Exhibit 1
Execution Copy
AMERIGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
New York, New York
December 5, 2001
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Banc of America Securities LLC
Credit Suisse First Boston Corporation
UBS Warburg LLC
As Representatives of the Several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
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Ladies and Gentlemen:
AmeriGas Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to sell to the several underwriters named in Schedule I
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hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, 1,843,047 of its limited partner interests in the Partnership
(the "Common Units"), in the amounts set forth opposite such Underwriter's name
in Schedule I, and Columbia Energy Group (the "Offering Unitholder") proposes to
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sell to the Underwriters 2,356,953 Common Units, in the amounts set forth
opposite such Underwriter's name in Schedule II hereto (said Common Units to be
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issued and sold by the Partnership and the Offering Unitholder being hereinafter
called the "Underwritten Securities"). The Partnership also proposes to grant to
the Underwriters an option to purchase up to 630,000 additional Common Units to
cover over-allotments (the "Option Securities"; the Option Securities, together
with the Underwritten Securities, being hereinafter called the "Securities"). To
the extent there are no additional Underwriters listed on Schedule I other than
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you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
The Partnership, AmeriGas Propane, L.P., a Delaware limited partnership
("AmeriGas Propane"), AmeriGas Eagle Propane, L.P., a Delaware limited
partnership ("AmeriGas Eagle," and together with AmeriGas Propane, the
"Operating Partnerships"), and AmeriGas Propane, Inc., a Pennsylvania
corporation and general partner of both the Partnership and AmeriGas Propane
(the "General Partner"), and AmeriGas Eagle Holdings, Inc., a Delaware
corporation
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and general partner of AmeriGas Eagle (the "Eagle General Partner," and together
with the General Partner, the "General Partners"), are collectively referred to
herein as the "Partnership Entities".
1. Representations and Warranties.
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(i) The Partnership Entities, jointly and severally, represent and
warrant to, and agree with, each Underwriter as set forth below in this
Section 1.
(a) The Partnership meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission two registration
statements (file numbers 333-73686 and 333-45902) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Registration Statement has been declared
effective by the Commission and no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose has been instituted or overtly threatened by the Commission. The
Partnership has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder. As filed, the Final Prospectus or any
such supplement to the Final Prospectus shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Partnership has advised you, prior to the Execution
Time, will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The
Partnership may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished
to you. The Partnership will next file with the Commission a Final
Prospectus relating to the Securities in accordance with Rules 430A and
424(b).
(b) On the Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, at the Execution Time, the Preliminary Final
Prospectus did not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date and any settlement date, the Final Prospectus
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(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Partnership Entities make no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Partnership by or
on behalf of any Underwriter through the Representatives or by the Offering
Unitholder specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) Each of the Partnership and the Operating Partnerships has been
duly formed and is validly existing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") with
full partnership power and authority to own, lease and operate its
respective properties to be owned and operated at the Closing Date and to
conduct its respective businesses to be conducted at the Closing Date in
all material respects as described in the Registration Statement and the
Final Prospectus, and each of the Partnership and the Operating
Partnerships is, or at each Closing Date will be, duly registered or
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify (i) does not have a material adverse
effect on the financial condition, results of operations, prospects,
business or properties, whether or not arising from transactions in the
ordinary course of business, except as set forth in the Final Prospectus
(exclusive of any supplement thereto) ("Material Adverse Effect") of the
Partnership and the Operating Partnerships, taken as a whole, or (ii) would
not subject the limited partners of the Partnership that are common
unitholders to any material liability or disability.
(d) The General Partner is a corporation duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with full corporate power and authority to own, lease and
operate its properties and to conduct its business and to act as general
partner of the Partnership and of AmeriGas Propane, in each case in all
material respects as described in the Registration Statement and the Final
Prospectus, and the General Partner is duly registered or qualified to
conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to register
or qualify,
(i) does not have a Material Adverse Effect on the Partnership
and the Operating Partnerships, taken as a whole or
(ii) would not subject the limited partners that are common
unitholders of the Partnership to any material liability or
disability.
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(e) The Eagle General Partner is a corporation duly incorporated,
validly existing and in good standing under the Delaware General
Corporation Law (the "DGCL"), with full corporate power and authority to
own, lease and operate its properties and to conduct its business and to
act as general partner of AmeriGas Eagle, in all material respects as
described in the Registration Statement and the Final Prospectus, and the
Eagle General Partner is duly registered or qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify,
(i) does not have a Material Adverse Effect on the Partnership
and the Operating Partnerships, taken as a whole or
(ii) would not subject the limited partners that are common
unitholders of the Partnership to any material liability or
disability.
(f) None of the Partnership, the Operating Partnerships or the
General Partners has any subsidiaries (other than the Partnership and
Operating Partnerships themselves and Petrolane Incorporated, a
Pennsylvania corporation ("Petrolane")) which would be deemed to be a
significant subsidiary (as such term is defined in Section 1-02 of
Regulation S-X) to the Partnership on a consolidated basis.
(g) None of the Partnership, the Operating Partnerships or the
General Partners is in violation of its partnership agreement, certificate
or articles of incorporation, by-laws, or certificates of limited
partnership. None of the Partnership, the Operating Partnerships or the
General Partners is in breach, default or violation in the performance of
any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which the Partnership, the
Operating Partnerships or the General Partners is a party or by which any
of them or any of its respective properties may be bound which breach,
default or violation would, if continued, (i) have a Material Adverse
Effect on the Partnership or the Operating Partnerships, taken as a whole,
or (ii) subject the limited partners of the Partnership that are common
unitholders to any material liability or disability. None of the
Partnership, AmeriGas Propane or the General Partner is in violation of any
law, ordinance, administrative or governmental rule or regulation
applicable to the Partnership, AmeriGas Propane, or the General Partner, as
applicable, or of any decree of any court or governmental agency or body
having jurisdiction over the Partnership, AmeriGas Propane and the General
Partner, which violation would, if continued, (i) have a Material Adverse
Effect on the Partnership or the Operating Partnerships, taken as a whole,
or (ii) subject the limited partners of the Partnership that are common
unitholders to any material liability or disability. To our knowledge,
neither AmeriGas Eagle nor the Eagle General Partner is in violation of any
law, ordinance, administrative or governmental rule or regulation
applicable to AmeriGas Eagle or the
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Eagle General Partner, as applicable, or of any decree of any court or
governmental agency or body having jurisdiction over AmeriGas Eagle or
the Eagle General Partner, as applicable.
(h) None of the offering, issuance and sale of the
Securities by the Partnership, the execution, delivery or performance
of this Agreement by the Partnership, the Operating Partnerships or
the General Partners nor the consummation by the Partnership, the
Operating Partnerships or the General Partners of the transactions
contemplated hereby (A) requires any permit, consent, approval,
authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental
body, agency or official or conflicts or will conflict with or
constitutes or (B) will constitute a violation of the agreement of
limited partnership, certificate or articles of incorporation, bylaws
or certificates of limited partnership of the Partnership, the
Operating Partnerships or the General Partners or (C) conflicts or
will conflict with or constitutes or will constitute a breach or
violation of, or a default under, any material agreement, indenture,
lease or other instrument to which the Partnership, the Operating
Partnerships or the General Partners is a party or by which any of
them or any of their respective properties may be bound other than as
described in the Final Prospectus and except for agreements,
indentures, leases or other instruments that will be extinguished on
the Closing Date, or (D) violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Partnership, the Operating Partnerships or the
General Partners or any of their respective properties, or (E) will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Partnership, the
Operating Partnerships or the General Partners pursuant to the terms
of any agreement or instrument to which any of them is a party or by
which any of them may be bound or to which any of the property or
assets of any of them is subject (other than as described in the Final
Prospectus) which conflict, breach, violation or default would, if
continued, in the case of (A), (C), (D) and (E), (i) have a Material
Adverse Effect on the Partnership and the Operating Partnerships,
taken as a whole, or (ii) subject the limited partners of the
Partnership that are common unitholders to any material liability or
disability, except for permits, consents, approvals and similar
authorizations required under the Act and the securities or blue sky
laws of certain jurisdictions.
(i) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have
certified the financial statements included or incorporated by
reference in the Preliminary Final Prospectus (or any amendment or
supplement thereto) are independent public accountants as required by
the Act.
(j) Except as disclosed in the Registration Statement and
the Final Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which information is given in
the Registration Statement and the Final Prospectus (or any
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amendment or supplement thereto), none of the Partnership, the Operating
Partnerships or the General Partners has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Partnership and
the Operating Partnerships, taken as a whole.
(k) The Partnership has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Securities, will not distribute, any prospectus (as
defined under the Act) in connection with the offering and sale of the
Securities other than the Registration Statement, the Basic Prospectus, the
Preliminary Final Prospectus, the Final Prospectus or any amendment or
supplement thereto, or other materials, if any, permitted by the Act,
including Rule 134 of the general rules and regulations promulgated
thereunder.
(l) Each of the Partnership, the Operating Partnerships and
the General Partners has filed all material tax returns required to be
filed and has timely paid all taxes shown to be due pursuant to said
returns, other than those (i) which, if not paid, would not have a Material
Adverse Effect on the Partnership and the Operating Partnerships, taken as
a whole, or (ii) which are being contested in good faith.
(m) Except as described in the Final Prospectus, none of
the Partnership, the Operating Partnerships and the General Partners has
sustained since the date of the latest audited financial statements
included in the Final Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Final
Prospectus; and, except as described in the Final Prospectus since the
respective dates as of which information is given in the Registration
Statement and the Final Prospectus, and except for changes in accumulated
other comprehensive income (loss) attributable to the Operating
Partnership's derivative instruments, there has not been any material
change in the partners' equity or capital stock or long-term debt of the
Partnership, the Operating Partnerships or the General Partners; and there
has not been any material adverse change in or affecting the financial
condition, business, properties, results of operations or prospects of the
Partnership and the Operating Partnerships, taken as a whole.
(n) At June 30, 2001, the Partnership had and would have
had on the pro forma and adjusted bases indicated in the Final Prospectus,
a duly authorized and outstanding capitalization as set forth therein; the
consolidated historical financial statements together with the related
schedules and notes of the Partnership and its subsidiaries included or
incorporated by reference in the Final Prospectus and the Registration
Statement present fairly in all material respects the financial condition,
results of operations and cash flows of the Partnership as of the dates and
the periods indicated, comply as to form with the applicable requirements
as to financial statements of the Act, the Exchange Act and the rules
promulgated under the Act or the Exchange
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Act and have been prepared in conformity with accounting principles
generally accepted in the United States; the historical information set
forth in the Final Prospectus under the caption "Selected Historical and
Pro Forma Financial and Other Data" accurately presents, on the bases
stated in the Registration Statement and Final Prospectus, the information
included therein.
(o) The General Partner is the sole general partner of the
Partnership and AmeriGas Propane with a general partner interest in the
Partnership of 1.0% pursuant to the Second Amended and Restated Agreement
of Limited Partnership, dated as of September 30, 2000 (the "Partnership
Agreement"), and a general partner interest in AmeriGas Propane of 1.0101%
pursuant to the Amended and Restated Agreement of Limited Partnership of
AmeriGas Propane, dated as of April 12, 1995 (the "AmeriGas Propane
Partnership Agreement" and, together with the Partnership Agreement and the
AmeriGas Eagle Partnership Agreement, the "Partnership Agreements").
(p) As of the Closing Date, the General Partner and its
consolidated subsidiaries will own limited partner interests in the
Partnership represented by 14,633,932 Common Units and 9,891,072 units
representing subordinated limited partner interests ("Subordinated Units").
(q) As of the Closing Date, the Partnership will be the
sole limited partner of AmeriGas Propane, with a limited partner interest
of 98.9899%, and will own such limited partner interest in AmeriGas Propane
free and clear of all liens, encumbrances, charges or claims other than
those arising pursuant to the AmeriGas Propane Partnership Agreement.
(r) Eagle General Partner is the sole general partner of
AmeriGas Eagle with a general partner interest in AmeriGas Eagle of 1%
pursuant to the Amended and Restated Agreement of Limited Partnership of
AmeriGas Eagle Propane, L.P., dated as of July 19, 1999 (the "AmeriGas
Eagle Partnership Agreement").
(s) AmeriGas Propane is a limited partner of AmeriGas Eagle
with a limited partner interest of more than 98% in AmeriGas Eagle, and,
except for security interests under AmeriGas Propane's April 1995
Intercreditor and Agency Agreement and AmeriGas Propane's Security
Agreement, AmeriGas Propane owns such limited partner interest in AmeriGas
Eagle free and clear of all liens, encumbrances, charges or claims. An
unaffiliated third party is a special limited partner of AmeriGas Eagle,
with a special limited partner interest of less than 1%.
(t) At the Closing Date, or the settlement date, as the
case may be, the Securities and the limited partner interests represented
thereby will be duly authorized by the Partnership Agreement and, when
issued and delivered against payment therefor as provided herein, will be
validly issued, fully paid (to the extent required under the
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Partnership Agreement) and non-assessable (except as such non-assessability
may be affected by the provisions of Section 17-607 of the Delaware Act).
(u) Other than the right of the special limited partner to
maintain a 1% ownership interest in AmeriGas Eagle, and as described in the
Basic Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase limited or general partner interests from the
Partnership or the Operating Partnerships, nor any restriction upon the
voting or transfer of, any Common Units of the Partnership or limited
partner interests of the Operating Partnerships pursuant to any of the
Partnership Agreements or any agreement or other instrument to which the
Partnership or the Operating Partnerships is a party or by which any of
them may be bound, except for restrictions on transfer of the unregistered
Common Units issued pursuant to acquisition agreements.
(v) All of the issued shares of capital stock of the
General Partner have been duly authorized and validly issued and are fully
paid and non-assessable; and, except as set forth in the Final Prospectus,
all of the issued shares of capital stock of the General Partner are held
directly or indirectly by UGI Corporation, free and clear of all liens,
encumbrances, equities or claims.
(w) All of the issued shares of capital stock of the Eagle
General Partner have been duly authorized and validly issued and are fully
paid and non-assessable; except as set forth in the Final Prospectus and
except for security interests under AmeriGas Propane's April 1995
Intercreditor and Agency Agreement and AmeriGas Propane's General Security
Agreement, all of the issued shares of capital stock of the Eagle General
Partner are held directly or indirectly by AmeriGas Propane free and clear
of all liens, encumbrances and claims whatsoever.
(x) This Agreement has been duly authorized, executed and
delivered by the Partnership Entities.
(y) Each of the Partnership and the Operating Partnerships
has, or at or before the Closing Date will have, all necessary consents,
approvals, authorizations, orders, registrations and qualifications of or
with any court or governmental agency or body having jurisdiction over it
or any of its properties or of or with any other person to acquire its
properties and to conduct its business as set forth or contemplated in the
Final Prospectus, except such consents, approvals, authorizations, orders,
registrations or qualifications which, if not obtained, would not (i)
individually or in the aggregate, have a Material Adverse Effect on the
Partnership and the Operating Partnerships taken as a whole, or (ii) affect
the limited liability of the limited partners of the Partnership that are
common unitholders.
(z) None of the Partnership, AmeriGas Propane or the
General Partner (i) has violated any environmental, safety, health or
similar law or regulation applicable to its
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business relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), which violation would have a
Material Adverse Effect on the Partnership or the Operating
Partnerships, taken as a whole, or (ii) lacks any permits, licenses or
other approvals required of them under applicable Environmental Laws to
own, lease or operate their properties and conduct its businesses as
described in the Final Prospectus or is violating any terms and
conditions of any such permit, license or approval, which would have a
Material Adverse Effect on the Partnership or the Operating
Partnerships, taken as a whole. To our knowledge, neither AmeriGas
Eagle nor the Eagle General Partner (i) has violated any Environmental
Laws, or (ii) lacks any permits, licenses or other approvals required
of them under applicable Environmental Laws to own, lease or operate
its properties and conduct its businesses as described in the Final
Prospectus or is violating any terms and conditions of any such permit,
license or approval.
(aa) Each of the Partnership Entities has insurance covering its
respective properties, operations, personnel and businesses. In the
General Partners' reasonable judgment, such insurance insures against
such losses and risks as are adequate to protect the Partnership, the
Operating Partnerships and the General Partners and their businesses.
No Partnership Entity has received notice from any insurer or agent of
such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance;
all such insurance is outstanding and duly in force on the date hereof
and will be outstanding and duly in force on the Closing Date.
(bb) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Partnership, any of its subsidiaries or the General Partners or its or
their property is pending or, to the knowledge of the Partnership or
the General Partners, threatened that (i) would reasonably be expected
to have a Material Adverse Effect on the Partnership and the Operating
Partnerships, taken as a whole, or prevent or result in the suspension
of the offering and issuance of the Securities or (ii) would in any
manner question the validity of this Agreement.
(cc) Any certificate signed by any officer of the General Partner
on behalf of the Partnership and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Partnership, as to matters covered thereby, to each Underwriter.
(ii) The Offering Unitholder represents and warrants to, and agrees
with, each Underwriter that:
(a) The Offering Unitholder is the record and beneficial owner of
the Underwritten Securities to be sold by it hereunder free and clear
of all liens, encumbrances, equities and claims and has duly endorsed
such Underwritten Securities in
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blank, and, assuming that each Underwriter acquires its interest in the
Underwritten Securities it has purchased from the Offering Unitholder
without notice of any adverse claim to such Underwritten Securities,
upon delivery to the Underwriters in the State of New York of
certificates representing such Underwritten Securities accompanied by a
stock power indorsed to them, and upon payment of the consideration
called for herein, the Underwriters will acquire all of the Offering
Unitholder's rights in such Underwritten Securities, free and clear of
any adverse claim within the meaning of Section 8-102 of the Uniform
Commercial Code ("UCC") of New York.
(b) The Offering Unitholder has not taken, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Partnership to facilitate the sale or resale of the Underwritten
Securities.
(c) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Offering Unitholder of the transactions contemplated herein, except
such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Underwritten Securities by the
Underwriters and such other approvals as have been obtained.
(d) Neither the sale of the Underwritten Securities being sold by
the Offering Unitholder nor the consummation of any other of the
transactions herein contemplated by the Offering Unitholder or the
fulfillment of the terms hereof by the Offering Unitholder will
conflict with, result in a breach or violation of, or constitute a
default under (A) the charter or by-laws of the Offering Unitholder or
(B) the terms of any indenture or other agreement or instrument to
which the Offering Unitholder or any of its affiliates is a party or
bound, or (C) any law, judgment, order or decree applicable to the
Offering Unitholder or any of its affiliates of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over such Offering Unitholder or any of its affiliates,
which conflict, breach, violation or default would, if continued, in
the case of (B) and (C), (i) not have a Material Adverse Effect on the
Offering Unitholder or (ii) not subject the Offering Unitholder to any
material liability or disability.
(e) The sale of Underwritten Securities by the Offering Unitholder
pursuant hereto is not prompted by any information concerning the
Partnership or the Operating Partnerships which is not set forth in the
Prospectus or any supplement thereto.
(f) The information in the Prospectus under the caption "Offering
Unitholders" which specifically relates to the Offering Unitholder does
not, and will not on the Closing Date, contain any untrue statement of
a material fact or omit to state any
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material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they
were made, not misleading.
Any certificate signed by any officer of the Offering Unitholder
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Offering Unitholder, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership agrees
to sell to the Underwriters, and each Underwriter agrees, severally and
not jointly, to purchase from the Partnership, at a purchase price of
$20.5862 per unit, 1,843,047 Common Units. Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Offering Unitholder agrees to sell to the
Underwriters, and each Underwriter agrees, severally and not jointly,
to purchase from the Offering Unitholder, at a purchase price of
$20.5862 per unit, 2,356,953 Common Units.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership hereby
grants an option to the several Underwriters to purchase, severally and
not jointly, up to 630,000 Option Securities at the same purchase price
per unit as the Underwriters shall pay for the Underwritten Securities.
Said option may be exercised only to cover over-allotments in the sale
of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on
or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Partnership
setting forth the number of Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall
be in the same percentage of the total number of Option Securities to
be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such adjustments
as you in your absolute discretion shall make to eliminate any
fractional units.
3. Delivery and Payment. Delivery of and payment for the Underwritten
--------------------
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on December 11,
2001, or at such time on such later date and time after the foregoing date as
may be determined by agreement between the Representatives, the Partnership and
the Offering Unitholder or as provided in Section 9 hereof (such date and time
of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the
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purchase price thereof to or upon the order of the Partnership and the Offering
Unitholder by wire transfer payable in same-day funds to the accounts specified
by the Partnership and the Offering Unitholder. Delivery of the Underwritten
Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
The Offering Unitholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the several underwriters of the Underwritten
Securities to be purchased by them from the Offering Unitholder and the
respective Underwriters will pay any additional stock transfer taxes involved in
further transfers.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Partnership will deliver the
Option Securities (at the expense of the Partnership) to the Representatives,
through the system of the Depository Trust Company (DTC), on the date specified
by the Representatives (which shall be no earlier than three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership.
If settlement for the Option Securities occurs after the Closing Date, the
Partnership will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements.
----------
(i) The Partnership agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Partnership will not file any amendment of the Registration Statement or
supplement (including any Final Prospectus) to the Basic Prospectus or any
Rule 462(b) Registration Statement relating to the Securities (except any
documents required to be filed under the Exchange Act) unless the
Partnership has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Partnership will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
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Partnership will promptly advise the Representatives (1) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement relating to the Securities shall have
been filed with the Commission, (2) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (3) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Final Prospectus or for any additional information,
(4) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (5) of the receipt
by the Partnership of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose. The
Partnership will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, upon request from the Underwriters, the
Partnership promptly will (1) notify the Representatives of such event,
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance
and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Partnership will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Partnership which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Partnership will furnish to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., on
behalf of the Representatives and counsel for the Underwriters, without
charge, one signed copy of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Partnership will pay the expenses of printing
or other production of all documents relating to the offering.
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(e) The Partnership will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided
that in no event shall the Partnership be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, in any
jurisdiction where it is not now so subject. The Partnership acknowledges
that the offer or sale of the Securities in any jurisdiction may subject
the Partnership to service of process in suits arising out of the offer or
sale of the Securities in such jurisdiction.
(f) The Partnership will not, without the prior written consent of
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options or warrants to purchase Common Units or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Partnership or any affiliate of the Partnership or any person in privity
with the Partnership or any affiliate of the Partnership), directly or
indirectly, including through the filing (or participation in the filing)
of a registration statement with the Commission in respect of, or the
establishment of or increase in a put equivalent position in or liquidation
or the decrease in a call equivalent position in, within the meaning of
Section 16 of the Exchange Act, any other Common Units or rights that
represent the right to receive Common Units or any securities that are
senior to or pari passu with Common Units or publicly announce an intention
to effect any such transaction, for a period of ninety (90) days from the
Execution Time, other than
(i) in connection with the acquisition of assets, businesses or
the capital stock or other ownership interests of businesses by the
Partnership or the Operating Partnerships in exchange for securities
of the Partnership that are substantially similar to the Common Units,
if the recipient(s) of such securities agree(s) not to offer, sell,
contract to sell, or otherwise dispose of such securities or take any
of the other actions restricted by this Section 5(f) during such
lock-up period or
(ii) pursuant to employee benefit plans or unit option plans, or
upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement. The
Partnership will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Partnership to
facilitate the sale or resale of the Securities.
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(ii) The Offering Unitholder agrees with the several Underwriters that:
(a) The Offering Unitholder will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Underwritten Securities.
(b) The Offering Unitholder will advise you promptly, and if requested
by you, will confirm such advice in writing, so long as delivery of a
prospectus relating to the Underwritten Securities by an underwriter or
dealer may be required under the Act, of (i) any material change in the
Partnership's financial condition, results of operations, prospects,
business or properties, (ii) any change in information in the Registration
Statement or the Prospectus relating to the Offering Unitholder or (iii)
any new material information relating to the Partnership or relating to any
matter stated in the Prospectus which comes to the attention of the
Offering Unitholder.
6. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Partnership Entities contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the
Partnership made in any certificates pursuant to the provisions hereof, to the
performance by the Partnership Entities of their obligations hereunder and to
the following additional conditions:
(a) The Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Partnership shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇ &
Bockius LLP, counsel for the Partnership, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of the Partnership and AmeriGas Propane has been duly
formed and each of the Partnership and the Operating Partnerships
is validly existing as a limited partnership under the Delaware
Revised Uniform Limited Partnership Act (the "Deaware Act") with
full partnership power and authority to own or lease, as the case
may be, and to operate its properties and conduct its respective
businesses as described in the Final Prospectus, and each of the
Partnership and AmeriGas Propane is duly registered or qualified
to conduct its business and is in good standing under the laws of
each jurisdiction or place where the
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nature of its properties or the conduct of its business
requires registration or qualification (except where failure
to so qualify would not have a Material Adverse Effect on
the Partnership on a consolidated basis). AmeriGas Eagle is
duly registered and qualified to conduct its business and is
in good standing under the laws of each jurisdiction or
place listed on Exhibit A to such counsel's opinion. Each of
---------
the Partnership Agreements has been duly authorized and
validly executed and delivered by the Partnership, the
Operating Partnerships and the General Partners, as the case
may be, and constitutes a valid and binding obligation of
the Partnership, the Operating Partnerships and the General
Partners, as the case may be, enforceable against such party
in accordance with its terms subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws relating to or affecting creditors' rights
and remedies generally, and subject, as to enforceability,
to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding
at law or in equity) and securities laws and public policy
underlying such laws with respect to rights to
indemnification and contribution.
(ii) The General Partner is a corporation duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, with full corporate power and
authority to own, lease and operate its properties and to
conduct its business and to act as general partner of the
Partnership and AmeriGas Propane and the General Partner is
duly registered or qualified to conduct its business and is
in good standing under the laws of each jurisdiction or
place where the nature of its properties or the conduct of
its business requires registration or qualification (except
where failure to so qualify would not have a Material
Adverse Effect on the Partnership on a consolidated basis).
(iii) The Eagle General Partner is a corporation validly
existing and in good standing under the DGCL, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business and to act as general
partner of AmeriGas Eagle, and the Eagle General Partner is
duly registered or qualified to conduct its business and is
in good standing under the laws of each jurisdiction or
place listed on Exhibit A to such counsel's opinion.
---------
(iv) The outstanding Common Units have been duly and validly
authorized and issued and are fully paid and nonassessable;
upon official notice of issuance, the Securities will be
duly listed, and admitted and
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authorized for trading on the New York Stock Exchange; the
certificates for the Securities are in valid and sufficient
form; and the holders of outstanding Common Units of the
Partnership are not entitled to preemptive or other rights
to subscribe for the Securities other than preemptive
rights of the General Partner pursuant to the Partnership
Agreement and, except as set forth in the Final Prospectus,
no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities
for, Common Units of or ownership interests in the
Partnership are outstanding.
(v) To the knowledge of such counsel, there is no pending
or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any
arbitrator involving the Partnership Entities or its or
their property of a character required to be disclosed in
the Registration Statement which is not adequately
disclosed in the Final Prospectus, and to the knowledge of
such counsel, there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as
required; and the statements included or incorporated by
reference in the Final Prospectus under the heading
"Business and Properties - Government Regulation" insofar
as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements,
documents or proceedings.
(vi) The Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by
Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened and the Registration
Statement and the Final Prospectus (other than the
financial statements and other financial information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with
the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder.
(vii) This Agreement has been duly authorized and validly
executed and delivered by the Partnership, the Operating
Partnerships and the General Partners, as the case may be.
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(viii) The Partnership is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus will not
be, an "investment company" as defined in the Investment Company
Act of 1940, as amended.
(ix) Neither the General Partners, the Partnership nor the
Operating Partnerships has any subsidiaries (other than the
Partnership and Operating Partnerships themselves and Petrolane)
which would be deemed to be a significant subsidiary (as such
term is defined in Section 1-02 of Regulation S-X) to the
Partnership on a consolidated basis.
(x) The General Partner is the sole general partner of the
Partnership and AmeriGas Propane with a general partner interest
in the Partnership of 1.0% and a general partner interest in
AmeriGas Propane of 1.0101%; such general partner interests are
duly authorized by the Partnership Agreement and the AmeriGas
Propane Partnership Agreement, respectively, are validly issued
and are owned by the General Partner free and clear of all liens,
encumbrances, charges or claims of record (A) in respect of which
a financing statement under the Uniform Commercial Code of the
State of Pennsylvania naming the General Partner as debtor is on
file in the office of the Secretary of State of the State of
Pennsylvania or (B) otherwise known to such counsel, without
independent investigation, other than those created by or arising
under the Delaware Act.
(xi) The Partnership is the sole limited partner of AmeriGas
Propane, with a limited partner interest of 98.9899%; such
limited partner interest is duly authorized by the AmeriGas
Propane Partnership Agreement and is validly issued, fully paid
(to the extent required) and non-assessable (except as such
non-assessability may be affected by the provisions of Section
17-607 of the Delaware Act); and the Partnership owns such
limited partner interest in AmeriGas Propane free and clear of
all liens, encumbrances, charges or claims of record (A) in
respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Partnership
as debtor is on file in the office of the Secretary of State of
the State of Delaware or (B) otherwise known to such counsel,
without independent investigation, other than those created by or
arising under the Delaware Act.
(xii) The Eagle General Partner is the sole general partner of
AmeriGas Eagle with a general partner interest in AmeriGas Eagle
of 1%; such general partner interest is duly authorized by the
AmeriGas Eagle Partnership Agreement, and is validly issued and,
except for security
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interests under AmeriGas Propane's April 1995 Intercreditor and
Agency Agreement and AmeriGas Propane's General Security
Agreement, are owned by the Eagle General Partner free and clear
of all liens, encumbrances, charges or claims of record (A) in
respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Eagle General
Partner as debtor is on file in the office of the Secretary of
State of the State of Delaware or (B) otherwise known to such
counsel, without independent investigation, other than those
created by or arising under the Delaware Act.
(xiii) AmeriGas Propane is a limited partner of AmeriGas Eagle,
with a limited partner interest of more than 98%, and an
unaffiliated third party is a special limited partner of AmeriGas
Eagle, with a special limited partner interest of less than 1%.
AmeriGas Propane's limited partner interests are duly authorized
by the AmeriGas Eagle Partnership Agreement and are validly
issued, fully paid (to the extent required) and non-assessable
(except as such non-assessability may be affected by the
provisions of Section 17-607 of the Delaware Act); and, except
for security interests under AmeriGas Propane's 1995
Intercreditor and Agency Agreement and AmeriGas Propane's General
Security Agreement, AmeriGas Propane owns such limited partner
interests in AmeriGas Eagle free and clear of all liens,
encumbrances, charges or claims of record (A) in respect of which
a financing statement under the Uniform Commercial Code of the
State of Delaware naming the Partnership as debtor is on file in
the office of the Secretary of State of the State of Delaware or
(B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the
Delaware Act.
(xiv) The Securities to be issued and sold to the Underwriters
by the Partnership hereunder and the limited partner interests
represented thereby have been duly and validly authorized by the
General Partner on behalf of the Partnership pursuant to the
Partnership Agreement and, when issued and delivered against
payment therefor as provided in this Agreement, will be validly
issued, fully paid (to the extent required) and nonassessable
(except as such non-assessability may be affected by the
provisions of Section 17-607 of the Delaware Act).
(xv) The statements incorporated in the Registration Statement
and in the Final Prospectus under the caption "Description of
Common Units" insofar as they constitute descriptions of the
Partnership Agreement or refer to statements of law or legal
conclusions, are accurate and complete in all material respects.
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(xvi) Except as described in the Final Prospectus, there are no
preemptive rights or other rights to subscribe for limited
partner interests or to purchase, nor any restriction upon the
voting or transfer of, any owners of Common Units of the
Partnership or the Operating Partnerships pursuant to any of the
Partnership Agreements.
(xvii) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such
as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in
the Final Prospectus and such other approvals (specified in such
opinion) as have been obtained.
(xviii) Neither the issue, offer, sale or delivery of the
Securities, the execution, delivery or performance of this
Agreement, nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, default under or violation
of or imposition of any lien, charge or encumbrance upon any
property or assets of the Partnership Entities pursuant to (i)
the charter, by-laws, Partnership Agreements or certificates of
limited partnership of the Partnership Entities, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which any of the Partnership
Entities is a party or bound or to which its or their property is
subject and which is filed as an exhibit to the Partnership's
Annual Report on Form 10-K for the fiscal year ended September
30, 2000, as an exhibit to the Partnership's Quarterly Reports
for the quarters ended December 31, 2000, March 31, 2001, and
June 30, 2001 or as an exhibit to any Current Report on Form 8-K
filed by the Partnership after September 30, 2000 or (iii) to the
knowledge of such counsel, any statute, law, rule, regulation,
judgment, order or decree applicable to the Partnership Entities
of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Partnership or its subsidiaries or any of
its or their properties.
(xix) Except as provided in the Partnership Agreement, to the
knowledge of such counsel, no holders of securities of the
Partnership have rights to the registration of such securities
under the Registration Statement.
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(xx) Neither the Partnership nor the General Partner is a
"holding company" within the meaning of the Section 2(a)(7) of
the 1935 Act, and neither the Operating Partnerships, the
Partnership, nor the General Partners is subject to regulation
under the 1935 Act. In addition, such counsel shall state that in
the course of the preparation of the Registration Statement,
Basic Prospectus and Final Prospectus, such counsel has
participated in conferences with officers and other
representatives of the Partnership, representatives of the
independent accountants of the Partnership, representatives of
the Underwriters, representatives of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. and
representatives of counsel for the Underwriters, at which the
contents of the Registration Statement, Basic Prospectus and
Final Prospectus and related matters were discussed and, although
such counsel does not pass upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of any
statement contained in the Registration Statement, Basic
Prospectus or Final Prospectus and such counsel has made no
independent check or verification thereof (except as set forth in
paragraphs (v) and (xv) above), based in part upon the foregoing,
no facts have come to such counsel's attention that have led such
counsel to believe that the Registration Statement (except as to
the financial statements and notes thereto and other financial
data included therein as to which such counsel need not express
any opinion or belief), as of the date of effectiveness,
contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading
or that the Basic Prospectus and Preliminary Final Prospectus and
the Final Prospectus (except as to the financial statements and
the notes thereto and other financial data included therein or
excluded therefrom as to which such counsel need not express any
opinion or belief), as of its date or as of the date of such
opinion, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In
rendering such opinion such counsel may rely as to matters of
fact, to the extent such counsel deems reasonable, upon
certificates of public officials and officers of the Company,
provided that the extent of such reliance is specified in such
opinion.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of the
Partnership and public officials.
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(c) You shall have received on the Closing Date, an opinion of ▇▇▇▇▇
▇▇▇▇▇ L.L.P., counsel for the Partnership, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that the statements in the Registration Statement and Basic
Prospectus under the caption "Description of Common Units," insofar as they
constitute descriptions of the Partnership Agreement or refer to statements
of law or legal conclusions, are accurate and complete in all material
respects. Such opinion also should state that the opinion of ▇▇▇▇▇ ▇▇▇▇▇
L.L.P. filed as Exhibit 8.1 to the Registration Statement is confirmed and
the Representatives may rely on such opinion as if it were addressed to
such representatives.
(d) The Offering Unitholder shall have requested and caused Schiff,
Hardin & ▇▇▇▇▇, LLP, counsel for the Offering Unitholder, to have furnished
to the Representatives their opinion dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) The execution, delivery and performance of this Agreement by the
Offering Unitholder has been duly authorized by all necessary
corporate action on the part of the Offering Unitholder.
(ii) This Agreement has been duly executed and delivered by the
Offering Unitholder.
(iii) The execution and delivery by the Offering Unitholder of this
Agreement do not, and the performance by the Offering Unitholder of
its obligations under this Agreement, including the sale of the
Underwritten Securities to be sold by the Offering Unitholder, will
not, (i) violate its Restated Certificate of Incorporation or By-Laws,
(ii) violate any law, rule or regulation applicable to the Offering
Unitholder, (iii) violate any judgment, injunction, order or decree
which is listed on the officer's certificate attached to this opinion
letter or (iv) breach or result in a default under any indenture,
mortgage, instrument or agreement which is filed (or incorporated by
reference) as an exhibit to (a) the Annual Report on Form 10-K of the
Offering Unitholder for the year ended December 31, 2000, (b) the
Quarterly Reports of the Offering Unitholder on Form 10-Q for the
quarters ended March 31, 2001, June 30, 2001 and September 30, 2001 or
(c) the Current Reports of the Offering Unitholder on Form 8-K filed
after December 31, 2000.
(iv) Neither the execution and delivery by the Offering Unitholder of
this Agreement nor the performance by the Offering Unitholder of its
obligations under this Agreement, including the sale of the
Underwritten Securities to be sold by the Offering Unitholder,
requires any consent or approval of any nature from, or filing with
any, governmental authority of
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the State of Illinois or the United States of America or
under the Delaware General Corporation Law under any
law, regulation or rule applicable to the Offering
Unitholder (except that such counsel need express no
opinion with respect to the Securities Act of 1933 and
the securities and blue sky laws of the various states).
(v) Assuming that the Underwriters acquire their
interest in the Underwritten Securities to be sold by
the Offering Unitholder without notice of any adverse
claim to such Underwritten Securities, upon delivery to
the Underwriters in the State of New York of
certificates representing such Underwritten Securities
accompanied by a stock power indorsed to them, and upon
payment of the consideration called for herein, the
Underwriters will acquire all of the Offering
Unitholder's rights in such Underwritten Securities,
free of any adverse claim within the meaning of Section
8-102 of the New York UCC.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction other than the State of Delaware or the Federal
laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to
matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Offering Unitholder and public
officials.
(e) The Representatives shall have received from ▇▇▇▇▇▇▇ &
▇▇▇▇▇ Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the
Partnership shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
(f) The Partnership shall have furnished to the
Representatives a certificate of the Partnership, signed on behalf of
the General Partner by a President or Vice President thereof dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the
contained in this Agreement are true and correct on and
as of the Closing Date as though made at and as of the
Closing Date;
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(ii) the Partnership has performed all obligations required to
be performed by it pursuant to the terms of this Agreement at or
prior to the Closing Date;
(iii) the Registration Statement has become effective and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been initiated or, to the knowledge of the Partnership,
threatened by the Commission, and all requests for additional
information on the part of the Commission have been complied
with or otherwise satisfied;
(iv) the Common Units have been duly listed, subject to
official notice of issuance, on the New York Stock Exchange; and
(v) no event contemplated by subsection (k) of this Section 6
in respect of the Partnership or the Operating Partnerships
shall have occurred; and since the date of the most recent
financial statements included or incorporated by reference in
the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Effect on the Partnership and
its subsidiaries, taken as a whole.
(g) The Offering Unitholder shall have furnished to the
Representatives a certificate, signed by an officer of the Offering
Unitholder, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the information relating to the Offering
Unitholder in the Final Prospectus, any supplement to the Final Prospectus
and this Agreement, that the representations and warranties of the Offering
Unitholder in this Agreement are true and correct in all material respects
on and as of the Closing Date to the same effect as if made on the Closing
Date and that all judgments, injunctions, orders or decrees applicable to
the Offering Unitholder and the transactions contemplated by this Agreement
as they relate to the Offering Unitholder are listed on Exhibit A to such
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certificate.
(h) The Partnership shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters (which may refer to letters previously delivered
to one or more of the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited interim
financial information of the Partnership for the nine months ended June 30,
2001, and as at June 30, 2001, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in Schedule I
hereto, that:
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(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Preliminary
Final Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Partnership;
their limited review, in accordance with standards
established under Statement on Auditing Standards No. 71,
of the unaudited interim financial information for the nine
months ended June 30, 2001, and as at June 30, 2001,
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
Board of Directors of the General Partner and inquiries of
certain officials of the General Partner who have
responsibility for financial and accounting matters of the
Partnership as to transactions and events subsequent to
September 30, 2000, nothing came to their attention which
caused them to believe that:
(A) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Preliminary Final Prospectus do not comply as to form in all
material respects with applicable accounting requirements of the
Act and with the related rules and regulations adopted by the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial statements are not
in conformity with generally accepted accounting principles;
(B) with respect to the period subsequent to June
30, 2001, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the long-term
debt of the Partnership or capital of the Partnership or
decreases in the unitholders' equity of the Partnership as of
June 30, 2001 as compared with the amounts shown on the June 30,
2001 consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Preliminary Final
Prospectus, or for the period from July 1, 2001 to such specified
date there were any decreases, as compared with June 30, 2000, in
net revenues or income before income taxes or in total or per
unit amounts of net income of the Partnership, except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be
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accompanied by an explanation by the Partnership as to the
significance thereof unless said explanation is not deemed necessary
by the Representatives; or
(C) the information included or incorporated by
reference in the Registration Statement and Preliminary Final
Prospectus in response to Regulation S-K, Item 301 (Selected Financial
Data) and Item 302 (Supplementary Financial Information) is not in
conformity with the applicable disclosure requirements of Regulation
S-K.
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Partnership and its
subsidiaries) set forth in the Registration Statement and the
Preliminary Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth under
the captions "Capitalization" and "Selected Historical and Pro
Forma Financial and Other Data" in the Preliminary Final
Prospectus, the information included or incorporated by reference
in Items 1, 2, 6, 7 and 11 of the Partnership's Annual Report on
Form 10-K, incorporated by reference in the Registration
Statement and the Preliminary Final Prospectus, and the
information included in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated by reference in the Partnership's Quarterly Reports
on Form 10-Q, incorporated by reference in the Registration
Statement and the Preliminary Final Prospectus, agrees with the
accounting records of the Partnership, excluding any questions of
legal interpretation. References to the Preliminary Final
Prospectus in this paragraph (h) include any supplement thereto
at the date of the letter; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Partnership and
Columbia Propane Corporation who have responsibility for
financial and accounting matters; and proving the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro
forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or
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that the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of such statements.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any material change or decrease
specified in the letter or letters referred to in paragraph (h) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the financial condition, results of operations,
prospects, business or properties of the Partnership and the Operating
Partnerships, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto), the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(j) On or prior to the Closing Date, the Partnership shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(k) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change in or affecting the financial condition,
business, properties or results of operations or prospects of the
Partnership, the Operating Partnerships or the General Partners not
contemplated by the Final Prospectus, which in your reasonable opinion, as
Representatives of the several Underwriters would materially adversely
affect the market for the Securities, or (ii) any event or development
relating to or involving the Partnership, the Operating Partnerships or the
General Partners which makes any statement of material fact made in the
Final Prospectus untrue or which, in the opinion of the Partnership and its
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Final Prospectus in order to state a material
fact required by the Act or any other applicable law to be stated therein
or necessary in order to make the statements therein not misleading, if
amending or supplementing the Final Prospectus to reflect such event or
development would, in your opinion, as Representatives of the several
Underwriters, materially adversely affect the market for the Securities.
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Partnership's or Operating
Partnerships' debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any
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such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(m) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, subject to official
notice of issuance, and satisfactory evidence of such actions shall have
been provided to the Representatives.
(n) On or prior to the Closing Date, the Partnership shall have
furnished to the Representatives a letter substantially in the form of
Annex I hereto from the General Partner, Petrolane and each executive
officer of the General Partner addressed to the Representatives. All such
opinions, certificates, letters and other documents referred to in this
Section 6 will be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to you and your counsel. Any
certificate or document signed by any officer of the Partnership, the
Operating Partnerships or the General Partners and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters,
shall be deemed a representation and warranty by the Partnership, the
Operating Partnerships or the General Partners to each Underwriter as to
the statements made therein. If any of the conditions specified in this
Section 6 shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at the Closing
Date by the Representatives. Notice of such cancellation shall be given to
the Partnership in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Partnership, at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Partnership
Entities or the Offering Unitholder to perform any agreement herein or comply
with any provision hereof other than by reason of a default or termination by
any of the Underwriters pursuant to Sections 9 or 10 hereof, the Partnership
Entities and the Offering Unitholder will reimburse the Underwriters severally,
in amounts reflecting each of the Partnership's and Offering Unitholder's
proportional share of the Underwritten Securities, through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. on demand for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
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8. Indemnification and Contribution.
--------------------------------
(a) The Partnership Entities, jointly and severally, agree to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act and
the Offering Unitholder, its directors, officers, employees and agents and
each person who controls the Offering Unitholder within the meaning of
either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Partnership Entities will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Partnership or the General Partner by
or on behalf of any Underwriter through the Representatives, specifically
for inclusion therein. With respect to any untrue statement or omission of
material fact made in any Preliminary Final Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such loss, claim, damage
or liability purchased the Securities, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Partnership
had previously furnished copies of the Final Prospectus to the
Representatives, (x) delivery of the Final Prospectus was required by the
Act to be made to such person, (y) the untrue statement or omission of a
material fact contained in the Preliminary Final Prospectus was corrected
in the Final Prospectus (excluding documents incorporated by reference) and
(z) there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Final Prospectus. This indemnity agreement will be in addition to any
liability that the Partnership Entities may otherwise have.
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(b) The Offering Unitholder agrees to indemnify and hold harmless the
Partnership Entities, each of its directors, each of its officers who signs
the Registration Statement, each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls the
Partnership Entities or any Underwriter within the meaning of either the
Act or the Exchange Act to the same extent as the foregoing indemnity from
the Partnership Entities to each Underwriter, but only with reference to
written information furnished to the Partnership Entities by or on behalf
of the Offering Unitholder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which the Offering Unitholder may otherwise have.
The Partnership Entities and the Underwriters acknowledge that the
statements set forth (i) in the fifth paragraph on page S-19 in the
Preliminary Final Prospectus about the relationships between the Offering
Unitholder and the Underwriters and (ii) in the first and last sentence of
the first paragraph and the first sentence of the last paragraph in the
Base Prospectus under the heading "Offering Unitholder" constitute the only
information furnished in writing by or on behalf of the Offering Unitholder
for inclusion in any Preliminary Final Prospectus or Final Prospectus.
(c) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Partnership Entities, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls
the Partnership Entities within the meaning of either the Act or the
Exchange Act and the Offering Unitholder, its directors, officers,
employees and agents and each person who controls the Offering Unitholder
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Partnership Entities to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Partnership or the General Partner by or
on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have. The Partnership Entities and the Offering
Unitholder acknowledge that the statements set forth in the last paragraph
of the cover page regarding delivery of the Securities and under the
heading "Underwriting" in the Preliminary Final Prospectus (i) the list of
Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Final Prospectus and the
Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary
Final Prospectus or the Final Prospectus.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify
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the indemnifying party in writing of the commencement thereof; but the
failure to so notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraphs (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i)
based on the advice of counsel, the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded (based on the advice of counsel) that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying
party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be
unreasonably withheld).
(e) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Partnership Entities,
the Offering Unitholder and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Partnership Entities, the Offering Unitholder
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and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the
Partnership Entities, the Offering Unitholder and by the Underwriters
from the offering of the Securities; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Partnership Entities, the Offering
Unitholder and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Partnership Entities, of the
Offering Unitholder and of the Underwriters in connection with the
statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the
Partnership Entities and the Offering Unitholder shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information provided by the Partnership Entities or the
Offering Unitholder, on the one hand, or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Partnership Entities, the Offering Unitholder and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation that does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (e), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls any of the
Partnership Entities within the meaning of either the Act or the Exchange Act,
each officer of the Partnership Entities who shall have signed the Registration
Statement and each director or officer of the Partnership Entities shall have
the same rights to contribution as the Partnership Entities, and each person who
controls the Offering Unitholder within the meaning of either the Act or the
Exchange Act and each officer, director, employee and agent of the Offering
Unitholder shall have the same rights to contribution as the Offering
Unitholder, subject in each case to the applicable terms and conditions of this
paragraph (e).
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9. Default by an Underwriter. If any one or more Underwriters shall
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fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Partnership Entities or the Offering Unitholder.
In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Partnership Entities, the Offering Unitholder and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Partnership
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Partnership's Common Units shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Partnership Entities or its officers, of the Offering Unitholder and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Offering Unitholder or the Partnership Entities or any of the
officers, directors, employees, agents or controlling persons referred to in
Section 9 hereof, and
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Banc of America Securities LLC
Credit Suisse First Boston Corporation
UBS Warburg LLC
Page 34
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General
Counsel; or, if sent to any of the Partnership Entities, will be mailed,
delivered or telefaxed to the office of the Partnership at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Managing Counsel and confirmed
to it at (▇▇▇) ▇▇▇-▇▇▇▇, attention of the Legal Department; or, if sent to the
Offering Unitholder, will be mailed, delivered or telefaxed to it at the address
set forth on Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms that follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
UBS Warburg LLC
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"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus that describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean both of the registration statements
referred to in paragraph 1(a) above (file numbers 333-73686 and 333-45902),
including exhibits and financial statements, as amended at the Execution Time
and, in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
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UBS Warburg LLC
Page 36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Partnership Entities, the Offering Unitholder and the several Underwriters.
Very truly yours,
AmeriGas Partners, L.P.
By: AmeriGas Propane, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-Finance
AmeriGas Propane, L.P.
By: AmeriGas Propane, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-Finance
AmeriGas Propane, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-Finance
AmeriGas Eagle Propane, L.P.
By: AmeriGas Eagle Holdings, Inc., its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-Finance
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
UBS Warburg LLC
Page 37
AmeriGas Eagle Holdings, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-Finance
Offering Unitholder:
Columbia Energy Group
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
UBS Warburg LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Vice President
--------------------
For themselves and the other several
Underwriters, if any, named in Schedule I
to the foregoing Agreement.
SCHEDULE I
----------
Number of Underwritten
----------------------
Underwriters Securities to be Purchased
------------ --------------------------
from the Partnership
--------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ............... 522,197
Banc of America Securities LLC .......... 276,456
Credit Suisse First Boston Corporation .. 522,197
UBS Warburg LLC ......................... 522,197
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Total ................................... 1,843,047
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Schedule I-1
SCHEDULE II
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Offering Unitholder:
Columbia Energy Group
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Number of Underwritten Securities
---------------------------------
Underwriters to be Purchased from the
------------ ------------------------
Offering Unitholder
-------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ................ 667,803
Banc of America Securities LLC ........... 353,544
Credit Suisse First Boston Corporation ... 667,803
UBS Warburg LLC .......................... 667,803
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Total .................................... 2,356,953
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SCHEDULE I-2
ANNEX I
[Letterhead of AmeriGas Propane, Inc., Petrolane Incorporated and
executive officers of AmeriGas Partners, L.P.]
AmeriGas Partners, L.P. Public Offering of Common Units
December 5, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
Underwriting Agreement (the "Underwriting Agreement") by and among AmeriGas
Partners, L.P., a Delaware limited partnership (the "Partnership"), AmeriGas
Propane, L.P., a Delaware limited partnership ("AmeriGas Propane"), AmeriGas
Eagle Propane, L.P., a Delaware limited partnership ("AmeriGas Eagle"), AmeriGas
Propane, Inc., a Pennsylvania corporation (the "General Partner"), and AmeriGas
Eagle Propane, Inc., a Delaware corporation ("Eagle General Partner," and
collectively, the "Partnership Entities"), Columbia Energy Group (the "Offering
Unitholder") and you as the representatives of a group of Underwriters named
therein, relating to the sale of an aggregate of 4,200,000 common units of
limited partner interests in the Partnership (the "Common Units") (said units to
be issued and sold by the Partnership and the Offering Unitholder being
hereinafter called the "Underwritten Securities") and the option to purchase up
to 630,000 additional Common Units to cover over-allotments (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities").
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with
Schedule I-3
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Page 4
respect to, any Common Units of limited partner interests or any securities
convertible into or exercisable or exchangeable for such units, or publicly
announce an intention to effect any such transaction, for a period of 90 days
after the date of the Final Prospectus.
If for any reason the Underwriting Agreement should be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
[Signature of AmeriGas Propane, Inc. and Petrolane
Incorporated and executive officers of AmeriGas
Partners, L.P.]