practices.
The annual incentive bonus program is administered under the Sprague Resources LP 2013 Long-Term Incentive Plan (which we refer to as our LTIP).
Historically, each year our board of directors has established one or more metrics for the annual incentive bonus. Our performance with respect to the
applicable metric for that year has determined the level of funding of our annual incentive bonus pool. The annual incentive bonus is paid in a combination
of cash and common units in the discretion of the board of directors to further align the interests of our Named Executive Officers with those of the
unitholders.
Historically, the annual incentive bonus received by each Named Executive Officer has been initially calculated based on the percentage funding level
for the total bonus pool. Mr. Glendon may then recommend a higher or lower annual incentive bonus based on each Named Executive Officer’s personal
performance as well as the performance of their respective business for that year. Mr. Glendon submits his recommendations to the board of directors who
then review and discuss the recommendations. After weighing all of this information, the board of directors would establish the final annual incentive bonus
amounts for each Named Executive Officer. Once this determination is made, the board of directors determines what portion of the annual incentive bonus
paid to each of the Named Executive Officers will be delivered in cash and what portion, if any, will be delivered in our common units. Generally, any
portion of the annual incentive bonus delivered in common units to the Named Executive Officers is fully vested at the time of grant, subject to any holding
requirements or restrictions, as determined by the board of directors in its discretion.
Annual incentive bonus targets for our Named Executive Officers have historically remained constant from one year to the next and are typically only
modified in connection with a significant promotion. When setting the 2020 annual incentive bonus targets for the Named Executive Officers, the board of
directors considered each Named Executive Officer’s position within the company as well as their relative level of responsibility and their ability to directly
impact our success. The 2020 targets for Messrs. Long, Flaherty, Scammon and Weego were each set at 50% of their base salary, which is consistent with
employees serving at the Vice President level and other direct reports of the Chief Executive Officer. The 2020 target for Mr. Glendon was set at 100% of his
base salary in order to reflect the additional responsibilities associated with his position.
Our board of directors initially selected distributable cash flow as the performance metric for the 2020 annual incentive bonus program, as such metric
demonstrates the Partnership's ability to deliver on its growth plan and generate distributable cash flow for distributions to unitholders. Distributable cash
flow is a non-GAAP measure; and, for Named Executive Officer annual incentive compensation purposes, we define distributable cash flow as net income
(loss) before interest, income taxes, depreciation and amortization adjusted for unrealized hedging losses and gains, in each case with respect to refined
products and natural gas inventory, and natural gas transportation contracts, and increased by incentive compensation expense expected to be settled with the
issuance of our common units, expenses related to business combinations and other adjustments. Additionally, for annual incentive compensation purposes,
there is an allocation of overhead charges and other minor adjustments made to the total distributable cash flow.
The board initially proposed a minimum distributable cash flow threshold for annual incentive compensation purposes of $60.7 million for the 2020
annual incentive bonus pool that must be met before the pool will begin to fund. Under the proposed thresholds, once the distributable cash flow threshold is
met for the 2020 year, 25% of distributable cash flow is allocated to the bonus pool until the bonus pool is funded at a level equal to 200% of the target
bonus pool amount. After the bonus pool is funded at 200% of the target bonus pool amount, 10% of the additional distributable cash flow above that level,
if any, is allocated to the bonus pool. For 2020, actual distributable cash flow for annual incentive compensation purposes was $76.6 million. As a result, the
minimum distributable cash flow threshold level for the annual incentive bonus program was met.
However, no amount will be paid under this 2020 annual bonus program as initially proposed. Our board of directors is evaluating and redesigning our
short and long term incentive programs for 2021. As part of this redesign, the board of directors has determined in its discretion to not award any amounts
based on the 2020 annual bonus program described above.
In lieu of proposed short term or long term incentives under our former programs, the board of directors has granted to each of our Named Executive
Officers a 2020 bonus amount to be paid in a combination of cash and common units, reflected in the Summary Compensation Table below. The board
determined the amount for these bonus payments based on our performance, as well as the individual performance of the officer, and in the case of all
officers other than Mr. Glendon, the recommendation of Mr. Glendon. In accordance with the SEC's rules and regulations, the 2021 short-term incentive
bonus program will be discussed in detail in our Annual Report on Form 10-K for the year ended December 31, 2021.
Long-Term Equity Incentive Awards
In October 2013, our General Partner adopted the LTIP, which provides us with the flexibility to grant a wide variety of cash and equity or equity-
based awards.
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In March 2020, our board of directors initially proposed awards of unit-settled performance-based phantom units that vest based on earnings before
interest, tax, depreciation and amortization at Sprague Holdings reduced by interest expense and capital expenditures ("Sprague Holdings Operating Cash
Flow" or "Sprague Holdings OCF") over a three-year performance period. Sprague Holdings does not generate audited financial statements but is included
in the audited financial statements of our Sponsor, Axel Johnson. The board determined that calculating the performance metric at Sprague Holdings would
reflect the fact that the General Partner manages assets owned by Axel Johnson that were not contributed to the Partnership. The board believes that this
compensation structure avoids the possibility of misaligned peer groupings and that the incentive compensation reflects the General Partner's total
management activity. A majority of the assets at Sprague Holdings were formerly held by our Predecessor and consist of one operating terminal and one
terminal that is not in operation, both of which were similar in nature to assets currently held by the Partnership. Accordingly, the board of directors believes
that there is a high correlation of performance between Sprague Holdings and the Partnership.
Under the 2020 long-term equity incentive program as originally approved by our board of directors, Sprague Holdings OCF is measured over a
performance period from January 1, 2020 through December 31, 2022, and must exceed $146.3 million before any of the phantom units granted in 2020 will
vest. The table below shows the rate of increase in Sprague Holdings OCF above the $146.3 million threshold amount and the corresponding proposed
vesting level of the 2020 phantom units.
Increase of Sprague Holdings
Operating Cash Flow Above Threshold
0.0%
5.2%
10.3%
44.9%
Percentage of Target
Phantom Units that Vest
0%
50%
100%
200%
If the growth of Sprague Holdings Operating Cash Flow for the performance period falls between the percentiles enumerated above, then the number
of phantom units that vest will be calculated using straight line interpolation.
In September 2020, the board of directors granted a target number of the phantom unit awards described above, having a grant date fair value of
$15.16 per unit, to each of our Named Executive Officers as follows:
Name
David C. Glendon
David C. Long
Thomas F. Flaherty
Steven D. Scammon
Brian W. Weego
2020 Long-Term Incentive Program
Target Number of
Phantom Units Granted
Grant Date
Fair Value per Common
Unit (1)
27,000
9,000
7,500
9,000
7,000
9,000
$15.16
$15.16
$19.25
$15.16
$15.16
$15.16
(1) The value of the phantom performance awards is based on the grant date fair value of those common units, as calculated pursuant to FASB ASC
Topic 718.
These awards also included a tandem distribution equivalent right that would be paid upon the settlement of the underlying phantom unit.
Additionally, in December 2020 the board of directors made a discretionary equity grant to Mr. Long of 7,500 immediately vested restricted stock units, with
a grant date fair value of $19.25.
As with the short term incentive program, our board of directors is evaluating and redesigning our long term incentive program for 2021.
In connection with this redesign, our board of directors has determined in its discretion to terminate all phantom unit awards granted in 2018, 2019 or
2020 for no value. Instead, the board of directors has granted to each of our Named Executive Owners a 2020 bonus amount to be paid in a combination of
cash and common units, as reflected in the Summary Compensation Table below. The board determined the amount for these bonus payments based on our
performance, as well as the individual performance of the officer, and in the case of all officers other than Mr. Glendon, the recommendation of Mr.
Glendon.
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In accordance with the SEC's rules and regulations, the 2021 long-term equity incentive program will be discussed in detail in our Annual Report on
Form 10-K for the year ended December 31, 2021.
Severance and Change in Control Benefits
The Named Executive Officers did not have agreements with us that contained severance provisions or change of control payment provisions during the
2020 fiscal year. However, we have a general practice of paying severance to certain of our employees in the event they are terminated by us without cause
and they enter into a release. The severance historically provided to executives, such as the Named Executive Officers, serving at the Vice President level
and above consists of the following: (i) 12 months of continued base salary payments, (ii) six months of outplacement support, and (iii) health and dental
insurance for 12 months at the same cost to the individual as they paid during their employment with us.
Our form of award agreement for performance-based phantom units for awards granted in 2020 provided for prorated vesting at the end of the
performance period based on the actual performance level achieved if the grantee ceased to provide services to us and our affiliates before the end of the
applicable performance period as a result of: (i) a qualifying retirement, (ii) death, or (iii) disability. However, as described above, all outstanding long-term
incentive awards have been terminated due to the ongoing redesign of all of our incentive compensation components and will not be paid.
We believe that the severance practices described above create an important retention tool for us as post-termination payments allow employees to leave
our employment with value in the event of certain terminations of employment that are beyond their control. As a general matter, post-termination payments
allow management to focus their attention and energy on making objective business decisions that are in the best interest of the company without allowing
personal considerations to affect the decision-making process. Additionally, executive officers at other companies in our industry and the general market in
which we compete for executive talent commonly provide post-termination payments, and we have consistently provided this benefit to certain executives in
order to remain competitive in attracting and retaining skilled professionals in our industry.
Other Benefits
Health and Welfare Benefits
All of our regular full-time employees, including our Named Executive Officers, are eligible to receive the same health and welfare benefits. These
benefits include group health, vision, and dental insurance coverage; participation in our 401(k) and defined contribution pension plan; short and long term
disability insurance and life insurance coverage; participation in our flexible spending plan; and tuition assistance. The health and dental plans require
employee contributions toward the cost of premiums. We provide short and long term disability as well as basic life insurance at no cost to our employees.
Employees may also elect additional life insurance coverage at their own expense.
Retirement Benefits
During 2020, we provided all employees hired prior to January 1, 1991 who were scheduled to work at least 30 hours per week and met certain age
and service requirements with the opportunity to participate in our retiree health plan. The obligation for premiums under the retiree health plan is shared by
both us and the participants; and, our contributions to such premiums are capped. The retiree health plan does not provide dental benefits. Because
Mr. Flaherty is the only Named Executive Officer that was employed by our Predecessor prior to January 1, 1991, he is the only Named Executive Officer
eligible to participate in our retiree health plan. We also provide our employees with the opportunity to receive post-retirement life insurance on a non-
discriminatory basis so long as certain age and service requirements are met. We have historically provided all eligible employees with a retirement program
that consisted of two separate plans. All retirement plans discussed below are sponsored and administered by Axel Johnson.
Defined Benefit and Defined Contribution Plans
The Axel Johnson Inc. Retirement Plan, or the DB Plan, is a defined benefit pension plan. The DB Plan was discontinued as of December 31, 2003
and benefits were “frozen” as of that date with immediate vesting for all active participants in the plan at their then-accrued benefit level. The Axel Johnson
Inc. Retirement Restoration Plan, or the RRP, is a related unfunded supplemental plan that provides benefits to employees participating in the DB Plan to the
extent benefits cannot be paid from the DB Plan due to legal limitations on the amounts paid under qualified plans set forth in the Internal Revenue Code. In
general, the RRP provides benefits for DB Plan participants whose benefits would be limited or whose allowable DB Plan compensation would be limited.
As with the DB Plan, benefits under the RRP were frozen as of December 31, 2003. In place of the DB Plan, we implemented a new defined contribution
plan, or the DC Plan. The DC Plan was implemented on January 1, 2004. We make all contributions under the DC Plan and participants are not allowed to
make contributions. A defined contribution plan specifies the amounts the company will contribute to the plan, but investment decisions and the market risk
of those decisions are the obligation of the participant. We contribute an amount equal to 5% of all eligible compensation (including base pay, annual bonus,
overtime pay and commissions) each month to the plan into accounts for every eligible employee, including the Named
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Executive Officers. Up to an additional 8% is contributed for employees with certain levels of service who participated in the DB Plan when it was frozen
and were close to retirement age. This additional contribution is intended to help those employees with a shorter earnings horizon, as they had less time to
adjust their financial retirement planning following our decision to freeze the DB Plan. Full-time employees or part-time employees who are regularly
scheduled to work more than 1,000 hours annually are eligible to participate in the DC Plan. Participating employees are immediately 100% vested in all
contributions under the DC Plan.
401(k) Thrift Plan
The second effective retirement plan is a 401(k) thrift plan. All employees who are scheduled to work more than 1,000 hours per year, including the
Named Executive Officers, are allowed to contribute their own funds to their 401(k) account and we have historically made certain matching contributions.
Employees can contribute between 2% and 70% of their pay (base pay, annual bonus, overtime pay, and commissions) on a pre-tax basis and/or an after-tax
basis; however, combined pre-tax and after-tax contributions cannot exceed 70% of pay. The amounts that can be contributed are also subject to the annual
limitations imposed by federal tax law. The company will match 60% of the first 6% of pay that an employee contributes to a pre-tax or Roth Plan.
Participating employees are immediately 100% vested in all contributions including employee and company contributions as well as any earnings of the
plan.
Automobiles and Auto Allowances
We provide cars to employees based on their job requirements, such as the amount of travel that is necessary in order for such employee to properly
perform his or her job duties. Employees who are eligible to receive a car benefit may elect whether to receive the use of a company car or a cash auto
allowance. In 2020, Mr. Flaherty was the only Named Executive Officer eligible to receive this benefit.
Risk Assessment
The board of directors has reviewed our compensation policies as generally applicable to the employees of our General Partner and believes that such
policies do not encourage excessive and unnecessary risk-taking, and that the level of risk associated with such policies is not reasonably likely to have a
material adverse effect on us. Each time a new compensation policy or program is implemented we consider any risks that may be created by its
implementation and work to design the program so as to minimize such risks. In addition, we continually evaluate the effectiveness of our compensation
programs, by analyzing the incentives such programs create and considering how we can minimize or eliminate incentives that may create risk for us.
Our compensation policies and practices are centrally designed and administered, and are substantially identical between our business divisions,
except in cases such as commission arrangements which have been tailored to encourage specific sales behavior. In addition, we believe the following
specific factors, in particular, reduce the likelihood of excessive risk-taking:
• Our overall compensation levels are competitive with the market.
• Our compensation mix is balanced among fixed components like salary and benefits, as well as annual incentives that reward
overall company and individual performance.
• Our long-term equity incentive program ties vesting to performance over a period of multiple years with common units paid out
at the end of the applicable performance period if the pre-established goals are met. These programs were designed to
encourage executives to focus on unitholder interests over the longer term. In contrast, the annual incentive bonus focuses on
performance over the shorter term. The combination of both programs appropriately focuses our employees on both our short-
and long-term performance.
•
The board of directors of our General Partner has retained an appropriate level of discretion to reduce annual incentive bonus
payments if it determines that such adjustments would be appropriate based on our interests and the interests of our unitholders.
Although a significant portion of the compensation provided to our Named Executive Officers is performance-based, we believe our compensation
programs do not encourage excessive and unnecessary risk taking by the executive officers (or other employees) as these programs are designed to
encourage employees to remain focused on both our short- and long-term operational and financial goals. We set performance goals that we believe are
challenging but reasonable in light of our past performance and market conditions. At the end of each year, we review the performance of every employee as
part of an annual performance review that involves several levels of management oversight. The results of those performance reviews, in addition to our
short- and long-term performance, become a major factor in determining what incentives each employee will receive.
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A portion of the performance-based, variable compensation we provide to our Named Executive Officers is comprised of awards that are subject to
non-payment if the organization does not achieve a threshold level of distributable cash flow and Sprague Holdings Operating Cash Flow. As such, we
believe that executives are less likely to take unreasonable risks. Once threshold levels of performance are achieved, our performance-based incentives
provide payouts of compensation at levels below full performance target achievement, in lieu of an “all or nothing” approach.
Additionally, we have a Chief Risk Officer who serves as chair of the Risk Management Committee, comprised of several members of management
and representatives of Sprague Holdings. The Risk Management Committee is responsible for reviewing policies and procedures which could encourage risk
taking. In addition to our internal reporting structure, the Chief Risk Officer has a direct reporting relationship to the board of directors and has the authority
to review all aspects of our business and to develop and maintain policies and procedures that discourage employees from taking unnecessary or
inappropriate risks.
Our board of directors is currently reevaluating and redesigning our executive compensation for 2021 and the future, based on these principles and
considerations.
Summary Compensation Table
The table below summarizes the total compensation earned by or paid to our Named Executive Officers during the last three fiscal years.
Name and Title
David C. Glendon
President and Chief Executive
Officer
David C. Long
Chief Financial Officer
Thomas F. Flaherty
Vice President, Refined Products
Steven D. Scammon
Vice President, Chief Risk Officer
Brian W. Weego
Vice President, Natural Gas
Year
2020
2019
2018
2020
2019
2020
2019
2018
2020
2019
2018
2020
2019
2018
Salary
($)(1)
381,177
371,307
369,936
263,575
255,000
279,635
272,696
271,611
291,050
284,437
283,306
270,000
265,721
263,637
Bonus
($) (2)
45,000
—
—
40,000
—
40,000
—
—
40,000
—
—
30,000
—
—
Stock
Awards
($)(3)(4)
727,177
502,400
466,000
337,377
171,520
228,759
145,920
122,325
220,544
134,560
116,500
228,759
145,920
122,325
Change in
Pension Value
Non-Qualified
Deferred
Compensation
Earnings
($)(5)
All
Other
Compensation
($)(6)
N/A
N/A
N/A
13,836
16,857
51,066
97,304
—
20,024
26,476
—
20,175
25,978
—
24,510
24,080
23,650
22,668
21,898
50,031
48,781
49,400
24,510
23,791
23,650
23,560
22,851
23,057
Total ($)
1,177,864
897,787
859,586
677,456
465,275
649,491
564,701
443,336
596,128
469,264
423,456
572,494
460,470
409,019
(1) Amounts in this column reflect all compensation earned by the Named Executive Officers during the fiscal year as base salary.
(2) Amounts in this column for 2020 reflect the discretionary cash bonus paid to the Named Executive Officers for the 2020 year. Amounts in this
column for 2019 and 2018 reflect the fact that no cash amounts were paid under our annual incentive bonus program for these years.
(3) Amounts in this column for 2020 reflect the grant date fair value for the common units granted to our Named Executive Officers as a 2020 annual
incentive bonus, which for Mr. Glendon was $505,000, for Mssrs. Long and Scammon was $165,000, for Mr. Flaherty was $170,000, and for Mr.
Weego was $170,000.
(4) This column also reflects the grant date fair value of the common units granted to our named executive officers as a 2020 long-term incentive bonus,
which for Mr. Glendon was $222,177, for Mr. Long was $28,002, for Mssrs. Flaherty and Weego was $58,759, and for Mr. Scammon was $55,544,
and the grant date fair value of a grant to Mr. Long of immediately vested restricted stock units which was $144,375.
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(5) Amounts in this column represent the actuarial increase, if any, in the present value of benefits under the DB Plan and the RRP determined by using
interest rate and mortality rate assumptions consistent with those used in the Pension Benefits table below. Mr. Glendon does not participate in these
plans. Negative values are not reported in this column and are instead indicated by use of a dash.
(6) The amounts set forth in this column for 2020 represent: (i) 401(k) plan matching contributions; (ii) our contribution to the DC Plan; (iii) Named
Executive Officer car allowance for Mr. Flaherty; and, (iv) other incidental payments. Although we typically make a contribution to the DC Plan
equal to 5% of each Named Executive Officer’s base pay, we make a supplemental contribution of an additional 5% for Mr. Flaherty as a result of
his age and years of service at the time of the adoption of the DC Plan, and, as such, the amount of his DC Plan contribution is double that of the
other Named Executive Officers. For a quantification of these benefits, please see the table below. For more information regarding these benefits,
please see the Other Benefits section of our Compensation Discussion and Analysis above.
Recipient
David C. Glendon
David C. Long
Thomas F. Flaherty
Steven D. Scammon
Brian W. Weego
401(k) Plan Matching
Contribution
($)
10,260
9,489
10,067
10,260
9,862
Defined Contribution
Plan
($)
14,250
13,179
27,964
14,250
13,698
Car Allowance
($)
—
—
12,000
—
—
Other Incidental
($)
—
—
—
—
—
All Other
Compensation Total
($)
24,510
22,668
50,031
24,510
23,560
Grants of Plan-Based Awards
The Grants of Plan-Based Awards Table sets forth information regarding the performance-based phantom units granted in September 2020. These
equity-based awards were granted pursuant to our LTIP and were cancelled for no value in the discretion of our board of directors. More information
regarding the terms of these awards is provided in the “Components of Compensation—Long-Term Equity Incentive Awards” section of our Compensation
Discussion and Analysis above.
Estimated Future Payouts Under
Equity Incentive Plan Awards (1)
Name
David C. Glendon
David C. Long
Thomas F. Flaherty
Steven D. Scammon
Brian W. Weego
Grant Date
9/23/2020
9/23/2020
9/23/2020
9/23/2020
9/23/2020
Threshold
(#)
—
—
—
—
—
—
Target
(#)
27,000
9,000
—
9,000
7,000
9,000
Maximum
(#)
54,000
18,000
—
18,000
14,000
18,000
All Other
Stock
Awards:
Number of
Shares of
Stock or
Units (2)
—
—
7,500
—
—
—
Grant Date
Fair Value
of Stock
and Option
Awards
($)(3)
409,320
136,440
144,375
136,440
106,120
136,440
(1) Amounts shown in the “Estimated Future Payouts Under Equity Incentive Plan Awards” columns represent the target and maximum settlement
levels with respect to the performance-based phantom unit awards granted to our Named Executive Officers pursuant to our LTIP during 2020. The
performance-based phantom unit awards do not have a threshold value. These phantom unit awards have been cancelled for no value. For more
information regarding the performance-based phantom unit awards, please see the "Components of Compensation - Long-Term Equity Incentive
Awards" section of our Compensation Discussion and Analysis above.
(2) The amount shown in this column represents a discretionary grant to Mr. Long of immediately vested restricted stock units during 2020. For more
information regarding the performance-based phantom unit awards, please see the "Components of Compensation - Long-Term Equity Incentive
Awards" section of our Compensation Discussion and Analysis above.
(3) The amounts in this column reflect the aggregate grant date fair value of awards granted to our Named Executive Officers in 2020 computed in
accordance with FASB ASC Topic 718, disregarding estimated forfeitures. The grant date
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fair value of the phantom units issued pursuant to our long term equity incentive program was $15.16 per phantom unit and the grant date fair value
of the discretionary grant of restricted stock units was $19.25. For a discussion of the valuation assumptions used in determining the grant date fair
value of these awards see Note 20 - Equity and Equity-Based Compensation of the Notes to Consolidated Financial Statements included in this
Annual Report.
Outstanding Equity Awards at Fiscal Year-End
The following table reflects the total number and estimated value of outstanding performance based phantom units held by our Named Executive
Officers as of December 31, 2020.
Name
David C. Glendon
David C. Long
Thomas F. Flaherty
Steven D. Scammon
Brian W. Weego
Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)
Market Value
of Shares or
Units of Stock
That Have
Not Vested
($)
Stock Awards
Equity Incentive
Plan Awards:
Number of
Unearned
Shares, Units or
other Rights
That Have Not
Vested
(#)
Equity Incentive
Plan Awards:
Market or Payout Value
of
Unearned Shares,
Units or other
Rights That
Have Not Vested
($)(1)
—
—
—
—
—
—
—
—
—
—
27,000 (2)
30,000 (3)
20,000 (4)
9,000 (2)
8,000 (3)
—
(4)
9,000 (2)
8,000 (2)
5,250 (3)
7,000 (2)
7,500 (3)
5,000 (4)
9,000 (2)
8,000 (3)
5,250 (4)
511,650
568,500
379,000
170,550
151,600
—
170,550
151,600
99,488
132,650
142,125
94,750
170,550
151,600
99,488
(1) Amounts represented assume a market value of $18.95 per common unit, the closing price of our common units on December 31, 2020.
(2) Because these awards do not have a threshold value, these figures represent the target settlement level with respect to the performance-based phantom
unit awards granted to our Named Executive Officers pursuant to our LTIP on September 23, 2020 based on our performance through December 31,
2020 as required by the Exchange Act. These awards have since been terminated for no value. Neither the award nor any related dividend equivalent
rights will vest or be paid at any time.
(3) Because these awards do not have a threshold value, these figures represent the target settlement level with respect to the performance-based phantom
unit awards granted to our Named Executive Officers pursuant to our LTIP on March 12, 2019 based on our performance through December 31, 2020 as
required by the Exchange Act. These awards have since been terminated for no value. Neither the award nor any related dividend equivalent rights will
vest or be paid at any time.
(4) Because these awards do not have a threshold value, these figures represent the target settlement level with respect to the performance-based phantom
unit awards granted to our Named Executive Officers pursuant to our LTIP on March 8, 2018 based on our performance through December 31, 2020 as
required by the Exchange Act. These awards have been terminated for no value. Neither the award nor any related dividend equivalent rights will vest or
be paid at any time.
Option Exercises and Stock Vested
No time-based or performance-based phantom units held by our Named Executive Officers vested during 2020. We have not granted any stock options
or stock appreciation rights under our LTIP or otherwise.
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Pension Benefits
The following table summarizes the benefits that our Named Executive Officers have accrued under the DB Plan and the RRP in fiscal year 2020.
Name
David C. Glendon
David C. Long
Thomas F. Flaherty
Steven D. Scammon
Brian W. Weego
Plan Name
Axel Johnson Inc. Retirement Plan
Axel Johnson Inc. Retirement Restoration Plan
Axel Johnson Inc. Retirement Plan
Axel Johnson Inc. Retirement Restoration Plan
Axel Johnson Inc. Retirement Plan
Axel Johnson Inc. Retirement Restoration Plan
Axel Johnson Inc. Retirement Plan
Axel Johnson Inc. Retirement Restoration Plan
Axel Johnson Inc. Retirement Plan
Axel Johnson Inc. Retirement Restoration Plan
Number of
Years
Credited
Service
(#)(1)(2)
—
—
5.6
—
20.4
20.4
3.0
3.0
5.0
—
Present Value
of
Accumulated
Benefit
($)(3)
—
—
74,067
—
875,436
225,095
125,972
35,783
132,498
—
Payments
During 2020
Fiscal Year
($)
—
—
—
—
—
—
—
—
—
—
(1) Amounts in this column represent the number of years of credited service rounded to the nearest month and were frozen as of December 31, 2003.
(2) Mr. Glendon was not eligible to participate in the DB Plan or the RRP as he was hired after January 1, 2003.
(3) Amounts in this column represent the actuarial present value of each Named Executive Officer’s accumulated benefit under the DB Plan and the RRP as
of December 31, 2020. In quantifying the present value of the accumulated benefit indicated above, we used the same assumptions used for financial
reporting purposes under GAAP, except that retirement age was assumed to be the earliest time at which a participant may retire under the plan without
any benefit reduction due to age. The material assumptions were as follows: (i) an estimated discount rate of 2.60% for the Axel Johnson Inc.
Retirement Plan and an estimated discount rate of 2.40% for the Axel Johnson Inc. Retirement Restoration Plan; (ii) the Pri-2012 annuitant table and the
MP-2020 mortality improvement scale applied from the Pri-2012 mortality table base year; and, (iii) expected long-term rate of return on plan assets of
6.25%.
The information in the table above relates to our Named Executive Officers’ participation in the DB Plan and the RRP. The DB Plan and RRP were
available to employees of subsidiaries of Axel Johnson who were scheduled to work at least 20 hours per week (or 1,000 hours per year), were not
temporary or leased employees, and who satisfied a one-year waiting period. The DB Plan and the RRP were both discontinued as of December 31, 2003
and benefits were “frozen” (i.e., participants will experience no increase attributable to years of service or change in eligible earnings) as of that date with
immediate vesting of all active participants in the plan at their then-accrued benefit level. We implemented the DC Plan on January 1, 2004 to replace the
DB Plan.
The benefits paid under the RRP are determined by calculating the benefits payable from the DB Plan as if there were no legal limitations, and then
subtracting the actual benefits payable from the DB Plan. The DB Plan benefit paid to participants is based on a formula using the employee’s final average
compensation, credited service, and social security covered compensation, each of which is calculated on the earlier of December 31, 2003 or the date of
retirement or termination. The annual annuity benefit payable at retirement under the DB Plan is calculated as follows:
1.1% of final average
compensation
x
Credited service (up to 40
years, rounded to the
nearest month)
+
0.4% of final average compensation in
excess of social security covered
compensation
x
Credited service
(up to 35 years, rounded to the
nearest month)
A participant’s “final average compensation” is calculated by taking the average of a participant’s highest pensionable earnings in any 60-consecutive-
month period before the earlier of December 31, 2003, termination, or retirement. “Pensionable earnings” include regular wages or salary, overtime, shift
differentials, short-term incentive payment, and commissions. Employees generally received one year of “credited service” for each calendar year in which
the employee performed 1,000 hours or more of service. “Social security wage covered compensation” is typically the average of the social security wage
bases for the 35-year period ending with the last day of the calendar year in which a participant is eligible for unreduced social security
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retirement benefits. However, because each participant’s benefit had to be calculated as of December 31, 2003 when the DB Plan was frozen, the calculation
was based on the social security covered compensation in effect as of the earlier of 2003 or the year the participant terminated employment. If the calculation
date was prior to social security retirement age, the social security covered compensation is calculated assuming the wage base for all future years is equal to
the then-current year’s wage base.
The normal retirement age is 65 years old. A participant may qualify for early retirement if, when the participant leaves the company, that participant
is at least 55 years old and has at least ten years of total credited service. As of December 31, 2020, under the DB Plan, Mr. Flaherty was the only Named
Executive Officer eligible for normal retirement; whereas Named Executive Officer Mr. Scammon was eligible for early retirement. A participant can
receive full DB Plan benefits as early as the participant’s 62nd birthday. If a participant elects to receive a benefit prior to age 62, the benefit would be
reduced by 5/12% for each month (5% per year) that the benefit starts before age 62. If a participant ceases to be employed by us prior to age 55 or prior to
accumulating ten years of credited service, the participant may elect to receive the deferred vested benefit beginning as early as age 55. However, if the
participant elects to receive the benefit before the normal retirement date, such benefit will be reduced by 1/2 % for each month (6% per year) that payment
of the benefit starts before the normal retirement date.
Payment methods are determined based on the participant’s marital status and/or election. The normal form of payment for a single participant is a life
income annuity; for a married participant, it is a 50% joint and survivor annuity. Optional payment methods include a contingent annuitant option at 50%,
75% or 100%; a life income option; a 120 month certain and life income option; or a Social Security adjustment option. If a married participant dies, his or
her spouse is entitled to survivor benefits. The time and form of payment under the RRP is typically identical to the time and form of payment under the DB
Plan or may be in the form of an actuarially equivalent lump sum paid at the time benefits commence under the DB Plan.
Potential Payments Upon Termination or a Change in Control
The Named Executive Officers did not have agreements with us that contained severance provisions or change in control payment provisions during
the 2020 fiscal year. However, we have a general practice of paying severance to certain of our employees in the event they are terminated by us without
cause and they execute a release. A termination without “cause” has historically been determined on a case-by-case basis rather than by applying any one
definition or a specific set of events to each employee. The severance payments historically provided to executives, such as the Named Executive Officers,
serving at the Vice President level and above, consist of the following: (i) 12 months of continued base salary severance, (ii) 6 months of outplacement
support; and, (iii) health and dental insurance for 12 months provided at the same cost as such individual paid during his or her employment with us.
Name
David C. Glendon
Termination Without Cause
Retirement, Death, Disability
David C. Long
Termination Without Cause
Retirement, Death, Disability
Thomas F. Flaherty
Termination Without Cause
Retirement, Death, Disability
Steven D. Scammon
Termination Without Cause
Retirement, Death, Disability
Brian W. Weego
Termination Without Cause
Retirement, Death, Disability
Cash Severance ($)(1)
Outplacement
Support ($)(2)
Health and
Dental ($)(3)
Accelerated
Equity ($)(4)
Total
Potential
Termination
Benefits ($)
375,000
—
260,024
—
275,014
—
286,001
—
270,000
—
6,000
—
6,000
—
6,000
—
6,000
—
6,000
—
23,401
—
25,221
—
17,584
—
23,401
—
17,584
—
—
1,099,100
404,401
1,099,100
—
315,833
—
315,833
—
277,933
—
315,833
291,245
315,833
298,598
315,833
315,402
277,933
293,584
315,833
(1) Amounts in this column reflect 12 months' worth of continued base salary severance based on each Named Executive Officer's base salary in effect as
of December 31, 2020.
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(2) Amounts in this column reflect the estimated cost to us of providing outplacement services to the Named Executive Officers over a six-month period.
The actual cost of such services could vary based on the individual needs of each Named Executive Officer and the outside provider of such services.
(3) Amounts in this column reflect the value of continued health and dental benefits for a 12-month period based on the value of the benefits received by
each individual as of December 31, 2020.
(4) Had they not been terminated following the end of the 2020 year, a prorated portion of the performance-based phantom units granted in 2019 and 2020
would remain outstanding and eligible to vest based on actual performance, as determined following the end of the applicable performance period, in
the event of a Named Executive Officer's separation from service due to a qualified retirement, death or Disability (as described below) prior to the
completion of the applicable performance period. The performance periods applicable to the 2019 and 2020 awards will end on December 31, 2021 and
December 31, 2022, respectively, and the number of phantom units that would vest for each award will be based on performance through the last day of
the applicable performance period. Based upon the performance metrics applicable to the 2019 phantom unit awards and using our performance through
December 31, 2020, it is estimated that the phantom units granted in 2019 would vest at the maximum level following the end of the performance
period, and accordingly the maximum value of the 2019 awards are included in the calculation of our Named Executive Officers' retirement or
termination due to death or Disability on December 31, 2020, calculated using the closing price of our common units on December 31, 2020, which was
$18.95. Based upon the performance metrics applicable to the 2020 phantom unit awards and using our performance through December 31, 2020, it is
estimated that the phantom units granted in 2020 would vest at the maximum level following the end of the performance period, and accordingly the
maximum value of the 2020 awards are included in the calculation of our Named Executive Officers' retirement or termination due to death or Disability
on December 31, 2020, calculated using the closing price of our common units on December 31, 2020, which was $18.95.
The Named Executive Officers are not entitled to any payments or benefits upon a change in control of us. However, the LTIP provides that on the
occurrence of a “Change of Control” (as defined below), the board of directors, acting in its sole discretion without the consent or approval of any grantee,
may, among other things, remove any applicable forfeiture restrictions on any award under the LTIP and accelerate the time at which the restricted period
shall lapse to a specific date before or after such Change of Control.
The LTIP provides that “Change of Control” means one or more of the following events: (i) any “person” or “group” within the meaning of those
terms as used in Sections 13(d) and 14(d)(2) of the Exchange Act, other than members of the General Partner, the Partnership, or an affiliate of either the
General Partner or the Partnership, becomes the beneficial owner, by way of merger, consolidation, recapitalization, reorganization or otherwise, of 50% or
more of the voting power of the voting securities of the General Partner or us; (ii) the limited partners of the General Partner or of us approve, in one
transaction or a series of transactions, a plan of complete liquidation of the General Partner or us; (iii) the sale or other disposition by either the General
Partner or us of all or substantially all of its assets in one or more transactions to any person other than an affiliate; (iv) the General Partner or an affiliate of
the General Partner or us ceases to be our General Partner; or (v) any other event specified as a “Change of Control” in an applicable award agreement.
Notwithstanding the above, with respect to an award that is subject to Section 409A of the Internal Revenue Code of 1986, a “Change of Control” will not
occur unless that Change of Control also constitutes a “change in the ownership of a corporation,” a “change in the effective control of a corporation,” or a
“change in the ownership of a substantial portion of a corporation’s assets,” in each case, within the meaning of 1.409A-3(i)(5) of the Treasury Regulations,
as applied to non-corporate entities.
For the performance-based phantom units granted in 2019 and 2020, the applicable award agreements provide that in the event the Named Executive
Officer ceases to provide services to us, our General Partner, or our respective affiliates before the end of the applicable performance period by reason of: (i)
the Named Executive Officer’s retirement (A) on or after having attained age 60, provided that such Named Executive Officer has provided at least ten
consecutive years of service as of the date of such retirement, or (B) having attained the age of 65, (ii) death, or (iii) Disability (as defined below), then, in
each case, the Named Executive Officer is eligible to receive the number of phantom units he or she would otherwise be entitled to receive under the award
agreement based on the actual level of performance attainment determined following the end of the applicable performance period, prorated by the number
of days that elapsed in the applicable performance period prior to such cessation of services to us, our General Partner, or our respective affiliates. Other than
in the event of a separation from service due to a qualified retirement, death or Disability, the Named Executive Officers must remain employed through the
applicable date of vesting of the performance-based phantom unit awards, which coincides with the last day of the applicable performance period, in order to
receive delivery of the common units thereunder.
For purposes of these agreements, “Disability” means that the applicable Named Executive Officer becomes eligible to receive long-term disability
benefits under our long-term disability plan, or, if the Named Executive Officer does not participate in our long-term disability plan, that he or she is unable
to perform the essential functions of his or her position, with reasonable accommodation, due to an illness or physical impairment or other incapacity that
continues, or can reasonably be expected to
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continue, for a period in excess of 180 days, whether or not consecutive. The determination of whether a Named Executive Officer has incurred a Disability
under the foregoing shall be made in good faith by the board of directors.
The above descriptions of the phantom unit award agreements and our LTIP do not purport to be complete and are qualified in their entirety by
reference to the full text of the phantom unit award agreements and the LTIP, which have been previously filed with the SEC. The LTIP provides that
“Change of Control” means one or more of the following events: (i) any “person” or “group” within the meaning of those terms as used in Sections 13(d)
and 14(d)(2) of the Exchange Act, other than members of the General Partner, the Partnership, or an affiliate of either the General Partner or the Partnership,
becomes the beneficial owner, by way of merger, consolidation, recapitalization, reorganization or otherwise, of 50% or more of the voting power of the
voting securities of the General Partner or us; (ii) the limited partners of the General Partner or of us approve, in one transaction or a series of transactions, a
plan of complete liquidation of the General Partner or us; (iii) the sale or other disposition by either the General Partner or us of all or substantially all of its
assets in one or more transactions to any person other than an affiliate; (iv) the General Partner or an affiliate of the General Partner or us ceases to be our
General Partner; or (v) any other event specified as a “Change of Control” in an applicable award agreement. Notwithstanding the above, with respect to an
award that is subject to Section 409A of the Internal Revenue Code of 1986, a “Change of Control” will not occur unless that Change of Control also
constitutes a “change in the ownership of a corporation,” a “change in the effective control of a corporation,” or a “change in the ownership of a substantial
portion of a corporation’s assets,” in each case, within the meaning of 1.409A-3(i)(5) of the Treasury Regulations, as applied to non-corporate entities.
For the performance-based phantom units granted in 2019 and 2020, the applicable award agreements provide that in the event the Named Executive
Officer ceases to provide services to us, our General Partner, or our respective affiliates before the end of the applicable performance period by reason of: (i)
the Named Executive Officer’s retirement (A) on or after having attained age 60, provided that such Named Executive Officer has provided at least ten
consecutive years of service as of the date of such retirement, or (B) having attained the age of 65, (ii) death, or (iii) Disability (as defined below), then, in
each case, the Named Executive Officer is eligible to receive the number of phantom units he or she would otherwise be entitled to receive under the award
agreement based on the actual level of performance attainment determined following the end of the applicable performance period, prorated by the number
of days that elapsed in the applicable performance period prior to such cessation of services to us, our General Partner, or our respective affiliates. Other than
in the event of a separation from service due to a qualified retirement, death or Disability, the Named Executive Officers must remain employed through the
applicable date of vesting of the performance-based phantom unit awards, which coincides with the last day of the applicable performance period, in order to
receive delivery of the common units thereunder.
For purposes of these agreements, “Disability” means that the applicable Named Executive Officer becomes eligible to receive long-term disability
benefits under our long-term disability plan, or, if the Named Executive Officer does not participate in our long-term disability plan, that he or she is unable
to perform the essential functions of his or her position, with reasonable accommodation, due to an illness or physical impairment or other incapacity that
continues, or can reasonably be expected to continue, for a period in excess of 180 days, whether or not consecutive. The determination of whether a Named
Executive Officer has incurred a Disability under the foregoing shall be made in good faith by the board of directors.
The above descriptions of the phantom unit award agreements and our LTIP do not purport to be complete and are qualified in their entirety by
reference to the full text of the phantom unit award agreements and the LTIP, which have been previously filed with the SEC.
CEO Pay Ratio - 14.3:1
Pursuant to Section 953(b) of the Dodd-Frank Act and Item 402(u) of Regulation S-K, this section provides information regarding the relationship of the
annual total compensation for fiscal year 2019 of Mr. Glendon, our Chief Executive Officer (“CEO”), to that of our Median Employee (as defined below).
For fiscal year 2020, our CEO’s annual total compensation, as reported in the Summary Compensation Table, was $1,177,864, and our Median
Employee’s annual total compensation was $82,217. The ratio of our CEO’s total annual compensation to that of our Median Employee for fiscal year 2019
is 14.3 to 1.
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Determining our Median Employee
In determining our Median Employee (as defined below), we selected October 31, 2020 as the date on which to identify our total employee population,
which includes all employees in the U.S. and Canada. Employees on leave of absence were also included. In identifying our Median Employee, we used the
actual compensation of all of our employees for the twelve-month period of January 1, 2020, through December 31, 2020, which included the following
items:
i. Actual wages and salaries based on all payroll payments, excluding group term life; and
ii. Actual target annual incentive bonus amounts for each employee.
For permanent employees who were not employed for the full twelve-month period, their wages, salaries and target annual incentive bonuses were
adjusted to reflect an estimate of such base rates of pay for the full twelve-month period. Wages and salaries were not adjusted for seasonal, part-time or
temporary employees. In addition, we applied a Canadian to U.S. dollar exchange rate of 0.78 USD per 1.00 CAD at December 31, 2020 to the
compensation elements paid in Canadian currency.
After calculating each employee’s compensation using this consistently applied methodology, we then ranked all of our employees, excluding the CEO,
based on compensation from lowest to highest. We calculated the annual total compensation of the employee ranked 405 in the same manner as the "Total
Compensation" shown for our CEO in the Summary Compensation Table above to determine compensation for the median employee ("Median Employee").
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2020 DIRECTOR COMPENSATION
We use a combination of cash and equity compensation to attract and retain qualified candidates to serve as directors of our General Partner. In setting
director compensation, we consider the time commitment directors must make in performing their duties, the level of skills required by directors and the
market competitiveness of director compensation levels.
Each non-employee director receives an annual retainer of $60,000, paid in quarterly installments. Each non-employee director also receives an annual
equity award, granted within five business days of October 15 of each year, equal to the number of fully vested common units having a grant date fair value
of approximately $60,000. Further, each non-employee director serving as a chairman or a member of a committee of the board receives an annual
supplemental retainer of $10,000 or $5,000, respectively, paid in quarterly installments. All directors receive reimbursement for out-of-pocket expenses
associated with attending meetings of the board or committees of the board of directors. Each director is covered by liability insurance and will be fully
indemnified by us for actions associated with being a director to the fullest extent permitted under Delaware law.
The table below summarizes the compensation paid to independent directors for the fiscal year ended December 31, 2020.
Name (1)
C. Gregory Harper
Beth A. Bowman
Ben J. Hennelly
Gary A. Rinaldi
Fees Earned or
Paid in Cash
($)(2)
110,000
110,000
70,000
60,000
Unit Awards
($)(3)
60,000
60,000
60,000
60,000
Total
($)
170,000
170,000
130,000
120,000
(1) Mr. Milligan and Ms. Sarsfield, as officers of Axel Johnson, and Mr. Glendon are not included in this table because they receive
no separate compensation for their services as directors. The compensation received by Mr. Glendon as a Named Executive
Officer is shown in the Summary Compensation Table.
(2)
(3)
The amounts in this column reflect the aggregate dollar amount of fees earned or paid in cash for fiscal year 2020, including
annual retainer fees and chairmanship or membership fees. Ms. Bowman served on the Conflicts Committee (Chairman) and the
Audit Committee, and Mr. Harper served on the Audit Committee (Chairman) and Conflicts Committee. Mr. Hennelly was a
member of the Audit Committee and the Conflicts Committee during the year ended December 31, 2020. Ms. Bowman and Mr.
Harper received an additional annual fee of $35,000 for their work on the Conflicts Committee related to the non-binding
proposal from Sprague Holdings, dated March 25, 2020, to acquire all of the outstanding common units of the Partnership not
already owned by Sprague Holdings and its affiliates.
Represents the aggregate grant date fair value computed in accordance with FASB ASC Topic 718. Messrs. Harper, Hennelly and
Rinaldi and Ms. Bowman all received a fully vested grant of 3866 common units valued at approximately $60,000 in October
2020. Please see Note 20 - Equity and Equity-Based Compensation in the Notes to our Consolidated Financial Statements for
assumptions used in valuing our common units.
(4)
On December 31, 2020, none of our directors held outstanding, unvested equity awards.
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Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The following table sets forth the beneficial ownership of common units of Sprague Resources LP that are issued and outstanding as of March 4, 2021
and held by:
•
•
•
•
each person known by us to be a beneficial owner of more than 5% of our outstanding units, including Sprague Holdings;
each of the directors of and nominees to our General Partner’s board of directors;
each of the named executive officers of our General Partner; and
all of the directors, director nominees and executive officers of our General Partner as a group.
All of such information is based on publicly available filings, unless otherwise known to us from other sources. The amounts and percentage of units
beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of
the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to
direct the voting of such security, or “investment power,” which includes the power to dispose of or to direct the disposition of such security. Except as
indicated by footnote, the persons named in the table below have sole voting and investment power with respect to all units shown as beneficially owned by
them, subject to community property laws where applicable.
Name of Beneficial Owner
Sprague Holdings LLC (1)(2)
Axel Johnson (2)(3)
Lexa International Corporation (2)(4)
Antonia Ax:son Johnson (2)(5)
Hartree Partners GP, LLC (6)
Hartree Bulk Storage & HP Bulk Storage Manager (7)
Gary A. Rinaldi
David C. Glendon
Thomas E. Flaherty
Brian W. Weego
Steven D. Scammon
Michael D. Milligan
C. Gregory Harper
Beth A. Bowman
Sally A. Sarsfield
Ben J. Hennelly
All executive officers and directors of our
General Partner as a group (15 persons)
Common Units
Beneficially
Owned
12,951,236
12,951,236
12,951,236
12,951,236
3,495,511
3,495,511
117,709
100,887
38,069
34,719
31,123
20,000
23,851
19,525
4,100
—
Percentage of
Common Units
Beneficially
Owned
56.4%
56.4%
56.4%
56.4%
15.2%
15.2%
*
*
*
*
*
*
*
*
*
*
462,673 (8)
2.0%
*
(1)
Represents less than 1%.
The address for this entity is 185 International Drive, Portsmouth, NH 03801.
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(2)
(3)
(4)
(5)
(6)
(7)
Common units shown as beneficially owned by Axel Johnson, Lexa International Corporation and Antonia Ax:son Johnson reflect common units
owned of record by Sprague Holdings. Sprague Holdings is a wholly-owned subsidiary of Axel Johnson and, as such, Axel Johnson may be deemed
to share beneficial ownership of the units beneficially owned by Sprague Holdings and its subsidiaries, but disclaims such beneficial ownership. Axel
Johnson is a wholly-owned subsidiary of Lexa International Corporation and, as such, Lexa International Corporation may be deemed to share
beneficial ownership of the units beneficially owned by Sprague Holdings, but disclaims such beneficial ownership. Lexa International Corporation,
through certain non-U.S. entities, is controlled by Antonia Ax:son Johnson and, as such, Antonia Ax:son Johnson may be deemed to share beneficial
ownership of the units beneficially owned by Sprague Holdings, but disclaims such beneficial ownership. Pursuant to the IDR Reset Election, the
Partnership is expected to issue 3,107,248 common units to Sprague Holdings on March 5, 2021.
The address for this entity is 155 Spring Street, 6th Floor, New York, NY 10012.
The address for this entity is 2410 Old Ivy Road, Suite 300, Charlottesville, VA 22903.
The address for this person is c/o Axel Johnson Inc. 155 Spring Street, 6th Floor, New York, NY 10012.
The address of Hartree Partners GP, LLC ("Hartree") is 1185 Avenue of the Americas, New York, NY 10036. Hartree reported shared voting power
and shared dispositive power for 2,115,365 common units that are held by Hartree and/or its subsidiaries. Beneficial ownership reported is based
solely on Form 13F filed on February 16.
The address of Hartree Bulk Storage, LLC and HP Bulk Storage Manager, LLC (collectively "Hartree Bulk Storage") is 1185 Avenue of the
Americas, New York, NY 10036. Hartree Bulk Storage reported shared voting power and shared dispositive power for 1,375,00 common units that
are held by Hartree Bulk Storage and/or its subsidiaries. Beneficial Ownership reported is based solely on Schedule 13D filed on September 29, 2020.
(8)
The address of each of the executive officers and directors is 185 International Drive, Portsmouth, NH 03801.
Securities Authorized for Issuance Under Equity Compensation Plans
The following information is reported as of December 31, 2020.
Plan Category
Equity compensation plans approved by
security holders
Equity compensation plans not approved by
security holders
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
(a)(1)
Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)(2)
Number of Securities remaining
available for future issuance
under equity compensation
plans (excluding securities
reflected in column (a))
(c)
436,037
—
—
—
520,562
—
(1)
Awards in this column represent the total number of all performance-based phantom units granted under our LTIP and outstanding as of December 31,
2020. We have not granted any stock option awards.
(2)
The outstanding phantom units do not have an exercise price. As such, there is no weighted average exercise price to report for outstanding awards.
Our only equity compensation plan is the Sprague Resources LP 2013 Long-Term Incentive Plan, also referred to herein as the “LTIP”. The LTIP was
approved by our shareholders prior to our initial public offering but has not been approved by our public shareholders. A description of the material terms of
the LTIP is available in our registration statement on Form S-1, last filed on October 15, 2013 under the heading “Compensation Discussion and Analysis—
2013 Long-Term Incentive Plan.”
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Item 13. Certain Relationships, Related Transactions and Director Independence
Distributions and Payments to Sprague Holdings and Its Affiliates
The following summarizes the distributions and payments made or to be made by us to Sprague Holdings and its affiliates in connection with our
formation and ongoing operation and distributions and payments that would be made by us if we were to liquidate in accordance with the terms of our
partnership agreement. These distributions and payments were determined by and among affiliated entities and, consequently, are not the result of arm’s-
length negotiations.
Formation Stage
Consideration given to Sprague Holdings and its affiliates for the contributions of assets and liabilities to us included the following:
• 1,571,970 common units;
• 10,071,970 subordinated units (converted to common units on February 16, 2017);
• non-economic general partner interest; and
•
incentive distribution rights; and
Operational Stage
Distributions of Cash to Sprague Holdings and its Affiliates
We will generally make cash distributions to common unitholders, including Sprague Holdings as the holder of an aggregate of 12,951,236 common
units. Our General Partner will not receive distributions on its non-economic general partner interest. If distributions exceed the minimum quarterly
distribution and other higher target levels, the holders of our incentive distribution rights (currently Sprague Holdings) will be entitled to increasing
percentages of the distributions, up to 50.0% of the distributions above the highest target level. During the year ended December 31, 2020, Sprague Holdings
received $8.3 million related to its incentive distribution rights and received distributions of approximately $31.5 million on its common units.
On February 11, 2021, Sprague Holdings provided notice to the Partnership that Sprague Holdings had made an IDR Reset Election (the “IDR Reset
Election”), as defined in our partnership agreement. Pursuant to the IDR Reset Election, the Partnership will issue 3,107,248 common units to Sprague
Holdings, the minimum quarterly distribution amount will be increased from $0.4125 per common unit per quarter to $0.6675 per common unit per quarter
and the levels at which the incentive distribution rights participate in distributions will be reset at higher amounts based on current common unit distribution
rates and a formula in our partnership agreement. The IDR Reset Election is expected to be consummated on March 5, 2021.
Payments to our General Partner and its Affiliates
Our General Partner will not receive any management fee or other compensation for its management of us, except as set forth in the services agreement
entered into in connection with the closing of the IPO. Under the terms of the partnership agreement, our General Partner and its affiliates will be reimbursed
for all expenses incurred on our behalf.
Pursuant to the terms of the services agreement, our General Partner agreed to provide certain general and administrative services and operational
services to us, and we agreed to reimburse our General Partner and its affiliates for all costs and expenses incurred in connection with providing such
services to us, including salary, bonus, incentive compensation, insurance premiums and other amounts allocable to the employees and directors of our
General Partner or its affiliates that perform services on our behalf. Neither the partnership agreement nor the services agreement limits the amount that may
be reimbursed or paid by us to our General Partner or its affiliates. The aggregate amount of reimbursements and fees paid by us to our General Partner was
$92.5 million for the year ended December 31, 2020.
Withdrawal or Removal of our General Partner
If our General Partner withdraws or is removed, the general partner interest and its affiliates’ incentive distribution rights will either be sold to the new
general partner for cash or converted into common units, in each case for an amount equal to the fair market value of those interests.
Liquidation Stage
Liquidation
Upon our liquidation, our partners, including our General Partner, will be entitled to receive liquidating distributions according to their respective
capital account balances.
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Agreements with Affiliates
In connection with the completion of our IPO on October 30, 2013, we entered into certain agreements with our sponsor and certain of its affiliates, as
described below.
Omnibus Agreement
We entered into an omnibus agreement with Axel Johnson, Sprague Holdings and our General Partner that addresses the agreement of Axel Johnson to
offer to us and to cause its controlled affiliates to offer to us opportunities to acquire certain businesses and assets and the obligation of Sprague Holdings to
indemnify us for certain liabilities. This agreement is not the result of arm’s-length negotiations and may not have been effected on terms at least as
favorable to the parties to this agreement as could have been obtained from unaffiliated third parties. The omnibus agreement may be terminated (other than
with respect to the indemnification provisions) by any party to the agreement in the event that Axel Johnson, directly or indirectly, owns less than 50% of the
voting equity of our General Partner.
Right of First Refusal
Under the terms of the omnibus agreement, Axel Johnson has agreed, and has caused its controlled affiliates to agree, for so long as Axel Johnson or
its controlled affiliates, individually or as part of a group, control our General Partner, that if Axel Johnson or any of its controlled affiliates has the
opportunity to acquire a controlling interest in any assets or any business having assets that are primarily engaged in the businesses in which we are engaged
as of the closing of the IPO and that operate primarily in the United States or Quebec, Ontario or the Maritimes, Canada, then Axel Johnson or its controlled
affiliates will offer such acquisition opportunity to us and give us a reasonable opportunity to acquire such assets or businesses either before Axel Johnson or
its controlled affiliates acquire it or promptly after the consummation of such acquisition by Axel Johnson or its controlled affiliates, at a price equal to the
purchase price paid or to be paid by Axel Johnson or its controlled affiliates plus any related transactions costs and expenses incurred by Axel Johnson or its
controlled affiliates. Our decision to acquire or not acquire any such assets or businesses will require the approval of the conflicts committee of the board of
directors of our General Partner. Any assets or businesses that we do not acquire pursuant to the right of first refusal may be acquired and operated by Axel
Johnson or its controlled affiliates.
This right of first refusal will not apply to:
• Any acquisition of any additional interests in any assets or businesses owned by Axel Johnson or its controlled affiliates at the time of the IPO
but not contributed to us in connection with the IPO, including any replacements and natural extensions thereof;
• Any investment in or acquisition of any assets or businesses primarily engaged in the businesses in which we are engaged as of the closing of
the IPO and that do not operate primarily in the United States or Quebec, Ontario or the Maritimes, Canada;
• Any investment in or acquisition of a minority non-controlling interest in any assets or businesses primarily engaged in the businesses
described above; or
• Any investment in or acquisition of any assets or businesses that Axel Johnson or its controlled affiliates, at the time of the closing of the IPO,
are actively seeking to invest in or acquire, or have the right to invest in or acquire.
Right of Negotiation
Under the terms of the omnibus agreement, Axel Johnson has agreed and has caused its controlled affiliates to agree, for so long as Axel Johnson or its
controlled affiliates, individually or as part of a group, control our General Partner, that if Axel Johnson or any of its controlled affiliates decide to attempt to
sell (other than to another controlled affiliate of Axel Johnson) any assets or businesses that are primarily engaged in the businesses in which we are engaged
as of the closing of the IPO and that operate primarily in the United States or Quebec, Ontario or the Maritimes, Canada (including its interests in any assets
or equity interests in any business that, at the time of the IPO, it is actively seeking to invest in or acquire or has the right to invest in or acquire), Axel
Johnson or its controlled affiliate will notify us of its desire to sell such assets or businesses and, prior to selling such assets or businesses to a third party,
will negotiate with us exclusively and in good faith for a period of 60 days in order to give us an opportunity to enter into definitive documentation for the
purchase and sale of such assets or businesses on terms that are mutually acceptable to Axel Johnson or its controlled affiliate and us. If we and Axel
Johnson or its controlled affiliate have not entered into a letter of intent or a definitive purchase and sale agreement with respect to such assets or businesses
within such 60 days, Axel Johnson or its controlled affiliate will have the right to sell such assets or businesses to a third party following the expiration of
such 60 days on any terms that are acceptable to Axel Johnson or its controlled affiliate and such third party. Our decision to acquire or not to acquire assets
or businesses pursuant to this right will require the approval of the conflicts committee of the board of directors of our General Partner.
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Indemnification
Under the omnibus agreement, Sprague Holdings will indemnify us for losses attributable to a failure to own any of the equity interests contributed to
us in connection with the formation transactions and income taxes attributable to pre-closing operations and the formation transactions.
Services Agreement
The Partnership, Sprague Energy Solutions, Inc. (“Sprague Solutions”) and Sprague Holdings entered into a services agreement with our General
Partner pursuant to which our General Partner agreed to provide certain general and administrative services and operational services to us and our
subsidiaries, Sprague Solutions and Sprague Holdings. Pursuant to the terms of the services agreement, we agreed to reimburse our General Partner and its
affiliates for all costs and expenses incurred in connection with providing such services to us, including salary, bonus, incentive compensation, insurance
premiums and other amounts allocable to the employees and directors of our General Partner or its affiliates that perform services on our behalf. Pursuant to
the terms of the services agreement, our General Partner agreed to provide the same services to Sprague Solutions and Sprague Holdings, which also agreed
to reimburse our General Partner and its affiliates for all costs and expenses incurred in connection with providing such services.
The services agreement does not limit the amount that may be reimbursed or paid by us to our General Partner or its affiliates. The amount of
reimbursements and fees paid by us to our General Partner was $92.5 million for the year ended December 31, 2020.
The initial term of the services agreement was for five years, beginning on October 30, 2013. The agreement automatically renews at the end of the
initial term for successive one-year terms until terminated by us or by Sprague Solutions or by giving 180 days prior written notice to our General Partner.
The agreement will automatically terminate on the date Sprague Resources GP LLC ceases to be our General Partner. The provisions of the services
agreement that are applicable to Sprague Holdings may be terminated by Sprague Holdings by giving 180 days prior written notice to our General Partner,
and will automatically terminate on the date on which Sprague Holdings ceases to be our affiliate. The provisions of the services agreement applicable to
Sprague Solutions shall automatically terminate on the date on which Sprague Solutions ceases to be a wholly owned direct or indirect subsidiary of us. The
services agreement does not limit the ability of the officers and employees of our General Partner to provide services to other affiliates of Sprague Holdings
or unaffiliated third parties.
The services agreement is not the result of arm’s-length negotiations and may not have been effected on terms at least as favorable to the parties to the
agreement as could have been obtained from unaffiliated third parties.
Terminal Operating Agreement
We entered into an exclusive terminal operating agreement with Sprague Holdings and Sprague Massachusetts Properties LLC, which is a wholly
owned subsidiary of Sprague Holdings, or one of its wholly owned subsidiaries, with respect to the terminal in New Bedford, Massachusetts. Pursuant to the
terminal operating agreement, we were granted the exclusive use and operation of, and will retain title to all of the refined products stored at, the New
Bedford terminal in exchange for a monthly fee of $15,200, subject to adjustment for changes in the Consumer Price Index for the Northeast region. This
agreement is not the result of arm’s-length negotiations and may not have been effected on terms at least as favorable to the parties to this agreement as
could have been obtained from unaffiliated third parties. The initial term of the terminal operating agreement was for five years, beginning on October 30,
2013 and the agreement has been subsequently extended through October 30, 2023. Additionally, the terminal operating agreement will terminate upon 60
days’ written notice from Sprague Holdings or Sprague Massachusetts Properties LLC in the event that Sprague Holdings or Sprague Massachusetts
Properties LLC determines that termination is necessary to facilitate the sale or development of the New Bedford terminal.
Director Independence
The information required by Item 407(a) of Regulation S-K is included in Part III, Item 10 - "Directors, Executive Officers and Corporate
Governance” above.
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Item 14. Principal Accounting Fees and Services
The Audit Committee has selected Ernst & Young LLP to serve as the Partnership’s independent auditor for the fiscal year ending December 31, 2020.
The Audit Committee in its discretion may select a different registered public accounting firm at any time during the year if it determines that such a change
will be in the best interests of the Partnership and our unitholders.
Audit Fees
The following table presents fees billed for auditing, tax and related services rendered by Ernst & Young LLP to us for each of the last two fiscal
years.
(1)
(2)
Audit Fees (1)
Audit-Related Fees
Tax Fees (2)
Total
Fiscal 2020
Fiscal 2019
$
$
2,056,517 $
—
248,958
2,305,475 $
2,345,000
7,820
310,298
2,663,118
Audit fees consisted of the audit of our annual financial statements, reviews of our interim financial statements and services associated with SEC
registration statements and other SEC matters.
Tax fees consisted of services related to tax compliance, the review of our partnership Form K-1, and research and consultation on other tax related
matters.
Policy for Approval of Audit and Non-Audit Services
Our audit committee charter requires that all services provided by our independent public accountants, both audit and non-audit, must be pre-approved
by the audit committee. The pre-approval of audit and non-audit services may be given at any time up to a year before commencement of the specified
service.
In determining whether to approve a particular audit or permitted non-audit service, the audit committee will consider, among other things, whether
such service is consistent with maintaining the independence of the independent public accountants. The audit committee will also consider whether the
independent public accountants are best positioned to provide the most effective and efficient service to us and whether the service might be expected to
enhance our ability to manage or control risk or improve audit quality.
All fees paid or expected to be paid to Ernst & Young LLP for fiscal 2020 and 2019 were pre-approved by the audit committee in accordance with this
policy.
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Item 15. Exhibits and Financial Statement Schedules
Part IV
(a)
Financial Statements, Financial Statement Schedules and Exhibits—The following documents are filed as part of this Annual Report on Form 10-K
for the year ended December 31, 2020.
1
Sprague Resources LP Audited Consolidated Financial Statements:
Index to Consolidated Financial Statements
Report of Independent Registered Public Accounting Firm
Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting
Consolidated Balance Sheets as of December 31, 2020 and December 31, 2019
Consolidated Statements of Income for the Years Ended December 31, 2020, December 31, 2019 and
December 31, 2018
Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2020, December 31,
2019 and December 31, 2018
Consolidated Statements of Unitholders’ Equity for the Years Ended December 31, 2020, December 31, 2019
and December 31, 2018
Consolidated Statements of Cash Flows for the Years Ended December 31, 2020, December 31, 2019 and
December 31, 2018
Notes to Consolidated Financial Statements
Page
F-2
F-4
F-5
F-6
F-7
F-8
F-9
F-10
Financial Statement Schedules—No schedules are included because the required information is inapplicable
or is presented in the Consolidated Financial Statements or related notes thereto.
Exhibits:
Description
Purchase and Sale Agreement, dated September 18, 2017, by and among Sprague Operating Resources LLC, Coen Oil Company,
LLC, Coen Markets, Inc., and The Thomaston Land Company, LLC (incorporated by reference to Exhibit 2.1 of Sprague
Resources LP’s Current Report on Form 8-K filed September 19, 2017 (File No. 001-36137)).
First Amendment dated April 18, 2017 to Asset Purchase Agreement by and among Sprague Operating Resources LLC, Carbo
Industries, Inc. and Carbo Realty, LLC (incorporated by reference to Exhibit 2.1 of Sprague Resources LP’s Current Report on
Form 8-K filed April 19, 2017 (File No. 001-36137)).
Asset Purchase Agreement, dated March 13, 2017, by and among Carbo Industries, Inc., Carbo Realty, LLC, and Paul
Hochhauser and Sprague Operating Resources, LLC (incorporated by reference to Exhibit 2.1 of Sprague Resources LP’s Current
Report on Form 8-K filed March 16, 2017 (File No. 001-36137)).
Certificate of Limited Partnership of Sprague Energy Partners LP (incorporated by reference to Exhibit 3.1 of Sprague Resources
LP's Registration Statement on Form S-1 filed July 27, 2011 (File No. 333-175826)
Amendment to the Certificate of Limited Partnership of Sprague Energy Partners LP (Changing Name to Sprague Resources LP)
(incorporated by reference to Exhibit 3.2 of Sprague Resources LP's Registration Statement on Form S-1 filed July 27, 2011 (File
No. 333-175826).
Amendment No. 3 to the First Amended and Restated Agreement of Limited Partnership of Sprague Resources LP dated as of
October 30, 2013, effective March 1, 2021.
Amendment No. 2 to the First Amended and Restated Agreement of Limited Partnership of Sprague Resources LP dated as of
October 30, 2013 effective October 25, 2019 (incorporated by reference to Exhibit 3.1 of Sprague Resources LP's Current Report
on Form 8-K filed October 25, 2019 (File No. 001-36137)).
2
3
Exhibit
No.
2.1***
2.2***
2.3***
3.1
3.2
3.3*
3.4
84
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Exhibit
No.
3.5
3.6
3.7
3.8*
4.1
10.1
10.2
10.3
10.4
10.5
10.6†
10.7†
10.8†
10.9†
Exhibit
No.
10.10†
10.11†
10.12†
21.1*
23.1*
31.1*
31.2*
32.1**
32.2**
Description
Amendment No. 1 to the Amended and Restated Agreement of Limited Partnership of Sprague Resources LP dated as of
October 30, 2013 effective December 20, 2017 (incorporated by reference to Exhibit 3.1 of Sprague Resources LP's
Current Report on Form 8-K filed December 20, 2017 (File No. 001-36137).
First Amended and Restated Agreement of Limited Partnership of Sprague Resources LP, dated as of October 30, 2013,
(incorporated by reference to Exhibit 3.1 of Sprague Resources LP’s Current Report on Form 8-K filed November 5,
2013 (File No. 001-36137)).
Amended and Restated Limited Liability Company Agreement of Sprague Resources GP LLC (incorporated by
reference to Exhibit 3.2 of Sprague Resources LP’s Current Report on Form 8-K filed November 5, 2013 (File No. 001-
36137)).
Composite copy of the First Amended and Restated Agreement of Limited Partnership of Sprague Resources LP, dated
as of October 30, 2013, as amended by Amendment No. 1, effective December 20, 2017, Amendment No. 2, effective
October 25, 2019, and Amendment No. 3, effective March 1, 2021.
Description of Securities Registered under Section 12 of the Exchange Act (incorporated by reference to Exhibit 4.1 of
Sprague Resources LP’s Annual Report on Form 10-K for the year ended December 31, 2019, filed March 5, 2020 (File
No. 001-36137)).
Second Amended and Restated Credit Agreement, dated as of May 19, 2020, among Sprague Operating Resources LLC,
as U.S. borrower, Kildair Service ULC, as Canadian borrower, the several lenders parties thereto, MUFG Bank Ltd., as
administrative agent, the co-syndication agents, the co-collateral agents and the co-documentation agents party thereto
(incorporated by reference to Exhibit 10.1 of Sprague Resources LP’s Current Report on Form 8-K filed May 21, 2020
(File No. 001-36137)).
Unit Purchase Agreement, dated March 13, 2017 by and between Sprague Resources, LP and Carbo Industries, Inc.
(incorporated by reference to Exhibit 10.1 of Sprague Resources LP’s Current Report on Form 8-K filed March 16, 2017
(File No. 001-36137)).
Omnibus Agreement by and among Axel Johnson Inc., Sprague Resources Holdings LLC, Sprague Resources LP and
Sprague Resources GP LLC (incorporated by reference to Exhibit 10.3 of Sprague Resources LP’s Current Report on
Form 8-K filed November 5, 2013 (File No. 001-36137)).
Services Agreement by and among Sprague Resources GP LLC, Sprague Resources LP, Sprague Resources Holdings
LLC and Sprague Energy Solutions Inc. (incorporated by reference to Exhibit 10.4 of Sprague Resources LP’s Current
Report on Form 8-K filed November 5, 2013 (File No. 001-36137)).
Terminal Operating Agreement by and between Sprague Massachusetts Properties LLC and Sprague Operating
Resources LLC (incorporated by reference to Exhibit 10.5 of Sprague Resources LP’s Current Report on Form 8-K filed
November 5, 2013 (File No. 001-36137)).
Sprague Resources LP 2013 Long-Term Incentive Plan, effective as of October 28, 2013 (incorporated by reference to
Exhibit 4.4 to Sprague Resources LP’s Registration Statement on Form S-8, filed on October 28, 2013 (File No. 333-
191923)).
Form of Phantom Unit Award Agreement (incorporated by reference to Exhibit 10.8 to Sprague Resources LP’s
Registration Statement on Form S-1, filed on September 24, 2013 (File No. 333-175826)).
Form of Restricted Unit Award Agreement (incorporated by reference to Exhibit 10.9 to Sprague Resources LP’s
Registration Statement on Form S-1, filed on September 24, 2013 (File No. 333-175826)).
Form of Unit Award Letter (incorporated by reference to Exhibit 10.10 to Sprague Resources LP’s Registration
Statement on Form S-1, filed on September 24, 2013 (File No. 333-175826)).
Description
Form of Phantom Unit Agreement (Performance Based Vesting) (incorporated by reference to Exhibit 10.1 of Sprague
Resources LP’s Quarterly Report on Form 10-Q filed on August 13, 2014 (File No. 001-36137)).
Amended and Restated Director Compensation Summary (incorporated by reference to Exhibit 10.1 of Sprague
Resources LP’s Quarterly Report on Form 10-Q filed on November 7, 2016 (File No. 001-36137)).
Form of Phantom Unit Agreement (Performance Based Vesting) (incorporated by reference to Exhibit 10.13 of Sprague
Resources LP's Annual Report on Form 10-K filed March 10, 2016 (File No. 001-36137)).
Subsidiaries of the Registrant.
Consent of Ernst & Young LLP.
Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, Rule 13a-14(a) /15d-14(a), by Chief Executive
Officer.
Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, Rule 13a-14(a) /15d-14(a), by Chief Financial
Officer.
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
by Chief Executive Officer.
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
by Chief Financial Officer.
101.INS*
101.SCH*
101.CAL*
101.DEF*
101.LAB*
101.PRE*
104*
Inline XBRL Instance Document - The instance document does not appear in the interactive data file because its XBRL tags are
embedded within the inline XBRL document.
Inline XBRL Taxonomy Extension Schema Document
Inline XBRL Taxonomy Extension Calculation
Inline XBRL Taxonomy Extension Definition
Inline XBRL Taxonomy Extension Label Linkbase
Inline XBRL Taxonomy Extension Presentation
Cover Page Interactive Data File (Formatted as Inline XBRL and contained in Exhibit 101)
†
*
**
***
Compensatory plan or arrangement.
Filed herewith.
Furnished herewith in accordance with Item 601(b)(32) of Regulation S-K.
Pursuant to Item 601(b)(2) of Regulation S-K, certain schedules to the Asset Purchase Agreements have been omitted. The registrant hereby
agrees to furnish supplementally to the SEC, upon its request, any or all omitted schedules and its materiality and privacy or confidentiality
analyses.
Item 16. Form 10-K Summary.
None.
85
Table of Contents
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Annual Report on
Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.
SIGNATURE
Sprague Resources LP
By:
By:
Sprague Resources GP LLC, its General Partner
/s/ David C. Glendon
David C. Glendon
President, Chief Executive Officer
(On behalf of the registrant, and in his capacity as principal executive officer)
Date: March 4, 2021
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following
persons on behalf of the registrant and in the capacities and on the dates indicated.
/s/ Michael D. Milligan
Michael D. Milligan
/s/ David C. Glendon
David C. Glendon
/s/ David C. Long
David C. Long
/s/ Beth A. Bowman
Beth A. Bowman
/s/ C. Gregory Harper
C. Gregory Harper
/s/ Ben J. Hennelly
Ben J. Hennelly
/s/ Gary A. Rinaldi
Gary A. Rinaldi
/s/ Sally A. Sarsfield
Sally A. Sarsfield
Signature
Title
Chairman of the Board of Directors
President, Chief Executive Officer and Director
(Principal Executive Officer)
Chief Financial Officer (Principal Financial Officer and
Principal Accounting Officer)
Director
Director
Director
Director
Director
86
Date
March 4, 2021
March 4, 2021
March 4, 2021
March 4, 2021
March 4, 2021
March 4, 2021
March 4, 2021
March 4, 2021
Table of Contents
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm
Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting
Consolidated Balance Sheets as of December 31, 2020 and December 31, 2019
Consolidated Statements of Income for the Years Ended December 31, 2020, December 31, 2019 and December 31, 2018
Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2020, December 31, 2019 and
December 31, 2018
Consolidated Statements of Unitholders’ Equity for the Years Ended December 31, 2020, December 31, 2019 and
December 31, 2018
Consolidated Statements of Cash Flows for the Years Ended December 31, 2020, December 31, 2019 and December 31,
2018
Notes to Consolidated Financial Statements
Page
F-2
F-4
F-5
F-6
F-7
F-8
F-9
F-10
1
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors of Sprague Resources GP and Unitholders of Sprague Resources LP
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Sprague Resources LP (the Partnership) as of December 31, 2020 and 2019, the
related consolidated statements of income, comprehensive income, unitholders’ equity and cash flows for each of the three years in the period ended
December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial
statements present fairly, in all material respects, the financial position of the Partnership at December 31, 2020 and 2019, and the results of its operations
and its cash flows for each of the three years in the period ended December 31, 2020, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the
Partnership's internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control-Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated March 4, 2021 expressed an
unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Partnership's management. Our responsibility is to express an opinion on the Partnership's
financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Partnership in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing
procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to
those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also
included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the
financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or
required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2)
involved our especially challenging, subjective or complex judgments. The communication of the critical audit matter does not alter in any way our opinion
on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on
the critical audit matter or on the account or disclosure to which it relates.
F-2
Table of Contents
Goodwill Impairment Assessment
Matter
Description of the
At December 31, 2020, the Partnership’s goodwill balance was $115 million. As described in Note 1 to the
consolidated financial statements, the Partnership tests goodwill for impairment at the reporting unit level on an as
needed basis or at least annually, using either a qualitative assessment or a single step quantitative approach. In
instances where a quantitative impairment test of goodwill allocated to a reporting unit is performed, the Partnership
estimates the fair value of the reporting unit based on future net discounted cash flows.
Auditing management's annual quantitative goodwill impairment test was complex and highly judgmental due
to the significant estimation required to determine the fair value of the Partnership's reporting units. In particular, the
fair values of the reporting units are sensitive to significant assumptions, such as forecasted operating results, discount
rates and growth rates, which contemplate business, market and overall economic conditions.
How We Addressed
We obtained an understanding, evaluated the design and tested the operating effectiveness of internal controls
the Matter in Our Audit
over the Partnership’s processes to assess goodwill for impairment, including the controls over management’s review
of the significant assumptions described above.
To test the estimated fair value of the Partnership’s reporting units, we performed audit procedures, with the
support of our valuation specialists, that included, among others, assessing the valuation methodology selected by
management and testing the significant assumptions discussed above and testing the completeness and accuracy of
underlying data used by management in its analysis. We compared the growth rates, forecasted operating results, and
other cash flow assumptions used by management to current industry and economic trends, the reporting units’
historical results, and results and projections of relevant peer companies in the industry. We evaluated the selection of
the discount rate by developing a range of independent estimates and comparing those to the rates selected by
management. We also assessed the historical accuracy of management’s estimates and performed sensitivity analyses
of significant assumptions to evaluate the changes in the fair value of the reporting units that would result from
changes in the assumptions.
/s/ Ernst & Young LLP
We have served as the Partnership’s auditor since 2007.
Boston, Massachusetts
March 4, 2021
F-3
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors of Sprague Resources GP and Unitholders of Sprague Resources LP
Opinion on Internal Control over Financial Reporting
We have audited Sprague Resources LP’s internal control over financial reporting as of December 31, 2020, based on criteria established in Internal
Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria).
In our opinion, Sprague Resources LP (the Partnership) maintained, in all material respects, effective internal control over financial reporting as of
December 31, 2020, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the
consolidated balance sheets of the Partnership as of December 31, 2020 and 2019, the related consolidated statements of income, comprehensive income,
unitholders’ equity, and cash flows for each of the three years in the period ended December 31, 2020, and the related notes and our report dated March 4,
2021 expressed an unqualified opinion thereon.
Basis for Opinion
The Partnership’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the
effectiveness of internal control over financial reporting included in the accompanying Management’s Report Regarding Internal Control Over Financial
Reporting. Our responsibility is to express an opinion on the Partnership’s internal control over financial reporting based on our audit. We are a public
accounting firm registered with the PCAOB and are required to be independent with respect to the Partnership in accordance with the U.S. federal securities
laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing
and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered
necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s
internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the
company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
/s/ Ernst & Young LLP
Boston, Massachusetts
March 4, 2021
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Sprague Resources LP
Consolidated Balance Sheets
(in thousands except unit amounts)
Assets
Current assets:
Cash and cash equivalents
Accounts receivable, net
Inventories
Fair value of derivative assets
Other current assets
Total current assets
Fair value of derivative assets long-term
Property, plant, and equipment, net
Intangibles, net
Other assets, net
Goodwill
Total assets
Liabilities and unitholders’ equity
Current liabilities:
Accounts payable
Accrued liabilities
Fair value of derivative liabilities
Due to General Partner
Current portion of working capital facilities
Current portion of other obligations
Total current liabilities
Commitments and contingencies
Acquisition facility
Fair value of derivative liabilities long-term
Other obligations, less current portion
Operating lease liabilities, less current portion
Due to General Partner
Deferred income taxes
Total liabilities
Unitholders’ equity:
Common unitholders - public (9,995,069 and 10,641,561 units issued and outstanding as of
December 31, 2020 and 2019, respectively)
Common unitholders - affiliated (12,951,236 and 12,106,348 units issued and outstanding
as of December 31,2020 and 2019, respectively)
Accumulated other comprehensive loss, net of tax
Total unitholders’ equity
Total liabilities and unitholders’ equity
December 31, 2020
December 31, 2019
$
$
$
$
3,771 $
193,015
255,533
145,957
67,406
665,682
20,021
335,296
41,142
22,252
115,037
1,199,430 $
97,280 $
46,645
154,105
10,915
358,685
6,968
674,598
382,400
20,240
39,309
5,653
2,751
15,784
1,140,735
5,386
281,527
293,224
77,871
63,705
721,713
16,807
348,039
49,764
24,183
115,037
1,275,543
147,577
43,386
74,154
5,653
437,184
13,858
721,812
374,600
13,439
41,413
11,850
2,445
16,202
1,181,761
154,238
180,302
(69,561)
(25,982)
58,695
1,199,430 $
(66,832)
(19,688)
93,782
1,275,543
The accompanying notes are an integral part of these financial statements.
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Sprague Resources LP
Consolidated Statements of Income
(in thousands, except unit and per unit amounts)
Net sales
Cost of products sold (exclusive of depreciation and amortization)
Operating expenses
Selling, general and administrative
Depreciation and amortization
Total operating costs and expenses
Other operating income
Operating income
Other income (expense)
Interest income
Interest expense
Income before income taxes
Income tax provision
Net income
Incentive distributions declared
Limited partners’ interest in net income
Net income per limited partner unit:
Common—basic
Common—diluted
Weighted average units used to compute net income per limited partner unit:
Common—basic
Common—diluted
Distribution declared per unit
2020
2,335,983 $
2,071,805
77,070
81,514
34,066
2,264,455
8,094
79,622
1,948
299
(40,669)
41,200
(7,389)
33,811
(8,292)
25,519 $
Years Ended December 31,
2019
3,502,410 $
3,228,003
84,924
78,135
34,015
3,425,077
—
77,333
(378)
555
(42,944)
34,566
(3,310)
31,256
(6,163)
25,093 $
2018
3,771,133
3,445,385
88,659
80,799
33,378
3,648,221
—
122,912
293
577
(38,931)
84,851
(5,032)
79,819
(7,879)
71,940
1.11 $
1.11 $
1.10 $
1.10 $
3.17
3.16
22,901,140
22,905,113
22,736,916
22,770,883
22,728,218
22,737,404
2.67 $
2.67 $
2.66
$
$
$
$
$
The accompanying notes are an integral part of these financial statements.
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Sprague Resources LP
Consolidated Statements of Comprehensive Income
(in thousands)
Net income
Other comprehensive loss, net of tax:
Unrealized loss on interest rate swaps
Net loss arising in the period
Reclassification adjustment related to loss (gains) realized in income
Net change in unrealized loss on interest rate swaps
Tax effect
Foreign currency translation adjustment
Other comprehensive loss
Comprehensive income
2020
Years Ended December 31,
2019
2018
$
33,811 $
31,256 $
79,819
(11,562)
5,217
(6,345)
49
(6,296)
2
(6,294)
27,517 $
(8,302)
(90)
(8,392)
65
(8,327)
161
(8,166)
23,090 $
(253)
(2,179)
(2,432)
20
(2,412)
(240)
(2,652)
77,167
$
The accompanying notes are an integral part of these financial statements.
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Sprague Resources LP
Consolidated Statements of Unitholders’ Equity
(in thousands)
Common-
Public
Common-
Sprague
Holdings
Incentive
Distribution Rights
Accumulated
Other
Comprehensive
Loss
Total
Balance as of December 31, 2017
Net income
Other comprehensive loss
Unit-based compensation
Distributions paid in cash
Units withheld for employee tax obligations
Balance as of December 31, 2018
Net income
Other comprehensive loss
Unit-based compensation
Distributions paid cash
Balance as of December 31, 2019
Net income
Other comprehensive loss
Unit-based compensation
Distributions paid in cash
Distributions paid in units
Units purchased by Sprague Holdings in Private
Transaction
Common units issued in connection with annual bonus
Units withheld for employee tax obligations
Balance as of December 31, 2020
$
$
193,977 $
33,940
—
(419)
(29,646)
(1,172)
196,680
11,732
—
275
(28,385)
180,302
11,456
—
1,871
(27,564)
—
(12,086)
423
(164)
154,238 $
(53,273) $
38,683
—
(477)
(31,779)
(1,336)
(48,182)
13,359
—
315
(32,324)
(66,832)
14,084
—
2,299
(33,533)
2,053
12,086
484
(202)
(69,561) $
— $
7,196
—
—
(7,196)
—
—
6,165
—
—
(6,165)
—
8,271
—
—
(6,218)
(2,053)
—
—
—
— $
(8,870) $
—
(2,652)
—
—
—
(11,522)
—
(8,166)
—
—
(19,688)
—
(6,294)
—
—
—
—
—
—
(25,982) $
131,834
79,819
(2,652)
(896)
(68,621)
(2,508)
136,976
31,256
(8,166)
590
(66,874)
93,782
33,811
(6,294)
4,170
(67,315)
—
—
907
(366)
58,695
The accompanying notes are an integral part of these financial statements.
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Sprague Resources LP
Consolidated Statements of Cash Flows
(in thousands)
Cash flows from operating activities
Net income
Adjustments to reconcile net income to net cash provided by (used in) operating activities:
Depreciation and amortization (includes amortization of deferred debt issue costs)
(Gain) loss on sale of assets and insurance recoveries
Changes in fair value of contingent consideration
Provision for doubtful accounts
Non-cash unit-based compensation
Other
Deferred income taxes
Changes in assets and liabilities:
Accounts receivable
Inventories
Other assets
Fair value of commodity derivative instruments
Due to/from General Partner and affiliates
Accounts payable, accrued liabilities and other
Net cash provided by (used in) operating activities
Cash flows from investing activities
Purchases of property, plant and equipment
Proceeds from property insurance settlements and sale of assets
Net cash provided by (used in) investing activities
Cash flows from financing activities
Net (payments) borrowings under credit agreements
Payments on finance/capital leases, term debt, and other obligations
Debt issue costs
Distributions to unitholders
Repurchased units withheld for employee tax obligations
Net cash (used in) provided by financing activities
Effect of exchange rate changes on cash balances held in foreign currencies
Net change in cash and cash equivalents
Cash and cash equivalents, beginning of period
Cash and cash equivalents, end of period
Supplemental disclosure of cash flow information
Cash paid for interest
Cash paid for taxes
Assets acquired under finance lease obligations
Non-cash asset retirement obligation and related asset
Cash paid for operating leases
Distribution paid in units
Years Ended December 31,
2019
2018
2020
$
33,811 $
31,256 $
79,819
39,094
(9,997)
410
425
4,170
—
(368)
88,087
37,691
(750)
9,107
5,567
(52,781)
154,466
(12,198)
12,712
514
(70,607)
(12,215)
(6,049)
(67,315)
(366)
(156,552)
(43)
(1,615)
5,386
3,771 $
36,412 $
5,672 $
3,100 $
— $
6,872 $
2,053 $
$
$
$
$
$
$
$
37,605
340
1,188
323
590
(146)
(1,499)
(11,942)
(33,655)
(50,171)
48,140
(1,683)
(85,711)
(65,365)
(14,292)
406
(13,886)
150,380
(6,438)
—
(66,874)
—
77,068
39
(2,144)
7,530
5,386 $
38,771 $
8,057 $
5,589 $
2,718 $
6,279 $
— $
36,930
(268)
677
1,598
(896)
94
77
44,975
76,291
31,058
(116,329)
(3,124)
8,077
158,979
(17,249)
394
(16,855)
(63,787)
(6,136)
(263)
(68,621)
(2,508)
(141,315)
(94)
715
6,815
7,530
35,174
4,139
4,449
(139)
—
—
The accompanying notes are an integral part of these financial statements.
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Table of Contents
Sprague Resources LP
Notes to Consolidated Financial Statements
(in thousands unless otherwise stated)
1.
Description of Business and Summary of Significant Accounting Policies
Partnership Businesses
Sprague Resources LP (the “Partnership”) is a Delaware limited partnership formed on June 23, 2011 by Sprague Holdings and its General Partner and
engages in the purchase, storage, distribution and sale of refined products and natural gas, and provides storage and handling services for a broad range of
materials.
Unless the context otherwise requires, references to “Sprague Resources,” and the “Partnership,” refer to Sprague Resources LP and its subsidiaries;
references to the "General Partner" refer to Sprague Resources GP LLC; references to “Axel Johnson” or the "Sponsor" refer to Axel Johnson Inc. and its
controlled affiliates, collectively, other than Sprague Resources, its subsidiaries and its General Partner; references to “Sprague Holdings” refer to Sprague
Resources Holdings LLC, a wholly owned subsidiary of Axel Johnson and the owner of the General Partner.
The Partnership owns, operates and/or controls a network of refined products and materials handling terminals and storage facilities predominantly
located in the Northeast United States from New York to Maine and in Quebec, Canada. The Partnership also utilizes third-party terminals in the Northeast
United States through which it sells or distributes refined products pursuant to rack, exchange and throughput agreements. The Partnership has four
reportable segments: refined products, natural gas, materials handling and other operations.
•
•
•
•
The refined products segment purchases a variety of refined products, such as heating oil, diesel fuel, residual fuel oil, kerosene, jet fuel, and
gasoline - primarily from refining companies, trading organizations and producers - and sells them to wholesale and commercial customers.
The natural gas segment purchases natural gas from natural gas producers and trading companies and sells and distributes natural gas to commercial
and industrial customers.
The materials handling segment offloads, stores and prepares for delivery a variety of customer-owned products, including asphalt, clay slurry, salt,
gypsum, crude oil, residual fuel oil, coal, petroleum coke, caustic soda, tallow, pulp and heavy equipment.
The other operations segment primarily includes the marketing and distribution of coal and certain commercial trucking activities.
See Note 2 - Revenue for a description of the Partnership's revenue activities within these business segments.
As of December 31, 2020, the Sponsor, through its ownership of Sprague Holdings, owned 12,951,236 common units representing 56.4% of the
limited partner interest in the Partnership. Sprague Holdings also owns the General Partner, which in turn owns a non-economic interest in the Partnership.
Sprague Holdings currently holds incentive distribution rights ("IDRs") that entitle it to receive increasing percentages, up to a maximum of 50.0%, of the
cash the Partnership distributes from distributable cash flow in excess of $0.4744 per unit per quarter. The maximum distribution of 50% does not include
any distributions that Sprague Holdings may receive on any limited partner units that it owns. Upon consummation of the IDR Reset Election, Sprague
Holdings will own 16,058,484 common units, representing 61.6% of the limited partner interest in the Partnership. See Note 21 - Earnings Per Unit, Note 23
- Partnership Distributions and Note 24 - Subsequent Events.
Services Agreement
The Partnership, the General Partner and Sprague Holdings operate under a services agreement (the “Services Agreement”) pursuant to which the
General Partner provides certain general and administrative and operational services to the Partnership and Sprague Holdings, and the Partnership and
Sprague Holdings reimburse the General Partner for all costs and expenses incurred in connection with providing such services to the Partnership and
Sprague Holdings. The Services Agreement does not limit the amount that may be reimbursed or paid by the Partnership to the General Partner. The initial
term of the Services Agreement expired on October 30, 2018 and automatically renewed at the end of the initial term for successive one-year terms until
terminated in accordance with the terms thereof. The Services Agreement does not limit the ability of the
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officers and employees of the General Partner to provide services to other affiliates of Sprague Holdings or unaffiliated third parties. See Note 13 - Related
Party Transactions.
As of December 31, 2020, the General Partner employed approximately 663 full-time employees who support the Partnership’s operations, 73 of
whom were covered by six collective bargaining agreements. One of these agreements, covering 38 employees, is up for renewal in June 30, 2021. As of
December 31, 2020, the Partnership's Canadian subsidiary had 102 employees, 39 of whom were covered by one collective bargaining agreement which
expires on March 18, 2021.
Basis of Presentation
The Consolidated Financial Statements include the accounts of the Partnership and its wholly-owned subsidiaries. Intercompany transactions between
the Partnership and its subsidiaries have been eliminated.
COVID-19
The global outbreak of the novel coronavirus (COVID-19) was declared a pandemic by the World Health Organization and a national emergency by the
U.S. Government in March 2020 and has negatively affected the U.S. and global economy, disrupted global supply chains, resulted in significant travel and
transport restrictions, including mandated closures and orders to “shelter-in-place,” and created significant disruption of the financial markets.
Beginning in the quarterly period ended March 31, 2020, a wide array of sectors including but not limited to the energy, transportation, manufacturing
and commercial, along with global economic conditions generally, have been significantly disrupted by the pandemic. A growing number of the
Partnership’s customers in these industries have experienced substantial reductions in their operations due to travel restrictions as well as the extended
shutdown of various businesses in affected regions. Furthermore, government measures have also led to a precipitous decline in fuel prices in response to
concerns about demand for fuel.
The pandemic and associated impacts on economic activity had an adverse effect on the Partnership’s operating results for the year ended December 31,
2020, specifically, the Partnership has seen a decline in demand and related sales volume as large sectors of the global economy have been adversely
impacted by the crisis. In response to these developments, the Partnership took swift action to ensure the safety of employees and other stakeholders, and
initiated a number of initiatives relating to cost reduction, liquidity and operating efficiencies.
The Partnership makes estimates and assumptions that affect the reported amounts on these consolidated financial statements and accompanying notes
as of the date of the financial statements. The Partnership assessed accounting estimates that require consideration of forecasted financial information,
including, but not limited to, the allowance for credit losses, the carrying value of goodwill, intangible assets, and other long-lived assets. This assessment
was conducted in the context of information reasonably available to the Partnership, as well as consideration of the future potential impacts of COVID-19 on
the Partnership’s business as of December 31, 2020. At this time, the Partnership is unable to predict with specificity the ultimate impact of the crisis, as it
will depend on the magnitude, severity and duration of the pandemic, as well as how quickly, and to what extent, normal economic and operating conditions
resume on a sustainable basis globally. Accordingly, if the impact is more severe or longer in duration than the Partnership has assumed, such impact could
potentially result in impairments and increases in credit allowances.
Use of Estimates
The preparation of financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and
liabilities in the balance sheet and the reported net sales and expenses in the income statement. Actual results could differ from those estimates. Among the
estimates made by management are asset and liability valuations as part of an acquisition, the fair value of derivative assets and liabilities, valuation of
contingent consideration, valuation of reporting units within the goodwill impairment assessment, and if necessary long-lived asset impairments and
environmental and legal obligations.
Revenue Recognition and Cost of Products Sold
Revenue is recognized when performance obligations under the terms of a contract with a customer are satisfied. The majority of the Partnership’s
revenue is generated from refined products and natural gas contracts that have a single performance obligation which is the delivery of the related energy
product. Accordingly, the Partnership recognizes revenue for
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refined products and natural gas when title and control have been transferred to the customer which is generally at the time of shipment or delivery of
products. Revenue for the Partnership’s materials handling segment is recorded on a straight-line basis under leasing arrangements or as services are
performed.
Revenue is measured as the amount of consideration the Partnership expects to receive in exchange for transferring products or providing services and is
generally based upon a negotiated index, formula, list or fixed price. An allowance for doubtful accounts is recorded to reflect an estimate of the ultimate
realization of the Partnership's accounts receivable and includes an assessment of the customers’ creditworthiness and the probability of collection. The
provision for the allowance for doubtful accounts is included in cost of products sold (exclusive of depreciation and amortization). Estimated discounts are
included in the transaction price of the contracts with customers as a reduction to net sales. Cash discounts were $4.1 million, $7.5 million and $7.7 million
for the years ended December 31, 2020, 2019 and 2018, respectively. The Partnership sells its products or provides its services directly to commercial
customers and wholesale distributors generally under agreements with payment terms typically less than 30 days.
The Partnership has elected to account for shipping and handling as activities to fulfill the promise to transfer the good. As such, shipping and handling
fees billed to customers in a sales transaction are recorded in net sales and shipping and handling costs incurred are recorded in cost of products sold
(exclusive of depreciation and amortization). The Partnership has elected to exclude from net sales any value add, sales and other taxes which it collects
concurrently with revenue-producing activities. These accounting policy elections are consistent with the way the Partnership historically recorded shipping
and handling fees and taxes.
The majority of the Partnership's revenue is derived from contracts (i) with an original expected length of one year or less and (ii) contracts for which it
recognizes revenue at the amount in which it has the right to invoice the customer as product is delivered. The Partnership has elected the practical expedient
not to disclose the value of remaining performance obligations associated with these types of contracts.
Commodity Derivatives
The Partnership utilizes derivative instruments consisting of futures contracts, forward contracts, swaps, options and other derivatives individually or
in combination, to mitigate its exposure to fluctuations in prices of refined petroleum products and natural gas. The use of these derivative instruments
within the Partnership's risk management policy may, on a limited basis, generate gains or losses from changes in market prices. The Partnership enters into
futures and over-the-counter ("OTC") transactions either on regulated exchanges or in the OTC market. Futures contracts are exchange-traded contractual
commitments to either receive or deliver a standard amount or value of a commodity at a specified future date and price, with some futures contracts based
on cash settlement rather than a delivery requirement. Futures exchanges typically require margin deposits as security. OTC contracts, which may or may not
require margin deposits as security, involve parties that have agreed either to exchange cash payments or deliver or receive the underlying commodity at a
specified future date and price. The Partnership posts initial margin with futures transaction brokers, along with variation margin, which is paid or received
on a daily basis, and is included in other current assets and other current liabilities. In addition, the Partnership may either pay or receive margin based upon
exposure with counterparties. Payments made by the Partnership are included in other current assets, whereas payments received by the Partnership are
included in accrued liabilities. Substantially all of the Partnership’s commodity derivative contracts outstanding as of December 31, 2020 will settle prior to
June 30, 2022.
The Partnership enters into some master netting arrangements to mitigate credit risk with significant counterparties. Master netting arrangements are
standardized contracts that govern all specified transactions with the same counterparty and allow the Partnership to terminate all contracts upon occurrence
of certain events, such as a counterparty’s default. The Partnership has elected not to offset the fair value of its derivatives, even where these arrangements
provide the right to do so.
The Partnership’s derivative instruments are recorded at fair value, with changes in fair value recognized in net income (loss) each period. The
Partnership’s fair value measurements are determined using the market approach and includes non-performance risk and time value of money considerations.
Counterparty credit is considered for receivable balances, and the Partnership’s credit is considered for payable balances.
The Partnership does not offset fair value amounts recognized for the right to reclaim cash collateral (a receivable) or the obligation to return cash
collateral (a payable) against the fair value of derivative instruments executed with the same counterparty under the same master netting arrangement. The
Partnership had no right to reclaim or obligation to return cash collateral as of December 31, 2020 or 2019.
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Interest Rate Derivatives
The Partnership manages its exposure to variable LIBOR borrowings by using interest rate swaps to convert a portion of its variable rate debt to fixed
rates. These interest rate swaps are designated as cash flow hedges and the changes in fair value of the swaps are included as a component of comprehensive
income (loss) and accumulated other comprehensive income (loss), net of tax.
To designate a derivative as a cash flow hedge, the Partnership documents at inception the assessment that the derivative will be highly effective in
offsetting expected changes in cash flows from the item hedged. The assessment, updated at least quarterly, is based on the most recent relevant historical
correlation between the derivative and the item hedged. If during the term of the derivative, the hedge is found to be less than highly effective, hedge
accounting is prospectively discontinued and the remaining gains and losses are reclassified to income in the current period.
Market and Credit Risk
The Partnership manages the risk of fluctuations in the price and transportation costs of its commodities through the use of derivative instruments. The
volatility of prices for energy commodities can be significantly influenced by market supply and demand, changes in seasonal demand, weather conditions,
transportation availability, and federal and state regulations. The Partnership monitors and manages its exposure to market risk on a daily basis in accordance
with approved policies.
The Partnership has a number of financial instruments that are potentially at risk including cash and cash equivalents, receivables and derivative
contracts. The Partnership’s primary exposure is credit risk related to its receivables and counterparty performance risk related to its derivative assets, which
is the loss that may result from a customer’s or counterparty’s non-performance. The Partnership uses credit policies to control credit risk, including utilizing
an established credit approval process, monitoring customer and counterparty limits, employing credit mitigation measures such as analyzing customer
financial statements, and accepting personal guarantees and various forms of collateral.
The Partnership believes that the counterparties to its derivative contracts will be able to satisfy their contractual obligations. Credit risk is limited by
the large number of customers and counterparties comprising the Partnership’s business and their dispersion across different industries.
The Partnership’s cash is in demand deposits placed with federally insured financial institutions. Such deposit accounts at times may exceed federally
insured limits. The Partnership has not experienced any losses on such accounts.
Fair Value Measurements
The Partnership determines fair value based on a hierarchy for the inputs used to measure the fair value of financial assets and liabilities based on the
source of the input, which generally range from quoted prices for identical instruments in a principal trading market (Level 1) to estimates determined using
significant unobservable inputs (Level 3). Multiple inputs may be used to measure fair value; however, the level of fair value is based on the lowest
significant input level within this fair value hierarchy.
Details on the methods and assumptions used to determine the fair values are as follows:
Fair value measurements based on Level 1 inputs: Measurements that are most observable and are based on quoted prices of identical instruments
obtained from the principal markets in which they are traded. Closing prices are both readily available and representative of fair value. Market transactions
occur with sufficient frequency and volume to assure liquidity.
Fair value measurements based on Level 2 inputs: Measurements derived indirectly from observable inputs or from quoted prices from markets that
are less liquid are considered Level 2. Measurements based on Level 2 inputs include OTC derivative instruments that are priced on an exchange traded
curve, but have contractual terms that are not identical to exchange traded contracts. The Partnership utilizes fair value measurements based on Level 2
inputs for its fixed forward contracts, over-the-counter commodity price swaps, interest rate swaps and forward currency contracts.
Fair value measurements based on Level 3 inputs: Measurements that are least observable are estimated from significant unobservable inputs
determined from sources with little or no market activity for comparable contracts or for positions with longer durations.
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Long-Term Incentive Plan
The General Partner has the Sprague Resources LP 2013 Long-Term Incentive Plan (the “LTIP”), for the benefit of employees, consultants and
directors of the General Partner and its affiliates, who provide services to the General Partner or an affiliate. The LTIP provides the Partnership with the
flexibility to grant unit options, restricted units, phantom units, unit appreciation rights, cash awards, distribution equivalent rights, substitute awards and
other unit-based awards or any combination of the foregoing. The LTIP will expire upon the earlier of (i) its termination by the board of directors of the
General Partner, (ii) the date common units are no longer available under the LTIP for grants or (iii) the tenth anniversary of the date the LTIP was approved
by the General Partner.
The board of directors of the General Partner grants performance-based phantom unit awards to key employees that vest over a period of time (usually
three years). Upon vesting, a holder of performance-based phantom units is entitled to receive a number of common units of the Partnership equal to a
percentage (between 0 and 200%) of the phantom units granted, based on the Partnership’s achieving predetermined performance criteria. The Partnership
uses authorized but unissued units to satisfy its unit-based obligations.
OCF-based Phantom Units
Phantom unit awards granted since 2015 include a performance criteria that considers Sprague Holdings operating cash flow, as defined therein
("OCF"), over a three year performance period. The number of common units that may be received in settlement of each phantom unit award can range
between 0 and 200% of the number of phantom units granted based on the level of OCF achieved during the vesting period. These awards are equity awards
with performance and service conditions which result in compensation cost being recognized over the requisite service period once payment is determined to
be probable. Compensation expense related to the OCF based awards is estimated each reporting period by multiplying the number of common units
underlying such awards that, based on the Partnership's estimate of OCF, are probable to vest, by the grant-date fair value of the award and is recognized
over the requisite service period using the straight-line method. The fair value of the OCF based phantom units was the grant date closing price listed on the
New York Stock Exchange. The number of units that the Partnership estimates are probable to vest could change over the vesting period. Any such change
in estimate is recognized as a cumulative adjustment calculated as if the new estimate had been in effect from the grant date.
Distribution Equivalent Rights
The Partnership's performance-based phantom unit awards include tandem distribution equivalent rights ("DERs") which entitle the participant to a
cash payment only upon vesting that is equal to any cash distribution paid on a common unit between the grant date and the date the phantom units were
settled. Payments made in connection with DERs are recorded as a distribution in unitholders' equity.
Earnings Per Unit
The Partnership computes income (loss) per unit using the two-class method. The Partnership has identified the IDRs as participating securities and
uses the two-class method when calculating the net income per unit applicable to limited partners. Earnings per unit applicable to limited partners is
computed by dividing limited partners’ interest in net income, after deducting any incentive distributions, by the weighted-average number of outstanding
common units. The Partnership’s net income is allocated to the limited partners in accordance with their respective ownership percentages, after giving effect
to priority income allocations for incentive distributions that has been or will be distributed to the incentive distribution right holder, which are declared and
paid following the close of each quarter. Earnings in excess of distributions are allocated to the limited partners based on their respective ownership interests.
Cash and Cash Equivalents
Cash and cash equivalents include cash and highly liquid investments which are readily convertible into cash and have maturities of three months or
less when purchased.
Inventories
The Partnership’s inventories are valued at the lower of cost or net realizable value. Cost is primarily determined using the first-in, first-out method,
except for the Partnership's Canadian subsidiary, which used the weighted average method. Inventory consists of petroleum products, natural gas and coal.
The Partnership uses derivative instruments, primarily futures, forwards and swaps, to economically hedge substantially all of its inventory.
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Property, Plant and Equipment, Net
Property, plant and equipment, net are recorded at historical cost. Depreciation is computed on a straight-line basis over the following estimated useful
lives:
Furniture and fixtures
Plant and machinery
Building and leasehold improvements
5 to 10 years
5 to 30 years
10 to 25 years
Leasehold improvements are amortized over the term of the lease or the estimated useful life of the improvement, whichever is shorter. Maintenance
and repairs are charged to expense as incurred. Costs and related accumulated depreciation of properties sold or otherwise disposed of are removed from the
respective accounts, and any resulting gains or losses are recorded at that time.
Long-lived Asset Impairment
The Partnership evaluates the carrying value of its property, plant and equipment and finite lived intangible assets for impairment when events or
changes in circumstances indicate the carrying amount of an individual asset or asset group may not be recoverable based on estimated future undiscounted
cash flows. Future cash flow projections include assumptions of future sales levels, the impact of controllable cost reduction programs, and the level of
working capital needed to support each business. To the extent the carrying amount of the asset group is not recoverable based on undiscounted cash flows,
the amount of impairment is measured by the difference between the carrying value and the fair value of the individual assets or asset group.
Purchase Price Allocation
The cost of an acquired entity is allocated to the assets acquired and liabilities assumed based on their respective fair values at the date of acquisition.
Property, plant and equipment and goodwill generally represent large components of these acquisitions. In addition to goodwill, intangible assets acquired
generally include customer relationships and non-compete agreements. Goodwill is calculated as the excess of the cost of the acquired entity over the net of
the fair value of the assets acquired and the liabilities assumed.
For all material acquisitions the Partnership determines the fair value of the assets acquired and liabilities assumed, including goodwill, based on recognized
business valuation methodologies. An income, market or cost valuation method may be utilized to estimate the fair value of the assets acquired or liabilities
assumed. The income valuation method represents the present value of future cash flows over the life of the asset using: (i) discrete financial forecasts, based
on management’s estimates of revenue and operating expenses; (ii) long-term growth rates; and (iii) appropriate discount rates. The market valuation method
uses prices paid for a reasonably similar asset by other purchasers in the market, with adjustments relating to any differences between the assets. The cost
valuation method is based on the replacement cost of a comparable asset at prices at the time of the acquisition reduced for depreciation of the asset.
For contingent consideration arrangements, a liability is recognized at fair value as of the acquisition date with subsequent fair value adjustments
recorded in operations. Additional information regarding the Partnership's contingent consideration arrangements may be found in Note 14 - Other
Obligations and Note 18 - Financial Instruments and Off-Balance Sheet Risk.
Other assets acquired and liabilities assumed typically include, but are not limited to, inventory, accounts receivable, accounts payable and other
working capital items. Because of their short-term nature, the fair values of these other assets and liabilities generally approximate the book values on the
acquired entity’s balance sheet.
Goodwill
Goodwill is defined as the excess of cost over the fair value of assets acquired and liabilities assumed in a business combination. The Partnership tests
goodwill at the reporting unit level annually as of October 31 or on an as needed basis, for indicators of impairment at each reporting unit that has recorded
goodwill. In performing the test, the Partnership either uses a qualitative assessment or a single step quantitative approach. Under the qualitative approach
the Partnership considers a number of factors, including the amount by which the previous quantitative test's fair value exceeded the carrying value of the
reporting units, actual performance as compared to internal forecasts used in the previous quantitative test, an evaluation of discount rates, and an evaluation
of current economic factors for both the worldwide economy and specifically the oil and gas industry, and any significant changes in customer and supplier
relationships. The Partnership weighs these factors to determine if it is
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more likely than not that the fair value of the reporting unit exceeds its carrying value. If after performing a qualitative assessment, indicators are present, or
the Partnership identifies factors that cause it to believe it is appropriate to perform a more precise calculation of fair value, the Partnership would move
beyond the qualitative assessment and perform a quantitative impairment test.
Under the quantitative impairment test, the Partnership performs a comparison of the reporting unit’s carrying value to its fair value.
It estimates the fair value of a reporting unit based upon future net discounted cash flows (Level 3 measurement). In calculating these estimates, the
Partnership develops a discounted cash flow model based on forecasted operating results, discount rates, and growth rates, which contemplate business,
market and overall economic conditions. Further, the discount rates used require estimates of the cost of equity and debt financing. The estimates of fair
value of these reporting units could change if actual operating results or discount rates vary from these estimates. The Partnership performed sensitivity
analyses on the fair values resulting from the discounted cash flows valuation utilizing more conservative assumptions that reflect reasonably likely future
changes in the discount rates and perpetual growth rate in each of the reporting units. Based upon the Partnership's 2020 annual impairment testing analyses,
including the consideration of reasonably likely adverse changes in assumptions described above, the Partnership determined that there have
been no goodwill impairments to date.
Intangibles, Net
Intangibles, net consist of intangible assets with finite lives, primarily customer relationships and non-compete agreements. Intangibles and other
assets are amortized over their respective estimated useful lives. The Partnership believes the sum-of-the-years’-digits method of amortization properly
reflects the timing of the recognition of the economic benefits realized from its intangible assets.
Income Taxes
The Partnership is organized as a pass-through entity for U.S. federal income tax purposes. As a result, the partners are responsible for U.S. federal
income taxes based on their respective share of taxable income. Net income for financial statement purposes may differ significantly from taxable income
reportable to unitholders as a result of differences between the tax bases and financial reporting bases of assets and liabilities and the taxable income
allocation requirements under the partnership agreement. The Partnership, however, is subject to a statutory requirement that non-qualifying income cannot
exceed 10% of total gross income, determined on a calendar year basis under the applicable income tax provisions. If the amount of non-qualifying income
exceeds this statutory limit, the Partnership would be taxed as a corporation. Accordingly, certain activities that generate non-qualifying income are
conducted through Sprague Energy Solutions, Inc., a taxable corporate subsidiary. Sprague Energy Solutions, Inc. is subject to U.S. federal and state income
tax and pays any income taxes related to the results of its operations. For the year ended December 31, 2020, the Partnership’s non-qualifying income did not
exceed the statutory limit. The Partnership is subject to income tax and franchise tax in certain domestic state and local as well as foreign jurisdictions.
Income taxes (e.g., deferred tax assets, deferred tax liabilities, taxes currently payable and tax expense) are recorded based on amounts refundable or
payable in the current year and include the impact of temporary differences between the amount of assets and liabilities recognized for financial reporting
purposes and such amounts recognized for tax purposes. Deferred taxes are measured by applying currently enacted tax rates. The Partnership establishes a
valuation allowance for deferred tax assets when it is more likely than not that these assets will not be realized.
The Partnership's Canadian operations are conducted within entities that are treated as corporations for Canadian tax purposes and are subject to
Canadian federal and provincial taxes. Additionally, payments of dividends from the Partnership's Canadian entities to other Sprague entities are subject to
Canadian withholding tax that is treated as income tax expense. The partnership's foreign subsidiaries record investment tax credits under the deferral
method.
The Partnership recognizes the financial statement effect of an uncertain tax position only when management believes that it is more likely than not,
that based on the technical merits, the position will be sustained upon examination. The Partnership classifies interest and penalties associated with uncertain
tax positions as income tax expense. During the years ended December 31, 2020, 2019 and 2018, the uncertain tax positions and related interest and
penalties recognized by the Partnership were immaterial. The Partnership and its subsidiaries tax returns are subject to examination by the Internal Revenue
Service and by the Canada Revenue Agency for the years ended December 31, 2019, 2018, 2017 and 2016.
On December 22, 2017, the President signed into law Public Law No. 115-97, a comprehensive tax reform bill commonly referred to as the Tax Cuts
and Jobs Act (the “Tax Act”) that makes significant changes to the U.S. Internal Revenue Code. Among other changes, the Tax Act includes a new deduction
on certain pass-through income, a repeal of the partnership
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technical termination rule, and new limitations on certain deductions and credits, including interest expense deductions. Since the operations of the
Partnership are generally not subject to federal income tax, the Tax Act has not had a material impact to the Partnership.
Foreign Currency
The Partnership’s reporting currency is the U.S. dollar. The Partnership's most significant foreign operations are conducted by Kildair Service ULC, a
Canadian subsidiary ("Kildair"). The functional currency of Kildair is the U.S. dollar. Kildair has an operating subsidiary whose functional currency is the
Canadian dollar.
Kildair converts receivables and payables denominated in other than their functional currency at the exchange rate as of the balance sheet date. Kildair
utilizes forward currency contracts to manage its exposure to currency fluctuations of certain of its transactions that are denominated in Canadian dollars.
These forward currency exchange contracts are recorded at fair value at the balance sheet date and changes in fair value are recognized in net income (loss)
as these forward currency contracts have not been designated as hedges. For the years ended December 31, 2020, 2019 and 2018, transaction exchange gains
or losses net of the impact of the forward currency exchange contracts, amounted to a gain of $0.1 million, loss of $0.1 million and loss of $0.2 million,
respectively, which is recorded in cost of products sold (exclusive of depreciation and amortization).
Recent Accounting Pronouncements
In June 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2016-13, Financial Instruments -
Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. The standard requires entities to use a forward-looking approach based
on expected losses rather than incurred losses to estimate credit losses on certain types of financial instruments, including trade receivables. This may result
in the earlier recognition of allowances for losses. The guidance is effective for interim and annual periods for fiscal years beginning after December 15,
2019, with early adoption permitted. As part of the Partnership’s assessment of the adequacy of its allowances for credit losses, the Partnership considers a
number of factors including, but not limited to, history or defaults, age of receivables, and expected loss rates. The adoption of this guidance did not have a
material impact to the Partnership's Consolidated Financial Statements.
In January 2017, the FASB issued ASU 2017-04 Intangibles - Goodwill and Other (Topic 350): Simplifying the Accounting for Goodwill Impairment.
The guidance removes Step 2 of the goodwill impairment test, which requires a hypothetical purchase price allocation. A goodwill impairment will now be
the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. The standard will be applied
prospectively, and is effective for fiscal years beginning after December 15, 2019. The adoption of this guidance did not have a material impact to the
Partnership's Consolidated Financial Statements.
In March 2020, the FASB issued ASU 2020-04, Reference Rate Reform (Topic 848) which provides optional expedients and exceptions for applying
U.S. GAAP to contracts, hedging relationships and other transactions affected by reference rate reform, if certain criteria are met. The amendments apply
only to contracts, hedging relationships, and other transactions that reference LIBOR or another reference rate expected to be discontinued because of
reference rate reform. These amendments are effective immediately and may be applied prospectively to contract modifications made and hedging
relationships entered into or evaluated on or before December 31, 2022. The Partnership has not currently adopted the optional expedients and exceptions
provided in this guidance but continues to monitor and evaluate the impact of reference rate reform on relevant transactions.
2.
Revenue
Disaggregated Revenue
In general, the Partnership's business segmentation is aligned according to the nature and economic characteristics of its products and customer
relationships which provides meaningful disaggregation of each business segment's results of operations. The Partnership operates its businesses in the
Northeast and Mid-Atlantic United States and Eastern Canada.
The refined products segment purchases a variety of refined products, such as heating oil, diesel fuel, residual fuel oil, kerosene, jet fuel and gasoline
(primarily from refining companies, trading organizations and producers), and sells them to wholesale and commercial customers. Refined products revenue-
producing activities are direct sales to customers, including throughput transactions. Revenue is recognized when the product is delivered. Revenue is not
recognized on exchange agreements, which are entered into primarily to acquire refined products by taking delivery of products closer to the
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Partnership’s end markets. Rather, net differentials or fees for exchange agreements are recorded within cost of products sold (exclusive of depreciation and
amortization).
The natural gas segment purchases natural gas from natural gas producers and trading companies and sells and distributes natural gas to commercial and
industrial customers. Natural gas revenue-producing activities are sales to customers at various points on natural gas pipelines or at local distribution
companies (i.e., utilities). Natural gas sales not billed by month-end are accrued based upon gas volumes delivered.
The materials handling segment offloads, stores and prepares for delivery a variety of customer-owned products. A majority of the materials handling
segment revenue is generated under leasing arrangements with revenue recorded over the lease term generally on a straight-line basis. Contingent rentals are
recorded as revenue only when billable under the arrangement. For materials handling contracts that are not leases, the Partnership recognizes revenue either
at a point in time after services are performed or over a period of time if the services are performed in a continuous fashion over the period of the contract as
these methods represent a faithful depiction of the transfer of goods and services.
The other operations segment primarily includes the marketing and distribution of coal and certain commercial trucking activities. Revenue from other
operations is recognized when the product is delivered or the services are rendered.
Further disaggregation of net sales by business segment and geographic destination is as follows:
Net sales:
Refined products
Distillates
Gasoline
Heavy fuel oil and asphalt
Total refined products
Natural gas
Materials handling
Other operations
Net sales
Net sales by country:
United States
Canada
Net sales
Contract Balances
2020
Years Ended December 31
2019
2018
$
$
$
$
$
1,571,096 $
247,926
179,175
1,998,197 $
261,358
56,347
20,081
2,335,983 $
2,514,010 $
298,633
300,281
3,112,924 $
307,952
56,655
24,879
3,502,410 $
2,686,833
320,168
350,768
3,357,769
332,038
57,509
23,817
3,771,133
2,150,853 $
185,130
2,335,983 $
3,246,951 $
255,459
3,502,410 $
3,480,744
290,389
3,771,133
Contract liabilities primarily relate to advances or deposits received from the Partnership's customers before revenue is recognized. These amounts are
included in accrued liabilities and amounted to $9.4 million and $7.5 million as of December 31, 2020 and 2019, respectively. A substantial portion of the
contract liabilities as of December 31, 2019 remains outstanding as of December 31, 2020 as they are primarily deposits. The Partnership does not have any
material contract assets as of December 31, 2020 or 2019.
3.
Leases
The Partnership determines if an arrangement is a lease at inception. The Partnership's right-of-use ("ROU") assets are included in property, plant and
equipment, net and noncurrent other assets for finance leases and operating leases, respectively. Lease liabilities are included in accrued liabilities, current
and noncurrent other obligations and operating lease liabilities, less current portion in the Consolidated Balance Sheets. Operating lease expense is included
in operating expenses and cost of products sold while amortization expense associated with ROU assets for finance leases is included in depreciation and
amortization expense.
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The Partnership uses the practical expedient not to apply the recognition requirements in the lease standard to short-term leases (a lease that at
commencement date has a lease term of 12 months or less and does not contain a purchase option that it is reasonably certain to exercise) and the practical
expedient that permits lessees to make an accounting policy election (by class of underlying asset) to account for each separate lease component of a contract
and its associated non-lease components as a single lease component.
ROU assets represent the Partnership’s right to use an underlying asset for the lease term and lease liabilities represent the Partnership’s obligations to
make lease payments arising from the lease. ROU assets and liabilities are recognized at commencement date based on the present value of lease payments
over the lease term. The Partnership uses its incremental borrowing rate based on the information available at commencement date in determining the
present value of lease payments. The Partnership’s lease terms may include options to extend lease terms ranging from 1 to 10 years while others include
options to terminate at the Partnership’s discretion.
The Partnership’s operating and finance leases are primarily for time charters, facilities, railcars and equipment. The terms and conditions for these leases
vary by the type of underlying asset. For the years ended December 31, 2020 and December 31, 2019, total operating lease expense was $16.2 million and
$17.8 million, respectively, of which $9.3 million and $11.6 million was related to short-term leases, respectively. For the years ended December 31, 2020
and December 31, 2019, total finance lease expense was $3.3 million and $2.7 million, respectively.
Operating and finance leases were as follows:
ROU Assets:
Other Assets, Net
Property, Plant and Equipment, Net
Total ROU Assets
Lease Liabilities:
Accrued Liabilities
Current Portion of Other Obligation
Other Obligations, Less Current Portion
Operating Lease Liabilities, Less Current Portion
Total Lease Liabilities
As of December 31,
2020
2019
Operating
Finance
Operating
Finance
$
$
$
$
12,207
—
12,207
6,866
—
—
5,653
12,519
$
$
$
$
—
16,453
16,453
—
3,395
13,100
—
16,495
$
$
$
$
18,270
—
18,270
6,772
—
—
11,850
18,622
$
$
$
$
—
16,063
16,063
—
2,797
13,584
—
16,381
Weighted Average Remaining Lease Term (Years)
Weighted Average Discount Rate
2
6.09 %
5
4.92 %
3
6.11 %
6
5.17 %
Supplemental cash flow information related to operating leases were as follows:
Cash paid for operating leases
ROU assets obtained in exchange for new lease liabilities
$
$
6,872 $
— $
6,279
4,057
As of December 31,
2020
2019
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Maturities of operating and finance lease liabilities as of December 31, 2020 are as follows:
2021
2022
2023
2024
2025
Thereafter
Total Lease Payments
Less: Interest
Total
Operating
Finance
6,985 $
3,893
1,189
730
342
287
13,426
(907)
12,519 $
3,862
3,609
2,873
1,921
1,455
4,196
17,916
(1,421)
16,495
$
$
From a lessor perspective, the Partnership has entered into various throughput and materials handling arrangements with customers. These arrangements
are accounted for as operating leases as determined by the use terms and rights outlined in the underlying agreements. The throughput contracts are
agreements with refined products wholesalers that use the Partnership’s terminal facilities for a fee. The materials handling contracts are arrangements
involving rentals of dedicated tanks, pads, land and small office locations for the purposes of storage, parking and other related uses. For the years ended
December 31, 2020 and December 31, 2019, income related to the operating leases with the Partnership as the lessor, as described above, totaled $44.2
million and $40.1 million, respectively.
The undiscounted cash flows to be received on an annual basis from operating leases as of December 31, 2020 are as follows:
2021
2022
2023
2024
2025
Thereafter
Total Lease Receipts
December 31, 2020
$
$
37,659
23,263
16,568
14,585
12,941
50,907
155,923
4.
Accumulated Other Comprehensive Loss, Net of Tax
Amounts included in accumulated other comprehensive loss, net of tax, consisted of the following:
Fair value of interest rate swaps, net of tax
Cumulative foreign currency translation adjustment
Accumulated other comprehensive loss, net of tax
As of December 31,
2020
2019
$
$
(14,446) $
(11,536)
(25,982) $
(8,150)
(11,538)
(19,688)
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5.
Accounts Receivable, Net
Accounts receivable, trade
Less allowance for doubtful accounts
Net accounts receivable, trade
Accounts receivable, other
Accounts receivable, net
As of December 31,
2020
2019
$
$
186,854 $
(1,066)
185,788
7,227
193,015 $
274,014
(1,471)
272,543
8,984
281,527
Unbilled accounts receivable, included in accounts receivable, trade at December 31, 2020 and 2019 were $43.1 million and $66.1 million,
respectively. Unbilled receivables relate primarily to the delivery and sale of natural gas to customers in the current month for which the right to bill exists.
Such amounts generally are invoiced to the customer the following month when actual usage data becomes available. Accounts receivable, other consists
primarily of product tax receivables.
A reconciliation of the beginning and ending amount of allowance for doubtful accounts follows:
Balance, December 31, 2020:
Allowance for doubtful accounts
Allowance for notes receivable
Total
Balance, December 31, 2019:
Allowance for doubtful accounts
Allowance for notes receivable
Total
Balance, December 31, 2018:
Allowance for doubtful accounts
Allowance for notes receivable
Total
Balance at
Beginning
of Period
Charged to
Expense
Charged (to)
from Another
Account
(Deductions)
Balance at
End of
Period
$
$
$
$
$
$
1,471 $
300
1,771 $
2,066 $
308
2,374 $
2,014 $
531
2,545 $
425 $
—
425 $
323 $
—
323 $
1,598 $
—
1,598 $
5 $
(8)
(3) $
(59) $
(8)
(67) $
8 $
(8)
— $
(835) $
—
(835) $
(859) $
—
(859) $
(1,554) $
(215)
(1,769) $
1,066
292
1,358
1,471
300
1,771
2,066
308
2,374
Notes receivable, net of allowance, are generally long-term arrangements and were fully reserved as of December 31, 2020 and 2019.
6.
Inventories
Petroleum and related products
Coal
Natural gas
Inventories
As of December 31,
2020
2019
$
$
248,977 $
3,240
3,316
255,533 $
285,539
4,374
3,311
293,224
Due to changing market conditions, the Partnership recorded a provision of $2.0 million, $1.4 million and $24.3 million as of December 31, 2020,
2019 and 2018, respectively, to write-down petroleum and related products, and natural gas inventory to its net realizable value. These charges are included
in cost of products sold (exclusive of depreciation and amortization).
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7.
Other Current Assets
Margin deposits with brokers
Prepaid software & fees
Other
Other current assets
8.
Property, Plant and Equipment, Net
Plant, machinery, furniture and fixtures
Building and leasehold improvements
Land and land improvements
Construction in progress
Property, plant and equipment, gross
Less: accumulated depreciation
Property, plant and equipment, net
As of December 31,
2020
2019
58,738 $
5,259
3,409
67,406 $
54,623
5,007
4,075
63,705
As of December 31,
2020
2019
432,291 $
20,214
86,428
9,422
548,355
(213,059)
335,296 $
423,722
19,143
87,782
9,906
540,553
(192,514)
348,039
$
$
$
$
Depreciation expense for the years ended December 31, 2020, 2019 and 2018 was $25.4 million, $23.8 million and $21.5 million, respectively.
Property, plant and equipment include the following amounts under finance or capital leases:
Plant, machinery, furniture and fixtures
Building and leasehold improvements
Land and land improvements
Property, plant and equipment, gross
Less: accumulated amortization
Property, plant and equipment, net
As of December 31,
2020
2019
$
$
29,607 $
962
251
30,820
(14,367)
16,453 $
26,459
962
251
27,672
(11,609)
16,063
Amortization expense on finance and capital leased assets is included in depreciation expense and for the years ended December 31, 2020, 2019 and
2018 was $2.9 million, $2.2 million and $1.5 million, respectively.
On November 1, 2019, a fire occurred at the Kildair Tracy Terminal which impacted certain buildings and equipment at the facility. The resulting
damage was covered by insurance coverage in place at the time of the incident, net of applicable deductibles. In connection with the insurance
reimbursement for the asset losses from the fire, the Partnership recorded $1.9 million in gains on involuntary nonmonetary asset conversions for the year
ended December 31, 2020, representing the insurance proceeds in excess of the remaining book value of impacted property, plant and equipment. This gain
was included within other income in the consolidated statements of income.
On December 23, 2020, the Partnership sold Mt. Vernon terminal to an unaffiliated buyer. In connection with the sale, the Partnership recorded a net
gain on the sale of $8.1 million for the year ended December 31, 2020, which is included within other operating income in the consolidated statements of
income. Pursuant to a post-closing escrow and access agreement, the Partnership has deposited $1.2 million an escrow account to secure the Partnership’s
fulfillment of various environmental remediation regulatory obligations.
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9.
Intangibles, Net
Customer relationships
Non-compete agreements
Other
Intangible assets, net
Customer relationships
Non-compete agreements
Other
Intangible assets, net
Remaining
Useful
Life (Years)
2 - 22
0 - 2
0 - 2
Remaining
Useful
Life (Years)
3 - 23
2 - 3
1 - 3
As of December 31, 2020
Gross
Accumulated
Amortization
Net
79,218 $
10,191
2,094
91,503 $
39,319 $
9,009
2,033
50,361 $
39,899
1,182
61
41,142
As of December 31, 2019
Gross
Accumulated
Amortization
Net
80,919 $
11,191
2,543
94,653 $
34,149 $
8,420
2,320
44,889 $
46,770
2,771
223
49,764
$
$
$
$
The Partnership recorded amortization expense related to intangible assets of $8.6 million, $10.2 million and $11.9 million during the years ended
December 31, 2020, 2019 and 2018, respectively. The amortization of intangible assets is recorded in depreciation and amortization expense. Fully
amortized intangible assets have been eliminated from both the gross and accumulated amortization amounts.
The estimated future annual amortization expense of intangible assets for the years ending December 31, 2021, 2022, 2023, 2024 and 2025 is $7.1
million, $5.8 million, $4.8 million, $4.2 million and $3.6 million, respectively. As acquisitions and dispositions occur in the future, these amounts may vary.
10.
Other Assets, Net
Deferred debt issuance costs, net
ROU Assets
Other
Other assets, net
As of December 31,
2020
2019
$
$
5,766 $
12,207
4,279
22,252 $
4,745
18,270
1,168
24,183
Deferred Debt Issuance Costs
The Partnership recorded amortization expense related to deferred debt issuance costs of $5.0 million, $3.6 million and $3.5 million during the years
ended December 31, 2020, 2019 and 2018, respectively. Deferred debt issuance costs are amortized over the life of the related debt on a straight-line basis
and recorded in interest expense.
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11.
Accrued Liabilities
Accrued product taxes
Customer prepayments and deposits
Operating lease liabilities
Accrued product costs
Other
Accrued liabilities
12.
Credit Agreement
Working capital facilities
Acquisition facility
Total credit agreement
Less: current portion of working capital facilities
Total long-term portion
As of December 31,
2020
2019
10,384 $
9,413
6,866
6,311
13,671
46,645 $
11,722
7,501
6,772
3,546
13,845
43,386
As of December 31,
2020
2019
358,685 $
382,400
741,085
(358,685)
382,400 $
437,184
374,600
811,784
(437,184)
374,600
$
$
$
$
On May 19, 2020, Sprague Operating Resources LLC (the "U.S. Borrower") and Kildair (the "Canadian Borrower" and, together with the U.S.
Borrower, the "Borrowers"), wholly owned subsidiaries of the Partnership, entered into a second amended and restated credit agreement (the "Credit
Agreement"), which replaced the amended and restated credit agreement, dated December 9, 2014 (the "Previous Credit Agreement"). Upon the effective
date, the Credit Agreement was accounted for as a modification of a syndicated loan arrangement with partial extinguishment to the extent of the decrease in
the borrowing capacity. The Credit Agreement matures on May 19, 2022. The Partnership and certain of its subsidiaries (the "Subsidiary Guarantors") are
guarantors of the obligations under the Credit Agreement. Obligations under the Credit Agreement are secured by substantially all of the assets of the
Partnership, the Borrowers and the Subsidiary Guarantors (collectively, the "Loan Parties").
As of December 31, 2020, the revolving credit facilities under the Credit Agreement contained, among other items, the following:
• A committed U.S. dollar revolving working capital facility of up to $465.0 million, subject to borrowing base limits, to be used for working
capital loans and letters of credit;
• An uncommitted U.S. dollar revolving working capital facility of up to $200.0 million, subject to borrowing base limits and the sole discretion
of the lenders, to be used for working capital loans and letters of credit;
• A multicurrency revolving working capital facility of up to $85.0 million, subject to borrowing base limits, to be used for working capital loans
and letters of credit;
• A revolving acquisition facility of up to $430.0 million, subject to borrowing base limits, to be used for loans and letters of credit to fund
capital expenditures and acquisitions and other general corporate purposes; and
•
Subject to certain conditions including the receipt of additional commitments from lenders, the ability to increase the U.S. dollar revolving
working capital facility to up to $1.2 billion and the multicurrency revolving working capital facility to up to $320.0 million, subject to a
maximum combined increase in commitments for both facilities of $470.0 million in the aggregate. Additionally, subject to certain conditions,
the revolving acquisition facility may be increased to up to $750.0 million.
Indebtedness under the Credit Agreement bears interest, at the Borrowers’ option, at a rate per annum equal to either (i) the Eurocurrency Rate (which
is the LIBOR Rate for loans denominated in U.S. dollars and CDOR for loans denominated in Canadian dollars, in each case adjusted for certain regulatory
costs, and in each case with a floor of 0.50%) for interest periods of one, two, three or six months plus a specified margin or (ii) an alternate rate plus a
specified margin.
For loans denominated in U.S. dollars, the alternate rate is the Base Rate which is the highest of (a) the U.S. Prime Rate as in effect from time to time,
(b) the greater of the Federal Funds Effective Rate and the Overnight Bank Funding Rate as in
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effect from time to time plus 0.50% and (c) the one-month Eurocurrency Rate for U.S. dollars as in effect from time to time plus 1.00%.
For loans denominated in Canadian dollars, the alternate rate is the Prime Rate which is the higher of (a) the Canadian Prime Rate as in effect from
time to time and (b) the one-month Eurocurrency Rate for U.S. dollars as in effect from time to time plus 1.00%.
The specified margins for the working capital revolving facilities vary based on the utilization of the working capital facilities as a whole, measured on
a quarterly basis. On or prior to November 19, 2020, the specified margin for (x) the committed U.S. dollar revolving working capital facility ranged from
1.25% to 1.75% for loans bearing interest at the Base Rate and from 2.25% to 2.75% for loans bearing interest at the Eurocurrency Rate, (y) the
uncommitted U.S. dollar revolving working capital facility ranged from 1.00% to 1.50% for loans bearing interest at the Base Rate and 2.00% to 2.50% for
loans bearing interest at the Eurocurrency Rate and (z) the multicurrency revolving working capital facility ranged from 1.25% to 1.75% for loans bearing
interest at the Base Rate and 2.25% to 2.75% for loans bearing interest at the Eurocurrency Rate. After November 19, 2020, the specified margin for (x) the
committed U.S. dollar revolving working capital facility will range from 0.75% to 1.25% for loans bearing interest at the Base Rate and from 1.75% to
2.25% for loans bearing interest at the Eurocurrency Rate, (y) the uncommitted U.S. dollar revolving working capital facility will range from 0.50% to
1.00% for loans bearing interest at the Base Rate and 1.50% to 2.00% for loans bearing interest at the Eurocurrency Rate and (z) the multicurrency revolving
working capital facility will range from 0.75% to 1.25% for loans bearing interest at the Base Rate and 1.75% to 2.25% for loans bearing interest at the
Eurocurrency Rate.
The specified margin for the revolving acquisition facility varies based on the consolidated total leverage of the Loan Parties. The specified margin for
the revolving acquisition facility will range from 1.25% to 2.25% for loans bearing interest at the Base Rate and from 2.25% to 3.25% for loans bearing
interest at the Eurocurrency Rate.
In addition, the Borrowers will incur a commitment fee on the unused portion of (x) the committed U.S. dollar revolving working capital facility and
multicurrency revolving working capital facility ranging from 0.375% to 0.500% per annum and (y) the revolving acquisition facility at a rate ranging from
0.35% to 0.50% per annum. Overdue amounts bear interest at the applicable rates described above plus an additional margin of 2%.
The working capital facilities are subject to borrowing base reporting and as of December 31, 2020 and 2019, had a borrowing base of $540.0 million
and the Previous Credit Agreement had a borrowing base of $594.5 million, respectively. As of December 31, 2020 and 2019, outstanding letters of credit
related to the working capital facilities were $77.3 million under the Credit Agreement and $63.6 million under the Previous Credit Agreement, respectively.
As of December 31, 2020, outstanding letters of credit related to the acquisition facility were $15.4 million. There were no outstanding letters related to the
acquisition facility as of December 31, 2019. As of December 31, 2020, excess availability under the working capital facilities was $104.0 million and
excess availability under the acquisition facility was $32.2 million.
The weighted average interest rate was 3.0% under the Credit Agreement and 4.5% under the Previous Credit Agreement at December 31, 2020 and
2019, respectively. No amounts are due under the Credit Agreement until the maturity date. However, the current portion of the Credit Agreement at
December 31, 2020 and the current portion of the Previous Credit Agreement at December 31, 2019 represents the amounts of the working capital facility.
The Credit Agreement contains various covenants and restrictive provisions that, among other things, prohibit the Partnership from making
distributions to unitholders if any event of default occurs or would result from the distribution or if the Loan Parties would not be in pro forma compliance
with the financial covenants after giving effect to the distribution. In addition, the Credit Agreement contains various covenants that are usual and customary
for a financing of this type, size and purpose, including, but not limited to, covenants that require the Loan Parties to maintain: a minimum consolidated
EBITDA-to fixed-charge ratio, a minimum consolidated net working capital amount and a maximum consolidated total leverage-to-EBITDA ratio. The
Credit Agreement also limits the Loan Parties ability to incur debt, grant liens, make certain investments or acquisitions, enter into affiliate transactions and
dispose of assets. The Partnership was in compliance with the covenants under the Credit Agreement at December 31, 2020.
The Credit Agreement also contains events of default that are usual and customary for a financing of this type, size and purpose including, among
others, non-payment of principal, interest or fees, violation of certain covenants, material inaccuracy of representations and warranties, bankruptcy and
insolvency events, cross-payment default and cross-acceleration, material judgments and events constituting a change of control. If an event of default exists
under the Credit Agreement, the lenders will be able to terminate the lending commitments, accelerate the maturity of the Credit Agreement and exercise
other rights and remedies with respect to the collateral.
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13.
Related Party Transactions
The General Partner charges the Partnership for the reimbursements of employee costs and related employee benefits and other overhead costs
supporting the Partnership’s operations which amounted to $92.5 million, $99.6 million and $111.8 million for the years ended December 31, 2020, 2019
and 2018, respectively. Amounts due to the General Partner were $13.7 million and $8.1 million as of December 31, 2020 and 2019, respectively. Through
the General Partner, the Partnership participates in the Sponsor’s pension and other post-retirement benefits (see Note 16 - Retirement Plans). During the
year ended December 31, 2020, the Partnership recorded tank use and storage fee revenue of $1.4 million from lease agreements entered into with Hartree
Partners LP, a related party. In connection with these agreements, the Partnership made net inventory purchases from Hartree Partners LP totaling
$71.2 million.
14.
Other Obligations
Deferred consideration
Capital leases, long-term portion
Port Authority terminal obligations
Asset retirement obligation
Postretirement benefits
Other
Other obligations, long-term portion
Deferred Consideration - Carbo Terminals
As of December 31,
2020
2019
$
$
16,909 $
8,009
5,091
5,187
1,620
2,493
39,309 $
19,432
7,823
5,761
5,300
1,867
1,230
41,413
In connection with the Carbo acquisition entered into during 2017, the Partnership is obligated to pay to Carbo a total of $38.2 million in equal monthly
installments of $0.3 million payable over a ten year period. The obligation was recorded at an estimated fair value of $27.3 million using a discount rate of
7.1%. The short-term portion of this obligation as of December 31, 2020 is $2.5 million and is included in the current portion of other obligations.
Deferred consideration obligation maturities for each of the next five years and thereafter as of December 31, 2020 are as follow:
2021
2022
2023
2024
2025
Thereafter
Total
Less amount representing interest
Present value of payments
Less current portion
Deferred consideration, long-term portion
$
$
3,818
3,818
3,818
3,818
3,818
5,091
24,181
(4,752)
19,429
(2,520)
16,909
Contingent Consideration - Coen Energy
As a result of the Coen Energy acquisition in 2017, the Partnership was obligated to pay contingent consideration of up to $12.0 million if certain earnings
objectives during the first three years following the acquisition were met. As of December 31, 2020, the outstanding liability associated with the contingent
consideration payment calculation was zero as the earnings objective period had ended and the final payment of $8.0 million was made in October 2020. The
estimated fair value of this obligation as of December 31, 2019 was $7.6 million and was included in the current portion of other obligations as it
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represented an estimate of the expected future payment during the following twelve month period. See Note 18 - Financial Instruments and Off-Balance
Sheet Risk for additional information regarding the Partnership's contingent consideration obligation.
Port Authority Terminal Obligations
The Port Authority terminal obligations represent long-term obligations of the Partnership to a third party that constructed dock facilities at the
Partnership’s Searsport, Maine terminal. These amounts will be repaid by future wharfage fees incurred by the Partnership for the use of these facilities. The
short-term portion of these obligations of $0.6 million at both December 31, 2020 and 2019 is included in accrued liabilities and represents an estimate of
the expected future wharfage fees for the ensuing year. The Partnership has exclusive rights to the use of the dock facilities through a license and operating
agreement ("License Agreement"), which expires in 2033. The License Agreement provides the Partnership the option to purchase the dock facilities at any
time at an amount equal to the remaining license fees due. The related dock facilities assets are treated as a finance lease and are included in property, plant
and equipment.
Asset Retirement Obligation
The Partnership has accrued an asset retirement obligation (“ARO”) that relates to an environmental obligation associated with the purchase of a
terminal in Bridgeport, Connecticut. The current portion of the ARO represents the estimated obligation retirements for the ensuing year and is recorded in
accrued liabilities.
The changes in the ARO are as follows:
ARO - beginning of period
Change in estimates
Accretion expense
Payments of ARO
ARO - end of period
Less current portion
ARO - long-term
Post Retirement Benefits
Years Ended December 31,
2020
2019
6,059
—
154
(267)
5,946
(759)
5,187
$
$
3,981
2,718
(145)
(495)
6,059
(759)
5,300
$
$
Postretirement benefit obligations are comprised of actuarially determined postretirement healthcare, life insurance and other postretirement benefits.
See Note 16 - Retirement Plans.
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15.
Income Taxes
The Partnership is generally not subject to U.S. federal and state income tax with the exception of the Partnership's subsidiary Sprague Energy
Solutions, Inc. The Partnership's Canadian operations are subject to Canadian federal and provincial income taxes.
The income tax provision (benefit) attributable to operations is summarized as follows:
Current
U.S. Federal income tax
State and local income tax
Foreign income taxes
Total current income tax provision
Deferred
U.S. Federal income tax
State and local income tax
Foreign income taxes
Total deferred income tax provision
Total income tax provision
U.S. and international components of income before income taxes were as follows:
United States
Foreign
Total income before income taxes
2020
Years Ended December 31,
2019
2018
49 $
317
7,390
7,756
62
(178)
(251)
(367)
7,389 $
(14) $
45
4,778
4,809
35
963
(2,497)
(1,499)
3,310 $
118
95
4,742
4,955
5
567
(495)
77
5,032
2020
Years Ended December 31,
2019
2018
14,534 $
26,666
41,200 $
25,646 $
8,920
34,566 $
69,283
15,568
84,851
$
$
$
$
Reconciliations of the statutory U.S. federal income tax to the effective income tax for operations are as follows:
Statutory U.S. Federal income tax
Partnership income not subject to tax
State and local income taxes, net of federal tax
Foreign earnings taxed at higher (lower) rates
Total income tax provision
2020
Years Ended December 31,
2019
2018
8,652 $
(2,934)
132
1,539
7,389 $
7,255 $
(5,348)
995
408
3,310 $
17,819
(14,427)
662
978
5,032
$
$
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The components of the deferred tax assets (liabilities) were as follows:
Deferred tax assets:
Derivatives
Capital losses
Other
Total deferred tax assets
Valuation allowance
Net deferred tax assets
Deferred tax liabilities:
Fixed assets
Other
Total deferred tax liabilities
Net deferred tax liabilities
As of December 31,
2020
2019
$
$
610 $
466
474
1,550
(466)
1,084
(16,560)
(308)
(16,868)
(15,784) $
1,161
466
227
1,854
(466)
1,388
(17,222)
(368)
(17,590)
(16,202)
As of December 31, 2020, the Partnership has not provided deferred Canadian withholding taxes on accumulated Canadian earnings of $105.6 million
which are considered to be indefinitely reinvested outside the U.S. The unrecognized deferred withholding tax liability associated with these earnings is
$26.4 million as of December 31, 2020.
16.
Retirement Plans
Pension Plans
Through the General Partner, the Partnership participates in a noncontributory defined benefit pension plan, the Axel Johnson Inc. Retirement Plan
(the “Plan”), sponsored by the Sponsor. Benefits under the Plan were frozen as of December 31, 2003, and are based on a participant’s years of service and
compensation through December 31, 2003. The Plan’s assets are invested principally in equity and fixed income securities. The Sponsor’s policy is to satisfy
the minimum funding requirements of the Employee Retirement Income Security Act of 1974 ("ERISA").
Through the General Partner, the Partnership also participates in an unfunded pension plan, the Axel Johnson Inc. Retirement Restoration Plan, for
employees whose benefits under the defined benefit pension plan were reduced due to limitations under U.S. federal tax laws. Benefits under this plan were
frozen as of December 31, 2003.
Both the Plan and the Retirement Restoration Plan are administered by the Sponsor. The costs of these benefits are based on the Partnership’s portion
of the projected benefit obligations under these plans. Charges related to these employee benefit plans were $0.5 million, $0.4 million and $1.1 million
during the years ended December 31, 2020, 2019 and 2018, respectively.
Eligible employees also receive a defined contribution retirement benefit generally equal to a defined percentage of their eligible compensation. This
contribution by the Partnership to employee accounts in Axel Johnson Inc.’s Thrift and Defined Contribution Plan is in addition to any Partnership match on
401(k) contributions that employees currently choose to make. The Partnership made total contributions to these plans of $4.5 million, $4.6 million and $5.4
million during the years ended December 31, 2020, 2019 and 2018, respectively.
Other Postretirement Benefits
The Sponsor and some of its subsidiaries, which include the Partnership, have a number of health care and life insurance benefit plans covering
eligible employees who reach retirement age while working for the Sponsor. The plans are not funded. In general, employees hired after December 31, 1990,
are not eligible for postretirement health care benefits. The Partnership has recorded postretirement expense of $0.2 million, $0.3 million and $0.3 million
during the years ended December 31, 2020, 2019 and 2018, respectively.
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17.
Segment Reporting
The Partnership has four reportable segments that comprise the structure used by the chief operating decision makers (CEO and CFO) to make key
operating decisions and assess performance. When establishing a reporting segment, the Partnership aggregates individual operating units that are in the
same line of business and have similar economic characteristics. These reportable segments are refined products, natural gas, materials handling and other
operations.
The Partnership's refined products segment purchases a variety of refined products, such as heating oil, diesel fuel, residual fuel oil, kerosene, jet fuel
and gasoline (primarily from refining companies, trading organizations and producers), and sells them to its customers. The Partnership has wholesale
customers who resell the refined products they purchase from the Partnership and commercial customers who consume the refined products they purchase.
The Partnership’s wholesale customers consist of home heating oil retailers and diesel fuel and gasoline resellers. The Partnership’s commercial customers
include federal and state agencies, municipalities, regional transit authorities, drill sites, large industrial companies, real estate management companies,
hospitals, educational institutions and asphalt paving companies. In addition, as a result of the Partnership’s acquisition of Coen Energy in 2017, its
customers include businesses engaged in the development of natural gas resources in Pennsylvania and surrounding states. The refined products reportable
segment consists of three operating segments.
The Partnership's natural gas segment purchases natural gas from natural gas producers and trading companies and sells and distributes natural gas to
commercial and industrial customer locations across 13 states in the Northeast and Mid-Atlantic United States. The natural gas reportable segment consists
of one operating segment.
The Partnership's materials handling segment offloads, stores, and/or prepares for delivery a variety of customer-owned products, including asphalt,
clay slurry, salt, gypsum, crude oil, residual fuel oil, coal, petroleum coke, caustic soda, tallow, pulp and heavy equipment. These services are generally
conducted under multi-year agreements as either fee-based activities or as leasing arrangements when the right to use an identified asset (such as storage
tanks or storage locations) has been conveyed in the agreement. The materials handling reportable segment consists of two operating segments.
The Partnership's other operations segment primarily consists of the purchase, sale and distribution of coal, and commercial trucking activities
unrelated to its refined products segment. Other operations are not reported separately as they represent less than 10% of consolidated net sales and adjusted
gross margin. The other operations reporting segment consists of two operating segments.
The Partnership evaluates segment performance based on adjusted gross margin, a non-GAAP measure, which is net sales less cost of products sold
(exclusive of depreciation and amortization) increased by unrealized hedging losses and decreased by unrealized hedging gains, in each case with respect to
refined products and natural gas inventory, and natural gas transportation contracts.
Based on the way the business is managed, it is not reasonably possible for the Partnership to allocate the components of operating costs and expenses
among the operating segments. There were no significant intersegment sales for any of the years presented below.
The Partnership had no single customer that accounted for more than 10% of total net sales for the years ended December 31, 2020, 2019 and 2018,
respectively. The Partnership’s foreign sales, primarily sales of refined products and natural gas to its customers in Canada, were $185.1 million, $255.5
million and $290.4 million for the years ended December 31, 2020, 2019 and 2018, respectively.
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Table of Contents
Summarized financial information for the Partnership’s reportable segments is presented in the table below:
Net sales:
Refined products
Natural gas
Materials handling
Other operations
Net sales
Adjusted gross margin (1):
Refined products
Natural gas
Materials handling
Other operations
Adjusted gross margin
Reconciliation to operating income (2):
Add(deduct):
Change in unrealized (gain) loss on inventory (3)
Change in unrealized value on natural gas transportation contracts (4)
Operating costs and expenses not allocated to operating segments:
Operating expenses
Selling, general and administrative
Depreciation and amortization
Other operating income
Operating income
Other income (expense)
Interest income
Interest expense
Income tax provision
Net income
2020
Years Ended December 31,
2019
2018
$
$
$
$
1,998,197 $
261,358
56,347
20,081
2,335,983 $
171,626 $
40,741
56,185
6,209
274,761
(20,148)
9,565
(77,070)
(81,514)
(34,066)
8,094
79,622
1,948
299
(40,669)
(7,389)
33,811 $
3,112,924 $
307,952
56,655
24,879
3,502,410 $
150,124 $
54,288
56,616
6,904
267,932
(12,814)
19,289
(84,924)
(78,135)
(34,015)
—
77,333
(378)
555
(42,944)
(3,310)
31,256 $
3,357,769
332,038
57,509
23,817
3,771,133
150,965
57,875
57,515
7,319
273,674
32,960
19,114
(88,659)
(80,799)
(33,378)
—
122,912
293
577
(38,931)
(5,032)
79,819
(1)
(2)
(3)
(4)
The Partnership trades, purchases, stores and sells energy commodities that experience market value fluctuations. To manage the Partnership’s
underlying performance, including its physical and derivative positions, management utilizes adjusted gross margin, which is a non-GAAP financial
measure. Adjusted gross margin is also used by external users of the Partnership’s consolidated financial statements to assess the Partnership’s
economic results of operations and its commodity market value reporting to lenders. In determining adjusted gross margin, the Partnership adjusts its
segment results for the impact of the changes in unrealized gains and losses with regard to refined products and natural gas inventory, and natural gas
transportation contracts, which are not marked to market for the purpose of recording unrealized gains or losses in net income. These adjustments
align the unrealized hedging gains and losses to the period in which the revenue from the sale of inventory, prepaid fixed forwards and the utilization
of transportation contracts relating to those hedges is realized in net income. Adjusted gross margin has no impact on reported volumes or net sales.
Reconciliation of adjusted gross margin to operating income, the most directly comparable GAAP measure.
Inventory is valued at the lower of cost or net realizable value. The adjustment related to unrealized gain on inventory which is not included in net
income (loss), represents the estimated difference between the inventory valued at lower of cost or net realizable value as compared to market values.
The fair value of the derivatives the Partnership uses to economically hedge its inventory declines or appreciates in value as the value of the
underlying inventory appreciates or declines, which creates unrealized hedging (gains) with respect to the derivatives that are included in net income
(loss).
Represents the Partnership’s estimate of the change in fair value of the natural gas transportation contracts which are not recorded in net income (loss)
until the transportation is utilized in the future (i.e., when natural gas is delivered to the customer), as these contracts are executory contracts that do
not qualify as derivatives. As the fair value of the natural
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gas transportation contracts decline or appreciate, the offsetting physical or financial derivative will also appreciate or decline creating unmatched
unrealized hedging losses (gains) in net income (loss).
Segment Assets
Due to the commingled nature and uses of the Partnership’s fixed assets, the Partnership does not track its fixed assets between its refined products and
materials handling operating segments or its other activities. There are no significant fixed assets attributable to the natural gas reportable segment.
As of December 31, 2020, goodwill recorded for the refined products, natural gas, materials handling and other operations segments amounted
to $71.4 million, $35.5 million, $6.9 million and $1.2 million, respectively.
Long-lived Assets
Long-lived assets (exclusive of intangible and other assets, net, and goodwill) classified by geographic location were as follows:
United States
Canada
Total
As of December 31,
2020
2019
$
$
266,469 $
68,827
335,296 $
278,820
69,219
348,039
18.
Financial Instruments and Off-Balance Sheet Risk
As of December 31, 2020 and 2019, the carrying amounts of cash, cash equivalents, accounts receivable, accounts payable and accrued liabilities
approximated fair value because of the short maturity of these instruments. As of December 31, 2020 and 2019, the carrying value of the Partnership’s
margin deposits with brokers approximates fair value and consists of initial margin with futures transaction brokers, along with variation margin, which is
paid or received on a daily basis, and is included in other current assets or other current liabilities. As of December 31, 2020 and 2019, the carrying value of
the Partnership’s debt approximated fair value due to the variable interest nature of these instruments.
The Partnership’s deferred consideration was recorded in connection with an acquisition on April 18, 2017 using an estimated fair value discount at
the time of the transaction. As of December 31, 2020 and 2019, the carrying value of the deferred consideration approximated fair value.
The following table presents all financial assets and financial liabilities of the Partnership measured at fair value on a recurring basis:
Derivative assets:
Commodity fixed forwards
Futures, swaps and options
Commodity derivatives
Total derivative assets
Derivative liabilities:
Commodity fixed forwards
Futures, swaps and options
Commodity derivatives
Interest rate swaps
Currency swaps
Total derivative liabilities
As of December 31, 2020
Quoted
Prices in
Active
Markets
Level 1
Significant
Other
Observable
Inputs
Level 2
Significant
Unobservable
Inputs
Level 3
Fair Value
Measurement
$
$
64,514 $
101,464
165,978
165,978 $
25,973
133,809
159,782
14,559
4
$
174,345 $
— $
101,464
101,464
101,464 $
—
133,743
133,743
—
—
133,743 $
64,514 $
—
64,514
64,514 $
25,973
66
26,039
14,559
4
40,602 $
—
—
—
—
—
—
—
—
—
—
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Table of Contents
Derivative assets:
Commodity fixed forwards
Futures, swaps and options
Commodity derivatives
Currency swaps
Total derivative assets
Derivative liabilities:
Commodity exchange contracts
Commodity fixed forwards
Futures, swaps and options
Commodity derivatives
Interest rate swaps
Total derivative liabilities
Contingent consideration
Derivative Instruments
As of December 31, 2019
Quoted
Prices in
Active
Markets
Level 1
Significant
Other
Observable
Inputs
Level 2
Significant
Unobservable
Inputs
Level 3
Fair Value
Measurement
$
$
$
$
$
62,580 $
32,083
94,663
15
94,678 $
2 $
16,017
63,360
79,379
8,214
87,593 $
— $
32,057
32,057
—
32,057 $
2 $
—
63,359
63,361
—
63,361 $
62,580 $
26
62,606
15
62,621 $
— $
16,017
1
16,018
8,214
24,232 $
—
—
—
—
—
—
—
—
—
—
—
7,590 $
— $
— $
7,590
The Partnership enters into derivative contracts with counterparties, some of which are subject to master netting arrangements, which allow net
settlements under certain conditions. The maximum amount of loss due to credit risk that the Partnership would incur if its counterparties failed completely
to perform according to the terms of the contracts, based on the net fair value of these financial instruments, was $63.2 million at December 31, 2020.
Information related to these offsetting arrangements as of December 31, 2020 and 2019 is as follows:
Commodity derivative assets
Fair value of derivative assets
Commodity derivative liabilities
Interest rate swap derivative liabilities
Currency swap derivative liabilities
Fair value of derivative liabilities
As of December 31, 2020
Gross Amount Not Offset
in the Balance Sheet
Gross Amounts of
Assets/
Liabilities in
Balance Sheet
Financial
Instruments
Cash
Collateral
Posted
Net
Amount
$
$
$
$
165,978 $
165,978 $
(102,736) $
(102,736) $
— $
— $
(159,782) $
(14,559)
(4)
(174,345) $
102,736 $
—
—
102,736 $
32,488 $
—
—
32,488 $
63,242
63,242
(24,558)
(14,559)
(4)
(39,121)
F-33
Table of Contents
As of December 31, 2019
Gross Amount Not Offset
in the Balance Sheet
Gross Amounts of
Assets/
Liabilities in
Balance Sheet
Financial
Instruments
Cash
Collateral
Posted
Net
Amount
$
$
$
$
94,663 $
15
94,678 $
(79,379) $
(8,214)
(87,593) $
(36,885) $
—
(36,885) $
36,885 $
—
36,885 $
— $
—
— $
31,303 $
—
31,303 $
57,778
15
57,793
(11,191)
(8,214)
(19,405)
Commodity derivative assets
Currency swaps
Fair value of derivative assets
Commodity derivative liabilities
Interest rate swap derivative liabilities
Fair value of derivative liabilities
As of December 31, 2020, the Partnership held no cash collateral and posted cash collateral of $58.7 million. As of December 31, 2019, the
Partnership held no cash collateral and posted cash collateral of $54.6 million.
The following table presents total realized and unrealized gains (losses) on derivative instruments utilized for commodity risk management purposes
included in cost of products sold (exclusive of depreciation and amortization):
Refined products contracts
Natural gas contracts
Total
2020
Years Ended December 31,
2019
2018
$
$
15,434 $
46,024
61,458 $
(26,194) $
38,513
12,319 $
54,616
(1,353)
53,263
There were no discretionary trading activities included in realized and unrealized gains (losses) on derivatives instruments for the years ended
December 31, 2020, 2019 and 2018.
The following table presents the gross volume of commodity derivative instruments outstanding for the periods indicated:
Long contracts
Short contracts
Interest Rate Derivatives
As of December 31, 2020
As of December 31, 2019
Refined Products
(Barrels)
12,736
(16,825)
Natural Gas
(MMBTUs)
172,274
(86,913)
Refined Products
(Barrels)
8,332
(11,475)
Natural Gas
(MMBTUs)
168,818
(91,011)
The Partnership has entered into interest rate swaps to manage its exposure to changes in interest rates on its Credit Agreement. The Partnership’s
interest rate swaps hedge actual and forecasted LIBOR borrowings and have been designated as cash flow hedges. Counterparties to the Partnership’s
interest rate swaps are large multinational banks and the Partnership does not believe there is a material risk of counterparty non-performance. The
Partnership expects to continue to utilize interest rate swaps to hedge cash flow risk and to manage the Partnership's exposure to LIBOR interest rates or its
replaced equivalent for the foreseeable future.
F-34
Table of Contents
The Partnership's interest rate swap agreements outstanding as of December 31, 2020 were as follows:
Beginning
January 2020
April 2020
January 2021
April 2021
January 2022
April 2022
January 2023
January 2024
Interest Rate Swap Agreements
Ending
January 2021
April 2021
January 2022
April 2022
January 2023
April 2023
January 2024
January 2025
$
$
$
$
$
$
$
$
Notional Amount
300,000
25,000
300,000
25,000
250,000
25,000
250,000
50,000
The Partnership records unrealized gains and losses on its interest rate swaps as a component of accumulated other comprehensive loss, net of tax,
which is reclassified to earnings as interest expense when the payments are made. As of December 31, 2020, the amount of unrealized losses, net of tax,
expected to be reclassified to earnings during the following twelve-month period was $5.7 million.
Contingent Consideration
As a result of the Coen Energy acquisition in 2017, the Partnership was obligated to pay contingent consideration of up to $12.0 million if certain
earnings objectives during the first three years following the acquisition were met. As of December 31, 2020, the outstanding liability associated with the
contingent consideration payment calculation was zero as the earnings objective period had ended and the final payment of $8.0 million was made in
October 2020. The estimated fair value of this obligation as of December 31, 2019 was $7.6 million and was included in the current portion of other
obligations as it represented an estimate of the expected future payment during the following twelve month period. Prior to September 30, 2020, the
estimated fair value of the contingent consideration arrangement was classified within Level 3 and was determined using an income approach based on
probability-weighted discounted cash flows. Under this method, a set of discrete potential future earnings was determined using internal estimates based on
various revenue growth rate assumptions for each scenario. A probability was assigned to each discrete potential future earnings estimate. The resulting
probability-weighted contingent consideration amounts were discounted using a weighted average discount rate of 7.0%.
The Partnership recorded changes in the estimated fair value of the contingent consideration within selling, general and administrative expenses in the
Consolidated Statements of Income. Changes in the contingent consideration liability were measured at fair value on a recurring basis using unobservable
inputs (Level 3) are as follows:
Contingent consideration - beginning of year
Payments
Change in estimated fair value
Contingent consideration - end of year
Less current portion
Contingent consideration - long-term portion
19.
Commitments and Contingencies
Legal, Environmental and Other Proceedings
Years Ended December 31,
2020
2019
$
$
$
7,590
(8,000)
410
—
—
—
$
$
$
8,402
(2,000)
1,188
7,590
(7,590)
—
The Partnership is subject to a tax on sales made in Quebec from product it imports into the province. During a recent audit by the Quebec Energy Board
(QEB) of the annual filings, the Partnership initiated legal action seeking a declaration to limit the applicability of the tax to direct imports, as well as the
periods subject to review. Since filing this legal action in June 2018, the Partnership has been assessed $7.2 million of tax, including interest and penalties,
for the period of 2007 to 2019. Similarly, since the filing, the Partnership has been assessed $9.7 million, including a 15% penalty and interest, from the
F-35
Table of Contents
Ministry of the Environment, and the Fight Against Climate Change (known as MELCC) under separate regulation that was in effect for the period from
2007 through 2014. The Partnership is disputing this assessment on the same basis as set out in the QEB legal action described above. The Partnership has
accrued an amount which it believes to be a reasonable estimate of the low end of a range of loss related to these matters and such amount is not material to
the consolidated financial statements.
On September 14, 2020, a purported class action complaint was filed against Sprague Operating Resources, LLC, one of the Partnership’s subsidiaries, in the
U.S. District Court for the District of Rhode Island. The complaint, since amended, alleges causes of action for private nuisance, public nuisance, and
negligence, each based on emission impacts to nearby occupants from the Partnership’s oil and natural gas facility located in Providence, Rhode Island. The
complaint also alleges that the amount in controversy exceeds $5.0 million. At this early stage in the litigation, the Partnership cannot predict whether the
plaintiff will succeed in getting the court to certify a class. Based upon the information currently available to it, the Partnership believes that the complaint is
without merit and intends to vigorously defend against it.
The Partnership is involved in other various lawsuits, other proceedings and environmental matters, all of which arose in the normal course of business. The
Partnership believes, based upon its examination of currently available information, its experience to date, and advice from legal counsel, that the individual
and aggregate liabilities resulting from the resolution of these contingent matters will not have a material adverse impact on the Partnership’s consolidated
results of operations, financial position or cash flows.
20.
Equity and Equity-Based Compensation
Equity Awards - Annual Bonus Program
The board of directors of the General Partner has approved an annual bonus program which is provided to substantially all employees. Under this
program bonuses for the majority of participants will be settled in cash with others receiving a combination of cash and common units. The Partnership
records the expected bonus payment as a liability until a grant date has been established and awards finalized, which occurs in the first quarter of the year
following the year for which the bonus is earned.
Of the bonus accrued as of December 31, 2019, $1.0 million was settled in 2020 by issuing 80,038 common units (market value at settlement of $0.9
million) with 26,195 units withheld from to satisfy employee tax obligations.
Equity Awards - Director Compensation
During the years ended December 31, 2020, 2019, and 2018 the board of directors of the General Partner issued 15,464, 13,932, and 6,693, vested
units as compensation to certain of its directors, respectively, with estimated total grant date fair values of $0.2 million for each period.
Equity Awards - Performance-based Phantom Units
The General Partner adopted the Sprague Resources LP 2013 Long-Term Incentive Plan (the “LTIP”), for the benefit of employees, consultants and
directors of the General Partner and its affiliates, who provide services to the General Partner or an affiliate. The LTIP initially limited the number of
common units that may be delivered, pursuant to vested awards, to 800,000 common units. On January 1 of each calendar year occurring after the second
anniversary of the effective date and prior to the expiration of the LTIP, the total number of common units reserved and available for issuance under the LTIP
will increase by 200,000 common units. As of December 31, 2020, there were 436,037 common units reserved for issuance and 520,562 available for
issuance.
Phantom units have been granted as follows:
• Year ended December 31, 2020 - granted 179,250 OCF-based phantom units with a grant date fair value of $15.16 per unit and a performance
period ending December 31, 2022.
• Year ended December 31, 2019 - granted 180,638 OCF-based phantom units with a grant date fair value of $15.04 per unit and a performance
period ending December 31, 2021.
• Year ended December 31, 2018 - granted 143,981 OCF-based phantom units with a grant date fair value of $23.30 per unit and a performance
period ending December 31, 2020.
F-36
Table of Contents
Phantom units have vested as follows:
•
•
•
Performance period ending December 31, 2020 - No phantom units vested; all phantom units outstanding as of March 1, 2020 cancelled for no
value in the discretion of our board of directors.
Performance period ending December 31, 2019 - did not achieve minimum performance levels.
Performance period ending December 31, 2018 - did not achieve minimum performance levels.
The following table presents a summary of the status of the Partnership’s phantom unit awards subject to vesting:
Nonvested at December 31, 2019
Granted
Forfeited
Vested (end of performance period)
Nonvested at December 31, 2020
2020 Awards
2019 Awards
2018 Awards
Weighted
Average
Grant Date
Fair Value
(per unit)
—
15.16
(15.16)
—
15.16
Units
— $
179,250
(6,000)
—
173,250 $
Weighted
Average
Grant Date
Fair Value
(per unit)
15.04
—
(15.04)
—
15.04
Units
163,531 $
—
(8,194)
—
155,337 $
Weighted
Average
Grant Date
Fair Value
(per unit)
23.30
—
(23.30)
—
23.30
Units
110,993 $
—
(3,543)
—
107,450 $
Unit-based compensation expense (income) for the year ended December 31, 2020 was $4.2 million as compared to $0.6 million and $(0.9) million,
for the years ended December 31, 2019 and December 31, 2018, respectively. The increase over prior year is due improved performance with relation to
compensation targets and a change in estimate recorded in September 30, 2019 which resulted in a reversal of stock based compensation expense during
2019.
Unit-based compensation is included in selling, general and administrative expenses. Units issued under the Partnership’s 2013 LTIP are newly issued.
Total unrecognized compensation cost related to the performance-based phantom units totaled $3.4 million as of December 31, 2020, which is expected to be
recognized over a weighted average period of 18 months.
Equity - Changes in Partnership's Units
The following table provides information with respect to changes in the Partnership’s unit:
Balance as of December 31, 2017
Units issued in connection with performance-based awards
Director vested awards
Balance as of December 31, 2018
Director vested awards
Balance as of December 31, 2019
Units issued in connection with employee bonus
Distribution paid in units
Director vested awards
Units purchased in Private Placement
Balance as of December 31, 2020
Common Units
Public
10,446,539
174,397
6,693
10,627,629
13,932
10,641,561
61,782
—
15,464
(723,738)
9,995,069
Sprague
Holdings
12,106,348
—
—
12,106,348
—
12,106,348
—
121,150
—
723,738
12,951,236
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Table of Contents
21.
Earnings Per Unit
The Partnership has identified the IDRs as participating securities and uses the two-class method when calculating the net income per unit applicable
to limited partners. Earnings per unit applicable to limited partners is computed by dividing limited partners’ interest in net income, after deducting any
incentive distributions, by the weighted-average number of outstanding common units. The Partnership’s net income is allocated to the limited partners in
accordance with their respective ownership percentages, after giving effect to priority income allocations for incentive distributions, which are declared and
paid following the close of each quarter. Earnings in excess of distributions are allocated to the limited partners based on their respective ownership interests.
Diluted earnings per unit includes the effects of potentially dilutive units on the Partnership’s common units, consisting of unvested phantom units. Payments
made to the Partnership’s unitholders are determined in relation to actual distributions declared and are not based on the net income allocations used in the
calculation of earnings per unit.
The table below shows the weighted average common units outstanding used to compute net income per common unit for the periods indicated.
Weighted average limited partner common units - basic
Dilutive effect of unvested phantom units
Weighted average limited partner common units - dilutive
22.
Quarterly Financial Data (Unaudited)
Net sales
Net income (loss)
Limited partners' interest in net income (loss)
Net income (loss) per limited partner unit: (1)
Common-basic
Common-diluted
Net sales
Net income (loss)
Limited partners' interest in net income (loss)
Net income (loss) per limited partner unit: (1)
Common-basic
Common-diluted
$
$
$
$
$
$
2020
22,901,140
3,973
22,905,113
Years Ended December 31,
2019
22,736,916
33,967
22,770,883
2018
22,728,218
9,186
22,737,404
First
959,879 $
46,734
44,662
Second
Year Ended December 31, 2020
Third
(in thousands, except for per unit amounts)
358,214 $
(25,123)
(27,195)
390,459 $
9,674
7,599
Fourth
627,431 $
2,526
453
Total
2,335,983
33,811
25,519
1.96 $
1.95 $
(1.19) $
(1.19) $
0.33 $
0.33 $
0.02 $
0.02 $
1.11
1.11
First
1,258,308 $
33,921
31,866
Second
Year Ended December 31, 2019
Third
(in thousands, except for per unit amounts)
662,018 $
(4,778)
(6,833)
582,590 $
(9,734)
(9,734)
Fourth
999,494 $
11,847
9,794
Total
3,502,410
31,256
25,093
1.40 $
1.40 $
(0.30) $
(0.30) $
(0.43) $
(0.43) $
0.43 $
0.43 $
1.10
1.10
(1)
Quarterly net income (loss) per limited partner unit amounts are stand-alone calculations and may not be additive to full year amounts due to rounding
and changes in outstanding units.
F-38
Table of Contents
23.
Partnership Distributions
The Partnership's partnership agreement sets forth the calculation to be used to determine the amount and priority of cash distributions that the
common unitholders will receive. Payments made in connection with DERs are recorded as a distribution. Cash distributions for the periods indicated were
For the Quarter
Ended
December 31,
2018
March 31,
2019
June 30, 2019
September 30,
2019
December 31,
2019
March 31,
2020
June 30, 2020
September 30,
2020
as follows:
Distribution Date
February 13,
2019
May 14, 2019
August 12, 2019
November 12,
2019
February 10,
2020
May 11, 2020
August 10, 2020
November 12,
2020
Per Unit
$0.6675
$0.6675
$0.6675
$0.6675
$0.6675
$0.6675
$0.6675
$0.6675
Cash Distributed
Common
IDR
Total
$
$
$
$
$
$
$
$
15,175
15,175
15,175
15,175
15,184
15,301
15,301
15,311
$
$
$
$
$
$
$
$
2,055
2,055
2,055
—
2,053
(1)
2,072
2,072
2,074
$
$
$
$
$
$
$
$
17,230
17,230
17,230
15,175
17,237
17,373
17,373
17,385
(1)
On February 10, 2020, the Sponsor received 121,150 common units, in lieu of cash, in respect of the incentive distribution rights payable in
connection with the distribution for the fourth quarter of 2019.
In addition, on January 22, 2021, the Partnership declared a cash distribution for the three months ended December 31, 2020, of $0.6675 per unit,
totaling $17.4 million (including a $2.1 million IDR distribution). Such distributions were paid on February 10, 2021, to unitholders of record on February 2,
2021.
24.
Subsequent Events
IDR Reset Election
On February 11, 2021, Sprague Holdings provided notice to Partnership that Sprague Holdings had made an IDR Reset Election (the “IDR Reset
Election”), as defined in the First Amended and Restated Agreement of Limited Partnership of the Partnership (as amended, the “Partnership Agreement”).
Pursuant to the IDR Reset Election, Sprague Holdings will relinquish the right to receive incentive distribution payments based on the minimum quarterly
and target cash distribution levels set at the time of the Partnership’s initial public offering and the Partnership will issue 3,107,248 common units to Sprague
Holdings. Pursuant to the IDR Reset Election, the minimum quarterly distribution amount will be increased from $0.4125 per common unit per quarter to
$0.6675 per common unit per quarter and the levels at which the incentive distribution rights participate in distributions will be reset at higher amounts
based on current common unit distribution rates and a formula in the Partnership Agreement. The IDR Reset Election is expected to be consummated on
March 5, 2021. Upon consummation of the IDR Reset Election, Sprague Holdings will own 16,058,484 common units, representing 61.6% of the limited
partner interest in the Partnership.
After the IDR Reset Election, Sprague Holdings, as the holder of the IDRs, will receive distributions according to the following percentage allocations:
Total Quarterly Distribution Per Unit
Minimum Quarterly
$0.6675
Distribution
Tier I
Tier II
Tier III
Thereafter
Up to $0.7676
Above $0.7676 up to $0.8344
Above $0.8344 up $1.0013
Above $1.0013
Marginal Percentage Interest in Distributions
Common Unitholders
Incentive Distribution
100
100
85
75
50
%
%
%
%
%
—
—
15
25
50
%
%
%
%
%
F-39
Table of Contents
Equity Awards - Director Compensation and Annual Bonus Program
At its board meeting on March 1, 2021, the Board of Directors considered the redesign of the Partnership’s executive compensation program. With
respect to compensation for 2020, the Board determined that the 2020 short term incentive compensation awards and the outstanding long-term incentive
awards would not be paid out under the initially proposed terms. All outstanding phantom unit awards have been cancelled for no value in the discretion of
the Board. After reviewing the Partnership’s performance for the year, as well as market conditions, the Board approved a bonus payment for the 2020 year
for all eligible employees, with the payment for each employee based on the performance of the Partnership and the employee, as well as the
recommendation of the employee’s manager or, for executive officers other than Mr. Glendon, the recommendation of Mr. Glendon. The compensation
program for 2021 has not yet been determined and approved.
F-40
Exhibit 3.3
AMENDMENT NO. 3 TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
SPRAGUE RESOURCES LP
This Amendment No. 3 (this “Amendment”) to the First Amended and Restated Agreement of Limited Partnership of
Sprague Resources LP, a Delaware limited partnership (the “Partnership”), dated as of October 30, 2013 (as amended by
Amendment No. 1, dated as of December 20, 2017, and Amendment No. 2, dated as of October 25, 2019, to the First Amended
and Restated Agreement of Limited Partnership of the Partnership, the “Partnership Agreement”), is entered into effective as of
March 1, 2021 (the “Effective Date”), by Sprague Resources GP LLC, a Delaware limited liability company (the “General
Partner”), as the general partner of the Partnership, on behalf of itself and the Limited Partners of the Partnership. Capitalized
terms used but not defined herein are used as defined in the Partnership Agreement.
RECITALS
WHEREAS, Section 13.1(d)(i) of the Partnership Agreement provides that the General Partner, without the approval of
any Partner, may amend any provision of the Partnership Agreement to reflect a change that the General Partner determines does
not adversely affect the Limited Partners considered as a whole (including any particular class of Partnership Interests as
compared to other classes of Partnership Interests) in any material respect; and
WHEREAS, acting pursuant to the power and authority granted to it under Section 13.1(d)(i) of the Partnership
Agreement, the General Partner has determined that this Amendment to the Partnership Agreement does not adversely affect the
Limited Partners considered as a whole (including any particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect.
NOW, THEREFORE, it is hereby agreed as follows:
Section 1.
Amendment. Section 5.5(d)(i) of the Partnership Agreement is hereby amended and restated in its entirety
as follows:
Consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on an issuance of additional Partnership Interests
for cash or Contributed Property, an issuance of IDR Reset Common Units pursuant to Section 5.11(a) (or
other Partnership Interests as described in Section 5.11(d)), the issuance of Partnership Interests as
consideration for the provision of services, or the conversion of the Combined Interest to Common Units pursuant
to Section 11.3(b), 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 and any such Unrealized Gain or Unrealized Loss shall be treated, for purposes of maintaining Capital
Accounts, as if it 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 among the Partners at such time pursuant to
1
Section 6.1 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; provided, however, that in the event of an issuance of
Partnership Interests for a de minimis amount of cash or Contributed Property, or in the event of an issuance of a de
minimis amount of Partnership Interests as consideration for the provision of services, the General Partner may
determine that such adjustments are unnecessary for the proper administration of the Partnership. In determining
such Unrealized Gain or Unrealized Loss, the aggregate fair market value of all Partnership property (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. In making its determination of the fair
market values of individual properties, the General Partner may determine that it is appropriate to first determine an
aggregate value for the Partnership, based on the current trading price of the Common Units, and taking fully into
account the fair market value of the Partnership Interests of all Partners at such time, and then allocate such
aggregate value among the individual properties of the Partnership (in such manner as it determines appropriate).
Section 2.
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 3.
Governing Law. This Amendment shall be construed in accordance with and governed by the laws of the
State of Delaware, without regard to the principles of conflicts of law.
(Signature Page Follows)
2
IN WITNESS WHEREOF, this Amendment has been executed as of the Effective Date.
GENERAL PARTNER:
By: SPRAGUE RESOURCES GP LLC,
a Delaware limited liability company
By:____/s/ Paul A. Scoff____________
Name: Paul A. Scoff
Title: Vice President, General Counsel,
Chief Compliance Officer & Secretary
This composite copy of the First Amended and Restated Agreement of Limited Partnership
reflects the provisions of the Partnership’s First Amended and Restated Agreement of Limited Partnership, as amended by Amendment No. 1 to
the First Amended and Restated Agreement of Limited Partnership, effective December 20, 2017, Amendment No. 2 to the First Amended and
Restated Agreement of Limited Partnership, dated as of October 25, 2019, and Amendment No. 3 to the First Amended and Restated Agreement of
Limited Partnership, dated as of March 1, 2021
Exhibit 3.8
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SPRAGUE RESOURCES LP
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1
15
ARTICLE II
ORGANIZATION
Page
Section 1.1 Definitions
Section 1.2 Construction
Section 2.1 Formation
Section 2.2 Name
Section 2.3 Registered Office; Registered Agent; Principal Office; Other
Offices
Section 2.4 Purpose and Business
Section 2.5 Powers
Section 2.6 Term
Section 2.7 Title to Partnership Assets
15
15
15
15
16
16
16
ARTICLE III
RIGHTS OF LIMITED PARTNERS
Section 3.1 Limitation of Liability
Section 3.2 Management of Business
Section 3.3 Outside Activities of the Limited Partners
Section 3.4 Rights of Limited Partners
16
16
16
17
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP
INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS
Section 4.1 Certificates
Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates
Section 4.3 Record Holders
Section 4.4 Transfer Generally
Section 4.5 Registration and Transfer of Limited Partner Interests
Section 4.6 Transfer of the General Partner’s General Partner Interest
Section 4.7 Restrictions on Transfers
Section 4.8 Citizenship Certificates; Non-citizen Assignees
17
18
18
19
19
20
20
21
Section 4.9 Redemption of Partnership Interests of Non-citizen Assignees 21
Section 4.10 Special Provisions Relating to the Holders of Subordinated
Units
Section 4.11 Special Provisions Relating to the Holders of IDR Reset
Common Units
22
23
i
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP
INTERESTS
Section 5.1 Organizational Contributions
Section 5.2 Contributions by the General Partner and its Affiliates
Section 5.3 Contributions by Initial Limited Partners
Section 5.4 Interest and Withdrawal
Section 5.5 Capital Accounts
Section 5.6 Issuances of Additional Partnership Interests
Section 5.7 Conversion of Subordinated Units
Section 5.8 Limited Preemptive Right
Section 5.9 Splits and Combinations
Section 5.10 Fully Paid and Non-Assessable Nature of Limited Partner
Interests
Section 5.11 Issuance of Common Units in Connection with Reset of
Incentive Distribution Rights
23
23
24
24
24
26
27
27
27
28
28
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 Allocations for Capital Account Purposes
Section 6.2 Allocations for Tax Purposes
Section 6.3 Distributions; Characterization of Distributions; Distributions
to Record Holders
Section 6.4 Distributions from Distributable Cash Flow
Section 6.5 Distributions from Capital Surplus
Section 6.6 Adjustment of Minimum Quarterly Distribution and Target
Distribution Levels
Section 6.7 Entity-Level Taxation
29
35
36
37
39
39
39
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management
Section 7.2 Replacement of Fiduciary Duties
Section 7.3 Certificate of Limited Partnership
Section 7.4 Restrictions on the General Partner’s Authority
Section 7.5 Reimbursement of the General Partner
Section 7.6 Outside Activities
Section 7.7 Indemnification
Section 7.8 Liability of Indemnitees
Section 7.9 Standards of Conduct and Modification of Duties
Section 7.10 Other Matters Concerning the General Partner and
Indemnitees
Section 7.11 Purchase or Sale of Partnership Interests
40
41
41
42
42
42
43
44
45
46
46
ii
Section 7.12 Registration Rights of the General Partner and its Affiliates
47
Section 7.13 Reliance by Third Parties
48
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 8.1 Records and Accounting
Section 8.2 Fiscal Year
Section 8.3 Reports
Section 9.1 Tax Returns and Information
Section 9.2 Tax Elections
Section 9.3 Tax Controversies
Section 9.4 Withholding Tax Payments
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ARTICLE IX
TAX MATTERS
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ARTICLE X
ADMISSION OF PARTNERS
Section 10.1 Admission of Limited Partners
Section 10.2 Admission of Successor General Partner
Section 10.3 Amendment of Agreement and Certificate of Limited
Partnership
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ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
Section 11.1 Withdrawal of the General Partner
Section 11.2 Removal of the General Partner
Section 11.3 Interest of Departing General Partner and Successor General
Partner
Section 11.4 Termination of Subordination Period, Conversion of
Subordinated Units and Extinguishment of Cumulative Common Unit
Arrearages
Section 11.5 Withdrawal of Limited Partners
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ARTICLE XII
DISSOLUTION AND LIQUIDATION
Section 12.1 Dissolution
Section 12.2 Continuation of the Business of the Partnership After
Dissolution
Section 12.3 Liquidator
Section 12.4 Liquidation
Section 12.5 Cancellation of Certificate of Limited Partnership
Section 12.6 Return of Contributions
Section 12.7 Waiver of Partition
Section 12.8 Capital Account Restoration
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Section 13.1 Amendments to be Adopted Solely by the General Partner
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ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS;
RECORD DATE
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Section 13.2 Amendment Procedures
Section 13.3 Amendment Requirements
Section 13.4 Special Meetings
Section 13.5 Notice of a Meeting
Section 13.6 Record Date
Section 13.7 Adjournment
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Section 13.8 Waiver of Notice; Approval of Meeting; Approval of Minutes 60
Section 13.9 Quorum and Voting
Section 13.10 Conduct of a Meeting
Section 13.11 Action Without a Meeting
Section 13.12 Right to Vote and Related Matters
Section 13.13 Voting of Incentive Distribution Rights
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ARTICLE XIV
MERGER, CONSOLIDATION OR CONVERSION
Section 14.1 Authority
Section 14.2 Procedure for Merger, Consolidation or Conversion
Section 14.3 Approval by Limited Partners
Section 14.4 Certificate of Merger
Section 14.5 Effect of Merger, Consolidation or Conversion
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Section 15.1 Right to Acquire Limited Partner Interests
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ARTICLE XV
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1 Addresses and Notices
Section 16.2 Further Action
Section 16.3 Binding Effect
Section 16.4 Integration
Section 16.5 Creditors
Section 16.6 Waiver
Section 16.7 Counterparts
Section 16.8 Applicable Law; Forum, Venue and Jurisdiction
Section 16.9 Invalidity of Provisions
Section 16.10 Consent of Partners
Section 16.11 Facsimile Signatures
Section 16.12 Third Party Beneficiaries
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FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
SPRAGUE RESOURCES LP
THIS FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF SPRAGUE RESOURCES LP, dated as of October
30, 2013, is entered into by and between Sprague Resources GP LLC, a Delaware limited liability company, as the General Partner, and the Initial Limited
Partners (as defined herein), together with any other Persons who become Partners in the Partnership or parties hereto as provided herein. In consideration of
the covenants, conditions and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms
used in this Agreement.
“Additional Book Basis” means the portion of any remaining Carrying Value of an Adjusted Property that is attributable to positive adjustments
made to such Carrying Value as a result of Book-Up Events. For purposes of determining the extent that Carrying Value constitutes Additional Book Basis:
(i) any negative adjustment made to the Carrying Value of an Adjusted Property as a result of either a Book-Down Event or a Book-Up Event
shall first be deemed to offset or decrease that portion of the Carrying Value of such Adjusted Property that is attributable to any prior positive adjustments
made thereto pursuant to a Book-Up Event or Book-Down Event; and
(ii) if Carrying Value that constitutes Additional Book Basis is reduced as a result of a Book-Down Event and the Carrying Value of other
property is increased as a result of such Book-Down Event, an allocable portion of any such increase in Carrying Value shall be treated as Additional Book
Basis; provided, that the amount treated as Additional Book Basis pursuant hereto as a result of such Book-Down Event shall not exceed the amount by
which the Aggregate Remaining Net Positive Adjustments after such Book-Down Event exceeds the remaining Additional Book Basis attributable to all of
the Partnership’s Adjusted Property after such Book-Down Event (determined without regard to the application of this clause (ii) to such Book-Down
Event).
“Additional Book Basis Derivative Items” means any Book Basis Derivative Items that are computed with reference to Additional Book Basis. To
the extent that the Additional Book Basis attributable to all of the Partnership’s Adjusted Property as of the beginning of any taxable period exceeds the
Aggregate Remaining Net Positive Adjustments as of the beginning of such period (the “Excess Additional Book Basis”), the Additional Book Basis
Derivative Items for such period shall be reduced by the amount that bears the same ratio to the amount of Additional Book Basis Derivative Items
determined without regard to this sentence as the Excess Additional Book Basis bears to the Additional Book Basis as of the beginning of such period. With
respect to a Disposed of Adjusted Property, the Additional Book Basis Derivative items shall be the amount of Additional Book Basis taken into account in
computing gain or loss from the disposition of such Disposed of Adjusted Property.
“Adjusted Capital Account” means the Capital Account maintained for each Partner as of the end of each taxable period of the Partnership,
(a) increased by any amounts that such Partner is obligated to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is
deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and (b) decreased by (i) the amount of all losses and
deductions that, as of the end of such taxable period, are reasonably expected to be allocated to such Partner in subsequent taxable periods under Sections
704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all distributions that, as of the end of such taxable
period, are reasonably expected to be made to such Partner in subsequent taxable periods in accordance with the terms of this Agreement or otherwise to the
extent they exceed offsetting increases to such Partner’s Capital Account that are reasonably expected to occur during (or prior to) the taxable period in
which such distributions are reasonably expected to be made (other than
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increases as a result of a minimum gain chargeback pursuant to Section 6.1(d)(i) or Section 6.1(d)(ii)). The foregoing definition of Adjusted Capital Account
is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The “Adjusted
Capital Account” of a Partner in respect of any Partnership Interest shall be the amount that such Adjusted Capital Account would be if such Partnership
Interest were the only interest in the Partnership held by such Partner from and after the date on which such Partnership Interest was first issued.
“Adjusted Property” means any property the Carrying Value of which has been adjusted pursuant to Section 5.5(d).
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled
by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“Aggregate Quantity of IDR Reset Common Units” is defined in Section 5.11(a).
“Aggregate Remaining Net Positive Adjustments” means, as of the end of any taxable period, the sum of the Remaining Net Positive Adjustments of
all the Partners.
“Agreed Allocation” means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the
provisions of Section 6.1, including a Curative Allocation (if appropriate to the context in which the term “Agreed Allocation” is used).
“Agreed Value” of any Contributed Property means the fair market value of such property at the time of contribution and in the case of an Adjusted
Property the fair market value of such Adjusted Property on the date of the revaluation event as described in Section 5.5(d), in both cases as determined by
the General Partner.
“Agreement” means this First Amended and Restated Agreement of Limited Partnership of Sprague Resources LP, as it may be amended,
supplemented or restated from time to time.
“Associate” means, when used to indicate a relationship with any Person, (a) any corporation or organization of which such Person is a director,
officer, manager, general partner or managing member or is, directly or indirectly, the owner of 20% or more of any class of voting stock or other voting
interest; (b) any trust or other estate in which such Person has at least a 20% beneficial interest or as to which such Person serves as trustee or in a similar
fiduciary capacity; and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same principal residence as such Person.
“Board of Directors” means, with respect to the Board of Directors of the General Partner, its board of directors or board of managers, as
applicable, if a corporation or limited liability company, or if a limited partnership, the board of directors or board of managers of the general partner of the
General Partner.
“Book Basis Derivative Items” means any item of income, deduction, gain or loss that is computed with reference to the Carrying Value of an
Adjusted Property (e.g., depreciation, depletion, or gain or loss with respect to an Adjusted Property).
“Book-Down Event” means an event that triggers a negative adjustment to the Capital Accounts of the Partners pursuant to Section 5.5(d).
“Book-Tax Disparity” means with respect to any item of Contributed Property or Adjusted Property, as of the date of any determination, the
difference between the Carrying Value of such Contributed Property or Adjusted Property and the adjusted basis thereof for U.S. federal income tax
purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its Contributed Property and Adjusted Property will be
reflected by the difference between such Partner’s Capital Account balance as maintained pursuant to Section 5.5 and the
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hypothetical balance of such Partner’s Capital Account computed as if it had been maintained strictly in accordance with U.S. federal income tax accounting
principles.
“Book-Up Event” means an event that triggers a positive adjustment to the Capital Accounts of the Partners pursuant to Section 5.5(d).
“Business Day” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States
of America or the State of New York shall not be regarded as a Business Day.
“Capital Account” means the capital account maintained for a Partner pursuant to Section 5.5. The “Capital Account” of a Partner in respect of any
Partnership Interest shall be the amount that such Capital Account would be if such Partnership Interest were the only interest in the Partnership held by such
Partner from and after the date on which such Partnership Interest was first issued.
“Capital Contribution” means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the
Partnership or that is contributed or deemed contributed to the Partnership on behalf of a Partner (including in the case of an underwritten offering of Units,
the amount of any underwriting discounts or commissions).
“Capital Improvement” means any (a) addition or improvement to the capital assets owned by any Group Member, (b) acquisition (through an asset
acquisition, merger, stock acquisition or other form of investment) of existing, or the construction of new, capital assets, or (c) capital contribution by a
Group Member to a Person that is not a Subsidiary, in which a Group Member has, or after such capital contribution will have, an equity interest to fund the
Group Member’s pro rata share of the cost of the acquisition of existing, or the construction of new or the improvement of existing, capital assets, in each
case if such addition, improvement, acquisition, construction or capital contribution is made to increase the long-term operating capacity or operating
income of the Partnership Group or, in the case of clause (c), such Person.
“Capital Surplus” means cash and cash equivalents distributed by the Partnership in excess of Distributable Cash Flow, as described in
Section 6.3(b).
“Carrying Value” means (a) with respect to a Contributed Property or an Adjusted Property, the Agreed Value of such property reduced (but not
below zero) by all depreciation, amortization and cost recovery deductions charged to the Partners’ Capital Accounts in respect of such property, and (b)
with respect to any other Partnership property, the adjusted basis of such property for U.S. federal income tax purposes, all as of the time of determination.
The Carrying Value of any property shall be adjusted from time to time in accordance with Section 5.5(d) and to reflect changes, additions or other
adjustments to the Carrying Value for dispositions and acquisitions of Partnership properties, as deemed appropriate by the General Partner.
“Cause” means a court of competent jurisdiction has entered a final, non-appealable judgment finding the General Partner is liable to the
Partnership or any Limited Partner for actual fraud or willful misconduct in its capacity as a general partner of the Partnership.
“Certificate” means a certificate in such form (including global form if permitted by applicable rules and regulations) as may be adopted by the
General Partner, issued by the Partnership evidencing ownership of one or more Partnership Interests. The initial form of certificate approved by the General
Partner for Common Units is attached as Exhibit A to this Agreement.
“Certificate of Limited Partnership” means the Certificate of Limited Partnership of the Partnership, as heretofore amended and filed with the
Secretary of State of the State of Delaware as referenced in Section 7.3, as such Certificate of Limited Partnership may be amended, supplemented or
restated from time to time.
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“Citizenship Certification” means a properly completed certificate in such form as may be specified by the General Partner by which a Limited
Partner certifies that he (and if he is a nominee holding for the account of another Person, that to the best of his knowledge such other Person) is an Eligible
Citizen.
“claim” (as used in Section 7.12(c)) is defined in Section 7.12(c).
“Closing Date” means the first date on which Common Units are sold by Sprague Holdings to the Underwriters pursuant to the provisions of the
Underwriting Agreement.
“Closing Price” means, in respect of any class of Limited Partner Interests, as of the date of determination, the last sale price on such day, regular
way, or in case no such sale takes place on such day, the average of the closing bid and asked prices on such day, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal National Securities Exchange on
which the respective Limited Partner Interests are listed or admitted to trading or, if such Limited Partner Interests are not listed or admitted to trading on
any National Securities Exchange, the last quoted price on such day or, if not so quoted, the average of the high bid and low asked prices on such day in the
over-the-counter market, as reported by the primary reporting system then in use in relation to such Limited Partner Interests of such class, or, if on any such
day such Limited Partner Interests of such class are not quoted by any such organization, the average of the closing bid and asked prices on such day as
furnished by a professional market maker making a market in such Limited Partner Interests of such class selected by the General Partner, or if on any such
day no market maker is making a market in such Limited Partner Interests of such class, the fair value of such Limited Partner Interests on such day as
determined by the General Partner.
“Code” means the U.S. Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or
sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.
“Combined Interest” is defined in Section 11.3(a).
“Commences Commercial Service” means a Capital Improvement is first put into commercial service by a Group Member following, if applicable,
completion of construction and testing.
“Commission” means the United States Securities and Exchange Commission.
“Common Unit” means a Partnership Interest representing a fractional part of the Partnership Interests of all Limited Partners, and having the rights
and obligations specified with respect to Common Units in this Agreement. The term “Common Unit” does not refer to or include any Subordinated Unit
prior to its conversion into a Common Unit pursuant to the terms hereof.
“Common Unit Arrearage” means, with respect to any Common Unit, whenever issued, with respect to any Quarter wholly within the
Subordination Period, the excess, if any, of (a) the Minimum Quarterly Distribution with respect to a Common Unit in respect of such Quarter over (b) the
sum of all cash and cash equivalents distributed with respect to a Common Unit in respect of such Quarter pursuant to Section 6.4(a)(i).
“Conflicts Committee” means a committee of the Board of Directors of the General Partner composed entirely of two or more directors, each of
whom (a) is not an officer or employee of the General Partner, (b) is not an officer or employee of any Affiliate of the General Partner or a director of any
Affiliate of the General Partner (other than any Group Member), (c) is not a holder of any ownership interest in the General Partner or any of its Affiliates,
other than a passive interest in a publicly traded Affiliate, including any Group Member, other than Common Units and awards that are granted to such
director under the Long-Term Incentive Plan and (d) meets the independence standards required of directors who serve on an audit committee of a board of
directors established by the Securities Exchange Act and the rules and regulations of the Commission thereunder and by the National Securities Exchange on
which any class of Partnership Interests is listed or admitted to trading.
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“Contributed Property” means each property, in such form as may be permitted by the Delaware Act, but excluding cash, contributed to the
Partnership. Once the Carrying Value of a Contributed Property is adjusted pursuant to Section 5.5(d), such property shall no longer constitute a Contributed
Property, but shall be deemed an Adjusted Property.
“Contribution Agreement” means that certain Contribution, Conveyance and Assumption Agreement, dated as of October 30, 2013, by and among
the General Partner, the Partnership, Axel Johnson Inc., Sprague International Properties LLC, Sprague Canadian Properties LLC, Sprague Holdings and
Sprague Operating Resources LLC, together with the additional conveyance documents and instruments contemplated or referenced thereunder, as such may
be amended, supplemented or restated from time to time.
“Cumulative Common Unit Arrearage” means, with respect to any Common Unit, whenever issued, and as of the end of any Quarter, the excess, if
any, of (a) the sum of the Common Unit Arrearages with respect to an Initial Common Unit for each of the Quarters wholly within the Subordination Period
ending on or before the last day of such Quarter over (b) the sum of any distributions theretofore made pursuant to Section 6.4(a)(ii) and the second sentence
of Section 6.5 with respect to an Initial Common Unit (including any distributions to be made in respect of the last of such Quarters).
“Curative Allocation” means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 6.1(d)(xi).
“Current Market Price” means, in respect of any class of Limited Partner Interests, as of the date of determination, the average of the daily Closing
Prices per Limited Partner Interest of such class for the 20 consecutive Trading Days immediately prior to such date.
“Deferred Issuance and Distribution” means both (a) the issuance by the Partnership of a number of additional Common Units that is equal to the
excess, if any, of (x) 1,275,000, over (y) the aggregate number, if any, of Common Units actually purchased by and issued to the Underwriters pursuant to
the Over-Allotment Option on the Option Closing Date(s), and (b) reimbursement(s), in whole or in part, of pre-formation capital expenditures in an amount
equal to the total amount of cash contributed by the Underwriters to the Partnership on or in connection with any Option Closing Date with respect to
Common Units issued by the Partnership upon the applicable exercise of the Over-Allotment Option in accordance with Section 5.3(b), if any.
“Delaware Act” means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. Section 17-101, et seq., as amended, supplemented or
restated from time to time, and any successor to such statute.
“Departing General Partner” means a former General Partner from and after the effective date of any withdrawal or removal of such former
General Partner pursuant to Section 11.1 or Section 11.2.
“Disposed of Adjusted Property” is defined in Section 6.1(d)(xii)(B).
“Distributable Cash Flow” means, on a cumulative basis and without duplication as determined by the General Partner,
(a) $25.0 million;
(b) plus the net income of the Partnership Group, as determined in accordance with GAAP;
(c) plus or minus, as applicable, any amounts necessary to offset the impact of any items included in the net income of the Partnership Group in
accordance with GAAP that do not impact the amount of cash or cash equivalents of the Partnership Group (including any amounts necessary to offset the
impact of any items included in our share of the net income of entities accounted for under the equity method that do not impact the amount of the cash or
cash equivalents of such entities);
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(d) plus any carrying costs (debt or equity related), which have not been capitalized, incurred by the Partnership Group during construction of a
capital improvement which capital improvement is not included in Expansion Capital Expenditures;
(e) plus any acquisition-related expenses deducted from net income and associated with (i) successful acquisitions or (ii) any other potential
acquisitions that have not been abandoned;
(f) minus any acquisition related expenses covered by clause (e)(ii) immediately preceding that relate to (i) potential acquisitions that have since
been abandoned or (ii) potential acquisitions that have not been consummated within one year following the date such expense was incurred (except that if
the potential acquisition is the subject of a pending purchase and sale agreement as of such one-year date, such one-year period of time shall be extended
until the first to occur of the termination of such purchase and sale agreement or the first day following the closing of the acquisition contemplated by such
purchase and sale agreement); and
(g) minus Maintenance Capital Expenditures.
For purposes of this definition, the types of items covered by clause (c) above include, without limitation, (i) depreciation, depletion and
amortization expense, (ii) any gain or loss from the sale of assets not in the ordinary course of business, (iii) any non-cash gains or items of income and any
non-cash losses or expenses, including non-cash compensation expense, asset impairments, amortization of debt discounts, premiums or issue costs, mark-
to-market activity associated with hedging and with non-cash revaluation and/or fair valuation of assets or liabilities and (iv) any gain or loss as a result of a
change in accounting policy or principle, provided that the application of any such change that is not required by law, GAAP or the Public Company
Accounting Oversight Board or similar regulatory body to be adopted by us is approved by the audit committee of the board of directors of our general
partner prior to its adoption. Our share of the net income of entities accounted for under the equity method, as adjusted in clause (c) above, shall be limited
to the distributions we receive from such entities. To the extent that the net income of the Partnership Group includes any losses with respect to the
termination of any Long-Term Interest Rate or Currency Hedge Contract prior to its stipulated termination or settlement date, such losses shall be included in
“Distributable Cash Flow” in equal installments over what would have been the remaining scheduled life of such Long-Term Interest Rate or Currency
Hedge Contract had it not been so terminated.
Notwithstanding the foregoing, if net income or other items affecting the calculation of “Distributable Cash Flow” are restated with respect to any
Quarter, then any subsequent determination of net income or such other items with respect to such Quarter or for a period including such Quarter will reflect
such restatement. Any restatement after the end of the Subordination Period will not retroactively affect the conversion of Subordinated Units in accordance
with the provisions of this Agreement.
“Economic Risk of Loss” has the meaning set forth in Treasury Regulation Section 1.752-2(a).
“Eligible Citizen” means a Person qualified to own interests in real property in jurisdictions in which any Group Member does business or proposes
to do business from time to time, and whose status as a Limited Partner the General Partner determines does not or would not subject such Group Member to
a significant risk of cancellation or forfeiture of any of its properties or any interest therein.
“Estimated Incremental Quarterly Tax Amount” is defined in Section 6.7.
“Event of Withdrawal” is defined in Section 11.1(a).
“Excess Additional Book Basis” is defined in the definition of Additional Book Basis Derivative Items.
“Excess Distribution” is defined in Section 6.1(d)(iii)(A).
“Excess Distribution Unit” is defined in Section 6.1(d)(iii)(A).
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“Final Subordinated Units” is defined in Section 6.1(d)(x).
“First Liquidation Target Amount” is defined in Section 6.1(c)(i)(D).
“First Target Distribution” means $0.474375 per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the product
of such amount multiplied by a fraction of which the numerator is the number of days in such period and the denominator is the total number of days in such
fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.7.
“General Partner” means Sprague Resources GP LLC, a Delaware limited liability company, and its successors and permitted assigns that are
admitted to the Partnership as general partner of the Partnership, in its capacity as general partner of the Partnership (except as the context otherwise
requires).
“General Partner Interest” means the management and ownership interest, if any, of the General Partner in the Partnership (in its capacity as a
general partner without reference to any Limited Partner Interest held by it) and includes any and all rights, powers and benefits to which the General Partner
is entitled as provided in this Agreement, together with all obligations of the General Partner to comply with the terms and provisions of this Agreement.
“Gross Liability Value” means, with respect to any Liability of the Partnership described in Treasury Regulation Section 1.752-7(b)(3)(i), the
amount of cash that a willing assignor would pay to a willing assignee to assume such Liability in an arm’s-length transaction.
“Group” means a Person that with or through any of its Affiliates or Associates has any contract, arrangement, understanding or relationship for the
purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy or consent
solicitation made to 10 or more Persons), exercising investment power or disposing of any Partnership Interests with any other Person that beneficially owns,
or whose Affiliates or Associates beneficially own, directly or indirectly, Partnership Interests.
“Group Member” means a member of the Partnership Group.
“Group Member Agreement” means the partnership agreement of any Group Member other than the Partnership that is a limited or general
partnership, the limited liability company agreement of any Group Member that is a limited liability company, the certificate of incorporation and bylaws or
similar organizational documents of any Group Member that is a corporation, the joint venture agreement or similar governing document of any Group
Member that is a joint venture and the governing or organizational or similar documents of any other Group Member that is a Person other than a limited or
general partnership, limited liability company, corporation or joint venture, as such may be amended, supplemented or restated from time to time.
“Holder” as used in Section 7.12, is defined in Section 7.12(a).
“IDR Reset Common Unit” is defined in Section 5.11(a).
“IDR Reset Election” is defined in Section 5.11(a).
“Incentive Distribution Right” means a Limited Partner Interest having the rights and obligations specified with respect to Incentive Distribution
Rights in this Agreement.
“Incentive Distributions” means any amount of cash distributed to the holders of the Incentive Distribution Rights pursuant to Section 6.4 or
Section 6.5.
“Incremental Income Taxes” is defined in Section 6.7.
“Indemnified Persons” is defined in Section 7.12(c).
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“Indemnitee” means (a) any General Partner, (b) any Departing General Partner, (c) any Person who, directly or indirectly, controls a General
Partner or any Departing General Partner, (d) any Person who is or was a managing member, director or officer of any General Partner, any Departing
General Partner or any of their respective controlling Affiliates, (e) any Person who is or was serving at the request of a General Partner, any Departing
General Partner or any of their respective controlling Affiliates as an officer, director or managing member of another Person owing a fiduciary or similar
duty to any Group Member, and (f) any Person the General Partner designates as an “Indemnitee” for purposes of this Agreement because such Person’s
service, status or relationship exposes such Person to potential claims, demands, actions, suits or proceedings relating to the Partnership Group’s business
and affairs.
“Initial Common Units” means the Common Units sold in the Initial Offering.
“Initial Limited Partners” means Sprague Holdings and the Underwriters, in each case upon being admitted to the Partnership in accordance with
Section 10.1.
“Initial Offering” means the initial offering and sale of Common Units to the public by the Partnership, as described in the Registration Statement,
including any offering and sale by the Partnership of Common Units pursuant to the exercise of the Over-Allotment Option.
“Initial Unit Price” means (a) with respect to the Common Units and the Subordinated Units, the initial public offering price per Common Unit at
which the Underwriters offered the Common Units to the public for sale as set forth on the cover page of the prospectus included as part of the Registration
Statement and first issued at or after the time the Registration Statement first became effective or (b) with respect to any other class or series of Units, the
price per Unit at which such class or series of Units is initially sold by the Partnership, as determined by the General Partner, in each case adjusted as the
General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of Units.
“Liability” means any liability or obligation of any nature, whether accrued, contingent or otherwise.
“Limited Partner” means, unless the context otherwise requires, each Initial Limited Partner, each additional Person that becomes a Limited Partner
pursuant to the terms of this Agreement and any Departing General Partner upon the change of its status from General Partner to Limited Partner pursuant to
Section 11.3, in each case, in such Person’s capacity as a limited partner of the Partnership.
“Limited Partner Interest” means the ownership interest of a Limited Partner in the Partnership, which may be evidenced by Common Units,
Subordinated Units, Incentive Distribution Rights or other Partnership Interests (other than the General Partner Interest) or a combination thereof or interest
therein, and includes any and all benefits to which such Limited Partner is entitled as provided in this Agreement, together with all obligations of such
Limited Partner to comply with the terms and provisions of this Agreement.
“Liquidation Date” means (a) in the case of an event giving rise to the dissolution of the Partnership of the type described in clauses (a) and (b) of
the first sentence of Section 12.2, the date on which the applicable time period during which the holders of Outstanding Units have the right to elect to
continue the business of the Partnership has expired without such an election being made, and (b) in the case of any other event giving rise to the dissolution
of the Partnership, the date on which such event occurs.
“Liquidator” means one or more Persons selected by the General Partner to perform the functions described in Section 12.4 as liquidating trustee of
the Partnership within the meaning of the Delaware Act.
“Long-Term Incentive Plan” means the 2013 Long-Term Incentive Plan of the General Partner as may be amended, or any equity compensation
plan successor thereto.
“Long-Term Interest Rate or Currency Hedge Contract” means any exchange, swap, forward, cap, floor, collar, option or other similar agreement or
arrangement that is entered into for the purpose of hedging the
8
Partnership Group’s exposure to fluctuations in interest rates or currency exchange rates in their operations or financing activities and not for speculative
purposes with a specified termination date more than twelve months after the date such agreement is entered into.
“Maintenance Capital Expenditures” means capital expenditures (including expenditures for the addition or improvement to or replacement of the
capital assets owned by any Group Member or for the acquisition of existing, or the construction or development of new, capital assets) made to maintain the
long-term operating capacity or operating income of the Partnership Group.
“Merger Agreement” is defined in Section 14.1.
“Minimum Quarterly Distribution” means $0.4125 per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the
product of such amount multiplied by a fraction of which the numerator is the number of days in such period and the denominator is the total number of days
in such fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.7.
“National Securities Exchange” means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act (or any
successor to such Section) and any other securities exchange (whether or not registered with the Commission under Section 6(a) (or successor to such
Section) of the Securities Exchange Act) that the General Partner shall designate as a National Securities Exchange for purposes of this Agreement.
“Net Agreed Value” means, (a) in the case of any Contributed Property, the Agreed Value of such property reduced by any Liabilities either assumed
by the Partnership upon such contribution or to which such property is subject when contributed and (b) in the case of any property distributed to a Partner
by the Partnership, the Partnership’s Carrying Value of such property (as adjusted pursuant to Section 5.5(d)(ii)) at the time such property is distributed,
reduced by any Liability either assumed by such Partner upon such distribution or to which such property is subject at the time of distribution.
“Net Income” means, for any taxable period, the excess, if any, of the Partnership’s items of income and gain (other than those items taken into
account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period over the Partnership’s items of loss and deduction
(other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period. The items included
in the calculation of Net Income shall be determined in accordance with Section 5.5(b) and shall not include any items specially allocated under
Section 6.1(d); provided, that the determination of the items that have been specially allocated under Section 6.1(d) shall be made without regard to any
reversal of such items under Section 6.1(d)(xii).
“Net Loss” means, for any taxable period, the excess, if any, of the Partnership’s items of loss and deduction (other than those items taken into
account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period over the Partnership’s items of income and gain (other
than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period. The items included in the
calculation of Net Loss shall be determined in accordance with Section 5.5(b) and shall not include any items specially allocated under Section 6.1(d);
provided, that the determination of the items that have been specially allocated under Section 6.1(d) shall be made without regard to any reversal of such
items under Section 6.1(d)(xii).
“Net Positive Adjustments” means, with respect to any Partner, the excess, if any, of the total positive adjustments over the total negative
adjustments made to the Capital Account of such Partner pursuant to Book-Up Events and Book-Down Events.
“Net Termination Gain” means, for any taxable period, the sum, if positive, of all items of income, gain, loss or deduction (determined in
accordance with Section 5.5(b)) that are (a) recognized (i) after the Liquidation Date or (ii) 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
9
member of the Partnership Group), or (b) deemed recognized by the Partnership pursuant to Section 5.5(d); provided, however, the items included in the
determination of Net Termination Gain shall not include any items of income, gain or loss specially allocated under Section 6.1(d).
“Net Termination Loss” means, for any taxable period, the sum, if negative, of all items of income, gain, loss or deduction (determined in
accordance with Section 5.5(b)) that are (a) recognized by the Partnership (i) after the Liquidation Date or (ii) 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) or (b) deemed recognized by the Partnership pursuant to Section 5.5(d); provided, however, the items
included in the determination of Net Termination Loss shall not include any items of income, gain or loss specially allocated under Section 6.1(d).
“Non-citizen Assignee” means a Person whom the General Partner has determined does not constitute an Eligible Citizen and as to whose
Partnership Interest the General Partner has become the substituted limited partner, pursuant to Section 4.8.
“Nonrecourse Built-in Gain” means with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge
securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Section 6.2(b) if such properties were
disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.
“Nonrecourse Deductions” means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B)
of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.
“Nonrecourse Liability” has the meaning set forth in Treasury Regulation Section 1.752-1(a)(2).
“Notice of Election to Purchase” is defined in Section 15.1(b).
“Opinion of Counsel” means a written opinion of counsel (who may be regular counsel to the Partnership or the General Partner or any of its
Affiliates) acceptable to the General Partner.
“Option Closing Date” means the date or dates on which any Common Units are sold by the Partnership to the Underwriters upon exercise of the
Over-Allotment Option.
“Outstanding” means, with respect to Partnership Interests, all Partnership Interests that are issued by the Partnership and reflected as outstanding
on the Partnership’s books and records as of the date of determination; provided, however, that if at any time any Person or Group (other than the General
Partner or its Affiliates) beneficially owns 20% or more of the Outstanding Partnership Interests of any class then Outstanding, none of the Partnership
Interests owned by such Person or Group shall be entitled to be voted on any matter or be considered to be Outstanding when sending notices of a meeting of
Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other
similar purposes under this Agreement, except that Partnership Interests so owned shall be considered to be Outstanding for purposes of Section 11.1(b)(iv)
(such Partnership Interests shall not, however, be treated as a separate class of Partnership Interests for purposes of this Agreement or the Delaware Act);
provided, further, that the foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Outstanding Partnership Interests
of any class then Outstanding directly from the General Partner or its Affiliates (other than the Partnership), (ii) any Person or Group who acquired 20% or
more of the Outstanding Partnership Interests of any class then Outstanding directly or indirectly from a Person or Group described in clause (i) provided
that, at or prior to such acquisition, the General Partner, acting in its sole discretion, shall have notified such Person or Group in writing that such limitation
shall not apply, or (iii) any Person or Group who acquired 20% or more of any Partnership Interests issued by the Partnership provided that, at or prior to
such acquisition, the General Partner shall have notified such Person or Group in writing that such limitation shall not apply.
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“Over-Allotment Option” means the over-allotment option granted to the Underwriters by the Partnership pursuant to the Underwriting Agreement.
“Partner Nonrecourse Debt” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).
“Partner Nonrecourse Debt Minimum Gain” has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).
“Partner Nonrecourse Deductions” means any and all items of loss, deduction or expenditure (including any expenditure described in
Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i) with respect to “partner nonrecourse
deductions,” are attributable to a Partner Nonrecourse Debt.
“Partners” means the General Partner and the Limited Partners.
“Partnership” means Sprague Resources LP, a Delaware limited partnership.
“Partnership Group” means, collectively, the Partnership and its Subsidiaries.
“Partnership Interest” means any class or series of equity interest in the Partnership, which shall include any Limited Partner Interests and the
General Partner Interest but shall exclude any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership.
“Partnership Minimum Gain” means the amount of “partnership minimum gain” determined in accordance with the principles of Treasury
Regulation Sections 1.704-2(b)(2) and 1.704-2(d).
“Percentage Interest” means as of any date of determination (a) as to any Unitholder with respect to Units, the product obtained by multiplying (i)
100% less the percentage applicable to clause (b) below by (ii) the quotient obtained by dividing (A) the number of Units held by such Unitholder by (B) the
total number of Outstanding Units, and (b) as to the holders of other Partnership Interests issued by the Partnership in accordance with Section 5.6, the
percentage established as a part of such issuance. The Percentage Interest with respect to an Incentive Distribution Right shall be zero except as provided in
Section 13.13(b).
“Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association,
government agency or political subdivision thereof or other entity.
“Per Unit Capital Amount” means, as of any date of determination, the Capital Account, stated on a per Unit basis, underlying any class of Units
held by a Person other than the General Partner or any Affiliate of the General Partner who holds Units.
“Plan of Conversion” is defined in Section 14.1.
“Pro Rata” means (a) when used with respect to Units or any class thereof, apportioned equally among all designated Units in accordance with their
relative Percentage Interests, (b) when used with respect to Partners or Record Holders, apportioned among all Partners and Record Holders in accordance
with their relative Percentage Interests and (c) when used with respect to holders of Incentive Distribution Rights, apportioned equally among all holders of
Incentive Distribution Rights in accordance with the relative number or percentage of Incentive Distribution Rights held by each such holder.
“Purchase Date” means the date determined by the General Partner as the date for purchase of all Outstanding Limited Partner Interests of a certain
class (other than Limited Partner Interests owned by the General Partner and its Affiliates) pursuant to Article XV.
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“Quarter” means, unless the context requires otherwise, a fiscal quarter of the Partnership, or, with respect to the fiscal quarter of the Partnership
that includes the Closing Date, the portion of such fiscal quarter after the Closing Date.
“Recapture Income” means any gain recognized by the Partnership (computed without regard to any adjustment required by Section 734 or
Section 743 of the Code) upon the disposition of any property or asset of the Partnership, which gain is characterized as ordinary income because it
represents the recapture of deductions previously taken with respect to such property or asset.
“Record Date” means the date established by the General Partner or otherwise in accordance with this Agreement for determining (a) the identity of
the Record Holders entitled to notice of, or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of Partnership action in
writing without a meeting or entitled to exercise rights in respect of any lawful action of Limited Partners or (b) the identity of Record Holders entitled to
receive any report or distribution or to participate in any offer.
“Record Holder” means (a) with respect to Partnership Interests of any class of Partnership Interests for which a Transfer Agent has been appointed,
the Person in whose name a Partnership Interest of such class is registered on the books of the Transfer Agent as of the closing of business on a particular
Business Day, or (b) with respect to other classes of Partnership Interests, the Person in whose name any such other Partnership Interest is registered on the
books that the General Partner has caused to be kept as of the closing of business on such Business Day.
“Redeemable Interests” means any Partnership Interests for which a redemption notice has been given, and has not been withdrawn, pursuant to
Section 4.9.
“Registration Statement” means the Registration Statement on Form S-1 (File No. 333-175826) as it has been or as it may be amended or
supplemented from time to time, filed by the Partnership with the Commission under the Securities Act to register the offering and sale of the Common
Units by the Partnership in the Initial Offering.
“Remaining Net Positive Adjustments” means as of the end of any taxable period, (i) with respect to the Unitholders holding Common Units or
Subordinated Units, the excess of (a) the Net Positive Adjustments of the Unitholders holding Common Units or Subordinated Units as of the end of such
period over (b) the sum of those Unitholders’ Share of Additional Book Basis Derivative Items for each prior taxable period, and (ii) with respect to the
holders of Incentive Distribution Rights, the excess of (a) the Net Positive Adjustments of the holders of Incentive Distribution Rights as of the end of such
period over (b) the sum of the Share of Additional Book Basis Derivative Items of the holders of the Incentive Distribution Rights for each prior taxable
period.
“Required Allocations” means any allocation of an item of income, gain, loss or deduction pursuant to Section 6.1(d)(i), Section 6.1(d)(ii),
Section 6.1(d)(iv), Section 6.1(d)(v), Section 6.1(d)(vi), Section 6.1(d)(vii) or Section 6.1(d)(ix).
“Reset MQD” is defined in Section 5.11(a).
“Reset Notice” is defined in Section 5.11(b).
“Second Liquidation Target Amount” is defined in Section 6.1(c)(i)(E).
“Second Target Distribution” means $0.515625 per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the
product of such amount multiplied by a fraction of which the numerator is the number of days in such period and the denominator is the total number of days
in such fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.7.
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“Securities Act” means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor
to such statute.
“Services Agreement” means that certain Services Agreement, dated as of October 30, 2013, by and among the General Partner, the Partnership,
Sprague Holdings and Sprague Energy Solutions Inc. as such may be amended, supplemented or restated from time to time.
“Share of Additional Book Basis Derivative Items” means in connection with any allocation of Additional Book Basis Derivative Items for any
taxable period, (i) with respect to the Unitholders holding Common Units or Subordinated Units, the amount that bears the same ratio to such Additional
Book Basis Derivative Items as the Unitholders’ Remaining Net Positive Adjustments as of the end of such taxable period bears to the Aggregate Remaining
Net Positive Adjustments as of that time, and (ii) with respect to the Partners holding Incentive Distribution Rights, the amount that bears the same ratio to
such Additional Book Basis Derivative Items as the Remaining Net Positive Adjustments of the Partners holding the Incentive Distribution Rights as of the
end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time.
“Special Approval” means approval by a majority of the members of the Conflicts Committee acting in good faith.
“Sprague Holdings” means Sprague Resources Holdings LLC, a Delaware limited liability company.
“Subordinated Unit” means a Partnership Interest representing a fractional part of the Partnership Interests of all Limited Partners and having the
rights and obligations specified with respect to Subordinated Units in this Agreement. The term “Subordinated Unit” does not include, or refer to, any
Common Unit. A Subordinated Unit that is convertible into a Common Unit shall not constitute a Common Unit until such conversion occurs.
“Subordination Period” means the period commencing on the Closing Date and ending on the first to occur of the following dates:
(a) the second Business Day following the distribution of cash or cash equivalents to Partners pursuant to Section 6.3(a) in respect of any Quarter
(the “Reference Quarter”), beginning with the Quarter ending September 30, 2016, for which each of the following requirements is met:
(i) distributions of cash and cash equivalents from Distributable Cash Flow on each of the Outstanding Common Units and Subordinated
Units, any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units, and in each case with respect to each of the
three most recent consecutive, non-overlapping, four Quarter periods (including the Reference Quarter), equaled or exceeded the Minimum Quarterly
Distribution;
(ii) the Distributable Cash Flow generated in respect of such three consecutive, non-overlapping four Quarter periods, excluding the
amount specified in clause (a)(i) in the definition of Distributable Cash Flow, equaled or exceeded the Minimum Quarterly Distribution on all Outstanding
Common Units and Subordinated Units (on a fully diluted basis) in respect of such Quarters; and
(iii) there are no Cumulative Common Units Arrearages; or
(b) the date all Subordinated Units convert to Common Units pursuant to Section 11.4.
With respect to compensatory grants of Partnership Interests, fully diluted shall include only those units that will vest during the succeeding twelve
months.
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“Subsidiary” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to
the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date
of determination, by such Person, by one or more Subsidiaries (as defined, but excluding subsection (d) of this definition) of such Person or a combination
thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary (as defined, but excluding subsection (d) of this definition) of
such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such
partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by
such Person, by one or more Subsidiaries (as defined, but excluding subsection (d) of this definition) of such Person, or a combination thereof, (c) any other
Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries (as defined, but excluding this subsection (d) of this
definition) of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the
power to elect or direct the election of a majority of the directors or other governing body of such Person or (d) any other Person in which such Person, one
or more Subsidiaries (as defined, but excluding subsection (d) of this definition) of such Person, or a combination thereof, directly or indirectly, at the date of
determination, has (i) less than a majority ownership interest or (ii) less than the power to elect or direct the election of a majority of the directors or other
governing body of such Person, provided that (A) such Person, one or more Subsidiaries (as defined, but excluding this subsection (d) of this definition) of
such Person, or a combination thereof, directly or indirectly, at the date of the determination, has at least a 20% ownership interest in such other Person, (B)
such Person accounts for such other Person (under U.S. GAAP, as in effect on the later of the date of investment in such other Person or material expansion
of the operations of such other Person) on a consolidated or equity accounting basis, (C) such Person has directly or indirectly material negative control
rights regarding such other Person including over such other Person’s ability to materially expand its operations beyond that contemplated at the date of
investment in such other Person, and (D) such other Person is obligated under its constituent documents, or as a result of a unanimous agreement of its
owners, to distribute to its owners all of its income on at least an annual basis (less any cash reserves that are approved by such Person).
“Surviving Business Entity” is defined in Section 14.2(b)(ii).
“Third Target Distribution” means $0.61875 per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the product
of such amount multiplied by a fraction of which the numerator is the number of days in such period and the denominator is the total number of days in such
fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.7.
“Trading Day” means, for the purpose of determining the Current Market Price of any class of Limited Partner Interests, a day on which the
principal National Securities Exchange on which such class of Limited Partner Interests is listed or admitted to trading is open for the transaction of business
or, if Limited Partner Interests of a class are not listed or admitted to trading on any National Securities Exchange, a day on which banking institutions in
New York City generally are open.
“transfer” is defined in Section 4.4(a).
“Transfer Agent” means such bank, trust company or other Person (including the General Partner or one of its Affiliates) as may be appointed from
time to time by the Partnership to act as registrar and transfer agent for any class of Partnership Interests; provided that if no Transfer Agent is specifically
designated for any class of Partnership Interests, the General Partner shall act in such capacity.
“Underwriter” means each Person named as an underwriter in the Underwriting Agreement or in a schedule thereto who purchases Common Units
pursuant thereto.
“Underwriting Agreement” means that certain Underwriting Agreement dated October 24, 2013 among the Underwriters, the Partnership, the
General Partner, Sprague Holdings and the other parties thereto, providing for the purchase of Common Units by the Underwriters.
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“Unit” means a Partnership Interest that is designated as a “Unit” and shall include Common Units and Subordinated Units but shall not include (i)
the General Partner Interest or (ii) Incentive Distribution Rights.
“Unitholders” means the holders of Units.
“Unit Majority” means (i) during the Subordination Period, at least a majority of the Outstanding Common Units (excluding Common Units owned
by the General Partner and its Affiliates), voting as a class, and at least a majority of the Outstanding Subordinated Units voting as a class and (ii) after the
end of the Subordination Period, at least a majority of the Outstanding Common Units.
“Unpaid MQD” is defined in Section 6.1(c)(i)(B).
“Unrealized Gain” attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the fair market
value of such property as of such date (as determined under Section 5.5(d)) over (b) the Carrying Value of such property as of such date (prior to any
adjustment to be made pursuant to Section 5.5(d) as of such date).
“Unrealized Loss” attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the Carrying
Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.5(d) as of such date) over (b) the fair market value of such
property as of such date (as determined under Section 5.5(d)).
“Unrecovered Initial Unit Price” means at any time, with respect to a Unit, the Initial Unit Price less the sum of all distributions constituting Capital
Surplus theretofore made in respect of an Initial Common Unit and any distributions of cash (or the Net Agreed Value of any distributions in kind) in
connection with the dissolution and liquidation of the Partnership theretofore made in respect of an Initial Common Unit, adjusted as the General Partner
determines to be appropriate to give effect to any distribution, subdivision or combination of such Units.
“Unrestricted Person” means (a) each Indemnitee, (b) each Partner, (c) each Person who is or was a member, partner, director, officer, employee or
agent of any Group Member, a General Partner or any Departing General Partner or any Affiliate of any Group Member, a General Partner or any Departing
General Partner and (d) any Person the General Partner designates as an “Unrestricted Person” for purposes of this Agreement.
“U.S. GAAP” means United States generally accepted accounting principles, as in effect from time to time, consistently applied.
“Waived IDR Amount” is defined in Section 6.4(c)(i).
“Withdrawal Opinion of Counsel” is defined in Section 11.1(b).
Section 1.2 Construction. Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms “include”,
“includes”, “including” and words of like import shall be deemed to be followed by the words “without limitation”; and (d) the terms “hereof”, “herein” and
“hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and headings contained in this
Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
Section 2.1 Formation. The General Partner and Sprague Holdings have previously formed the Partnership as a limited partnership pursuant to the
provisions of the Delaware Act and hereby amend and restate the original Agreement of Limited Partnership of the Partnership in its entirety. This
amendment and restatement shall
ARTICLE II
ORGANIZATION
15
become effective on the date of this Agreement. Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary
duties), liabilities and obligations of the Partners and the administration, dissolution and termination of the Partnership shall be governed by the Delaware
Act. All Partnership Interests shall constitute personal property of the owner thereof for all purposes.
Section 2.2 Name. The name of the Partnership shall be “Sprague Resources LP.” The Partnership’s business may be conducted under any other
name or names as determined by the General Partner, including the name of the General Partner. The words “Limited Partnership,” the letters “LP” and
“Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purpose of complying with the laws of any jurisdiction
that so requires. The General Partner may change the name of the Partnership at any time and from time to time and shall notify the Limited Partners of such
change in the next regular communication to the Limited Partners.
Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices. Unless and until changed by the General Partner, the registered
office of the Partnership in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent for service
of process on the Partnership in the State of Delaware at such registered office shall be The Corporation Trust Company. The principal office of the
Partnership shall be located at Two International Drive, Suite 200, Portsmouth, NH 03801 or such other place as the General Partner may from time to time
designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the
General Partner determines to be necessary or appropriate. The address of the General Partner shall be Two International Drive, Suite 200, Portsmouth, NH
03801, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.
Section 2.4 Purpose and Business. The purpose and nature of the business to be conducted by the Partnership shall be to engage directly in, or
enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any
business activity that is approved by the General Partner in its sole discretion and that lawfully may be conducted by a limited partnership organized
pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements
relating to such business activity, and do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a
Group Member; provided, however, that without the approval of a Unit Majority, the General Partner shall not cause the Partnership to take any action that
the General Partner determines would be reasonably likely to cause the Partnership to be treated as an association taxable as a corporation or otherwise
taxable as an entity for U.S. federal income tax purposes. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to
propose or approve, and may, in its sole discretion, decline to propose or approve, the conduct by the Partnership of any business.
Section 2.5 Powers. The Partnership shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to
or convenient for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the
Partnership.
Section 2.6 Term. The term of the Partnership commenced upon the filing of the Certificate of Limited Partnership in accordance with the
Delaware Act and shall continue in existence until the dissolution of the Partnership in accordance with the provisions of Article XII. The existence of the
Partnership as a separate legal entity shall continue until the cancellation of the Certificate of Limited Partnership as provided in the Delaware Act.
Section 2.7 Title to Partnership Assets. Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be
deemed to be owned by the Partnership as an entity and/or its Subsidiaries, and no Partner, individually or collectively, shall have any ownership interest in
such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner,
one or more of its Affiliates or one or more nominees, as the General Partner may determine. The General Partner hereby declares and warrants that any
Partnership assets for which record title is held in the name of the General Partner or one or more of its Affiliates or one or more nominees shall be held by
the General
16
Partner or such Affiliate or nominee for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided, however, that
the General Partner shall use reasonable efforts to cause record title to such assets (other than those assets in respect of which the General Partner determines
that the expense and difficulty of conveyancing makes transfer of record title to the Partnership impracticable) to be vested in the Partnership as soon as
reasonably practicable; provided, further, that, prior to the withdrawal or removal of the General Partner or as soon thereafter as practicable, the General
Partner shall use reasonable efforts to effect the transfer of record title to the Partnership and, prior to any such transfer, will provide for the use of such
assets in a manner satisfactory to the General Partner. All Partnership assets shall be recorded as the property of the Partnership in its books and records,
irrespective of the name in which record title to such Partnership assets is held.
ARTICLE III
RIGHTS OF LIMITED PARTNERS
Section 3.1 Limitation of Liability. The Limited Partners shall have no liability under this Agreement except as expressly provided in this
Agreement or the Delaware Act.
Section 3.2 Management of Business. No Limited Partner, in its capacity as such, shall participate in the operation, management or control (within
the meaning of the Delaware Act) of the Partnership’s business, transact any business in the Partnership’s name or have the power to sign documents for or
otherwise bind the Partnership. Any action taken by any Affiliate of the General Partner or any officer, director, employee, manager, member, general
partner, agent or trustee of the General Partner or any of its Affiliates, or any officer, director, employee, manager, member, general partner, agent or trustee
of a Group Member, in its capacity as such, shall not be deemed to be participating in the control of the business of the Partnership by a limited partner of the
Partnership (within the meaning of Section 17-303(a) of the Delaware Act) and shall not affect, impair or eliminate the limitations on the liability of the
Limited Partners under this Agreement.
Section 3.3 Outside Activities of the Limited Partners. Subject to the provisions of Section 7.6, which shall continue to be applicable to the
Persons referred to therein, regardless of whether such Persons shall also be Limited Partners, each Limited Partner shall be entitled to and may have
business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities in direct
competition with the Partnership Group. Neither the Partnership nor any of the other Partners shall have any rights by virtue of this Agreement in any
business ventures of any Limited Partner.
Section 3.4 Rights of Limited Partners.
(a) In addition to other rights provided by this Agreement or by applicable law (other than Section 17-305(a) of the Delaware Act, the
obligations of which are to the fullest extent permitted by law expressly replaced in their entirety by the provisions below), and except as limited by Sections
3.4(b) and 3.4(c), each Limited Partner shall have the right, for a purpose that is reasonably related, as determined by the General Partner, to such Limited
Partner’s interest as a Limited Partner in the Partnership, upon reasonable written demand stating the purpose of such demand and at such Limited Partner’s
own expense to obtain:
(i) true and full information regarding the status of the business and financial condition of the Partnership (provided that the
requirements of this Section 3.4(a)(i) shall be satisfied to the extent the Limited Partner is furnished the Partnership’s most recent annual report and any
subsequent quarterly or periodic reports required to be filed (or which would be required to be filed) with the Commission pursuant to Section 13 of the
Exchange Act);
(ii) a current list of the name and last known business, residence or mailing address of each Record Holder;
(iii) a copy of this Agreement and the Certificate of Limited Partnership and all amendments thereto, together with copies of the
executed copies of all powers of attorney pursuant to which this Agreement, the Certificate of Limited Partnership and all amendments thereto have been
executed; and
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and reasonable.
(iv) such other information regarding the affairs of the Partnership as the General Partner determines in its sole discretion is just
(b) The General Partner may keep confidential from the Limited Partners, for such period of time as the General Partner deems
reasonable, (i) any information that the General Partner reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure of
which the General Partner believes (A) is not in the best interests of the Partnership Group, (B) could damage the Partnership Group or its business or (C)
that any Group Member is required by law or by agreement with any third party to keep confidential (other than agreements with Affiliates of the
Partnership the primary purpose of which is to circumvent the obligations set forth in this Section 3.4).
(c) Notwithstanding any other provision of this Agreement or Section 17-305 of the Delaware Act, each of the Partners, each other
Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement hereby agrees to the fullest extent permitted by law
that they do not have rights to receive information from the Partnership or any Indemnitee for the purpose of determining whether to pursue litigation or
assist in pending litigation against the Partnership or any Indemnitee relating to the affairs of the Partnership except pursuant to the applicable rules of
discovery relating to litigation commenced by such Person.
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS
Section 4.1 Certificates. Notwithstanding anything otherwise to the contrary herein, unless the General Partner shall determine otherwise in
respect of some or all of any or all classes of Partnership Interests, Partnership Interests shall not be evidenced by certificates. Certificates that may be issued
shall be executed on behalf of the Partnership by the Chairman of the Board, the President, the Chief Executive Officer or any Executive Vice President and
the Chief Financial Officer or Secretary or any Assistant Secretary of the General Partner. If a Transfer Agent has been appointed for a class of Partnership
Interests, no Certificate for such class of Partnership Interests shall be valid for any purpose until it has been countersigned by the Transfer Agent; provided,
however, that if the General Partner elects to cause the Partnership to issue Partnership Interests of such class in global form, the Certificate shall be valid
upon receipt of a certificate from the Transfer Agent certifying that the Partnership Interests have been duly registered in accordance with the directions of
the Partnership. Subject to the requirements of Section 4.10, if Common Units are evidenced by Certificates, on or after the date on which Subordinated
Units are converted into Common Units pursuant to the terms of Section 5.7, the Record Holders of Subordinated Units, (i) may, if the Subordinated Units
are evidenced by Certificates, exchange such Certificates for Certificates evidencing Common Units or (ii) if the Subordinated Units are not evidenced by
Certificates, shall be issued Certificates evidencing Common Units.
Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If any mutilated Certificate is surrendered to the Transfer Agent, the appropriate officers of the General Partner on behalf of the
Partnership shall execute, and the Transfer Agent shall countersign and deliver in exchange therefor, a new Certificate evidencing the same number and type
of Partnership Interests as the Certificate so surrendered.
countersign, a new Certificate in place of any Certificate previously issued if the Record Holder of the Certificate:
(b) The appropriate officers of the General Partner on behalf of the Partnership shall execute and deliver, and the Transfer Agent shall
been lost, destroyed or stolen;
(i) makes proof by affidavit, in form and substance satisfactory to the General Partner, that a previously issued Certificate has
purchaser for value in good faith and without notice of an adverse claim;
(ii) requests the issuance of a new Certificate before the General Partner has notice that the Certificate has been acquired by a
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(iii) if requested by the General Partner, delivers to the General Partner a bond, in form and substance satisfactory to the
General Partner, with surety or sureties and with fixed or open penalty as the General Partner may direct, to indemnify the Partnership, the Partners, the
General Partner and the Transfer Agent against any claim that may be made on account of the alleged loss, destruction or theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by the General Partner.
If a Limited Partner fails to notify the General Partner within a reasonable period of time after such Limited Partner has notice of the loss,
destruction or theft of a Certificate, and a transfer of the Limited Partner Interests represented by the Certificate is registered before the Partnership, the
General Partner or the Transfer Agent receives such notification, the Limited Partner shall be precluded from making any claim against the Partnership, the
General Partner or the Transfer Agent for such transfer or for a new Certificate.
(c) As a condition to the issuance of any new Certificate under this Section 4.2, the General Partner may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Transfer Agent) reasonably connected therewith.
Section 4.3 Record Holders. The Partnership shall be entitled to recognize the Record Holder as the Partner with respect to any Partnership
Interest and, accordingly, shall not be bound to recognize any equitable or other claim to, or interest in, such Partnership Interest on the part of any other
Person, regardless of whether the Partnership shall have actual or other notice thereof, except as otherwise provided by law or any applicable rule,
regulation, guideline or requirement of any National Securities Exchange on which such Partnership Interests are listed or admitted to trading. Without
limiting the foregoing, when a Person (such as a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing) is acting as
nominee, agent or in some other representative capacity for another Person in acquiring and/or holding Partnership Interests, as between the Partnership on
the one hand, and such other Persons on the other, such representative Person shall be (a) the Record Holder of such Partnership Interest and (b) bound by
this Agreement and shall have the rights and obligations of a Partner hereunder as, and to the extent, provided herein.
Section 4.4 Transfer Generally.
(a) The term “transfer,” when used in this Agreement with respect to a Partnership Interest, shall mean a transaction by which (i) the
General Partner assigns its General Partner Interest to another Person, and includes a sale, assignment, gift, exchange or any other disposition by law or
otherwise, or (ii) the holder of a Limited Partner Interest assigns such Limited Partner Interest to another Person who is or becomes a Limited Partner, and
includes a sale, assignment, gift, exchange or any other disposition by law or otherwise (but in the case of clause (i) or (ii) above, excluding a pledge,
encumbrance, hypothecation or mortgage but including any transfer upon foreclosure of any pledge, encumbrance, hypothecation or mortgage).
(b) No Partnership Interest shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this
Article IV. Any transfer or purported transfer of a Partnership Interest not made in accordance with this Article IV shall be, to the fullest extent permitted by
law, null and void.
(c) Nothing contained in this Agreement shall be construed to prevent a disposition by any stockholder, member, partner or other owner
of any Partner of any or all of the shares of stock, membership or limited liability company interests, partnership interests or other ownership interests in
such Partner and the term “transfer” shall not mean any such disposition.
Section 4.5 Registration and Transfer of Limited Partner Interests.
(a) The General Partner shall keep or cause to be kept on behalf of the Partnership a register in which, subject to such reasonable
regulations as it may prescribe and subject to the provisions of Section 4.5(b), the Partnership will provide for the registration and transfer of Limited Partner
Interests.
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(b) The Partnership shall not recognize any transfer of Limited Partner Interests evidenced by Certificates until the Certificates
evidencing such Limited Partner Interests are surrendered for registration of transfer. No charge shall be imposed by the General Partner for such transfer;
provided, that as a condition to the issuance of any new Certificate under this Section 4.5, the General Partner may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed with respect thereto. Upon surrender of a Certificate for registration of transfer of any
Limited Partner Interests evidenced by a Certificate, and subject to the provisions hereof, the appropriate officers of the General Partner on behalf of the
Partnership shall execute and deliver, and the Transfer Agent shall countersign and deliver, in the name of the holder or the designated transferee or
transferees, as required pursuant to the holder’s instructions, one or more new Certificates evidencing the same aggregate number and type of Limited
Partner Interests as was evidenced by the Certificate so surrendered.
(c) By acceptance of the transfer of any Limited Partner Interests in accordance with this Section 4.5 and except as provided in
Section 4.8, each transferee of a Limited Partner Interest (including any nominee holder or an agent or representative acquiring such Limited Partner
Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited Partner with respect to the Limited Partner Interests so
transferred to such Person when any such transfer or admission is reflected in the books and records of the Partnership and such Limited Partner becomes the
Record Holder of the Limited Partner Interests so transferred, (ii) shall become bound by the terms of this Agreement, (iii) represents that the transferee has
the capacity, power and authority to enter into this Agreement and (iv) makes the consents, acknowledgements and waivers contained in this Agreement, all
with or without execution of this Agreement by such Person. The transfer of any Limited Partner Interests and the admission of any new Limited Partner
shall not constitute an amendment to this Agreement.
(d) Subject to (i) the foregoing provisions of this Section 4.5, (ii) Sections 4.3, 4.7, 4.10 and 4.11, (iii) with respect to any class or series
of Limited Partner Interests, the provisions of any statement of designations or an amendment to this Agreement establishing such class or series, (iv) any
contractual provisions binding on any Limited Partner and (v) provisions of applicable law including the Securities Act, Limited Partner Interests shall be
freely transferable.
(e) Subject to (i) the foregoing provisions of this Section 4.5 and (ii) Sections 4.3, 4.7, 4.10 and 4.11, the General Partner and its
Affiliates shall have the right at any time to transfer their Subordinated Units, Common Units and Incentive Distribution Rights to one or more Persons.
Section 4.6 Transfer of the General Partner’s General Partner Interest.
(a) Subject to Section 4.6(c) below, prior to December 31, 2023, the General Partner shall not transfer all or any part of its General
Partner Interest to a Person unless such transfer (i) has been approved by the prior written consent or vote of the holders of at least a majority of the
Outstanding Units (excluding Limited Partner Interest held by the General Partner and its Affiliates) or (ii) is of all, but not less than all, of its General
Partner Interest to (A) an Affiliate of the General Partner (other than an individual), (B) another Person (other than an individual) in connection with the
merger or consolidation of the General Partner with or into such other Person or the transfer by the General Partner of all or substantially all of its assets to
such other Person or (C) another Person (other than an individual) in connection with enforcement of a pledge of the General Partner Interest (including by
means of a consensual transfer in lieu of foreclosure or other realization upon the General Partner Interest) made in support of indebtedness of the
Partnership Group.
Interest without Unitholder approval or the approval of the holders of the Incentive Distribution Rights.
(b) Subject to Section 4.6(c) below, on or after December 31, 2023, the General Partner may transfer all or any part of its General Partner
(c) Notwithstanding anything herein to the contrary, no transfer by the General Partner of all or any part of its General Partner Interest to
another Person shall be permitted unless (i) the transferee agrees to assume the rights and duties of the General Partner under this Agreement and to be
bound by the provisions of this Agreement and (ii) except with respect to a transfer of the type contemplated by Section 4.6(a)(ii)(C) above, the Partnership
receives an Opinion of Counsel that such transfer would not result in the loss of limited liability under
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the Delaware Act of any Limited Partner or cause the Partnership to be treated as an association taxable as a corporation or otherwise to be taxed as an entity
for U.S. federal income tax purposes (to the extent not already so treated or taxed). In the case of a transfer pursuant to and in compliance with this
Section 4.6, the transferee or successor (as the case may be) shall, subject to compliance with the terms of Section 10.2, be admitted to the Partnership as the
General Partner effective immediately prior to the transfer of the General Partner Interest, and the business of the Partnership shall continue without
dissolution.
Section 4.7 Restrictions on Transfers.
(a) Notwithstanding the other provisions of this Article IV, no transfer of any Partnership Interests shall be made if such transfer would
(i) violate the then applicable U.S. federal or state securities laws or rules and regulations of the Commission, any state securities commission or any other
governmental authority with jurisdiction over such transfer, (ii) terminate the existence or qualification of the Partnership under the laws of the jurisdiction
of its formation, or (iii) cause the Partnership to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal
income tax purposes (to the extent not already so treated or taxed).
(b) The General Partner may impose restrictions on the transfer of a Partnership Interest or Partnership Interests if it determines, with the
advice of counsel, that such restrictions are necessary or advisable to (i) avoid a significant risk of the Partnership becoming taxable as a corporation or
otherwise becoming taxable as an entity for U.S. federal income tax purposes or (ii) preserve the uniformity of any class or classes of Limited Partner
Interests. The General Partner may impose such restrictions by amending this Agreement; provided, however, that any amendment that would result in the
delisting or suspension of trading of any class of Limited Partner Interests on the principal National Securities Exchange on which such class of Limited
Partner Interests is then listed or admitted to trading must be approved, prior to such amendment being effected, by the holders of at least a majority of the
Outstanding Limited Partner Interests of such class.
(c) The transfer of a Subordinated Unit that has converted into a Common Unit shall be subject to the restrictions imposed by
Section 4.10.
Section 4.11.
(d) The transfer of an Incentive Distribution Right that has converted into a Common Unit shall be subject to the restrictions imposed by
(e) Nothing contained in this Agreement, other than Section 4.7(a), shall preclude the settlement of any transactions involving
Partnership Interests entered into through the facilities of any National Securities Exchange on which such Partnership Interests are listed or admitted to
trading.
Section 4.8 Citizenship Certificates; Non-citizen Assignees.
(a) If any Group Member is or becomes subject to any law or regulation that the General Partner determines would create a substantial
risk of cancellation or forfeiture of any property in which the Group Member has an interest based on the nationality, citizenship or other related status of a
Limited Partner, the General Partner may amend this Agreement to impose requirements for each Partner to be eligible to be a Partner in the Partnership. If
the General Partner establishes any such requirement, the General Partner may request any Limited Partner to furnish to the General Partner, within 30 days
after receipt of such request, an executed Citizenship Certification or such other information concerning his nationality, citizenship or other related status (or,
if the Limited Partner is a nominee holding for the account of another Person, the nationality, citizenship or other related status of such Person) as the
General Partner may request. If a Limited Partner fails to furnish to the General Partner within the aforementioned 30-day period such Citizenship
Certification or other requested information or if upon receipt of such Citizenship Certification or other requested information the General Partner
determines that a Limited Partner is not an Eligible Citizen, the Limited Partner Interests owned by such Limited Partner shall be subject to redemption in
accordance with the provisions of Section 4.9. In addition, the General Partner may require that the status of any such Limited Partner be changed to that of a
Non-citizen Assignee and, thereupon, the General Partner shall be substituted for such Non-citizen Assignee as the Limited Partner in respect of the Non-
citizen Assignee’s Limited Partner Interests.
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(b) The General Partner shall, in exercising voting rights in respect of Limited Partner Interests held by it on behalf of Non-citizen
Assignees, cast the votes in the same ratios as the votes of Partners (including the General Partner) in respect of Limited Partner Interests other than those of
Non-citizen Assignees are cast, either for, against or abstaining as to the matter.
(c) Upon dissolution of the Partnership, a Non-citizen Assignee shall have no right to receive a distribution in kind pursuant to
Section 12.4 but shall be entitled to the cash equivalent thereof, and the Partnership shall provide cash in exchange for an assignment of the Non-citizen
Assignee’s share of any distribution in kind. Such payment and assignment shall be treated for Partnership purposes as a purchase by the Partnership from
the Non-citizen Assignee of his Limited Partner Interest (representing his right to receive his share of such distribution in kind).
(d) At any time after he can and does certify that he has become an Eligible Citizen, a Non-citizen Assignee may, upon application to the
General Partner, request that with respect to any Limited Partner Interests of such Non-citizen Assignee not redeemed pursuant to Section 4.9, such Non-
citizen Assignee be admitted as a Limited Partner, and upon approval of the General Partner, such Non-citizen Assignee shall be admitted as a Limited
Partner and shall no longer constitute a Non-citizen Assignee and the General Partner shall cease to be deemed to be the Limited Partner in respect of the
Non-citizen Assignee’s Limited Partner Interests.
Section 4.9 Redemption of Partnership Interests of Non-citizen Assignees.
(a) If at any time a Limited Partner fails to furnish a Citizenship Certification or other information requested within the 30-day period
specified in Section 4.8(a), or if upon receipt of such Citizenship Certification or other information the General Partner determines, with the advice of
counsel, that a Limited Partner is not an Eligible Citizen, the Partnership may, unless the Limited Partner establishes to the satisfaction of the General Partner
that such Limited Partner is an Eligible Citizen or has transferred his Partnership Interests to a Person who is an Eligible Citizen and who furnishes a
Citizenship Certification to the General Partner prior to the date fixed for redemption as provided below, redeem the Limited Partner Interest of such Limited
Partner as follows:
(i) The General Partner shall, not later than the 30th day before the date fixed for redemption, give notice of redemption to the
Limited Partner, at his last address designated on the records of the Partnership or the Transfer Agent by registered or certified mail, postage prepaid. The
notice shall be deemed to have been given when so mailed. The notice shall specify the Redeemable Interests, the date fixed for redemption, the place of
payment, that payment of the redemption price will be made upon redemption of the Redeemable Interests (or, if later in the case of Redeemable Interests
evidenced by Certificates, upon surrender of the Certificate evidencing the Redeemable Interests) and that on and after the date fixed for redemption no
further allocations or distributions to which the Limited Partner would otherwise be entitled in respect of the Redeemable Interests will accrue or be made.
(ii) The aggregate redemption price for Redeemable Interests shall be an amount equal to the Current Market Price (the date of
determination of which shall be the date fixed for redemption) of Limited Partner Interests of the class to be so redeemed multiplied by the number of
Limited Partner Interests of each such class included among the Redeemable Interests. The redemption price shall be paid, as determined by the General
Partner, in cash or by delivery of a promissory note of the Partnership in the principal amount of the redemption price, bearing interest at the rate of 10%
annually and payable in three equal annual installments of principal together with accrued interest, commencing one year after the redemption date.
(iii) The Partner or his duly authorized representative shall be entitled to receive the payment for the Redeemable Interests at the
place of payment specified in the notice of redemption on the redemption date (or, if later in the case of Redeemable Interests evidenced by Certificates,
upon surrender by or on behalf of the Limited Partner, at the place specified in the notice of redemption, of the Certificate evidencing the Redeemable
Interests, duly endorsed in blank or accompanied by an assignment duly executed in blank).
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(iv) After the redemption date, Redeemable Interests shall no longer constitute issued and Outstanding Limited Partner Interests.
Person determined to be other than an Eligible Citizen.
(b) The provisions of this Section 4.9 shall also be applicable to Limited Partner Interests held by a Limited Partner as nominee of a
(c) Nothing in this Section 4.9 shall prevent the recipient of a notice of redemption from transferring his Limited Partner Interest before
the redemption date if such transfer is otherwise permitted under this Agreement. Upon receipt of notice of such a transfer, the General Partner shall
withdraw the notice of redemption, provided the transferee of such Limited Partner Interest certifies to the satisfaction of the General Partner that he is an
Eligible Citizen. If the transferee fails to make such certification, such redemption shall be effected from the transferee on the original redemption date
Section 4.10 Special Provisions Relating to the Holders of Subordinated Units.
(a) Except with respect to the right to vote on or approve matters requiring the vote or approval of a percentage of the holders of
Outstanding Common Units and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to Common
Units, the holder of a Subordinated Unit shall have all of the rights and obligations of a Unitholder holding Common Units hereunder; provided, however,
that immediately upon the conversion of Subordinated Units into Common Units pursuant to Section 5.7, the Unitholder holding a Subordinated Unit shall
possess all of the rights and obligations of a Unitholder holding Common Units hereunder with respect to such converted Subordinated Units, including the
right to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to
Common Units; provided, however, that such converted Subordinated Units shall remain subject to the provisions of Sections 5.5(c)(ii), 6.1(d)(x) and
Sections 4.10(b) and 4.10(c).
(b) A Unitholder shall not be permitted to transfer a Subordinated Unit or a Subordinated Unit that has converted into a Common Unit
pursuant to Section 5.7 (other than a transfer to an Affiliate) if the remaining balance in the transferring Unitholder’s Capital Account with respect to the
retained Subordinated Units or retained converted Subordinated Units would be negative after giving effect to the allocation under Section 5.5(c)(ii).
(c) A Unitholder holding a Common Unit that has resulted from the conversion of a Subordinated Unit pursuant to Section 5.7 shall not
be issued a Common Unit Certificate pursuant to Section 4.1 (if the Common Units are evidenced by Certificates) and shall not be permitted to transfer such
Common Unit to a Person that is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that upon
transfer each such Common Unit should have, as a substantive matter, like intrinsic economic and U.S. federal income tax characteristics to the transferee, in
all material respects, to the intrinsic economic and U.S. federal income tax characteristics of an Initial Common Unit to such transferee. In connection with
the condition imposed by this Section 4.10(c), the General Partner may apply Sections 5.5(c)(ii), 6.1(d)(x) and 4.10(b) or, to the extent not resulting in a
material adverse effect on the Unitholders holding Common Units, take whatever steps are required to provide economic uniformity to such Common Units
in preparation for a transfer of such converted Subordinated Units.
Section 4.11 Special Provisions Relating to the Holders of IDR Reset Common Units.
(a) A Unitholder shall not be permitted to transfer an IDR Reset Common Unit (other than a transfer to an Affiliate) if the remaining
balance in the transferring Unitholder’s Capital Account with respect to the retained IDR Reset Common Units would be negative after giving effect to the
allocation under Section 5.5(c)(iii).
(b) A Unitholder holding an IDR Reset Common Unit shall not be permitted to transfer such Common Unit to a Person that is not an
Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that upon transfer each such Common Unit should
have, as a substantive matter, like intrinsic economic and U.S. federal income tax characteristics to the transferee, in all material respects, to the
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intrinsic economic and U.S. federal income tax characteristics of an Initial Common Unit to such transferee. In connection with the condition imposed by
this Section 4.11(b), the General Partner may apply Sections 5.5(c)(iii), 6.1(d)(x) and 4.11(a) or, to the extent not resulting in a material adverse effect on the
Unitholders holding Common Units, take whatever steps are required to provide economic uniformity to such Common Units in preparation for a transfer of
such IDR Reset Common Units.
Section 5.1 Organizational Contributions.
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
ARTICLE V
In connection with the formation of the Partnership under the Delaware Act, the General Partner made an initial Capital Contribution to the
Partnership in the amount of $10.00 in exchange for a General Partner Interest equal to a 1.0% Percentage Interest and has been admitted as the General
Partner of the Partnership. Sprague Holdings made an initial Capital Contribution to the Partnership in the amount of $990.00 in exchange for a Limited
Partner Interest equal to a 99.0% Percentage Interest and has been admitted as a Limited Partner of the Partnership. As of the Closing Date, the interests of
the General Partner and Sprague Holdings shall be redeemed as provided in the Contribution Agreement and the initial Capital Contributions of the General
Partner and Sprague Holdings shall be refunded, and all interest or other profit that may have resulted from the investment or other use of such initial Capital
Contributions shall be allocated and distributed to the General Partner and Sprague Holdings, respectively.
Section 5.2 Contributions by the General Partner and its Affiliates.
Pursuant to the Contribution Agreement, on the Closing Date: (i) the General Partner’s General Partner Interest equal to a 1.0% Percentage Interest
shall be converted to a non-economic General Partner Interest, subject to all of the rights, privileges and duties of the General Partner under this Agreement;
and (ii) Sprague Holdings contributed all of its interests in Sprague Operating Resources LLC to the Partnership, as a Capital Contribution, in exchange for
(v) 296,970 Common Units, (w) 10,071,970 Subordinated Units, (x) the Incentive Distribution Rights and (y) the right to receive the Deferred Issuance and
Distribution.
Section 5.3 Contributions by Initial Limited Partners.
(a) On the Closing Date and pursuant to the Underwriting Agreement, each Underwriter shall contribute cash to the Partnership in
exchange for the issuance by the Partnership of the number of Common Units to each Underwriter as set forth in the Underwriting Agreement.
the issuance by the Partnership of Common Units to each Underwriter, all as set forth in the Underwriting Agreement.
(b) Upon the exercise, if any, of the Over-Allotment Option, each Underwriter shall contribute cash to the Partnership in exchange for
Section 5.4 Interest and Withdrawal. No interest on Capital Contributions shall be paid by the Partnership. No Partner shall be entitled to the
withdrawal or return of its Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon liquidation of the
Partnership may be considered as such by law and then only to the extent provided for in this Agreement. Except to the extent expressly provided in this
Agreement, no Partner shall have priority over any other Partner either as to the return of Capital Contributions or as to profits, losses or distributions. Any
such return shall be a compromise to which all Partners agree within the meaning of Section 17-502(b) of the Delaware Act.
Section 5.5 Capital Accounts.
(a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which
the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to
the General Partner) owning a Partnership Interest a separate Capital Account with respect to such Partnership Interest in accordance with
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the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions made to
the Partnership with respect to such Partnership Interest and (ii) all items of Partnership income and gain (including income and gain exempt from tax)
computed in accordance with Section 5.5(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1, and decreased by (x) the amount
of cash or Net Agreed Value of all actual and deemed distributions of cash or property made with respect to such Partnership Interest and (y) all items of
Partnership deduction and loss computed in accordance with Section 5.5(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1.
(b) For purposes of computing the amount of any item of income, gain, loss or deduction that is to be allocated pursuant to Article VI
and is to be reflected in the Partners’ Capital Accounts, the determination, recognition and classification of any such item shall be the same as its
determination, recognition and classification for U.S. federal income tax purposes (including any method of depreciation, cost recovery or amortization used
for that purpose), provided, that:
(i) Solely for purposes of this Section 5.5, the Partnership shall be treated as owning directly its proportionate share (as
determined by the General Partner based upon the provisions of the applicable Group Member Agreement) of all property owned by (x) any other Group
Member that is classified as a partnership for U.S. federal income tax purposes and (y) any other partnership, limited liability company, unincorporated
business or other entity classified as a partnership for U.S. federal income tax purposes of which a Group Member is, directly or indirectly, a partner,
member or other equity holder.
(ii) All fees and other expenses incurred by the Partnership to promote the sale of (or to sell) a Partnership Interest that can
neither be deducted nor amortized under Section 709 of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of
deduction at the time such fees and other expenses are incurred and shall be allocated among the Partners pursuant to Section 6.1.
(iii) Except as otherwise provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(m), the computation of all items of income,
gain, loss and deduction shall be made without regard to any election under Section 754 of the Code that may be made by the Partnership and, as to those
items described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are
neither currently deductible nor capitalized for U.S. federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any Partnership
asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in
determining Capital Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.
adjusted basis of such property as of such date of disposition were equal in amount to the property’s Carrying Value as of such date.
(iv) Any income, gain or loss attributable to the taxable disposition of any Partnership property shall be determined as if the
(v) Any deductions for depreciation, cost recovery or amortization attributable to any Contributed Property or Adjusted
Property shall be determined under the rules prescribed by Treasury Regulation Section 1.704-3(d)(2) as if the adjusted basis of such property were equal to
the Carrying Value of such property immediately following such adjustment.
(vi) The Gross Liability Value of each Liability of the Partnership described in Treasury Regulation Section 1.752-7(b)(3)(i)
shall be adjusted at such times as provided in this Agreement for an adjustment to Carrying Values. The amount of any such adjustment shall be treated for
purposes hereof as an item of loss (if the adjustment increases the Carrying Value of such Liability of the Partnership) or an item of gain (if the adjustment
decreases the Carrying Value of such Liability of the Partnership).
(c) (i) Except as otherwise provided in this Section 5.5(c), a transferee of a Partnership Interest shall succeed to a pro rata portion of the
Capital Account of the transferor relating to the Partnership Interest so transferred.
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(ii) Subject to 4.10(c), immediately prior to the transfer of a Subordinated Unit or of a Subordinated Unit that has converted into
a Common Unit pursuant to Section 5.7 by a holder thereof (other than a transfer to an Affiliate unless the General Partner elects to have this subparagraph
5.5(c)(ii) apply), the Capital Account maintained for such Person with respect to its Subordinated Units or converted Subordinated Units will (A) first, be
allocated to the Subordinated Units or converted Subordinated Units to be transferred in an amount equal to the product of (x) the number of such
Subordinated Units or converted Subordinated Units to be transferred and (y) the Per Unit Capital Amount for a Common Unit, and (B) second, any
remaining balance in such Capital Account will be retained by the transferor, regardless of whether it has retained any Subordinated Units or converted
Subordinated Units. Following any such allocation, the transferor’s Capital Account, if any, maintained with respect to the retained Subordinated Units or
retained converted Subordinated Units, if any, will have a balance equal to the amount allocated under clause (B) hereinabove, and the transferee’s Capital
Account established with respect to the transferred Subordinated Units or transferred converted Subordinated Units will have a balance equal to the amount
allocated under clause (A) hereinabove.
(iii) Subject to 4.11(b), immediately prior to the transfer of an IDR Reset Common Unit by a holder thereof (other than a
transfer to an Affiliate unless the General Partner elects to have this subparagraph 5.5(c)(iii) apply), the Capital Account maintained for such Person with
respect to its IDR Reset Common Units will (A) first, be allocated to the IDR Reset Common Units to be transferred in an amount equal to the product of (x)
the number of such IDR Reset Common Units to be transferred and (y) the Per Unit Capital Amount for a Common Unit, and (B) second, any remaining
balance in such Capital Account will be retained by the transferor, regardless of whether it has retained any IDR Reset Common Units. Following any such
allocation, the transferor’s Capital Account, if any, maintained with respect to the retained IDR Reset Common Units, if any, will have a balance equal to the
amount allocated under clause (B) hereinabove, and the transferee’s Capital Account established with respect to the transferred IDR Reset Common Units
will have a balance equal to the amount allocated under clause (A) hereinabove.
(d) (i) Consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on an issuance of additional Partnership Interests for cash or
Contributed Property, an issuance of IDR Reset Common Units pursuant to Section 5.11(a) (or other Partnership Interests as described in Section 5.11(d)),
the issuance of Partnership Interests as consideration for the provision of services, or the conversion of the Combined Interest to Common Units pursuant to
Section 11.3(b), 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 and any such Unrealized Gain or Unrealized Loss shall be treated, for purposes
of maintaining Capital Accounts, as if it 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 among the Partners at such time pursuant to Section 6.1 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; provided, however, that in the event
of an issuance of Partnership Interests for a de minimis amount of cash or Contributed Property, or in the event of an issuance of a de minimis amount of
Partnership Interests as consideration for the provision of services, the General Partner may determine that such adjustments are unnecessary for the proper
administration of the Partnership. In determining such Unrealized Gain or Unrealized Loss, the aggregate fair market value of all Partnership property
(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. In making its determination of the fair market values of individual properties, the General Partner may determine
that it is appropriate to first determine an aggregate value for the Partnership, based on the current trading price of the Common Units, and taking fully into
account the fair market value of the Partnership Interests of all Partners at such time, and then allocate such aggregate value among the individual properties
of the Partnership (in such manner as it determines appropriate).
(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 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
and any such Unrealized Gain or Unrealized Loss shall be treated, for
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purposes of maintaining Capital Accounts, as if it 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 among the Partners, at such time, pursuant to Section 6.1 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 fair market value of all Partnership property (including cash or cash equivalents) immediately prior to a
distribution shall (A) in the case of an actual or deemed distribution other than a distribution made pursuant to Section 12.4, be determined 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 by the Liquidator using
such method of valuation as it may adopt.
Section 5.6 Issuances of Additional Partnership Interests.
(a) The Partnership may issue additional Partnership Interests and options, rights, warrants and appreciation rights relating to the
Partnership Interests (including as described in Section 7.5(b)) for any Partnership purpose at any time and from time to time to such Persons for such
consideration and on such terms and conditions as the General Partner shall determine, all without the approval of any Limited Partners.
(b) Each additional Partnership Interest authorized to be issued by the Partnership pursuant to Section 5.6(a) may be issued in one or
more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior to existing
classes and series of Partnership Interests), as shall be fixed by the General Partner, including (i) the right to share in Partnership profits and losses or items
thereof; (ii) the right to share in Partnership distributions; (iii) the rights upon dissolution and liquidation of the Partnership; (iv) whether, and the terms and
conditions upon which, the Partnership may, or shall be required to, redeem the Partnership Interest (including sinking fund provisions); (v) whether such
Partnership Interest is issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange; (vi) the terms
and conditions upon which each Partnership Interest will be issued, evidenced by certificates and assigned or transferred; (vii) the method for determining
the Percentage Interest as to such Partnership Interest; and (viii) the right, if any, of each such Partnership Interest to vote on Partnership matters, including
matters relating to the relative rights, preferences and privileges of such Partnership Interest.
(c) The General Partner shall take all actions that it determines to be necessary or appropriate in connection with (i) each issuance of
Partnership Interests and options, rights, warrants and appreciation rights relating to Partnership Interests pursuant to this Section 5.6, (ii) the conversion of
the Combined Interest into Units pursuant to the terms of this Agreement, (iii) the issuance of Common Units pursuant to Section 5.11, (iv) reflecting the
admission of such additional Limited Partners in the books and records of the Partnership as the Record Holder of such Limited Partner Interest, and (v) all
additional issuances of Partnership Interests. The General Partner shall determine the relative rights, powers and duties of the holders of the Units or other
Partnership Interests being so issued. The General Partner shall do all things necessary to comply with the Delaware Act and is authorized and directed to do
all things that it determines to be necessary or appropriate in connection with any future issuance of Partnership Interests or in connection with the
conversion of the Combined Interest into Units pursuant to the terms of this Agreement, including compliance with any statute, rule, regulation or guideline
of any federal, state or other governmental agency or any National Securities Exchange on which the Units or other Partnership Interests are listed or
admitted to trading.
(d) No fractional Units shall be issued by the Partnership.
Section 5.7 Conversion of Subordinated Units.
distribution of cash and cash equivalents to Partners pursuant to Section 6.3(a) in respect of the final Quarter of the Subordination Period.
(a) The Subordinated Units shall convert into Common Units on a one-for-one basis on the second Business Day following the
(b) Subordinated Units may also convert into Common Units on a one-for-one basis as set forth in, and pursuant to the terms of,
Section 11.4.
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(c) A Subordinated Unit that has converted into a Common Unit shall be subject to the provisions of Section 4.10.
Section 5.8 Limited Preemptive Right. Except as provided in this Section 5.8 or as otherwise provided in a separate agreement by the Partnership,
no Person shall have any preemptive, preferential or other similar right with respect to the issuance of any Partnership Interest, whether unissued, held in the
treasury or hereafter created. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to
purchase Partnership Interests from the Partnership whenever, and on the same terms that, the Partnership issues Partnership Interests to Persons other than
the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which
existed immediately prior to the issuance of such Partnership Interests.
Section 5.9 Splits and Combinations.
(a) Subject to Sections 5.9(d), 6.6 and 6.7 (dealing with adjustments of distribution levels), the Partnership may make a Pro Rata
distribution of Partnership Interests to all Record Holders or may effect a subdivision or combination of Partnership Interests so long as, after any such
event, each Partner shall have the same Percentage Interest in the Partnership as before such event, and any amounts calculated on a per Unit basis (including
any Common Unit Arrearage or Cumulative Common Unit Arrearage) or stated as a number of Units are proportionately adjusted retroactive to the
beginning of the Partnership.
(b) Whenever such a distribution, subdivision or combination of Partnership Interests is declared, the General Partner shall select a
Record Date as of which the distribution, subdivision or combination shall be effective and shall send notice thereof at least 20 days prior to such Record
Date to each Record Holder as of a date not less than 10 days prior to the date of such notice. The General Partner also may cause a firm of independent
public accountants selected by it to calculate the number of Partnership Interests to be held by each Record Holder after giving effect to such distribution,
subdivision or combination. The General Partner shall be entitled to rely on any certificate provided by such firm as conclusive evidence of the accuracy of
such calculation.
(c) Promptly following any such distribution, subdivision or combination, the Partnership may issue Certificates to the Record Holders
of Partnership Interests as of the applicable Record Date representing the new number of Partnership Interests held by such Record Holders, or the General
Partner may adopt such other procedures that it determines to be necessary or appropriate to reflect such changes. If any such combination results in a
smaller total number of Partnership Interests Outstanding, the Partnership shall require, as a condition to the delivery to a Record Holder of any such new
Certificate, the surrender of any Certificate held by such Record Holder immediately prior to such Record Date.
(d) The Partnership shall not issue fractional Units upon any distribution, subdivision or combination of Units. If a distribution,
subdivision or combination of Units would result in the issuance of fractional Units but for the provisions of Section 5.6(d) and this Section 5.9(d), each
fractional Unit shall be rounded to the nearest whole Unit (with a fractional unit equal to or greater than a 0.5 Unit being rounded to the next higher Unit).
Section 5.10 Fully Paid and Non-Assessable Nature of Limited Partner Interests. All Limited Partner Interests issued pursuant to, and in
accordance with the requirements of, this Article V shall be fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-
assessability may be affected by Sections 17-607 or 17-804 of the Delaware Act.
Section 5.11 Issuance of Common Units in Connection with Reset of Incentive Distribution Rights.
(a) Subject to the provisions of this Section 5.11, the holder of the Incentive Distribution Rights (or, if there is more than one holder of
the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall have the right, at any time when there are no
Subordinated Units outstanding and the Partnership has made a distribution pursuant to Section 6.4(b)(v) for each of the four most
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recently completed Quarters, to make an election (the “IDR Reset Election”) to cause the Minimum Quarterly Distribution, First Target Distribution, Second
Target Distribution and Third Target Distribution to be reset in accordance with the provisions of Section 5.11(e) and, in connection therewith, the holder or
holders of the Incentive Distribution Rights will become entitled to receive their respective proportionate share of a number of Common Units (the “IDR
Reset Common Units”) derived by dividing (i) the average amount of cash distributions made by the Partnership for the two full Quarters immediately
preceding the giving of the Reset Notice (as defined in Section 5.11(b)) in respect of the Incentive Distribution Rights by (ii) the average of the cash
distributions made by the Partnership in respect of each Common Unit for the two full Quarters immediately preceding the giving of the Reset Notice (the
“Reset MQD”) (the number of Common Units determined by such quotient is referred to herein as the “Aggregate Quantity of IDR Reset Common Units”).
The making of the IDR Reset Election in the manner specified in Section 5.11(b) shall cause the Minimum Quarterly Distribution, First Target Distribution,
Second Target Distribution and Third Target Distribution to be reset in accordance with the provisions of Section 5.11(e) and, in connection therewith, the
holder or holders of the Incentive Distribution Rights will become entitled to receive Common Units on the basis specified above, without any further
approval required by the General Partner or the Unitholders, at the time specified in Section 5.11(c) unless the IDR Reset Election is rescinded pursuant to
Section 5.11(d).
(b) To exercise the right specified in Section 5.11(a), the holder of the Incentive Distribution Rights (or, if there is more than one holder
of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall deliver a written notice (the “Reset
Notice”) to the Partnership. Any execution of an IDR Reset Election is subject to the prior written concurrence of the General Partner that the conditions
described in Section 5.11(a) have been satisfied. Within 10 Business Days after the receipt by the Partnership of such Reset Notice, as the case may be, the
Partnership shall deliver a written notice to the holder or holders of the Incentive Distribution Rights of the Partnership’s determination of the aggregate
number of Common Units which each holder of Incentive Distribution Rights will be entitled to receive.
(c) In the event that the holder or holders of Incentive Distribution Rights have the right to exercise the rights in Section 5.11(a) as
described in Section 5.11(b), the holder(s) of the Incentive Distribution Rights will be entitled to receive the Aggregate Quantity of IDR Reset Common
Units on the fifteenth Business Day after receipt by the Partnership of the Reset Notice; provided, however, that the issuance of Common Units to the holder
or holders of the Incentive Distribution Rights shall not occur prior to the approval of the listing or admission for trading of such Common Units by the
principal National Securities Exchange upon which the Common Units are then listed or admitted for trading if any such approval is required pursuant to the
rules and regulations of such National Securities Exchange.
(d) Subject to Section 5.11(a) and Section 5.11(b), if the principal National Securities Exchange upon which the Common Units are then
traded has not approved the listing or admission for trading of the Common Units to be issued pursuant to this Section 5.11 on or before the 30th calendar
day following the Partnership’s receipt of the Reset Notice and such approval is required by the rules and regulations of such National Securities Exchange,
then the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in
interest of the Incentive Distribution Rights) shall have the right to either rescind the IDR Reset Election or elect to receive other Partnership Interests having
such terms as the General Partner may approve, with the approval of the Conflicts Committee, that will provide (i) the same economic value, in the
aggregate, as the Aggregate Quantity of IDR Reset Common Units would have had at the time of the Partnership’s receipt of the Reset Notice, as determined
by the General Partner, and (ii) for the subsequent conversion of such Partnership Interests into Common Units within not more than 12 months following
the Partnership’s receipt of the Reset Notice upon the satisfaction of one or more conditions that are reasonably acceptable to the holder of the Incentive
Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution
Rights).
(e) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution shall be
adjusted at the time of the issuance of Common Units or other Partnership Interests pursuant to this Section 5.11 such that (i) the Minimum Quarterly
Distribution shall be reset to equal to the Reset MQD, (ii) the First Target Distribution shall be reset to equal 115% of the Reset MQD, (iii) the
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Second Target Distribution shall be reset to equal to 125% of the Reset MQD and (iv) the Third Target Distribution shall be reset to equal 150% of the Reset
MQD.
(f) Upon the issuance of IDR Reset Common Units pursuant to Section 5.11(a) (or other Partnership Interests as described in
Section 5.11(d)), the Capital Account maintained with respect to the Incentive Distribution Rights shall (A) first, be allocated to IDR Reset Common Units
(or other Partnership Interests) in an amount equal to the product of (x) the Aggregate Quantity of IDR Reset Common Units (or other Partnership Interests)
and (y) the Per Unit Capital Amount for an Initial Common Unit, and (B) second, any remaining balance in such Capital Account will be retained Pro Rata
by the holder(s) of the Incentive Distributions Rights. In the event that there is not a sufficient Capital Account associated with the Incentive Distribution
Rights to allocate the full Per Unit Capital Amount for an Initial Common Unit to the IDR Reset Common Units in accordance with clause (A) of this
Section 5.11(f), the IDR Reset Common Units shall be subject to Sections 6.1(d)(x)(B) and (C).
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 Allocations for Capital Account Purposes. For purposes of maintaining the Capital Accounts and in determining the rights of the
Partners among themselves, the Partnership’s items of income, gain, loss and deduction (computed in accordance with Section 5.5) for each taxable period
shall be allocated among the Partners as provided herein below.
(a) Net Income. Net Income for each taxable period (including a pro rata part of each item of income, gain, loss and deduction taken into
account in computing Net Income for such taxable period) shall be allocated as follows:
(i) First, to the General Partner until the aggregate of the Net Income allocated to the General Partner pursuant to this
Section 6.1(a)(i) and the Net Termination Gain allocated to the General Partner pursuant to Section 6.1(c)(i)(A) or Section 6.1(c)(iv)(A) for the current and
all previous taxable periods is equal to the aggregate of the Net Loss allocated to the General Partner pursuant to Section 6.1(b)(ii) for all previous taxable
periods and the Net Termination Loss allocated to the General Partner pursuant to Section 6.1(c)(ii)(D) or Section 6.1(c)(iii)(B) for the current and all
previous taxable periods; and
(ii) The balance, if any, to the Unitholders, Pro Rata.
(b) Net Loss. Net Loss for each taxable period (including a pro rata part of each item of income, gain, loss and deduction taken into
account in computing Net Loss for such taxable period) shall be allocated as follows:
(i) First, to the Unitholders, Pro Rata; provided, that Net Loss shall not be allocated pursuant to this Section 6.1(b)(i) to the
extent that such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or
increase any existing deficit balance in its Adjusted Capital Account); and
(ii) The balance, if any, 100% to the General Partner.
(c) Net Termination Gains and Losses. Net Termination Gain or Net Termination Loss (including a pro rata part of each item of income,
gain, loss and deduction taken into account in computing such Net Termination Gain or Net Termination Loss) for each taxable period shall be allocated in
the manner set forth in this Section 6.1(c). All allocations under this Section 6.1(c) shall be made after Capital Account balances have been adjusted by all
other allocations provided under this Section 6.1 and after all distributions of distributable cash flow provided under Section 6.4 and Section 6.5 have been
made; provided, however, that solely for purposes of this Section 6.1(c), Capital Accounts shall not be adjusted for distributions made pursuant to
Section 12.4.
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(i) Except as provided in Section 6.1(c)(iv), Net Termination Gain shall be allocated:
(A) First, to the General Partner until the aggregate of the Net Termination Gain allocated to the General Partner
pursuant to this Section 6.1(c)(i)(A) or Section 6.1(c)(iv)(A) and the Net Income allocated to the General Partner pursuant to Section 6.1(a)(i) for the current
and all previous taxable periods is equal to the aggregate of the Net Loss allocated to the General Partner pursuant to Section 6.1(b)(ii) for all previous
taxable periods and the Net Termination Loss allocated to the General Partner pursuant to Section 6.1(c)(ii)(D) or Section 6.1(c)(iii)(B) for all previous
taxable periods;
(B) Second, to all Unitholders holding Common Units, Pro Rata, until the Capital Account in respect of each Common
Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit Price, (2) the Minimum Quarterly Distribution for the Quarter during which the
Liquidation Date occurs, reduced by any distribution pursuant to Section 6.4(a)(i) or Section 6.4(b)(i) with respect to such Common Unit for such Quarter
(the amount determined pursuant to this clause (2) is hereinafter referred to as the “Unpaid MQD”) and (3) any then existing Cumulative Common Unit
Arrearage;
(C) Third, if such Net Termination Gain is recognized (or is deemed to be recognized) prior to the conversion of the
last Outstanding Subordinated Unit into a Common Unit, to all Unitholders holding Subordinated Units, Pro Rata, until the Capital Account in respect of
each Subordinated Unit then Outstanding equals the sum of (1) its Unrecovered Initial Unit Price, determined for the taxable period (or portion thereof) to
which this allocation of gain relates, and (2) the Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by any
distribution pursuant to Section 6.4(a)(iii) with respect to such Subordinated Unit for such Quarter;
(D) Fourth, to all Unitholders, Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding is
equal to the sum of (1) its Unrecovered Initial Unit Price, (2) the Unpaid MQD, (3) any then existing Cumulative Common Unit Arrearage, and (4) the
excess of (aa) the First Target Distribution less the Minimum Quarterly Distribution for each Quarter of the Partnership’s existence over (bb) the cumulative
per Unit amount of any distributions of distributable cash flow that is deemed to be Distributable Cash Flow made pursuant to Section 6.4(a)(iv) and
Section 6.4(b)(ii) (the sum of (1), (2), (3) and (4) is hereinafter referred to as the “First Liquidation Target Amount”);
(E) Fifth, (x) 15.0% to the holders of the Incentive Distribution Rights, Pro Rata, and (y) 85.0% to all Unitholders, Pro
Rata, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) the First Liquidation Target Amount, and (2) the
excess of (aa) the Second Target Distribution less the First Target Distribution for each Quarter of the Partnership’s existence over (bb) the cumulative per
Unit amount of any distributions of distributable cash flow that is deemed to be Distributable Cash Flow made pursuant to Section 6.4(a)(v) and
Section 6.4(b)(iii) (the sum of (1) and (2) is hereinafter referred to as the “Second Liquidation Target Amount”);
(F) Sixth, (x) 25.0% to the holders of the Incentive Distribution Rights, Pro Rata, and (y) 75.0% to all Unitholders, Pro
Rata, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) the Second Liquidation Target Amount, and (2)
the excess of (aa) the Third Target Distribution less the Second Target Distribution for each Quarter of the Partnership’s existence over (bb) the cumulative
per Unit amount of any distributions of distributable cash flow that is deemed to be Distributable Cash Flow made pursuant to Section 6.4(a)(vi) and
Section 6.4(b)(iv); and
Pro Rata.
(G) Finally, (x) 50.0% to the holders of the Incentive Distribution Rights, Pro Rata, and (y) 50.0% to all Unitholders,
(ii) Except as otherwise provided by Section 6.1(c)(iii), Net Termination Loss shall be allocated:
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Capital Account in respect of each Subordinated Unit then Outstanding has been reduced to zero;
(A) First, if Subordinated Units remain Outstanding, to all Unitholders holding Subordinated Units, Pro Rata, until the
Unit then Outstanding has been reduced to zero;
(B) Second, to all Unitholders holding Common Units, Pro Rata, until the Capital Account in respect of each Common
(C) Third, to the Unitholders, Pro Rata; provided that Net Termination Loss shall not be allocated pursuant to this
Section 6.1(c)(ii)(C) to the extent such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account (or increase any
existing deficit in its Adjusted Capital Account); and
(D) Fourth, the balance, if any, 100% to the General Partner.
(iii) Any Net Termination Loss deemed recognized pursuant to Section 5.5(d) prior to the Liquidation Date shall be allocated:
(A) First, to the Unitholders, Pro Rata; provided that Net Termination Loss shall not be allocated pursuant to this
Section 6.1(c)(iii)(A) to the extent such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such
taxable period (or increase any existing deficit in its Adjusted Capital Account); and
(B) The balance, if any, to the General Partner.
recognized pursuant to Section 5.5(d) prior to the Liquidation Date shall be allocated:
(iv) If a Net Termination Loss has been allocated pursuant to Section 6.1(c)(iii), any subsequent Net Termination Gain deemed
this Section 6.1(c)(iv)(A) is equal to the aggregate Net Termination Loss previously allocated pursuant to Section 6.1(c)(iii)(B);
(A) First, to the General Partner until the aggregate Net Termination Gain allocated to the General Partner pursuant to
Section 6.1(c)(iv)(B) is equal to the aggregate Net Termination Loss previously allocated pursuant to Section 6.1(c)(iii)(A); and
(B) Second, to the Unitholders, Pro Rata, until the aggregate Net Termination Gain allocated pursuant to this
(C) The balance, if any, pursuant to the provisions of Section 6.1(c)(i).
(d) Special Allocations. Notwithstanding any other provision of this Section 6.1, the following special allocations shall be made for each
taxable period:
(i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this Section 6.1, if there is a net decrease in
Partnership Minimum Gain during any Partnership taxable period, each Partner shall be allocated items of Partnership income and gain for such period (and,
if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or
any successor provisions. For purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of
income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d) with respect to such
taxable period (other than an allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii)). This Section 6.1(d)(i) is intended to comply with the
Partnership Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.
than Section 6.1(d)(i)), except as provided in Treasury Regulation
(ii) Chargeback of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the other provisions of this Section 6.1 (other
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Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership taxable period, any Partner with a share
of Partner Nonrecourse Debt Minimum Gain at the beginning of such taxable period shall be allocated items of Partnership income and gain for such period
(and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any
successor provisions. For purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income
or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d), other than Section 6.1(d)(i) and
other than an allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii), with respect to such taxable period. This Section 6.1(d)(ii) is intended to
comply with the chargeback of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(iii) Priority Allocations.
(A) If the amount of cash or the Net Agreed Value of any property distributed (except cash or property distributed
pursuant to Section 12.4) with respect to a Unit exceeds the amount of cash or the Net Agreed Value of property distributed with respect to another Unit (the
amount of the excess, an “Excess Distribution” and the Unit with respect to which the greater distribution is paid, an “Excess Distribution Unit”), then there
shall be allocated gross income and gain to each Unitholder receiving an Excess Distribution with respect to the Excess Distribution Unit until the aggregate
amount of such items allocated with respect to such Excess Distribution Unit pursuant to this Section 6.1(d)(iii)(A) for the current taxable period and all
previous taxable periods is equal to the amount of the Excess Distribution.
(B) After the application of Section 6.1(d)(iii)(A), the remaining items of Partnership gross income or gain for the
taxable period, if any, shall be allocated to the holders of Incentive Distribution Rights, Pro Rata, until the aggregate amount of such items allocated to the
holders of Incentive Distribution Rights pursuant to this Section 6.1(d)(iii)(B) for the current taxable period and all previous taxable periods is equal to the
cumulative amount of all Incentive Distributions made to the holders of Incentive Distribution Rights from the Closing Date to a date 45 days after the end
of the current taxable period.
(iv) Qualified Income Offset. In the event any Partner unexpectedly receives any adjustments, allocations or distributions
described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership gross income and
gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations
promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or
distributions as quickly as possible; provided, that an allocation pursuant to this Section 6.1(d)(iv) shall be made only if and to the extent that such Partner
would have a deficit balance in its Adjusted Capital Account after all other allocations provided for in this Section 6.1 have been tentatively made as if this
Section 6.1(d)(iv) were not in this Agreement.
(v) Gross Income Allocation. In the event any Partner has a deficit balance in its Capital Account at the end of any taxable
period in excess of the sum of (A) the amount such Partner is required to restore pursuant to the provisions of this Agreement and (B) the amount such
Partner is deemed obligated to restore pursuant to Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated items
of Partnership gross income and gain in the amount of such excess as quickly as possible; provided, that an allocation pursuant to this Section 6.1(d)(v) shall
be made only if and to the extent that such Partner would have a deficit balance in its Capital Account after all other allocations provided for in this
Section 6.1 have been tentatively made as if Section 6.1(d)(iv) and this Section 6.1(d)(v) were not in this Agreement.
(vi) Nonrecourse Deductions. Nonrecourse Deductions for any taxable period shall be allocated to the Partners Pro Rata. If the
General Partner determines that the Partnership’s Nonrecourse Deductions should be allocated in a different ratio to satisfy the safe harbor requirements of
the Treasury Regulations promulgated under Section 704(b) of the Code, the General Partner is authorized to revise the prescribed ratio to the numerically
closest ratio that does satisfy such requirements.
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(vii) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable period shall be allocated 100% to the
Partner that bears the Economic Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in
accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse
Debt, the Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such Partners in accordance with the ratios in which they
share such Economic Risk of Loss.
(viii) Nonrecourse Liabilities. For purposes of Treasury Regulation Section 1.752-3(a)(3), the Partners agree that Nonrecourse
Liabilities of the Partnership in excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain
shall be allocated first, to any Partner that contributed property to the Partnership in proportion to and to the extent of the amount by which each such
Partner’s share of any Section 704(c) built-in gains exceeds such Partner’s share of the Nonrecourse Built-in Gain, and second, Pro Rata.
(ix) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to
Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining
Capital Accounts as a result of a distribution to a Partner in complete liquidation of such Partner’s interest in the Partnership, the amount of such adjustment
to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis)
taken into account pursuant to Section 5.5, and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations.
(x) Economic Uniformity; Changes in Law.
(A) At the election of the General Partner with respect to any taxable period ending upon, or after, the termination of
the Subordination Period, all or a portion of the remaining items of Partnership gross income or gain for such taxable period, after taking into account
allocations pursuant to Section 6.1(d)(iii), shall be allocated 100% to each Partner holding Subordinated Units that are Outstanding as of the termination of
the Subordination Period (“Final Subordinated Units”) in the proportion of the number of Final Subordinated Units held by such Partner to the total number
of Final Subordinated Units then Outstanding, until each such Partner has been allocated an amount of gross income or gain that increases the Capital
Account maintained with respect to such Final Subordinated Units to an amount that after taking into account the other allocations of income, gain, loss, and
deduction to be made with respect to such taxable period will equal the product of (A) the number of Final Subordinated Units held by such Partner and (B)
the Per Unit Capital Amount for a Common Unit. The purpose of this allocation is to establish uniformity between the Capital Accounts underlying Final
Subordinated Units and the Capital Accounts underlying Common Units held by Persons other than the General Partner and its Affiliates immediately prior
to the conversion of such Final Subordinated Units into Common Units. This allocation method for establishing such economic uniformity will be available
to the General Partner only if the method for allocating the Capital Account maintained with respect to the Subordinated Units between the transferred and
retained Subordinated Units pursuant to Section 5.5(c)(ii) does not otherwise provide such economic uniformity to the Final Subordinated Units.
(B) With respect to an event triggering an adjustment to the Carrying Value of Partnership property pursuant to
Section 5.5(d) during any taxable period of the Partnership ending upon, or after, the issuance of IDR Reset Common Units pursuant to Section 5.11, after
the application of Section 6.1(d)(x)(A), any Unrealized Gains and Unrealized Losses shall be allocated among the Partners in a manner that to the nearest
extent possible results in the Capital Accounts maintained with respect to such IDR Reset Common Units issued pursuant to Section 5.11 equaling the
product of (A) the Aggregate Quantity of IDR Reset Common Units and (B) the Per Unit Capital Amount for an Initial Common Unit.
(C) With respect to any taxable period during which an IDR Reset Unit is transferred to any Person who is not an
Affiliate of the transferor, all or a portion of the remaining items of Partnership gross income or gain for such taxable period shall be allocated 100% to the
transferor Partner of such
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transferred IDR Reset Unit until such transferor Partner has been allocated an amount of gross income or gain that increases the Capital Account maintained
with respect to such transferred IDR Reset Unit to an amount equal to the Per Unit Capital Amount for an Initial Common Unit.
(D) For the proper administration of the Partnership and for the preservation of uniformity of the Limited Partner
Interests (or any class or classes thereof), the General Partner shall (i) adopt such conventions as it deems appropriate in determining the amount of
depreciation, amortization and cost recovery deductions; (ii) make special allocations of income, gain, loss or deduction, Unrealized Gain or Unrealized
Loss; and (iii) amend the provisions of this Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under
Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Limited Partner Interests (or any class or classes
thereof). The General Partner may adopt such conventions, make such allocations and make such amendments to this Agreement as provided in this
Section 6.1(d)(x)(D) only if such conventions, allocations or amendments would not have a material adverse effect on the Partners, the holders of any class
or classes of Outstanding Limited Partner Interests or the Partnership.
(xi) Curative Allocation.
(A) Notwithstanding any other provision of this Section 6.1, other than the Required Allocations, the Required
Allocations shall be taken into account in making the Agreed Allocations so that, to the extent possible, the net amount of items of gross income, gain, loss
and deduction allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations, together, shall be equal to the net amount of such
items that would have been allocated to each such Partner under the Agreed Allocations had the Required Allocations and the related Curative Allocation not
otherwise been provided in this Section 6.1. In exercising its discretion under this Section 6.1(d)(xi)(A), the General Partner may take into account future
Required Allocations that, although not yet made, are likely to offset other Required Allocations previously made. Allocations pursuant to this Section 6.1(d)
(xi)(A) shall only be made with respect to Required Allocations to the extent the General Partner determines that such allocations will otherwise be
inconsistent with the economic agreement among the Partners.
(B) The General Partner shall, with respect to each taxable period, (1) apply the provisions of Section 6.1(d)(xi)(A) in
whatever order is most likely to minimize the economic distortions that might otherwise result from the Required Allocations, and (2) divide all allocations
pursuant to Section 6.1(d)(xi)(A) among the Partners in a manner that is likely to minimize such economic distortions.
Down Event or any recognition of a Net Termination Loss, the following rules shall apply:
(xii) Corrective and Other Allocations. In the event of any allocation of Additional Book Basis Derivative Items or any Book-
(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), the General Partner shall allocate such Additional Book
Basis Derivative Items to (1) the holders of Incentive Distribution Rights to the same extent that the Unrealized Gain or Unrealized Loss giving rise to such
Additional Book Basis Derivative Items was allocated to them pursuant to Section 5.5(d) and (2) all Unitholders, Pro Rata, to the extent that the Unrealized
Gain or Unrealized Loss giving rise to such Additional Book Basis Derivative Items was allocated to any Unitholders pursuant to Section 5.5(d).
(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 gross income and gain (aa) away from the holders of Incentive Distribution Rights 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, 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. Any allocation made pursuant to this Section 6.1(d)(xii)(B) shall be
35
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 balances 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) For purposes of this Section 6.1(d)(xii), 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. 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). Without limiting the foregoing, if an Adjusted Property is
contributed by the Partnership to another entity classified as a partnership for U.S. federal income tax purposes (the “lower tier partnership”), the General
Partner may make allocations similar to those described in Sections 6.1(d)(xii)(A)-(C) to the extent the General Partner determines such allocations are
necessary to account for the Partnership’s allocable share of income, gain, loss, and deduction of the lower tier partnership that relate to the contributed
Adjusted Property in a manner that is consistent with the purpose of this Section 6.1(d)(xii).
(xiii) Special Curative Allocation in Event of Liquidation Prior to End of Subordination Period. Notwithstanding any other
provision of this Section 6.1 (other than the Required Allocations), if the Liquidation Date occurs prior to the conversion of the last Outstanding
Subordinated Unit, then items of income, gain, loss and deduction for the taxable period that includes the Liquidation Date (and, if necessary, items arising
in previous taxable periods to the extent the General Partner determines such items may be so allocated), shall be specially allocated among the Partners in
the manner determined appropriate by the General Partner so as to cause, to the maximum extent possible, the Capital Account in respect of each Common
Unit to equal the amount such Capital Account would have been if all prior allocations of Net Termination Gain and Net Termination Loss had been made
pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable.
Section 6.2 Allocations for Tax Purposes.
allocated among the Partners in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 6.1.
(a) Except as otherwise provided herein, for U.S. federal income tax purposes, each item of income, gain, loss and deduction shall be
(b) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or Adjusted Property, items of income, gain,
loss, depreciation, amortization and cost recovery deductions shall be allocated for U.S. federal income tax purposes among the Partners in the manner
provided under Section 704(c) of the Code, and the Treasury Regulations promulgated under Section 704(b) and 704(c) of the Code, as determined
appropriate by the General Partner (taking into account the General Partner’s discretion under Section 6.1(d)(x)(D)); provided, that the General Partner shall
apply the principles of Treasury Regulation Section 1.704-3(d) in all events.
(c) The General Partner may determine to depreciate or amortize the portion of an adjustment under Section 743(b) of the Code
attributable to unrealized appreciation in any Adjusted Property (to the extent of the unamortized Book-Tax Disparity) using a predetermined rate derived
from the depreciation or amortization method and useful life applied to the unamortized Book-Tax Disparity of such property, despite any inconsistency of
such approach with Treasury Regulation Section 1.167(c)-l(a)(6) or any successor regulations thereto. If the General Partner determines that such reporting
position cannot reasonably be taken, the General Partner may adopt depreciation and amortization conventions under which all purchasers acquiring Limited
Partner
36
Interests in the same month would receive depreciation and amortization deductions, based upon the same applicable rate as if they had purchased a direct
interest in the Partnership’s property. If the General Partner chooses not to utilize such aggregate method, the General Partner may use any other depreciation
and amortization conventions to preserve the uniformity of the intrinsic tax characteristics of any Limited Partner Interests, so long as such conventions
would not have a material adverse effect on the Limited Partners or the Record Holders of any class or classes of Limited Partner Interests.
(d) In accordance with Treasury Regulation Sections 1.1245-1(e) and 1.1250-1(f), any gain allocated to the Partners upon the sale or
other taxable disposition of any Partnership asset shall, to the extent possible, after taking into account other required allocations of gain pursuant to this
Section 6.2, be characterized as Recapture Income in the same proportions and to the same extent as such Partners (or their predecessors in interest) have
been allocated any deductions directly or indirectly giving rise to the treatment of such gains as Recapture Income.
(e) All items of income, gain, loss, deduction and credit recognized by the Partnership for U.S. federal income tax purposes and allocated
to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code that may be made
by the Partnership; provided, however, that such allocations, once made, shall be adjusted (in the manner determined by the General Partner) to take into
account those adjustments permitted or required by Sections 734 and 743 of the Code.
(f) Each item of Partnership income, gain, loss and deduction shall, for U.S. federal income tax purposes, be determined for each taxable
period and prorated on a monthly basis and shall be allocated to the Partners as of the opening of the National Securities Exchange on which Partnership
Interests are listed or admitted to trading on the first Business Day of each month; provided, however, such items for the period beginning on the Closing
Date and ending on the last day of the month in which the Over-Allotment Option is exercised in full or the expiration of the Over-Allotment Option occurs
shall be allocated to the Partners as of the opening of the National Securities Exchange on which Partnership Interests are listed or admitted to trading on the
first Business Day of the next succeeding month; and provided, further, that gain or loss on a sale or other disposition of any assets of the Partnership or any
other extraordinary item of income, gain, loss or deduction, as determined by the General Partner, shall be allocated to the Partners as of the opening of the
National Securities Exchange on which Partnership Interests are listed or admitted to trading on the first Business Day of the month in which such item is
recognized for U.S. federal income tax purposes. The General Partner may revise, alter or otherwise modify such methods of allocation to the extent
permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.
(g) Allocations that would otherwise be made to a Limited Partner under the provisions of this Article VI shall instead be made to the
beneficial owner of Limited Partner Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership
in accordance with Section 6031(c) of the Code or any other method determined by the General Partner.
Section 6.3 Distributions; Characterization of Distributions; Distributions to Record Holders.
(a) It is the policy of the Partnership to pay regular quarterly cash distributions of substantially all of the Partnership’s distributable cash
flow. Each Quarter, the General Partner will make a determination of the amount of distributable cash flow to Partners, based upon cash on hand at the end
of the Quarter, after establishing reserves for the prudent conduct of the Partnership’s business or for distributions to Partners in respect of future Quarters as
the General Partner may determine to be appropriate. This policy is subject to change by the General Partner at any time, without amendment to this
Agreement.
(b) All amounts of cash and cash equivalents distributed by the Partnership on any date from any source shall be deemed to be
Distributable Cash Flow until the sum of all amounts of cash and cash equivalents theretofore distributed by the Partnership to the Partners pursuant to
Section 6.4 equals or exceeds the Distributable Cash Flow from the Closing Date through the close of the immediately preceding Quarter. Any remaining
amounts of cash and cash equivalents distributed by the Partnership on such date shall, except as otherwise provided in
37
Section 6.5, be deemed to be Capital Surplus. All distributions required to be made under this Agreement shall be subject to Sections 17-607 and 17-804 of
the Delaware Act.
(c) Notwithstanding Section 6.3(a), in the event of the dissolution and liquidation of the Partnership, all cash received during or after the
Quarter in which the Liquidation Date occurs, other than from Working Capital Borrowings, shall be applied and distributed solely in accordance with, and
subject to the terms and conditions of, Section 12.4.
(d) Each distribution in respect of a Partnership Interest shall be paid by the Partnership, directly or through any Transfer Agent or
through any other Person or agent, only to the Record Holder of such Partnership Interest as of the Record Date set for such distribution. Such payment shall
constitute full payment and satisfaction of the Partnership’s liability in respect of such payment, regardless of any claim of any Person who may have an
interest in such payment by reason of an assignment or otherwise.
Section 6.4 Distributions from Distributable Cash Flow.
(a) During Subordination Period. Cash and cash equivalents distributed in respect of any Quarter wholly within the Subordination Period
that is deemed to be Distributable Cash Flow pursuant to the provisions of Section 6.3 or 6.5 shall be distributed as follows, except as otherwise required by
Section 5.6(b) in respect of additional Partnership Interests issued pursuant thereto:
then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;
(i) First, to all Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of each Common Unit
Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage existing with respect to such Quarter;
(ii) Second, to all Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of each Common
Subordinated Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;
(iii) Third, to all Unitholders holding Subordinated Units, Pro Rata, until there has been distributed in respect of each
equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution for such Quarter;
(iv) Fourth, to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount
(v) Fifth, (A) 15.0% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 85.0% to all Unitholders, Pro Rata,
until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second Target Distribution over the First Target
Distribution for such Quarter;
(vi) Sixth, (A) 25.0% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 75.0% to all Unitholders, Pro Rata,
until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution over the Second
Target Distribution for such Quarter; and
Rata,;
(vii) Thereafter, (A) 50.0% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) 50.0% to all Unitholders, Pro
provided, however, that if the Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution have been
reduced to zero pursuant to the second sentence of Section 6.6(a), the distribution of cash and cash equivalents that is deemed to be Distributable Cash Flow
with respect to any Quarter will be made solely in accordance with Section 6.4(a)(vii).
38
(b) After Subordination Period. Cash and cash equivalents distributed in respect of any Quarter after the Subordination Period that is
deemed to be Distributable Cash Flow pursuant to the provisions of Section 6.3 or 6.5 shall be distributed as follows, except as otherwise contemplated by
Section 5.6(b) in respect of additional Partnership Interests issued pursuant thereto:
to the Minimum Quarterly Distribution for such Quarter;
(i) First, to the Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal
equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution for such Quarter;
(ii) Second, to the Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount
(iii) Third, (A) 15.0% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 85.0% to all Unitholders, Pro Rata,
until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second Target Distribution over the First Target
Distribution for such Quarter;
(iv) Fourth, (A) 25.0% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 75.0% to all Unitholders, Pro Rata,
until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution over the Second
Target Distribution for such Quarter; and
Rata;
(v) Thereafter, (A) 50.0% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) 50.0% to all Unitholders, Pro
provided, however, if the Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution have been
reduced to zero pursuant to the second sentence of Section 6.6(a), the distribution of cash and cash equivalents that is deemed to be Distributable Cash Flow
with respect to any Quarter will be made solely in accordance with Section 6.4(b)(v).
(c) IDR Waivers.
(i) If prior to the declaration of a distribution by the General Partner with respect to any Quarter, the holder(s) of a majority of
the Incentive Distribution Rights request that all or a portion of the amount payable with respect to such Quarter to the holders of the Incentive Distribution
Rights not be distributed to the holders of the Incentive Distribution Rights (the “Waived IDR Amount”), then the General Partner shall not distribute the
Waived IDR Amount for such Quarter.
Distribution Rights without interest, in whole, on the tenth (10th) Business Day after satisfaction of all the following conditions:
(ii) The Waived IDR Amount with respect to a specific Quarter shall be payable to those Persons then holding the Incentive
(A) at least two Quarters have passed since the waiver occurred with respect to which repayment of the Waived IDR Amount is to be
made;
(B) the Partnership’s distributions pursuant to Section 6.4(b) with respect to each of the immediately preceding two Quarters (including
the related IDR payment with respect to such two Quarters) on each Outstanding Unit equaled or exceeded the distribution made on each
Outstanding Unit for the Quarter in respect of which the waiver of such Waived IDR Amount occurred, adjusted for unit splits or similar
matters;
(C) the amount of Distributable Cash Flow generated with respect to the immediately preceding four Quarter period, reduced by an
amount equal to such Waived IDR Amount, exceeds the amount distributed pursuant to Section 6.4(b) for the immediately preceding four
Quarter period by an amount equal to 10% of such distributions pursuant to Section 6.4(b);
39
(D) following the payment of the Waived IDR Amount, the Partnership’s accumulated undistributed Distributable Cash Flow shall
exceed zero by at least the amount specified in clause (a) in the definition of Distributable Cash Flow; and
(E) the Board of Directors of the General Partner has resolved by majority vote, that it does not believe that it is reasonably likely that
the Partnership’s distributions pursuant to Section 6.4(b) will be reduced on a per Unit basis with respect to the then current Quarter or at
any time during the subsequent four Quarter period from the amount per Unit paid with respect to the immediately preceding Quarter.
(iii) If a Waived IDR Amount with respect to a specific Quarter is not paid pursuant to Section 6.4(c)(ii) within thirty-two (32)
Quarters following the Quarter with respect of which it was waived, the Waived IDR Amount shall be cancelled and will not thereafter be paid to the holders
of Incentive Distribution Rights.
Section 6.5 Distributions from Capital Surplus. Cash and cash equivalents that are distributed and deemed to be Capital Surplus pursuant to the
provisions of Section 6.3(b) shall be distributed, unless the provisions of Section 6.3 require otherwise, to the Unitholders, Pro Rata, until the Minimum
Quarterly Distribution has been reduced to zero pursuant to the second sentence of Section 6.6(a). Cash and cash equivalents that are deemed to be Capital
Surplus shall then be distributed to all Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then
Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all cash and cash equivalents that are distributed shall be distributed as
if it were Distributable Cash Flow and shall be distributed in accordance with Section 6.4.
Section 6.6 Adjustment of Minimum Quarterly Distribution and Target Distribution Levels.
(a) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution, Third Target Distribution, Common Unit
Arrearages and Cumulative Common Unit Arrearages shall be proportionately adjusted in the event of any distribution, combination or subdivision (whether
effected by a distribution payable in Units or otherwise) of Units or other Partnership Interests in accordance with Section 5.9. In the event of a distribution
of cash or cash equivalents that is deemed to be from Capital Surplus, the then applicable Minimum Quarterly Distribution, First Target Distribution, Second
Target Distribution and Third Target Distribution shall be reduced in the same proportion that the distribution had to the fair market value of the Common
Units immediately prior to the announcement of the distribution. If the Common Units are publicly traded on a National Securities Exchange, the fair market
value will be the Current Market Price before the ex-dividend date. If the Common Units are not publicly traded, the fair market value will be determined by
the Board of Directors of the General Partner.
be subject to adjustment pursuant to Section 5.11 and Section 6.7.
(b) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution, shall also
Section 6.7 Entity-Level Taxation. If legislation is enacted or the official interpretation of existing legislation is modified by a governmental
authority, which after giving effect to such enactment or modification, results in a Group Member becoming subject to federal, state, local or non-U.S.
income or withholding taxes in excess of the amount of such taxes due from the Group Member prior to such enactment or modification (including, for the
avoidance of doubt, any increase in the rate of such taxation applicable to the Group Member), then the General Partner may, in its sole discretion, reduce
the Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution by the amount of income or
withholding taxes that are payable by reason of any such new legislation or interpretation (the “Incremental Income Taxes”), or any portion thereof selected
by the General Partner, in the manner provided in this Section 6.7. If the General Partner elects to reduce the Minimum Quarterly Distribution, First Target
Distribution, Second Target Distribution and Third Target Distribution for any Quarter with respect to all or a portion of any Incremental Income Taxes, the
General Partner shall estimate for such Quarter the Partnership Group’s aggregate liability (the “Estimated Incremental Quarterly
40
Tax Amount”) for all (or the relevant portion of) such Incremental Income Taxes; provided that any difference between such estimate and the actual liability
for Incremental Income Taxes (or the relevant portion thereof) for such Quarter may, to the extent determined by the General Partner, be taken into account
in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarter in which any such difference can be determined. For each such
Quarter, the Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution, shall be the product
obtained by multiplying (a) the amounts therefor that are set out herein prior to the application of this Section 6.7 times (b) the quotient obtained by dividing
(i) distributable cash flow with respect to such Quarter by (ii) the sum of distributable cash flow with respect to such Quarter and the Estimated Incremental
Quarterly Tax Amount for such Quarter, as determined by the General Partner. For purposes of the foregoing, distributable cash flow with respect to a
Quarter will be deemed reduced by the Estimated Incremental Quarterly Tax Amount for that Quarter.
Section 7.1 Management.
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
(a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this
Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited
Partner shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general
partner of a limited partnership under applicable law or that are granted to the General Partner under any other provision of this Agreement, the General
Partner, subject to Section 7.4, shall have full power and authority to do all things necessary or appropriate to conduct the business of the Partnership, to
exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for,
indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership
Interests, and the incurring of any other obligations;
having jurisdiction over the business or assets of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the
Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject,
however, to any prior approval that may be required by Section 7.4 or Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this
Agreement, including the financing of the conduct of the operations of the Partnership Group; the repayment or guarantee of obligations of any Group
Member; and the making of capital contributions to any Group Member;
limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership);
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that
(vi) the distribution of Partnership cash;
(vii) the selection, employment, retention and dismissal of employees (including employees having titles such as “president,”
“vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the
Partnership and the determination of their compensation and other terms of employment or hiring;
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(viii) the maintenance of insurance for the benefit of the Partnership, the Partners and Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further
limited or general partnerships, joint ventures, corporations, limited liability companies or other Persons (including the acquisition of interests in, and the
contributions of property to, any Group Member from time to time);
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of
actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement
of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
Limited Partner Interests from, or requesting that trading be suspended on, any such exchange;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the
appreciation rights, phantom or tracking interests relating to Partnership Interests;
(xiii) the purchase, sale or other acquisition or disposition of Partnership Interests, or the issuance of options, rights, warrants,
and
(xiv) the undertaking of any action in connection with the Partnership’s participation in the management of any Group Member;
of its duties as General Partner of the Partnership.
(xv) the entering into of agreements with any of its Affiliates to render services to a Group Member or to itself in the discharge
(b) Each of the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person who is bound by this
Agreement hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of this Agreement, the Underwriting
Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the
transactions contemplated by the Registration Statement (in the case of each agreement other than this Agreement, without giving effect to any amendments,
supplements or restatements after the date hereof); (ii) agrees that the General Partner (on its own behalf or on behalf of the Partnership) is authorized to
execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or
contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners, the other Persons who
acquires an interest in Partnership Interests and the other Persons who is bound by this Agreement; and (iii) agrees that the execution, delivery or
performance by the General Partner, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under
this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV) shall not
constitute a breach by the General Partner of any fiduciary or other duty existing at law, in equity or otherwise that the General Partner may owe the
Partnership, the Limited Partners, the other Persons who acquire an interest in Partnership Interests or the other Persons who are bound by this Agreement.
(c) As used in the following provisions of this Article VII other than Section 7.12, the term Partnership Interest shall include any options,
rights, warrants, appreciation rights, phantom or tracking interests relating to an equity interest in the Partnership.
Section 7.2 Replacement of Fiduciary Duties. Notwithstanding any other provision of this Agreement, to the extent that any provision of this
Agreement purports or is interpreted (i) to have the effect of replacing, restricting or eliminating the duties that might otherwise, as a result of Delaware or
other applicable law,
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be owed by the General Partner or any other Indemnitee to the Partnership, the Limited Partners, any other Person who acquires an interest in a Partnership
Interest or any other Person who is bound by this Agreement, or (ii) to constitute a waiver or consent by the Partnership, the Limited Partners, any other
Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement to any such replacement or restriction, such
provision shall be deemed to have been approved by the Partnership, all the Partners, each other Person who acquires an interest in a Partnership Interest and
each other Person who is bound by this Agreement.
Section 7.3 Certificate of Limited Partnership. The General Partner has caused the Certificate of Limited Partnership to be filed with the
Secretary of State of the State of Delaware as required by the Delaware Act. The General Partner shall use all reasonable efforts to cause to be filed such
other certificates or documents that the General Partner determines to be necessary or appropriate for the formation, continuation, qualification and operation
of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware or any other state in which the
Partnership may elect to do business or own property. To the extent the General Partner determines such action to be necessary or appropriate, the General
Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do all things to maintain the Partnership as a limited
partnership (or a partnership or other entity in which the limited partners have limited liability) under the laws of the State of Delaware or of any other state
in which the Partnership may elect to do business or own property. Subject to the terms of Section 3.4(a), the General Partner shall not be required, before or
after filing, to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or any amendment thereto to any Limited Partner.
Section 7.4 Restrictions on the General Partner’s Authority. Except as provided in Articles XII and XIV, the General Partner may not sell or
exchange 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 without the
approval of holders of a Unit Majority; provided, however, that this provision shall not preclude or limit the General Partner’s ability to mortgage, pledge,
hypothecate or grant a security interest in all or substantially all of the assets of the Partnership Group and shall not apply to any forced sale of any or all of
the assets of the Partnership Group pursuant to the foreclosure of, or other realization upon, any such encumbrance.
Section 7.5 Reimbursement of the General Partner.
(a) The General Partner shall be reimbursed on a monthly basis, or such other basis as the General Partner may determine, for (i) all
direct and indirect expenses it incurs or payments it makes on behalf of the Partnership Group (including salary, bonus, incentive compensation and other
amounts paid to any Person (including Affiliates of the General Partner) to perform services for the Partnership Group or for the General Partner), and (ii) all
other expenses allocable to the Partnership Group or otherwise incurred by the General Partner in connection with operating the Partnership Group’s
business (including expenses allocated to the General Partner by its Affiliates). The General Partner shall determine the expenses that are allocable to the
General Partner or any member of the Partnership Group. Reimbursements pursuant to this Section 7.5 shall be in addition to any reimbursement to the
General Partner as a result of indemnification pursuant to Section 7.7. This provision does not affect the ability of the General Partner or its Affiliates to
enter into an agreement to provide services to the Partnership or other Group Member for a fee or otherwise than for cost.
(b) The General Partner, without the approval of the Limited Partners (who shall have no right to vote in respect thereof), may propose
and adopt on behalf of the Partnership benefit plans, programs and practices (including plans, programs and practices involving the issuance of Partnership
Interests), or cause the Partnership to issue Partnership Interests in connection with, or pursuant to, any benefit plan, program or practice maintained or
sponsored by the General Partner or any of its Affiliates, in each case for the benefit of employees, consultants and directors of the General Partner or its
Affiliates, in respect of services performed, directly or indirectly, for the benefit of the Partnership Group. The Partnership agrees to issue and sell to the
General Partner or any of its Affiliates any Partnership Interests that the General Partner or such Affiliates are obligated to provide to any employees,
consultants and directors pursuant to any such benefit plans, programs or practices. Expenses incurred by the General Partner in connection with any such
plans, programs and practices (including the net cost to the General Partner or such Affiliates of Partnership Interests purchased by the General Partner or
such Affiliates,
43
from the Partnership or otherwise, to fulfill awards under such plans, programs and practices) shall be reimbursed in accordance with Section 7.5(a). Any
and all obligations of the General Partner under any benefit plans, programs or practices adopted by the General Partner as permitted by this Section 7.5(b)
shall constitute obligations of the General Partner hereunder and shall be assumed by any successor General Partner approved pursuant to Section 11.1 or
11.2 or the transferee of or successor to all of the General Partner’s General Partner Interest pursuant to Section 4.6.
Section 7.6 Outside Activities.
(a) The General Partner, for so long as it is the General Partner of the Partnership (i) agrees that its sole business will be to act as a
managing member or general partner, as the case may be, of the Partnership and any other partnership or limited liability company of which the Partnership
is, directly or indirectly, a partner or member and to undertake activities that are ancillary or related thereto (including being a Limited Partner in the
Partnership) and (ii) shall not engage in any business or activity or incur any debts or liabilities except in connection with or incidental to (A) its
performance as managing member or general partner, if any, of one or more Group Members or as described in or contemplated by the Registration
Statement, or (B) the acquiring, owning or disposing of debt securities or equity interests in any Group Member. Nothing contained in this Section 7.6(a)
shall restrict the General Partner’s ability to sell, assign, gift, pledge, encumber, hypothecate, mortgage, exchange or any otherwise dispose of its General
Partner Interest by law or otherwise pursuant to, and in accordance with, the terms and conditions set forth in Article IV of this Agreement.
(b) Unless an Unrestricted Person agrees otherwise, each Unrestricted Person (other than the General Partner) shall have the right to
engage in businesses of every type and description and other activities for profit and to engage in and possess an interest in other business ventures of any
and every type or description, whether in businesses engaged in or anticipated to be engaged in by any Group Member, independently or with others,
including business interests and activities in direct competition with the business and activities of any Group Member. No such business interest or activity
shall constitute a breach of this Agreement, any fiduciary or other duty existing at law, in equity or otherwise or obligation of any type whatsoever, to the
Partnership, any Group Member, any Partner, any Person who acquires an interest in a Partnership Interest or other Person who is bound by this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall
not apply to any Unrestricted Person (including the General Partner). No Unrestricted Person (including the General Partner) who acquires knowledge of a
potential transaction, agreement, arrangement or other matter that may be an opportunity for any Group Member shall have any duty to communicate or
offer such opportunity to any Group Member , and such Unrestricted Person (including the General Partner) shall not be liable to the Partnership, to any
Limited Partner, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement for breach of any
fiduciary or other duty existing at law, in equity or otherwise by reason of the fact that such Unrestricted Person (including the General Partner) pursues or
acquires such opportunity for itself, directs such opportunity to another Person or does not communicate such opportunity or information to any Group
Member.
(d) The General Partner and each of its Affiliates may acquire Units or other Partnership Interests in addition to those acquired on the
Closing Date and, except as otherwise expressly provided in this Agreement, shall be entitled to exercise, at their option, all rights relating to all Units or
other Partnership Interests acquired by them. The term “Affiliates” when used in this Section 7.6(d) with respect to the General Partner shall not include any
Group Member.
Section 7.7 Indemnification.
(a) To the fullest extent permitted by law, all Indemnitees shall be indemnified and held harmless by the Partnership from and against any
and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or
other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether
44
civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or omitting to act) in such capacity; provided, that the
Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court
of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the
Indemnitee acted in bad faith or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; provided, further, no
indemnification pursuant to this Section 7.7 shall be available to the General Partner or its Affiliates (other than a Group Member) with respect to its or their
obligations incurred pursuant to the Underwriting Agreement or the Omnibus Agreement. Any indemnification pursuant to this Section 7.7 shall be made
only out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no
obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified
pursuant to Section 7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Partnership (prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for
which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the Indemnitee is not entitled to be indemnified) upon receipt by the
Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled
to be indemnified as authorized in this Section 7.7.
(c) The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled
under any agreement, pursuant to any vote of the holders of Outstanding Limited Partner Interests, as a matter of law, in equity or otherwise, both as to
actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity (including any capacity under the Underwriting Agreement).
(d) The Partnership may purchase and maintain (or reimburse an Indemnitee for the cost of) insurance, on behalf of an Indemnitee as the
General Partner shall determine, against any liability that may be asserted against, or expense that may be incurred by, such Indemnitee in connection with
the Partnership’s activities or such Indemnitee’s activities on behalf of the Partnership, regardless of whether the Partnership would have the power to
indemnify such Indemnitee against such liability under the provisions of this Agreement.
(e) For purposes of this Section 7.7, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an
employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan
or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall
constitute “fines” within the meaning of Section 7.7(a); and action taken or omitted by an Indemnitee with respect to any employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to
be for a purpose that is in the best interests of the Partnership.
in this Agreement.
(f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(h) The provisions of this Section 7.7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and
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(i) No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in any manner terminate, reduce or impair the
right of any past, present or future Indemnitee to be indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such Indemnitee
under and in accordance with the provisions of this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims
may arise or be asserted.
Section 7.8 Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the
Partnership, the Partners, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement, for losses
sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a
court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or in the case of a criminal matter,
acted with knowledge that the Indemnitee’s conduct was criminal. The Limited Partners, any other Person who acquires an interest in a Partnership Interest
or any other Person who is bound by this Agreement, each on their own behalf and on behalf of the Partnership, waives any and all rights to claim punitive
damages or damages based upon the Federal or State income taxes paid or payable by any such Limited Partner or other Person.
(b) The General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agent or agents, and the General Partner shall not be responsible for any misconduct or negligence on the part
of any such agent appointed by the General Partner in good faith.
(c) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the
Partnership, the Partners, any Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement, any Indemnitee
acting in connection with the Partnership’s business or affairs shall not be liable, to the fullest extent permitted by law, to the Partnership, to any Partner, to
any other Person who acquires an interest in a Partnership Interest or to any other Person who is bound by this Agreement for its reliance on the provisions
of this Agreement.
(d) Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability of the Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such
claims may arise or be asserted.
Section 7.9 Standards of Conduct and Modification of Duties.
(a) Whenever the General Partner, the Board of Directors of the General Partner or any committee thereof (including the Conflicts
Committee), makes a determination or takes or declines to take any other action, or any Affiliate of the General Partner causes the General Partner to do so,
in its capacity as the general partner of the Partnership as opposed to in its individual capacity, whether under this Agreement or any other agreement
contemplated hereby or otherwise, then, unless another express standard is provided for in this Agreement, the General Partner, the Board of Directors of the
General Partner, such committee, or such Affiliates causing the General Partner to do so, shall make such determination or take or decline to take such other
action in good faith and shall not be subject to any higher standard contemplated hereby or under the Delaware Act or any other law, rule or regulation or at
equity. A determination, other action or failure to act by the General Partner, the Board of Directors of the General Partner or any committee thereof
(including the Conflicts Committee) will be deemed to be in good faith unless the General Partner, the Board of Directors of the General Partner or any
committee thereof (including the Conflicts Committee) believed such determination, other action or failure to act was adverse to the interests of the
Partnership. In any proceeding brought by the Partnership, any Limited Partner, or any Person who acquires and interest in a Partnership Interest or any other
Person who is bound by this
46
Agreement challenging such action, determination or failure to act, the Person bringing or prosecuting such proceeding shall have the burden of proving that
such determination, action or failure to act was not in good faith.
(b) Whenever the General Partner makes a determination or takes or declines to take any other action, or any of its Affiliates causes it to
do so, in its individual capacity as opposed to in its capacity as the general partner of the Partnership, whether under this Agreement or any other agreement
contemplated hereby or otherwise, then the General Partner, or such Affiliates causing it to do so, are entitled, to the fullest extent permitted by law, to make
such determination or to take or decline to take such other action free of any fiduciary or other duty existing at law, in equity or otherwise or obligation
whatsoever to the Partnership, any Limited Partner, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by
this Agreement, and the General Partner, or such Affiliates causing it to do so, shall not, to the fullest extent permitted by law, be required to act in good faith
or pursuant to any other standard imposed by this Agreement any other agreement contemplated hereby or under the Delaware Act or any other law, rule or
regulation or at equity. By way of illustration and not of limitation, whenever the phrases, “at the option of the General Partner,” “in its discretion” or some
variation of those phrases, are used in this Agreement, it indicates that the General Partner is acting in its individual capacity. For the avoidance of doubt,
whenever the General Partner votes or transfers its Partnership Interests or refrains from voting or transferring its Partnership Interests, it shall be acting in
its individual capacity. The General Partner’s organizational documents may provide that determinations to take or decline to take any action in its
individual, rather than representative, capacity may or shall be determined by its members, if the General Partner is a limited liability company, stockholders,
if the General Partner is a corporation, or the members or stockholders of the General Partner’s general partner, if the General Partner is a limited
partnership.
(c) Whenever a potential conflict of interest exists or arises between the General Partner or any Affiliates, on the one hand, and the
Partnership, any Group Member or any Partner, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this
Agreement on the other hand, the General Partner may in its discretion submit any resolution or course of action with respect to such conflict of interest for
(i) Special Approval or (ii) approval by the vote of a majority of the Common Units (excluding Common Units owned by the General Partner and its
Affiliates). If such course of action or resolution receives Special Approval or approval of a majority of the Common Units (excluding Common Units
owned by the General Partner and its Affiliates), then such course of action or resolution shall be conclusively deemed approved by the Partnership, all the
Partners, each Person who acquires an interest in a Partnership Interest and each other Person who is bound by this Agreement, and shall not constitute a
breach of this Agreement, of any Group Member Agreement, of any agreement contemplated herein or therein, or of any fiduciary or other duty existing at
law, in equity or otherwise or obligation of any type whatsoever.
(d) Notwithstanding anything to the contrary in this Agreement, the General Partner or any other Indemnitee shall have no duty or
obligation, express or implied, to (i) sell or otherwise dispose of any asset of the Partnership Group other than in the ordinary course of business or (ii)
permit any Group Member to use any facilities or assets of the General Partner and its Affiliates, except as may be provided in contracts entered into from
time to time specifically dealing with such use.
(e) The Limited Partners, each Person who acquires an interest in a Partnership Interest and each other Person who is bound by this
Agreement, hereby authorize the General Partner, on behalf of the Partnership as a member or partner of a Group Member, to approve actions by the
managing member or general partner of such Group Member similar to those actions permitted to be taken by the General Partner pursuant to this
Section 7.9.
(f) No borrowing by any Group Member or the approval thereof shall be deemed to constitute a breach of any fiduciary or other duty
existing at law, in equity or otherwise or obligation of any type whatsoever, of the General Partner or any other Indemnitee to the Partnership, the Limited
Partners, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement, by reason of the fact that
the purpose or effect of such borrowing is directly or indirectly to (i) enable distributions to the General Partner or any other Indemnitee (including in their
capacities as Limited Partners) to exceed the General Partner’s Percentage Interest of the total amount distributed to all Partners, (ii) hasten the expiration of
the
47
Subordination Period or the conversion of any Subordinated Units into Common Units or (iii) hasten the ability of the holder or holders of the Incentive
Distribution Rights to make and IDR Reset Election.
Section 7.10 Other Matters Concerning the General Partner and Indemnitees.
(a) The General Partner and any other Indemnitee may rely upon, and shall be protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b) The General Partner and any other Indemnitee may consult with legal counsel, accountants, appraisers, management consultants,
investment bankers and other consultants and advisers selected by it, and any act taken or omitted in reliance upon the advice or opinion (including an
Opinion of Counsel) of such Persons as to matters that the General Partner reasonably believes to be within such Person’s professional or expert competence
shall be conclusively presumed to have been done or omitted in good faith and in accordance with such advice or opinion.
(c) The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly
authorized officers, a duly appointed attorney or attorneys-in-fact or the duly authorized officers of any Group Member.
Section 7.11 Purchase or Sale of Partnership Interests. The General Partner may cause the Partnership to purchase or otherwise acquire
Partnership Interests; provided that, except as permitted pursuant to Section 4.10, the General Partner may not cause any Group Member to purchase
Subordinated Units during the Subordination Period. As long as Partnership Interests are held by any Group Member, such Partnership Interests shall not be
considered Outstanding for any purpose, except as otherwise provided herein. The General Partner or any other Indemnitee of the General Partner may also
purchase or otherwise acquire and sell or otherwise dispose of Partnership Interests for its own account, subject to the provisions of Articles IV and X.
Section 7.12 Registration Rights of the General Partner and its Affiliates.
(a) If (i) the General Partner or any Affiliate of the General Partner (including for purposes of this Section 7.12, any Person that is an
Affiliate of the General Partner at the date hereof notwithstanding that it may later cease to be an Affiliate of the General Partner, but excluding individual
Affiliates who are officers, directors or employees of the General Partner or any of its Affiliates) holds Partnership Interests that it desires to sell, (ii) Rule
144 of the Securities Act (or any successor rule or regulation to Rule 144) or another exemption from registration is not available to enable such holder of
Partnership Interests (the “Holder”) to dispose of the number of Partnership Interests it desires to sell at the time, in such manner and in such amounts as it
desires without registration under the Securities Act and (iii) at such time the Holder and the Partnership are not subject to any contractual restrictions or
restrictions attributable to the insider trading or other written policies of the Partnership, which would prohibit the registration and/or sale of such
Partnership Interests at such time, then at the option and upon the request of the Holder, the Partnership shall file with the Commission as promptly as
practicable after receiving such request, a registration statement under the Securities Act registering the offering and sale of the number of Partnership
Interests specified by the Holder. The Partnership shall use all commercially reasonable efforts to cause such registration statement to become effective and
remain effective for a period beginning on the effective date of the registration statement and ending on the date that is the earlier of (i) six months following
the effective date of the registration statement or (ii) the date when all Partnership Interests covered by such registration statement have been sold. However,
if the Conflicts Committee (which may be requested to review the matter by any member of the Board of Directors) determines that a postponement of the
filing or effectiveness of the requested registration would be in the best interests of the Partnership and its Partners due to a pending transaction,
investigation or other event, the filing of such registration statement or the effectiveness thereof may be deferred for up to six months, but not thereafter. In
connection with any registration pursuant to the immediately preceding sentence, the Partnership shall (i) promptly prepare and file (A) such documents as
may be necessary to register or qualify the securities subject to such registration under the securities laws of such states as the Holder shall
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reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would
become subject to general service of process or to taxation or qualification to do business as a foreign corporation or partnership doing business in such
jurisdiction solely as a result of such registration, and (B) such documents as may be necessary to apply for listing or to list the Partnership Interests subject
to such registration on such National Securities Exchange as the Partnership Interests are then listed, and (ii) do any and all other acts and things that may be
necessary or appropriate to enable the Holder to consummate a public sale of such Partnership Interests in such states. Except as set forth in Section 7.12(c),
all costs and expenses of any such registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership,
without reimbursement by the Holder.
(b) If the Partnership shall at any time propose to file a registration statement under the Securities Act for an offering of Partnership
Interests for cash (other than an offering relating solely to a benefit plan), the Partnership shall use all commercially reasonable efforts to include such
number or amount of Partnership Interests held by any Holder in such registration statement as the Holder shall request; provided, that the Partnership is not
required to make any effort or take any action to so include the Partnership Interests of the Holder once the registration statement becomes or is declared
effective by the Commission, including any registration statement providing for the offering from time to time of Partnership Interests pursuant to Rule 415
of the Securities Act. If the proposed offering pursuant to this Section 7.12(b) shall be an underwritten offering, then, in the event that the managing
underwriter or managing underwriters of such offering advise the Partnership and the Holder in writing that in their opinion the inclusion of all or some of
the Holder’s Partnership Interests would adversely and materially affect the timing or success of the offering, the Partnership shall include in such offering
only that number or amount, if any, of Partnership Interests held by the Holder that, in the opinion of the managing underwriter or managing underwriters,
will not adversely and materially affect the offering. Except as set forth in Section 7.12(c), all costs and expenses of any such registration and offering (other
than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(c) If underwriters are engaged in connection with any registration referred to in this Section 7.12, the Partnership shall provide
indemnification, representations, covenants, opinions and other assurance to the underwriters in form and substance reasonably satisfactory to such
underwriters. Further, in addition to and not in limitation of the Partnership’s obligation under Section 7.7, the Partnership shall, to the fullest extent
permitted by law, indemnify and hold harmless the Holder, its officers, directors and each Person who controls the Holder (within the meaning of the
Securities Act) and any agent thereof (collectively, “Indemnified Persons”) against any losses, claims, demands, actions, causes of action, assessments,
damages, liabilities (joint or several), costs and expenses (including interest, penalties and reasonable attorneys’ fees and disbursements), resulting to,
imposed upon, or incurred by the Indemnified Persons, directly or indirectly, under the Securities Act or otherwise (hereinafter referred to in this
Section 7.12(c) as a “claim” and in the plural as “claims”) based upon, arising out of or resulting from any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which any Partnership Interests were registered under the Securities Act or any state
securities or Blue Sky laws, in any preliminary prospectus or issuer free writing prospectus as defined in Rule 433 of the Securities Act (if used prior to the
effective date of such registration statement), or in any summary or final prospectus or in any amendment or supplement thereto (if used during the period
the Partnership is required to keep the registration statement current), or arising out of, based upon or resulting from the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading; provided, however, that the
Partnership shall not be liable to any Indemnified Person to the extent that any such claim arises out of, is based upon or results from an untrue statement or
alleged untrue statement or omission or alleged omission made in such registration statement, such preliminary, summary or final prospectus or free writing
prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of
such Indemnified Person specifically for use in the preparation thereof.
(d) The provisions of Sections 7.12(a) and 7.12(b) shall continue to be applicable with respect to the General Partner (and any of the
General Partner’s Affiliates as described in Section 7.12(a)) after it ceases to be a general partner of the Partnership, during a period of two years subsequent
to the effective date of such cessation and for so long thereafter as is required for the Holder to sell all of the Partnership Interests with
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respect to which it has requested during such two-year period inclusion in a registration statement otherwise filed or that a registration statement be filed;
provided, however, that the Partnership shall not be required to file successive registration statements covering the same Partnership Interests for which
registration was demanded during such two-year period. The provisions of Section 7.12(c) shall continue in effect thereafter.
(e) The rights to cause the Partnership to register Partnership Interests pursuant to this Section 7.12 may be assigned (but only with all
related obligations) by a Holder to a transferee or assignee of such Partnership Interests, provided (i) the Partnership is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such transferee or assignee and the Partnership Interests with respect to which such
registration rights are being assigned; and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms set forth in this
Section 7.12.
(f) Any request to register Partnership Interests pursuant to this Section 7.12 shall (i) specify the Partnership Interests intended to be
offered and sold by the Person making the request, (ii) express such Person’s present intent to offer such Partnership Interests for distribution, (iii) describe
the nature or method of the proposed offer and sale of Partnership Interests, and (iv) contain the undertaking of such Person to provide all such information
and materials and take all action as may be required in order to permit the Partnership to comply with all applicable requirements in connection with the
registration of such Partnership Interests.
Section 7.13 Reliance by Third Parties. Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall
be entitled to assume that the General Partner and any officer of the General Partner authorized by the General Partner to act on behalf of and in the name of
the Partnership has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any
authorized contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner or any such officer as if it were the
Partnership’s sole party in interest, both legally and beneficially. Each of the Limited Partners, each other Person who acquires an interest in a Partnership
Interest and each other Person who is bound by this Agreement hereby waives, to the fullest extent permitted by law, any and all defenses or other remedies
that may be available against such Person to contest, negate or disaffirm any action of the General Partner or any such officer in connection with any such
dealing. In no event shall any Person dealing with the General Partner or any such officer or its representatives be obligated to ascertain that the terms of this
Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or any such officer or its
representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives
shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of
such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or
instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (c) such certificate, document or instrument was duly
executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 8.1 Records and Accounting. The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate
books and records with respect to the Partnership’s business, including all books and records necessary to provide to the Limited Partners any information
required to be provided pursuant to Section 3.4(a). Any books and records maintained by or on behalf of the Partnership in the regular course of its business,
including the record of the Record Holders of Units or other Partnership Interests, books of account and records of Partnership proceedings, may be kept on,
or be in the form of, computer disks, hard drives, magnetic tape, photographs, micrographics or any other information storage device; provided, that the
books and records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Partnership shall be
maintained, for financial reporting purposes, on an accrual basis in accordance with U.S. GAAP. The Partnership shall not be required to keep books
maintained on a cash basis and the General Partner shall be permitted to calculate cash-based measures, including Distributable Cash Flow, by making such
adjustments
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to its accrual basis books to account for non-cash items and other adjustments as the General Partner determines to be necessary or appropriate.
Section 8.2 Fiscal Year. The fiscal year of the Partnership shall be a fiscal year ending December 31.
Section 8.3 Reports.
(a) As soon as practicable, but in no event later than 90 days after the close of each fiscal year of the Partnership, the General Partner
shall cause to be mailed or made available, by any reasonable means, to each Record Holder of a Unit as of a date selected by the General Partner, an annual
report containing financial statements of the Partnership for such fiscal year of the Partnership, presented in accordance with U.S. GAAP, including a
balance sheet and statements of operations, Partnership equity and cash flows, such statements to be audited by a firm of independent public accountants
selected by the General Partner.
(b) As soon as practicable, but in no event later than 45 days after the close of each Quarter except the last Quarter of each fiscal year, the
General Partner shall cause to be mailed or made available, by any reasonable means, to each Record Holder of a Unit, as of a date selected by the General
Partner, a report containing unaudited financial statements of the Partnership and such other information as may be required by applicable law, regulation or
rule of any National Securities Exchange on which the Units are listed or admitted to trading, or as the General Partner determines to be necessary or
appropriate.
(c) The General Partner shall be deemed to have made a report available to each Record Holder as required by this Section 8.3 if it has
either (i) filed such report with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such report is publicly available on
such system or (ii) made such report available on any publicly available website maintained by the Partnership.
ARTICLE IX
TAX MATTERS
Section 9.1 Tax Returns and Information. The Partnership shall timely file all returns of the Partnership that are required for federal, state and
local income tax purposes on the basis of the accrual method and the taxable period or years that it is required by law to adopt, from time to time, as
determined by the General Partner. In the event the Partnership is required to use a taxable period other than a year ending on December 31, the General
Partner shall use reasonable efforts to change the taxable period of the Partnership to a year ending on December 31. The tax information reasonably
required by Record Holders for federal, state and local income tax reporting purposes with respect to a taxable period shall be furnished to them within 90
days of the close of the calendar year in which the Partnership’s taxable period ends. The classification, realization and recognition of income, gain, losses
and deductions and other items shall be on the accrual method of accounting for U.S. federal income tax purposes.
Section 9.2 Tax Elections.
(a) The Partnership shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject
to the reservation of the right to seek to revoke any such election upon the General Partner’s determination that such revocation is in the best interests of the
Limited Partners. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code,
the General Partner shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Limited Partner Interest will be
deemed to be the lowest quoted closing price of the Limited Partner Interests on any National Securities Exchange on which such Limited Partner Interests
are listed or admitted to trading during the calendar month in which such transfer is deemed to occur pursuant to Section 6.2(f) without regard to the actual
price paid by such transferee.
permitted by the Code.
(b) Except as otherwise provided herein, the General Partner shall determine whether the Partnership should make any other elections
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Section 9.3 Tax Controversies.
(a) Subject to the provisions hereof, the General Partner (or its designee) is designated as the Tax Matters Partner (as defined in Section
6231(a)(7) of the Code as in effect prior to the enactment of the Bipartisan Budget Act of 2015), and the Partnership Representative (as defined in Section
6223 of the Code following the enactment of the Bipartisan Budget Act of 2015 or under any applicable state or local law providing for an analogous
capacity), and is authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s
affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs
associated therewith. In its capacity as Partnership Representative, the General Partner shall exercise any and all authority of the Partnership Representative,
including (i) binding the Partnership and its Partners with respect to tax matters and (ii) determining whether to make any available election under Section
6226 of the Code or an analogous election under state or local law, which election permits the Partnership to pass any partnership adjustment through to the
Persons who were Partners of the Partnership in the year to which the adjustment relates and irrespective of whether such Persons are Partners of the
Partnership at the time such election is made. Each Partner agrees to cooperate with the General Partner and to do or refrain from doing any or all things
reasonably required by the General Partner in its capacity as Tax Matters Partner or Partnership Representative. For Partners that are not tax-exempt entities
(as defined in Section 168(h)(2) of the Code) and subject to the General Partner’s discretion to seek modifications of an imputed underpayment, this
cooperation includes (i) filing amended federal, state or local tax returns, paying any additional tax (including interest, penalties and other additions to tax),
and providing the General Partner with an affidavit swearing to those facts (all within the requisite time periods), and (ii) providing any other information
requested by the General Partner in order to seek modifications of an imputed underpayment. For Partners that are tax-exempt entities (as defined in Section
168(h)(2) of the Code) and subject to the General Partner’s discretion to seek modifications of an imputed underpayment, this cooperation includes
providing the General Partner with information necessary to establish the Partner’s tax-exempt status. This agreement to cooperate applies irrespective of
whether such Persons are Partners of the Partnership at the time of the requested cooperation.
(b) Each Partner agrees that notice of or updates regarding tax controversies shall be deemed conclusively to have been given or made by
the General Partner if the Partnership has either (i) filed the information for which notice is required with the Commission via its Electronic Data Gathering,
Analysis and Retrieval system and such information is publicly available on such system or (ii) made the information for which notice is required available
on any publicly available website maintained by the Partnership, whether or not such Partner remains a Partner in the Partnership at the time such
information is made publicly available. Notwithstanding anything herein to the contrary, nothing in this provision shall obligate the Partnership
Representative to provide notice to the Partners other than as required by the Code.
(c) The General Partner may amend the provisions of this Agreement as it determines appropriate to satisfy any requirements, conditions,
or guidelines set forth in any amendment to the provisions of Subchapter C of Chapter 63 of Subtitle F of the Code, any analogous provisions of the laws of
any state or locality, or the promulgation of regulations or publication of other administrative guidance thereunder.
Section 9.4 Withholding Tax Payments.
(a) The General Partner may treat taxes paid by the Partnership on behalf of all or less than all of the Partners as a distribution of cash to
such Partners, a general expense of the Partnership, or as indemnifiable payments made by the Partnership on behalf of the Partners or former Partners (as
provided in Section 9.4(c), as determined appropriate under the circumstances by the General Partner.
(b) Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that may be required to
cause the Partnership and other Group Members to comply with any withholding requirements established under the Code or any other federal, state or local
law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code and any applicable non-U.S. tax law. To the extent that the Partnership is required
or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income or from a distribution to any
Partner or Assignee (including by reason of Section
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1446 of the Code), the General Partner may treat the amount withheld as a distribution of cash pursuant to Section 6.3 or Section 12.4(c) in the amount of
such withholding from such Partner.
(c) If the Partnership pays an imputed underpayment under Section 6225 of the Code and/or any analogous provision of the laws of any
state or locality, the General Partner may require that some or all of the Partners of the Partnership in the year to which the underpayment relates indemnify
the Partnership for their allocable share of that underpayment (including interest, penalties and other additions to tax). This indemnification obligation shall
not apply to a Partner to the extent that (i) the Partnership received a modification of the imputed underpayment under Section 6225(c)(2) of the Code (or
any analogous provision of state or local law) due to the Partner’s filing of amended tax returns and payment of any resulting tax (including interest,
penalties and other additions to tax), (ii) the Partner is a tax-exempt entity (as defined in Section 168(h)(2) of the Code) and either the Partnership received a
modification of the imputed underpayment under Section 6225(c)(3) of the Code (or any analogous provision of state or local law) because of such Partner’s
status as a tax-exempt entity or the Partnership did not make a good faith effort to obtain a modification of the imputed underpayment due to such Partner’s
status as a tax-exempt entity, or (iii) the Partnership received a modification of the imputed underpayment under Section 6225(c)(4)-(6) of the Code (or any
analogous provision of state or local law) as a result of other information that was either provided by the Partner or otherwise available to the Partnership
with respect to the Partner. This indemnification obligation imposed on Partners, including former Partners, applies irrespective of whether such Persons are
Partners of the Partnership at the time the Partnership pays the imputed underpayment.
Section 10.1 Admission of Limited Partners.
ARTICLE X
ADMISSION OF PARTNERS
(a) A Person shall be admitted as a Limited Partner and shall become bound by the terms of this Agreement if such Person purchases or
otherwise lawfully acquires any Limited Partner Interest and becomes the Record Holder of such Limited Partner Interests in accordance with the provisions
of Article IV or Article V hereof. A Person may become a Record Holder of a Limited Partner Interest without the consent or approval of any of the
Partners. A Person may not become a Limited Partner without acquiring a Limited Partner Interest and until reflected in the books and records of the
Partnership as the Record Holder of such Limited Partner Interest. The rights and obligations of a Person who is a Non-citizen Assignee shall be determined
in accordance with Section 4.8.
(b) The name and mailing address of each Limited Partner shall be listed on the books and records of the Partnership maintained for such
purpose by the Partnership or the Transfer Agent. The General Partner shall update the books and records of the Partnership from time to time as necessary
to reflect accurately the information therein (or shall cause the Transfer Agent to do so, as applicable). A Limited Partner Interest may be represented by a
Certificate, as provided in Section 4.1.
(c) Any transfer of a Limited Partner Interest shall not entitle the transferee to share in the profits and losses, to receive distributions, to
receive allocations of income, gain, loss, deduction or credit or any similar item or to any other rights to which the transferor was entitled until the transferee
becomes a Limited Partner pursuant to Section 10.1(a).
Section 10.2 Admission of Successor General Partner. A successor General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of
or successor to all of the General Partner Interest pursuant to Section 4.6 who is proposed to be admitted as a successor General Partner shall be admitted to
the Partnership as the General Partner, effective immediately prior to the withdrawal or removal of the predecessor or transferring General Partner, pursuant
to Section 11.1 or 11.2 or the transfer of the General Partner Interest pursuant to Section 4.6, provided, however, that no such successor shall be admitted to
the Partnership until compliance with the terms of Section 4.6 has occurred and such successor has executed and delivered such other documents or
instruments as may be required to effect such admission. Any such successor shall, subject to the terms hereof, carry on the business of the members of the
Partnership Group without dissolution.
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Section 10.3 Amendment of Agreement and Certificate of Limited Partnership. To effect the admission to the Partnership of any Partner, the
General Partner shall take all steps necessary under the Delaware Act to amend the records of the Partnership to reflect such admission and, if necessary, to
prepare as soon as practicable an amendment to this Agreement and, if required by law, the General Partner shall prepare and file an amendment to the
Certificate of Limited Partnership.
Section 11.1 Withdrawal of the General Partner.
WITHDRAWAL OR REMOVAL OF PARTNERS
ARTICLE XI
(each such event herein referred to as an “Event of Withdrawal”);
(a) The General Partner shall be deemed to have withdrawn from the Partnership upon the occurrence of any one of the following events
(i) The General Partner voluntarily withdraws from the Partnership by giving written notice to the other Partners;
(ii) The General Partner transfers all of its General Partner Interest pursuant to Section 4.6;
(iii) The General Partner is removed pursuant to Section 11.2;
(iv) The General Partner (A) makes a general assignment for the benefit of creditors; (B) files a voluntary bankruptcy petition
for relief under Chapter 7 of the United States Bankruptcy Code; (C) files a petition or answer seeking for itself a liquidation, dissolution or similar relief
(but not a reorganization) under any law; (D) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed
against the General Partner in a proceeding of the type described in clauses (A) through (C) of this Section 11.1(a)(iv); or (E) seeks, consents to or
acquiesces in the appointment of a trustee (but not a debtor-in-possession), receiver or liquidator of the General Partner or of all or any substantial part of its
properties;
appropriate jurisdiction pursuant to a voluntary or involuntary petition by or against the General Partner; or
(v) A final and non-appealable order of relief under Chapter 7 of the United States Bankruptcy Code is entered by a court with
(vi) (A) in the event the General Partner is a corporation, a certificate of dissolution or its equivalent is filed for the General
Partner, or 90 days expire after the date of notice to the General Partner of revocation of its charter without a reinstatement of its charter, under the laws of its
state of incorporation; (B) in the event the General Partner is a limited liability company or a partnership, the dissolution and commencement of winding up
of the General Partner; (C) in the event the General Partner is acting in such capacity by virtue of being a trustee of a trust, the termination of the trust; (D) in
the event the General Partner is a natural person, his death or adjudication of incompetency; and (E) otherwise in the event of the termination of the General
Partner.
If an Event of Withdrawal specified in Section 11.1(a)(iv), (v) or (vi)(A), (B), (C) or (E) occurs, the withdrawing General Partner shall give notice
to the Limited Partners within 30 days after such occurrence. The Partners hereby agree that only the Events of Withdrawal described in this Section 11.1
shall result in the withdrawal of the General Partner from the Partnership.
(b) Withdrawal of the General Partner from the Partnership upon the occurrence of an Event of Withdrawal shall not constitute a breach
of this Agreement under the following circumstances: (i) at any time during the period beginning on the Closing Date and ending at 11:59 pm, prevailing
Eastern Time, on December 31, 2023, the General Partner voluntarily withdraws by giving at least 90 days’ advance notice of its intention to withdraw to the
Limited Partners; provided, that prior to the effective date of such withdrawal, the withdrawal is approved by Unitholders holding at least a majority of the
Outstanding Common Units (excluding Common Units held by the General Partner and its Affiliates) and the General Partner delivers to the Partnership an
Opinion of
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Counsel (“Withdrawal Opinion of Counsel”) that such withdrawal (following the selection of the successor General Partner) would not result in the loss of
the limited liability under the Delaware Act of any Limited Partner or cause any Group Member to be treated as an association taxable as a corporation or
otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already so treated or taxed); (ii) at any time after 11:59 pm,
prevailing Eastern Time, on December 31, 2023, the General Partner voluntarily withdraws by giving at least 90 days’ advance notice to the Unitholders,
such withdrawal to take effect on the date specified in such notice; (iii) at any time that the General Partner ceases to be the General Partner pursuant to
Section 11.1(a)(ii) or is removed pursuant to Section 11.2; or (iv) notwithstanding clause (i) of this sentence, at any time that the General Partner voluntarily
withdraws by giving at least 90 days’ advance notice of its intention to withdraw to the Limited Partners, such withdrawal to take effect on the date specified
in the notice, if at the time such notice is given one Person and its Affiliates (other than the General Partner and its Affiliates) own beneficially or of record
or control at least 50% of the Outstanding Units. The withdrawal of the General Partner from the Partnership upon the occurrence of an Event of Withdrawal
shall also constitute the withdrawal of the General Partner as managing member or general partner, if any, to the extent applicable, of the other Group
Members. If the General Partner gives a notice of withdrawal pursuant to Section 11.1(a)(i), the holders of a Unit Majority, may, prior to the effective date of
such withdrawal, elect a successor General Partner. The Person so elected as successor General Partner shall automatically become the successor managing
member or general partner, to the extent applicable, of the other Group Members of which the General Partner is a managing member or a general partner. If,
prior to the effective date of the General Partner’s withdrawal, a successor is not selected by the Unitholders as provided herein or the Partnership does not
receive a Withdrawal Opinion of Counsel, the Partnership shall be dissolved in accordance with Section 12.1 unless the business of the Partnership is
continued pursuant to Section 12.2. Any successor General Partner elected in accordance with the terms of this Section 11.1 shall be subject to the provisions
of Section 10.2.
Section 11.2 Removal of the General Partner. The General Partner may be removed if such removal is approved by the Unitholders holding at
least 66 2/3% of the Outstanding Units (including Units held by the General Partner and its Affiliates) voting as a single class. Any such action by such
holders for removal of the General Partner must also provide for the election of a successor General Partner by the Unitholders holding a majority of the
outstanding Common Units voting as a class and Unitholders holding a majority of the outstanding Subordinated Units voting as a class (including, in each
case, Units held by the General Partner and its Affiliates). Such removal shall be effective immediately following the admission of a successor General
Partner pursuant to Section 10.2. The removal of the General Partner shall also automatically constitute the removal of the General Partner as managing
member or general partner, to the extent applicable, of the other Group Members of which the General Partner is a managing member or a general partner. If
a Person is elected as a successor General Partner in accordance with the terms of this Section 11.2, such Person shall, upon admission pursuant to
Section 10.2, automatically become a successor managing member or general partner, to the extent applicable, of the other Group Members of which the
General Partner is a managing member or a general partner. The right of the holders of Outstanding Units to remove the General Partner shall not exist or be
exercised unless the Partnership has received an opinion opining as to the matters covered by a Withdrawal Opinion of Counsel. Any successor General
Partner elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of Section 10.2.
Section 11.3 Interest of Departing General Partner and Successor General Partner.
(a) In the event of (i) withdrawal of the General Partner under circumstances where such withdrawal does not violate this Agreement or
(ii) removal of the General Partner by the holders of Outstanding Units under circumstances where Cause does not exist, if the successor General Partner is
elected in accordance with the terms of Section 11.1 or 11.2, the Departing General Partner shall have the option, exercisable prior to the effective date of the
withdrawal or removal of such Departing General Partner, to require its successor to purchase its General Partner Interest and its or its Affiliates’ general
partner interest (or equivalent interest), if any, in the other Group Members and all of the Incentive Distribution Rights held by it or its Affiliates
(collectively, the “Combined Interest”) in exchange for an amount in cash equal to the fair market value of such Combined Interest, such amount to be
determined and payable as of the effective date of its withdrawal or removal. If the General Partner is removed by the Unitholders under circumstances
where Cause exists or if the General Partner withdraws under circumstances where such withdrawal violates this Agreement, and if a successor General
Partner is elected in accordance with the terms of Section 11.1 or 11.2 (or if the business of the Partnership is continued pursuant to
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Section 12.2 and the successor General Partner is not the former General Partner), such successor shall have the option, exercisable prior to the effective date
of the withdrawal or removal of such Departing General Partner (or, in the event the business of the Partnership is continued, prior to the date the business of
the Partnership is continued), to purchase the Combined Interest for such fair market value of such Combined Interest. In either event, the Departing General
Partner shall be entitled to receive all reimbursements due such Departing General Partner pursuant to Section 7.5, including any employee related liabilities
(including severance liabilities), incurred in connection with the termination of any employees employed by the Departing General Partner or its Affiliates
(other than any Group Member) for the benefit of the Partnership or the other Group Members.
For purposes of this Section 11.3(a), the fair market value of the Combined Interest shall be determined by agreement between the Departing
General Partner and its successor or, failing agreement within 30 days after the effective date of such Departing General Partner’s withdrawal or removal, by
an independent investment banking firm or other independent expert selected by the Departing General Partner and its successor, which, in turn, may rely on
other experts, and the determination of which shall be conclusive as to such matter. If such parties cannot agree upon one independent investment banking
firm or other independent expert within 45 days after the effective date of such withdrawal or removal, then the Departing General Partner shall designate an
independent investment banking firm or other independent expert, the Departing General Partner’s successor shall designate an independent investment
banking firm or other independent expert, and such firms or experts shall mutually select a third independent investment banking firm or independent expert,
which third independent investment banking firm or other independent expert shall determine the fair market value of the Combined Interest. In making its
determination, such third independent investment banking firm or other independent expert may consider the value of the Units, including the then current
trading price of Units on any National Securities Exchange on which Units are then listed or admitted to trading, the value of the Partnership’s assets, the
rights and obligations of the Departing General Partner, the value of the Incentive Distribution Rights and the General Partner Interest and other factors it
may deem relevant.
(b) If the Combined Interest is not purchased in the manner set forth in Section 11.3(a), the Departing General Partner (or its transferee)
shall become a Limited Partner and the Combined Interest shall be converted into Common Units pursuant to a valuation made by an investment banking
firm or other independent expert selected pursuant to Section 11.3(a), without reduction in such Partnership Interest (but subject to proportionate dilution by
reason of the admission of its successor). Any successor General Partner shall indemnify the Departing General Partner (or its transferee) as to all debts and
liabilities of the Partnership arising on or after the date on which the Departing General Partner (or its transferee) becomes a Limited Partner. For purposes of
this Agreement, conversion of the Combined Interest to Common Units will be characterized as if the Departing General Partner (or its transferee)
contributed the Combined Interest to the Partnership in exchange for the newly issued Common Units.
(c) If a successor General Partner is elected in accordance with the terms of Section 11.1 or 11.2 (or if the business of the Partnership is
continued pursuant to Section 12.2 and the successor General Partner is not the former General Partner) and the option described in Section 11.3(a) is not
exercised by the party entitled to do so, the successor General Partner shall, at the effective date of its admission to the Partnership, contribute to the
Partnership cash in the amount equal to the product of (i) the quotient obtained by dividing (A) the Percentage Interest of the Departing General Partner by
(B) a percentage equal to 100% less the Percentage Interest of the Departing General Partner and (ii) the Net Agreed Value of the Partnership’s assets on
such date. In such event, such successor General Partner shall, subject to the following sentence, be entitled to its Percentage Interest of all Partnership
allocations and distributions to which the Departing General Partner was entitled. In addition, the successor General Partner shall cause this Agreement to be
amended to reflect that, from and after the date of such successor General Partner’s admission, the successor General Partner’s interest in all Partnership
distributions and allocations shall be its Percentage Interest.
Section 11.4 Termination of Subordination Period, Conversion of Subordinated Units and Extinguishment of Cumulative Common Unit
Arrearages. Notwithstanding any provision of this Agreement, if the General Partner is removed as general partner of the Partnership under circumstances
where Cause does not exist:
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(a) Subordinated Units held by any Person will immediately and automatically convert into Common Units on a one-for-one basis,
provided that (i) neither such Person nor any of its Affiliates voted any Units in favor of the removal and (ii) such Person is not an Affiliate of the successor
General Partner; and
(b) if all of the Subordinated Units convert into Common Units pursuant to Section 11.4(a), all Cumulative Common Unit Arrearages on
the Common Units will be extinguished and the Subordination Period will end;
provided, however, that such converted Subordinated Units shall remain subject to the provisions of Sections 5.5(c)(ii), 6.1(d)(x) and 4.10.
Section 11.5 Withdrawal of Limited Partners. No Limited Partner shall have any right to withdraw from the Partnership; provided, however, that
when a transferee of a Limited Partner’s Limited Partner Interest becomes a Record Holder of the Limited Partner Interest so transferred, such transferring
Limited Partner shall cease to be a Limited Partner with respect to the Limited Partner Interest so transferred.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
Section 12.1 Dissolution. The Partnership shall not be dissolved by the admission of additional Limited Partners or by the admission of a
successor General Partner in accordance with the terms of this Agreement. Upon the removal or withdrawal of the General Partner, if a successor General
Partner is elected pursuant to Section 11.1, 11.2 or 12.2, the Partnership shall not be dissolved and such successor General Partner shall continue the business
of the Partnership. The Partnership shall dissolve, and (subject to Section 12.2) its affairs shall be wound up, upon:
(a) an Event of Withdrawal of the General Partner as provided in Section 11.1(a) (other than Section 11.1(a)(ii)), unless a successor is
elected and such successor is admitted to the Partnership pursuant to this Agreement;
(b) an election to dissolve the Partnership by the General Partner that is approved by the holders of a Unit Majority;
(c) the entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Delaware Act; or
(d) at any time there are no Limited Partners, unless the Partnership is continued without dissolution in accordance with the Delaware
Act.
Section 12.2 Continuation of the Business of the Partnership After Dissolution. Upon (a) an Event of Withdrawal caused by the withdrawal or
removal of the General Partner as provided in Sections 11.1(a)(i) or 11.1(a)(iii) and the failure of the Partners to select a successor to such Departing General
Partner pursuant to Sections 11.1 or 11.2, then within 90 days thereafter, or (b) an event constituting an Event of Withdrawal as defined in Sections 11.1(a)
(iv), (v) or (vi), then, to the maximum extent permitted by law, within 180 days thereafter, the holders of a Unit Majority may elect to continue the business
of the Partnership on the same terms and conditions set forth in this Agreement by appointing as the successor General Partner a Person approved by the
holders of a Unit Majority. Unless such an election is made within the applicable time period as set forth above, the Partnership shall conduct only activities
necessary to wind up its affairs. If such an election is so made, then:
(i) the Partnership shall continue without dissolution unless earlier dissolved in accordance with this Article XII;
treated in the manner provided in Section 11.3; and
(ii) if the successor General Partner is not the former General Partner, then the interest of the former General Partner shall be
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Withdrawal, by agreeing in writing to be bound by this Agreement;
(iii) the successor General Partner shall be admitted to the Partnership as General Partner, effective as of the Event of
provided, that the right of the holders of a Unit Majority to approve a successor General Partner and to continue the business of the Partnership shall not exist
and may not be exercised unless the Partnership has received an Opinion of Counsel that (x) the exercise of the right would not result in the loss of the
limited liability under the Delaware Act of any Limited Partner and (y) neither the Partnership nor any Group Member would be treated as an association
taxable as a corporation or otherwise be taxable as an entity for U.S. federal income tax purposes upon the exercise of such right to continue (to the extent
not already so treated or taxed).
Section 12.3 Liquidator. Upon dissolution of the Partnership, unless the business of the Partnership is continued pursuant to Section 12.2, the
General Partner shall select one or more Persons to act as Liquidator. The Liquidator (if other than the General Partner) shall be entitled to receive such
compensation for its services as may be approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a
single class. The Liquidator (if other than the General Partner) shall agree not to resign at any time without 15 days’ prior notice and may be removed at any
time, with or without cause, by notice of removal approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units,
voting as a single class. Upon dissolution, removal or resignation of the Liquidator, a successor and substitute Liquidator (who shall have and succeed to all
rights, powers and duties of the original Liquidator) shall within 30 days thereafter be approved by holders of at least a majority of the Outstanding Common
Units and Subordinated Units voting as a single class. The right to approve a successor or substitute Liquidator in the manner provided herein shall be
deemed to refer also to any such successor or substitute Liquidator approved in the manner herein provided. Except as expressly provided in this Article XII,
the Liquidator approved in the manner provided herein shall have and may exercise, without further authorization or consent of any of the parties hereto, all
of the powers conferred upon the General Partner under the terms of this Agreement (but subject to all of the applicable limitations, contractual and
otherwise, upon the exercise of such powers, other than the limitation on sale set forth in Section 7.3(a)) necessary or appropriate to carry out the duties and
functions of the Liquidator hereunder for and during the period of time required to complete the winding up and liquidation of the Partnership as provided
for herein.
Section 12.4 Liquidation. The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its liabilities, and otherwise wind up
its affairs in such manner and over such period as determined by the Liquidator, subject to Section 17-804 of the Delaware Act and the following:
(a) The assets may be disposed of by public or private sale or by distribution in kind to one or more Partners on such terms as the
Liquidator and such Partner or Partners may agree. If any property is distributed in kind, the Partner receiving the property shall be deemed for purposes of
Section 12.4(c) to have received cash equal to its fair market value; and contemporaneously therewith, appropriate cash distributions must be made to the
other Partners. The Liquidator may defer liquidation or distribution of the Partnership’s assets for a reasonable time if it determines that an immediate sale or
distribution of all or some of the Partnership’s assets would be impractical or would cause undue loss to the Partners. The Liquidator may distribute the
Partnership’s assets, in whole or in part, in kind if it determines that a sale would be impractical or would cause undue loss to the Partners.
(b) Liabilities of the Partnership include amounts owed to the Liquidator as compensation for serving in such capacity (subject to the
terms of Section 12.3) and amounts to Partners otherwise than in respect of their distribution rights under Article VI. With respect to any liability that is
contingent, conditional or unmatured or is otherwise not yet due and payable, the Liquidator shall either settle such claim for such amount as it thinks
appropriate or establish a reserve of cash or other assets to provide for its payment. When paid, any unused portion of the reserve shall be distributed as
additional liquidation proceeds.
(c) All property and all cash in excess of that required to discharge liabilities as provided in Section 12.4(b) shall be distributed to the
Partners in accordance with, and to the extent of, the positive balances in their respective Capital Accounts, as determined after taking into account all
Capital Account adjustments (other than those made by reason of distributions pursuant to this Section 12.4(c)) for the taxable period of the Partnership
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during which the liquidation of the Partnership occurs (with such date of occurrence being determined pursuant to Treasury Regulation Section 1.704-1(b)(2)
(ii)(g)), and such distribution shall be made by the end of such taxable period (or, if later, within 90 days after said date of such occurrence).
Section 12.5 Cancellation of Certificate of Limited Partnership. Upon the completion of the distribution of Partnership cash and property as
provided in Section 12.4 in connection with the liquidation of the Partnership, the Partnership shall be terminated and the Certificate of Limited Partnership
and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be canceled and such other
actions as may be necessary to terminate the Partnership shall be taken.
Section 12.6 Return of Contributions. The General Partner shall not be personally liable for, and shall have no obligation to contribute or loan any
monies or property to the Partnership to enable it to effectuate, the return of the Capital Contributions of the Limited Partners or Unitholders, or any portion
thereof, it being expressly understood that any such return shall be made solely from Partnership assets.
Section 12.7 Waiver of Partition. To the maximum extent permitted by law, each Partner hereby waives any right to partition of the Partnership
property.
Section 12.8 Capital Account Restoration. No Limited Partner shall have any obligation to restore any negative balance in its Capital Account
upon liquidation of the Partnership. The General Partner shall be obligated to restore any negative balance in its Capital Account upon liquidation of its
interest in the Partnership by the end of the taxable period of the Partnership during which such liquidation occurs, or, if later, within 90 days after the date of
such liquidation.
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
Section 13.1 Amendments to be Adopted Solely by the General Partner. Each Partner agrees that the General Partner, without the approval of any
Partner, may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in
connection therewith, to reflect:
Partnership or the registered office of the Partnership;
(a) a change in the name of the Partnership, the location of the principal place of business of the Partnership, the registered agent of the
(b) admission, substitution, withdrawal or removal of Partners in accordance with this Agreement;
(c) a change that the General Partner determines to be necessary or appropriate to qualify or continue the qualification of the Partnership
as a limited partnership or other entity in which the Limited Partners have limited liability under the laws of any state or to ensure that the Group Members
will not be treated as associations taxable as corporations or otherwise taxed as entities for U.S. federal income tax purposes;
(d) a change that the General Partner determines (i) does not adversely affect the Limited Partners considered as a whole (including any
particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect (except as permitted by subsection (g)
hereof); provided, however for purposes of determining whether an amendment satisfies the requirements of this Section 13.1(d)(1), the General Partner
shall disregard the effect on any class or classes of Partnership Interests that have approved such amendment pursuant to Section 13.3(c); (ii) to be necessary
or appropriate to (A) satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state
agency or judicial authority or contained in any federal or state statute (including the Delaware Act) or (B) facilitate the trading of the Units (including the
division of any class or classes of Outstanding Units into different classes to facilitate uniformity of tax consequences within such classes of Units) or
comply with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are or will be listed or admitted to
trading; (iii)
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to be necessary or appropriate in connection with action taken by the General Partner pursuant to Section 5.9; or (iv) is required to effect the intent expressed
in the Registration Statement or the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement;
(e) a change in the fiscal year or taxable period of the Partnership and any other changes that the General Partner determines to be
necessary or appropriate as a result of a change in the fiscal year or taxable period of the Partnership including, if the General Partner shall so determine, a
change in the definition of “Quarter” and the dates on which distributions are to be made by the Partnership;
(f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or the General Partner or its directors, officers,
trustees or agents from in any manner being subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment Advisers Act
of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974, as amended, regardless of whether
such are substantially similar to plan asset regulations currently applied or proposed by the United States Department of Labor;
(g) an amendment that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or
issuance of any class or series of Partnership Interests or any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership
pursuant to Section 5.6;
(h) any amendment expressly permitted in this Agreement to be made by the General Partner acting alone;
(i) an amendment effected, necessitated or contemplated by a Merger Agreement approved in accordance with Section 14.3;
(j) an amendment that the General Partner determines to be necessary or appropriate to reflect and account for the formation by the
Partnership of, or investment by the Partnership in, any corporation, partnership, joint venture, limited liability company or other entity, in connection with
the conduct by the Partnership of activities permitted by the terms of Section 2.4;
(k) a merger or conveyance pursuant to Section 14.3(d); or
(l) any other amendments substantially similar to the foregoing.
Section 13.2 Amendment Procedures. Amendments to this Agreement may be proposed only by the General Partner. To the fullest extent
permitted by law, the General Partner shall have no duty or obligation to propose or approve any amendment to this Agreement and may decline to do so in
its sole discretion and, in declining to propose or approve an amendment, to the fullest extent permitted by law shall not be required to act in good faith or
pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware
Act or any other law, rule or regulation or at equity. An amendment shall be effective upon its approval by the General Partner and, except as otherwise
provided by Section 13.1, 13.3 or 13.13, the holders of a Unit Majority, unless a greater or different percentage is required under this Agreement or by
Delaware law. Each proposed amendment that requires the approval of the holders of a specified percentage of Outstanding Units shall be set forth in a
writing that contains the text of the proposed amendment. If such an amendment is proposed, the General Partner shall seek the written approval of the
requisite percentage of Outstanding Units or call a meeting of the Unitholders to consider and vote on such proposed amendment. The General Partner shall
notify all Record Holders upon final adoption of any amendments. The General Partner shall be deemed to have notified all Record Holders as required by
this Section 13.2 if it has either (i) filed such amendment with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such
amendment is publicly available on such system or (ii) made such amendment available on any publicly available website maintained by the Partnership.
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Section 13.3 Amendment Requirements.
(a) Notwithstanding the provisions of Section 13.1 and 13.2, no provision of this Agreement that establishes a percentage of Outstanding
Units (including Units deemed owned by the General Partner) required to take any action shall be amended, altered, changed, repealed or rescinded in any
respect that would have the effect of (i) in the case of any provision of this Agreement other than Section 11.2 or Section 13.4, reducing such percentage or
(ii) in the case of Section 11.2 or Section 13.4, increasing such percentage, unless such amendment is approved by the written consent or the affirmative vote
of holders of Outstanding Units whose aggregate Outstanding Units constitute, in the case of a reduction as described in subclause (i) hereof, not less than
the voting requirement sought to be reduced or, in the case of an increase described in subclause (ii) with respect to percentages in Section 11.2 or
Section 13.4, 90% or a majority of the Aggregate Outstanding Units, respectively.
(b) Notwithstanding the provisions of Sections 13.1 and 13.2, no amendment to this Agreement may (i) enlarge the obligations of any
Limited Partner without its consent, unless such shall be deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c) or (ii)
enlarge the obligations of, restrict, change or modify in any way any action by or rights of, or reduce in any way the amounts distributable, reimbursable or
otherwise payable to, the General Partner or any of its Affiliates without its consent, which consent may be given or withheld in its sole discretion.
(c) Except as provided in Section 14.3 or Section 13.1, any amendment that would have a material adverse effect on the rights or
preferences of any class of Partnership Interests in relation to other classes of Partnership Interests must be approved by the holders of not less than a
majority of the Outstanding Partnership Interests of the class affected. If the General Partner determines an amendment does not satisfy the requirements of
Section 13.1(d)(i) because it adversely affects one or more classes of Partnership Interests, as compared to other classes of Partnership Interests, in any
material respect, such amendment shall only be required to be approved by the adversely affected class or classes.
(d) Notwithstanding any other provision of this Agreement, except for amendments pursuant to Section 13.1 and except as otherwise
provided by Section 14.3(b), no amendments shall become effective without the approval of the holders of at least 90% of the Outstanding Units voting as a
single class unless the Partnership obtains an Opinion of Counsel to the effect that such amendment will not affect the limited liability of any Limited Partner
under applicable partnership law of the state under whose laws the Partnership is organized.
(e) Except as provided in Section 13.1, this Section 13.3 shall only be amended with the approval of the holders of at least 90% of the
Outstanding Units.
Section 13.4 Special Meetings. All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the manner provided in this
Article XIII. Special meetings of the Limited Partners may be called by the General Partner or by Limited Partners owning 20% or more of the Outstanding
Units of the class or classes for which a meeting is proposed. Limited Partners shall call a special meeting by delivering to the General Partner one or more
requests in writing stating that the signing Limited Partners wish to call a special meeting and indicating the general or specific purposes for which the
special meeting is to be called. Within 60 days after receipt of such a call from Limited Partners or within such greater time as may be reasonably necessary
for the Partnership to comply with any statutes, rules, regulations, listing agreements or similar requirements governing the holding of a meeting or the
solicitation of proxies for use at such a meeting, the General Partner shall send a notice of the meeting to the Limited Partners either directly or indirectly
through the Transfer Agent. A meeting shall be held at a time and place determined by the General Partner on a date not less than 10 days nor more than 60
days after the mailing of notice of the meeting. Limited Partners shall not vote on matters that would cause the Limited Partners to be deemed to be taking
part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability under the
Delaware Act or the law of any other state in which the Partnership is qualified to do business.
Section 13.5 Notice of a Meeting. Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of the class or classes
of Units for which a meeting is proposed in writing by mail or other
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means of written communication in accordance with Section 16.1. The notice shall be deemed to have been given at the time when deposited in the mail or
sent by other means of written communication.
Section 13.6 Record Date. For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners or
to give approvals without a meeting as provided in Section 13.11 the General Partner may set a Record Date, which shall not be less than 10 nor more than
60 days before (a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline or requirement of any National Securities
Exchange on which the Units are listed or admitted to trading or U.S. federal securities laws, in which case the rule, regulation, guideline or requirement of
such National Securities Exchange or U.S. federal securities laws shall govern) or (b) in the event that approvals are sought without a meeting, the date by
which Limited Partners are requested in writing by the General Partner to give such approvals. If the General Partner does not set a Record Date, then (a) the
Record Date for determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners shall be the close of business on the
day next preceding the day on which notice is given, and (b) the Record Date for determining the Limited Partners entitled to give approvals without a
meeting shall be the date the first written approval is deposited with the Partnership in care of the General Partner in accordance with Section 13.11.
Section 13.7 Adjournment. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting and a new
Record Date need not be fixed, if the time and place thereof are announced at the meeting at which the adjournment is taken, unless such adjournment shall
be for more than 45 days. At the adjourned meeting, the Partnership may transact any business which might have been transacted at the original meeting. If
the adjournment is for more than 45 days or if a new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given in
accordance with this Article XIII.
Section 13.8 Waiver of Notice; Approval of Meeting; Approval of Minutes. The transactions of any meeting of Limited Partners, however called
and noticed, and whenever held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present either in
person or by proxy. Attendance of a Limited Partner at a meeting shall constitute a waiver of notice of the meeting, except (i) when the Limited Partner
attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened and (ii) that attendance at a meeting is not a waiver of any right to disapprove the consideration of matters required to be
included in the notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.
Section 13.9 Quorum and Voting. The holders of a majority of the Outstanding Units of the class or classes for which a meeting has been called
(including Outstanding Units deemed owned by the General Partner) represented in person or by proxy shall constitute a quorum at a meeting of Limited
Partners of such class or classes unless any such action by the Limited Partners requires approval by holders of a greater percentage of such Units, in which
case the quorum shall be such greater percentage. At any meeting of the Limited Partners duly called and held in accordance with this Agreement at which a
quorum is present, the act of Limited Partners holding Outstanding Units that in the aggregate represent a majority of the Outstanding Units entitled to vote
and be present in person or by proxy at such meeting shall be deemed to constitute the act of all Limited Partners, unless a greater or different percentage is
required with respect to such action under the provisions of this Agreement, in which case the act of the Limited Partners holding Outstanding Units that in
the aggregate represent at least such greater or different percentage shall be required. The Limited Partners present at a duly called or held meeting at which
a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Limited Partners to leave less than a
quorum, if any action taken (other than adjournment) is approved by the required percentage of Outstanding Units specified in this Agreement (including
Outstanding Units deemed owned by the General Partner). In the absence of a quorum any meeting of Limited Partners may be adjourned from time to time
by the affirmative vote of holders of at least a majority of the Outstanding Units entitled to vote at such meeting (including Outstanding Units deemed owned
by the General Partner) represented either in person or by proxy, but no other business may be transacted, except as provided in Section 13.7.
Section 13.10 Conduct of a Meeting. The General Partner shall have full power and authority concerning the manner of conducting any meeting
of the Limited Partners or solicitation of approvals in writing,
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including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of Section 13.4, the conduct of voting,
the validity and effect of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or
voting. The General Partner shall designate a Person to serve as chairman of any meeting and shall further designate a Person to take the minutes of any
meeting. All minutes shall be kept with the records of the Partnership maintained by the General Partner. The General Partner may make such other
regulations consistent with applicable law and this Agreement as it may deem advisable concerning the conduct of any meeting of the Limited Partners or
solicitation of approvals in writing, including regulations in regard to the appointment of proxies, the appointment and duties of inspectors of votes and
approvals, the submission and examination of proxies and other evidence of the right to vote, and the revocation of approvals in writing.
Section 13.11 Action Without a Meeting. If authorized by the General Partner, any action that may be taken at a meeting of the Limited Partners
may be taken without a meeting, without a vote and without prior notice, if an approval in writing setting forth the action so taken is signed by Limited
Partners owning not less than the minimum percentage of the Outstanding Units (including Units deemed owned by the General Partner) that would be
necessary to authorize or take such action at a meeting at which all the Limited Partners were present and voted (unless such provision conflicts with any
rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading, in which case the rule,
regulation, guideline or requirement of such National Securities Exchange shall govern). Prompt notice of the taking of action without a meeting shall be
given to the Limited Partners who have not approved in writing. The General Partner may specify that any written ballot submitted to Limited Partners for
the purpose of taking any action without a meeting shall be returned to the Partnership within the time period, which shall be not less than 20 days, specified
by the General Partner. If a ballot returned to the Partnership does not vote all of the Units held by the Limited Partners, the Partnership shall be deemed to
have failed to receive a ballot for the Units that were not voted. If approval of the taking of any action by the Limited Partners is solicited by any Person
other than by or on behalf of the General Partner, the written approvals shall have no force and effect unless and until (a) they are deposited with the
Partnership in care of the General Partner, (b) approvals sufficient to take the action proposed are dated as of a date not more than 90 days prior to the date
sufficient approvals are deposited with the Partnership and (c) an Opinion of Counsel is delivered to the General Partner to the effect that the exercise of
such right and the action proposed to be taken with respect to any particular matter (i) will not cause the Limited Partners to be deemed to be taking part in
the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability, and (ii) is otherwise
permissible under the state statutes then governing the rights, duties and liabilities of the Partnership and the Partners. Nothing contained in this
Section 13.11 shall be deemed to require the General Partner to solicit all holders of Units in connection with a matter approved by the requisite percentage
of Units or other holders of Outstanding Units acting by written consent without a meeting.
Section 13.12 Right to Vote and Related Matters.
(a) Only those Record Holders of the Units on the Record Date set pursuant to Section 13.6 (and also subject to the limitations contained
in the definition of “Outstanding”) shall be entitled to notice of, and to vote at, a meeting of Limited Partners or to act with respect to matters as to which the
holders of the Outstanding Units have the right to vote or to act. All references in this Agreement to votes of, or other acts that may be taken by, the
Outstanding Units shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding Units.
(b) With respect to Units that are held for a Person’s account by another Person (such as a broker, dealer, bank, trust company or clearing
corporation, or an agent of any of the foregoing), in whose name such Units are registered, such other Person shall, in exercising the voting rights in respect
of such Units on any matter, and unless the arrangement between such Persons provides otherwise, vote such Units in favor of, and at the direction of, the
Person who is the beneficial owner, and the Partnership shall be entitled to assume it is so acting without further inquiry. The provisions of this
Section 13.12(b) (as well as all other provisions of this Agreement) are subject to the provisions of Section 4.3.
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Section 13.13 Voting of Incentive Distribution Rights.
(a) For so long as a majority of the Incentive Distribution Rights are held by the General Partner and its Affiliates, the holders of the
Incentive Distribution Rights shall not be entitled to vote such Incentive Distribution Rights on any Partnership matter except as may otherwise be required
by law and the holders of the Incentive Distribution Rights, in their capacity as such, shall be deemed to have approved any matter approved by the General
Partner.
(b) If less than a majority of the Incentive Distribution Rights are held by the General Partner and its Affiliates, the Incentive Distribution
Rights will be entitled to vote on all matters submitted to a vote of Unitholders, other than amendments and other matters that the General Partner determines
do not adversely affect the holders of the Incentive Distribution Rights as a whole in any material respect. On any matter in which the holders of Incentive
Distribution Rights are entitled to vote, such holders will vote together with the Subordinated Units, prior to the end of the Subordination Period, or together
with the Common Units, thereafter, in either case as a single class except as otherwise required by Section 13.3(c), and such Incentive Distribution Rights
shall be treated in all respects as Subordinated Units or Common Units, as applicable, when sending notices of a meeting of Limited Partners to vote on any
matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this
Agreement. The relative voting power of the Incentive Distribution Rights and the Subordinated Units or Common Units, as applicable, will be set in the
same proportion as cumulative cash distributions, if any, in respect of the Incentive Distribution Rights for the four consecutive Quarters prior to the record
date for the vote bears to the cumulative cash distributions in respect of such class of Units for such four Quarters.
(c) Notwithstanding Section 13.13(b), in connection with any equity financing, or anticipated equity financing, by the Partnership of an
Expansion Capital Expenditure, the General Partner may, without the approval of the holders of the Incentive Distribution Rights, temporarily or
permanently reduce the amount of Incentive Distributions that would otherwise be distributed to such holders, provided that in the judgment of the General
Partner, such reduction will be in the long-term best interest of such holders.
ARTICLE XIV
MERGER, CONSOLIDATION OR CONVERSION
Section 14.1 Authority. The Partnership may merge or consolidate with or into one or more corporations, limited liability companies, statutory
trusts or associations, real estate investment trusts, common law trusts or unincorporated businesses, including a partnership (whether general or limited
(including a limited liability partnership)) or convert into any such entity, whether such entity is formed under the laws of the State of Delaware or any other
state of the United States of America, pursuant to a written plan of merger or consolidation (“Merger Agreement”) or a written plan of conversion (“Plan of
Conversion”), as the case may be, in accordance with this Article XIV.
Section 14.2 Procedure for Merger, Consolidation or Conversion.
(a) Merger, consolidation or conversion of the Partnership pursuant to this Article XIV requires the prior consent of the General Partner,
provided, however, that, to the fullest extent permitted by law, the General Partner shall have no duty or obligation to consent to any merger, consolidation or
conversion of the Partnership and may decline to do so free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner or
Assignee and, in declining to consent to a merger, consolidation or conversion, shall not be required to act in good faith or pursuant to any other standard
imposed by this Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
(b) If the General Partner shall determine to consent to the merger or consolidation, the General Partner shall approve the Merger
Agreement, which shall set forth:
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(i) the name and jurisdiction of formation or organization of each of the business entities proposing to merge or consolidate;
consolidation (the “Surviving Business Entity”);
(ii) the name and jurisdiction of formation or organization of the business entity that is to survive the proposed merger or
(iii) the terms and conditions of the proposed merger or consolidation;
(iv) the manner and basis of exchanging or converting the equity interests of each constituent business entity for, or into, cash,
property or interests, rights, securities or obligations of the Surviving Business Entity; and (i) if any interests, securities or rights of any constituent business
entity are not to be exchanged or converted solely for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity,
then the cash, property or interests, rights, securities or obligations of any general or limited partnership, corporation, trust, limited liability company,
unincorporated business or other entity (other than the Surviving Business Entity) which the holders of such interests, securities or rights are to receive in
exchange for, or upon conversion of their interests, securities or rights, and (ii) in the case of equity interests represented by certificates, upon the surrender
of such certificates, which cash, property or interests, rights, securities or obligations of the Surviving Business Entity or any general or limited partnership,
corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity), or evidences thereof, are to
be delivered;
(v) a statement of any changes in the constituent documents or the adoption of new constituent documents (the articles or
certificate of incorporation, articles of trust, declaration of trust, certificate or agreement of limited partnership, certificate of formation or limited liability
company agreement or other similar charter or governing document) of the Surviving Business Entity to be effected by such merger or consolidation;
(vi) the effective time of the merger, which may be the date of the filing of the certificate of merger pursuant to Section 14.4 or
a later date specified in or determinable in accordance with the Merger Agreement (provided, that if the effective time of the merger is to be later than the
date of the filing of such certificate of merger, the effective time shall be fixed at a date or time certain and stated in the certificate of merger); and
necessary or appropriate.
(vii) such other provisions with respect to the proposed merger or consolidation that the General Partner determines to be
shall set forth:
(c) If the General Partner shall determine to consent to the conversion, the General Partner shall approve the Plan of Conversion, which
(i) the name of the converting entity and the converted entity;
(ii) a statement that the Partnership is continuing its existence in the organizational form of the converted entity;
converted entity is to be incorporated, formed or organized;
(iii) a statement as to the type of entity that the converted entity is to be and the state or country under the laws of which the
property or interests, rights, securities or obligations of the converted entity or another entity, or for the cancellation of such equity securities;
(iv) the manner and basis of exchanging or converting the equity securities of each constituent business entity for, or into, cash,
(v) in an attachment or exhibit, the certificate of limited partnership of the Partnership; and
65
documents of the converted entity;
(vi) in an attachment or exhibit, the certificate of limited partnership, articles of incorporation, or other organizational
(vii) the effective time of the conversion, which may be the date of the filing of the articles of conversion or a later date
specified in or determinable in accordance with the Plan of Conversion (provided, that if the effective time of the conversion is to be later than the date of the
filing of such articles of conversion, the effective time shall be fixed at a date or time certain and stated in such articles of conversion); and
(viii) such other provisions with respect to the proposed conversion that the General Partner determines to be necessary or
appropriate.
Section 14.3 Approval by Limited Partners.
(a) Except as provided in Section 14.3(d), the General Partner, upon its approval of the Merger Agreement or the Plan of Conversion, as
the case may be, shall direct that the Merger Agreement or the Plan of Conversion and the merger, consolidation or conversion contemplated thereby, as
applicable, be submitted to a vote of Limited Partners, whether at a special meeting or by written consent, in either case in accordance with the requirements
of Article XIII. A copy or a summary of the Merger Agreement or the Plan of Conversion, as the case may be, shall be included in or enclosed with the
notice of a special meeting or the written consent.
(b) Except as provided in Sections 14.3(d) and 14.3(e), the Merger Agreement or Plan of Conversion, as the case may be, shall be
approved upon receiving the affirmative vote or consent of the holders of a Unit Majority unless the Merger Agreement or Plan of Conversion, as the case
may be, contains any provision that, if contained in an amendment to this Agreement, the provisions of this Agreement or the Delaware Act would require
for its approval the vote or consent of a greater percentage of the Outstanding Units or of any class of Limited Partners, in which case such greater
percentage vote or consent shall be required for approval of the Merger Agreement or the Plan of Conversion, as the case may be.
(c) Except as provided in Sections 14.3(d) and 14.3(e), after such approval by vote or consent of the Limited Partners, and at any time
prior to the filing of the certificate of merger or certificate of conversion pursuant to Section 14.4, the merger, consolidation or conversion may be abandoned
pursuant to provisions therefor, if any, set forth in the Merger Agreement or Plan of Conversion, as the case may be.
(d) Notwithstanding anything else contained in this Article XIV or in this Agreement, the General Partner is permitted, without Limited
Partner approval, to convert the Partnership or any Group Member into a new limited liability entity, to merge the Partnership or any Group Member into, or
convey all of the Partnership’s assets to, another limited liability entity that shall be newly formed and shall have no assets, liabilities or operations at the
time of such conversion, merger or conveyance other than those it receives from the Partnership or other Group Member if (i) the General Partner has
received an Opinion of Counsel that the conversion, merger or conveyance, as the case may be, would not result in the loss of the limited liability under the
Delaware Act of any Limited Partner or cause the Partnership or any Group Member to be treated as an association taxable as a corporation or otherwise to
be taxed as an entity for federal income tax purposes (to the extent not already treated as such), (ii) the sole purpose of such conversion, merger, or
conveyance is to effect a mere change in the legal form of the Partnership into another limited liability entity and (iii) the governing instruments of the new
entity provide the Limited Partners and the General Partner with substantially the same rights and obligations as are herein contained.
(e) Additionally, notwithstanding anything else contained in this Article XIV or in this Agreement, the General Partner is permitted,
without Limited Partner approval, to merge or consolidate the Partnership with or into another entity if (A) the General Partner has received an Opinion of
Counsel that the merger or consolidation, as the case may be, would not result in the loss of the limited liability under the Delaware Act of any Limited
Partner or cause the Partnership or any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for
federal income tax purposes (to the extent not already treated as such), (B) the merger or consolidation would not result in an amendment to this Agreement,
other than any amendments that could be adopted pursuant to Section 13.1, (C) the Partnership is the Surviving Business Entity in
66
such merger or consolidation, (D) each Unit outstanding immediately prior to the effective date of the merger or consolidation is to be an identical Unit of
the Partnership after the effective date of the merger or consolidation, and (E) the number of Partnership Interests to be issued by the Partnership in such
merger or consolidation does not exceed 20% of the Partnership Interests (other than Incentive Distribution Rights) Outstanding immediately prior to the
effective date of such merger or consolidation.
(f) Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation approved in accordance with this Article
XIV may (a) effect any amendment to this Agreement or (b) effect the adoption of a new partnership agreement for the Partnership if it is the Surviving
Business Entity. Any such amendment or adoption made pursuant to this Section 14.3 shall be effective at the effective time or date of the merger or
consolidation.
Section 14.4 Certificate of Merger. Upon the required approval by the General Partner and the Unitholders of a Merger Agreement or the Plan of
Conversion, as the case may be, a certificate of merger or certificate of conversion, as applicable, shall be executed and filed with the Secretary of State of
the State of Delaware in conformity with the requirements of the Delaware Act.
Section 14.5 Effect of Merger, Consolidation or Conversion.
(a) At the effective time of the certificate of merger:
(i) all of the rights, privileges and powers of each of the business entities that has merged or consolidated, and all property, real,
personal and mixed, and all debts due to any of those business entities and all other things and causes of action belonging to each of those business entities,
shall be vested in the Surviving Business Entity and after the merger or consolidation shall be the property of the Surviving Business Entity to the extent
they were of each constituent business entity;
not in any way impaired because of the merger or consolidation;
(ii) the title to any real property vested by deed or otherwise in any of those constituent business entities shall not revert and is
preserved unimpaired; and
(iii) all rights of creditors and all liens on or security interests in property of any of those constituent business entities shall be
enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it.
(iv) all debts, liabilities and duties of those constituent business entities shall attach to the Surviving Business Entity and may be
(b) At the effective time of the certificate of conversion, for all purposes of the laws of the State of Delaware:
in its prior organizational form;
(i) the Partnership shall continue to exist, without interruption, but in the organizational form of the converted entity rather than
(ii) all rights, title, and interests to all real estate and other property owned by the Partnership shall remain vested in the
converted entity in its new organizational form without reversion or impairment, without further act or deed, and without any transfer or assignment having
occurred, but subject to any existing liens or other encumbrances thereon;
new organizational form without impairment or diminution by reason of the conversion;
(iii) all liabilities and obligations of the Partnership shall continue to be liabilities and obligations of the converted entity in its
in their capacities as such in existence as of the effective time of the
(iv) all rights of creditors or other parties with respect to or against the prior interest holders or other owners of the Partnership
67
conversion will continue in existence as to those liabilities and obligations and are enforceable against the converted entity by such creditors and obligees to
the same extent as if the liabilities and obligations had originally been incurred or contracted by the converted entity; and
(v) the Partnership Interests that are to be converted into partnership interests, shares, evidences of ownership, or other rights or
securities in the converted entity or cash as provided in the plan of conversion shall be so converted, and Partners shall be entitled only to the rights provided
in the Plan of Conversion.
Section 15.1 Right to Acquire Limited Partner Interests.
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
ARTICLE XV
(a) Notwithstanding any other provision of this Agreement, if at any time the General Partner and its Affiliates hold more than 80% of
the total Limited Partner Interests of any class then Outstanding, the General Partner shall then have the right, which right it may assign and transfer in
whole or in part to the Partnership or any Affiliate of the General Partner, exercisable in its sole discretion, to purchase all, but not less than all, of such
Limited Partner Interests of such class then Outstanding held by Persons other than the General Partner and its Affiliates, at the greater of (x) the Current
Market Price as of the date three days prior to the date that the notice described in Section 15.1(b) is mailed and (y) the highest price paid by the General
Partner or any of its Affiliates for any such Limited Partner Interest of such class purchased during the 90-day period preceding the date that the notice
described in Section 15.1(b) is mailed.
(b) If the General Partner, any Affiliate of the General Partner or the Partnership elects to exercise the right to purchase Limited Partner
Interests granted pursuant to Section 15.1(a), the General Partner shall deliver to the Transfer Agent notice of such election to purchase (the “Notice of
Election to Purchase”) and shall cause the Transfer Agent to mail a copy of such Notice of Election to Purchase to the Record Holders of Limited Partner
Interests of such class (as of a Record Date selected by the General Partner) at least 10, but not more than 60, days prior to the Purchase Date. Such Notice of
Election to Purchase shall also be published for a period of at least three consecutive days in at least two daily newspapers of general circulation printed in
the English language and circulated in the Borough of Manhattan, New York. The Notice of Election to Purchase shall specify the Purchase Date and the
price (determined in accordance with Section 15.1(a)) at which Limited Partner Interests will be purchased and state that the General Partner, its Affiliate or
the Partnership, as the case may be, elects to purchase such Limited Partner Interests, upon surrender of Certificates representing such Limited Partner
Interests in the case of Limited Partner Interests evidenced by Certificates, in exchange for payment, at such office or offices of the Transfer Agent as the
Transfer Agent may specify, or as may be required by any National Securities Exchange on which such Limited Partner Interests are listed or admitted to
trading. Any such Notice of Election to Purchase mailed to a Record Holder of Limited Partner Interests at his address as reflected in the records of the
Transfer Agent shall be conclusively presumed to have been given regardless of whether the owner receives such notice. On or prior to the Purchase Date,
the General Partner, its Affiliate or the Partnership, as the case may be, shall deposit with the Transfer Agent cash in an amount sufficient to pay the
aggregate purchase price of all of such Limited Partner Interests to be purchased in accordance with this Section 15.1. If the Notice of Election to Purchase
shall have been duly given as aforesaid at least 10 days prior to the Purchase Date, and if on or prior to the Purchase Date the deposit described in the
preceding sentence has been made for the benefit of the holders of Limited Partner Interests subject to purchase as provided herein, then from and after the
Purchase Date, notwithstanding that any Certificate shall not have been surrendered for purchase, all rights of the holders of such Limited Partner Interests
(including any rights pursuant to Articles IV, V, VI, and XII) shall thereupon cease, except the right to receive the purchase price (determined in accordance
with Section 15.1(a)) for Limited Partner Interests therefor, without interest, upon surrender to the Transfer Agent of the Certificates representing such
Limited Partner Interests in the case of Limited Partner Interests evidenced by Certificates, and such Limited Partner Interests shall thereupon be
68
deemed to be transferred to the General Partner, its Affiliate or the Partnership, as the case may be, on the record books of the Transfer Agent and the
Partnership, and the General Partner or any Affiliate of the General Partner, or the Partnership, as the case may be, shall be deemed to be the owner of all
such Limited Partner Interests from and after the Purchase Date and shall have all rights as the owner of such Limited Partner Interests (including all rights
as owner of such Limited Partner Interests pursuant to Articles IV, V, VI, and XII).
69
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1 Addresses and Notices. Any notice, demand, request, report or proxy materials required or permitted to be given or made to a Partner
under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by
other means of written communication to the Partner at the address described below.
Any notice, payment or report to be given or made to a Partner hereunder shall be deemed conclusively to have been given or made, and the
obligation to give such notice or report or to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such notice,
payment or report to the Record Holder of such Partnership Interests at his address as shown on the records of the Transfer Agent or as otherwise shown on
the records of the Partnership, regardless of any claim of any Person who may have an interest in such Partnership Interests by reason of any assignment or
otherwise.
Notwithstanding the foregoing, if (i) a Partner shall consent to receiving notices, demands, requests, reports or proxy materials via electronic mail
or by the Internet or (ii) the rules of the Commission shall permit any report or proxy materials to be delivered electronically or made available via the
Internet, any such notice, demand, request, report or proxy materials shall be deemed given or made when delivered or made available via such mode of
delivery.
An affidavit or certificate of making of any notice, payment or report in accordance with the provisions of this Section 16.1 executed by the General
Partner, the Transfer Agent or the mailing organization shall be prima facie evidence of the giving or making of such notice, payment or report. If any notice,
payment or report given or made in accordance with the provisions of this Section 16.1 is returned marked to indicate that such notice, payment or report
was unable to be delivered, such notice, payment or report and, in the case of notices, payments or reports returned by the United States Postal Service (or
other physical mail delivery mail service outside the United States of America), any subsequent notices, payments and reports shall be deemed to have been
duly given or made without further mailing (until such time as such Record Holder or another Person notifies the Transfer Agent or the Partnership of a
change in his address) or other delivery if they are available for the Partner at the principal office of the Partnership for a period of one year from the date of
the giving or making of such notice, payment or report to the other Partners. Any notice to the Partnership shall be deemed given if received by the General
Partner at the principal office of the Partnership designated pursuant to Section 2.3. The General Partner may rely and shall be protected in relying on any
notice or other document from a Partner or other Person if believed by it to be genuine.
The terms “in writing”, “written communications,” “written notice” and words of similar import shall be deemed satisfied under this Agreement by
use of e-mail and other forms of electronic communication.
Section 16.2 Further Action. The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Section 16.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
Section 16.4 Integration. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 16.5 Creditors. None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the
Partnership.
Section 16.6 Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty,
agreement or condition.
70
Section 16.7 Counterparts. This Agreement may be executed in counterparts, all of which together shall constitute an agreement binding on all
the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this
Agreement immediately upon affixing its signature hereto or, in the case of a Person acquiring a Unit, pursuant to Section 10.1(a) without execution hereof.
Section 16.8 Applicable Law; Forum, Venue and Jurisdiction.
(a) This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the
principles of conflicts of law.
company or clearing corporation or an agent of any of the foregoing or otherwise):
(b) Each of the Partners and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust
(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement
(including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners
or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf
of the Partnership, (C) asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Partnership or the General
Partner, or owed by the General Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E)
asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case
regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable,
legal or other grounds, or are derivative or direct claims;
such claim, suit, action or proceeding; and
(ii) irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware in connection with any
(iii) agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally
subject to the jurisdiction of the Court of Chancery of the State of Delaware or of any other court to which proceedings in the Court of Chancery of the State
of Delaware may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or
proceeding is improper, (iv) expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding, and (v)
consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such
party at the address in effect for notices hereunder, and agrees that such services shall constitute good and sufficient service of process and notice thereof;
provided, nothing in clause (v) hereof shall affect or limit any right to serve process in any other manner permitted by law.
Section 16.9 Invalidity of Provisions. If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected
thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or
part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum
extent possible.
Section 16.10 Consent of Partners. Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is specified that an
action may be taken upon the affirmative vote or consent of less than all of the Partners, such action may be so taken upon the concurrence of less than all of
the Partners and each Partner shall be bound by the results of such action.
71
Section 16.11 Facsimile Signatures. The use of facsimile signatures affixed in the name and on behalf of the transfer agent and registrar of the
Partnership on Certificates representing Units is expressly permitted by this Agreement.
Section 16.12 Third Party Beneficiaries. Each Partner agrees that (a) any Indemnitee shall be entitled to assert rights and remedies hereunder as a
third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Indemnitee and (b) any
Unrestricted Person shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this
Agreement affording a right, benefit or privilege to such Unrestricted Person.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
72
EXHIBIT A
to the First Amended and Restated
Agreement of Limited Partnership of
SPRAGUE RESOURCES LP
Certificate Evidencing Common Units
Representing Limited Partner Interests in
SPRAGUE RESOURCES LP
No. Common Units
In accordance with Section 4.1 of the First Amended and Restated Agreement of Limited Partnership of SPRAGUE RESOURCES LP, as amended,
supplemented or restated from time to time (the “Partnership Agreement”), SPRAGUE RESOURCES LP, a Delaware limited partnership (the
“Partnership”), hereby certifies that (the “Holder”) is the registered owner of Common Units representing limited partner interests in the Partnership (the
“Common Units”) transferable on the books of the Partnership, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed.
The rights, preferences and limitations of the Common Units are set forth in, and this Certificate and the Common Units represented hereby are issued and
shall in all respects be subject to the terms and provisions of the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be
furnished without charge on delivery of written request to the Partnership at the principal office of the Partnership located at Two International Drive, Suite
200, Portsmouth, NH 03801. Capitalized terms used herein but not defined shall have the meanings given them in the Partnership Agreement.
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF SPRAGUE RESOURCES LP THAT THIS SECURITY
MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN
APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH
TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF SPRAGUE RESOURCES LP UNDER THE LAWS OF THE STATE OF
DELAWARE, OR (C) CAUSE SPRAGUE RESOURCES LP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR
OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR
TAXED). SPRAGUE RESOURCES GP LLC, THE GENERAL PARTNER OF SPRAGUE RESOURCES LP, MAY IMPOSE ADDITIONAL
RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES ADVICE OF COUNSEL THAT SUCH RESTRICTIONS ARE
NECESSARY TO AVOID A SIGNIFICANT RISK OF SPRAGUE RESOURCES LP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE
BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT
PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF
ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
A-1
The Holder, by accepting this Certificate, (i) shall become bound by the terms of the Partnership Agreement, (ii) represents that the transferee has
the capacity, power and authority to enter into this Agreement and (iii) makes the consents and waivers contained in the Partnership Agreement.
This Certificate shall not be valid for any purpose unless it has been countersigned and registered by the Transfer Agent and Registrar. This
Certificate shall be governed by and construed in accordance with the laws of the State of Delaware.
Dated:
SPRAGUE RESOURCES LP
Countersigned and Registered:
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Transfer Agent and Registrar
By:
Authorized Signature
By: Sprague Resources GP LLC
By:
Name:
Title:
By:
Name:
Title:
[Reverse of Certificate]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as follows according to applicable laws
or regulations:
TEN COM — as tenants in common
TEN ENT — as tenants by the entireties
UNIF GIFT/ TRANSFERS MIN ACT
(Cust) (Minor)
JT TEN — as joint tenants with right of survivorship and not as tenants in
common
under Uniform gifts/Transfers to CD
Minors Act (State)
Additional abbreviations, though not in the above list, may also be used.
A-2
FOR VALUE RECEIVED
hereby assigns, conveys, sells and transfers unto
ASSIGNMENT OF COMMON UNITS
of
SPRAGUE RESOURCES LP
(Please print or typewrite name and address of Assignee)
(Please insert Social Security or other identifying number of Assignee)
_______ Common Units representing limited partner interests evidenced by this Certificate, subject to the Partnership Agreement, and does hereby
irrevocably constitute and appoint as its attorney-in-fact with full power of substitution to transfer the same on the books of SPRAGUE RESOURCES
LP.
Date:
NOTE: The signature to any endorsement hereon must correspond with the
name as written upon the face of this Certificate in every particular, without
alteration, enlargement or change.
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15
(Signature)
(Signature)
A-3
Exhibit 21.1
SUBSIDIARIES OF SPRAGUE RESOURCES LP
Name
Sprague Operating Resources LLC
Sprague Energy Solutions Inc.
Sprague Connecticut Properties LLC
Sprague Terminal Services LLC
Sprague Co-op Member LLC
Coen Transport LLC
Coen Energy LLC
Sprague Natural Gas LLC
Kildair Service ULC
[0.8% owned by Sprague Co-op Member LLC]
Sprague Resources Canada ULC
Wintergreen Transport Corporation ULC
Sprague Resources Finance Corp
State or Other
Jurisdiction of
Incorporation
Delaware
Delaware
Delaware
Delaware
Delaware
Pennsylvania
Pennsylvania
Delaware
Canada
Canada
Canada
Delaware
Percent of
Ownership
100%
100%
100%
100%
100%
100%
100%
100%
99.2%
100%
100%
100%
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
We consent to the incorporation by reference in the following Registration Statements:
•
•
Form S-8 No. 333-191923 pertaining to the Sprague Resources LP 2013 Long Term Incentive Plan; and
Form S-3 No. 333-200148 pertaining to Sprague Resources LP and Sprague Resources Finance Corp
of our reports dated March 4, 2021, with respect to the consolidated financial statements of Sprague Resources LP, and the effectiveness of internal control
over financial reporting of Sprague Resources LP, included in this Annual Report (Form 10-K) of Sprague Resources LP for the year ended December 31,
2020
/s/ Ernst & Young LLP
Boston, Massachusetts
March 4, 2021
Exhibit 31.1
I, David C. Glendon, certify that:
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
1.
2.
3.
4.
I have reviewed this annual report on Form 10-K of Sprague Resources LP;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) for the registrant and have:
a.
b.
c.
d.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.
b.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date: March 4, 2021
/s/ DAVID C. GLENDON
David C. Glendon
President and Chief Executive Officer
Exhibit 31.2
I, David C. Long, certify that:
CERTIFICATION OF CHIEF FINANCIAL OFFICER
1.
2.
3.
4.
I have reviewed this annual report on Form 10-K of Sprague Resources LP;
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) for the registrant and have:
a.
b.
c.
d.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.
b.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date: March 4, 2021
/s/ DAVID C. LONG
David C. Long
Chief Financial Officer
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with this Annual Report of Sprague Resources LP (the “Partnership”) on Form 10-K for the year ended December 31, 2020, as filed
with the Securities and Exchange Commission on the date hereof (the “Report”), I, David C. Glendon, President and Chief Executive Officer of the general
partner of the Partnership, certify pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my
knowledge:
1
2
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as
amended; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of
operations of the Partnership.
Date: March 4, 2021
/s/ DAVID C. GLENDON
David C. Glendon
President and Chief Executive Officer
(Principal Executive Officer)
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.2
In connection with this Annual Report of Sprague Resources LP (the “Partnership”) on Form 10-K for the year ended December 31, 2020, as filed
with the Securities and Exchange Commission on the date hereof (the “Report”), I, David C. Long, Chief Financial Officer of the general partner of the
Partnership, certify pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1
2
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as
amended; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of
operations of the Partnership.
Date: March 4, 2021
/s/ DAVID C. LONG
David C. Long
Chief Financial Officer
(Principal Financial Officer)