Exhibit 1
$40,000,000
AMERIGAS PARTNERS, L.P.
AP EAGLE FINANCE CORP.
8-7/8% SERIES B SENIOR NOTES DUE 2011
UNDERWRITING AGREEMENT
May 3, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. AmeriGas Partners, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), and AP Eagle Finance Corp., a Delaware
corporation and a wholly-owned subsidiary of the Partnership ("FINANCE CORP."
and, together with the Partnership, the "Issuers"), propose to issue and sell to
Credit Suisse First Boston Corporation ("YOU" or the "UNDERWRITER") an aggregate
of $40 million principal amount of 8-7/8% Series B Senior Notes due 2011 (the
"NOTES") as set forth below. The Notes are to be issued pursuant to an
indenture, dated as of August 21, 2001 (the "BASE INDENTURE"), among the Issuers
and Wachovia Bank, National Association, successor to First Union National Bank,
as trustee (the "TRUSTEE"), as supplemented by a Supplemental Indenture (the
"SUPPLEMENTAL INDENTURE" and, together with the Base Indenture, the "NOTE
INDENTURE"), to be dated as of the Closing Date as defined below, among the
Issuers and the Trustee. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Note Indenture. Finance Corp., the
Partnership, along with its operating 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"), 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 and general partner of AmeriGas Eagle (the "EAGLE GENERAL PARTNER,"
and together with the General Partner, the "GENERAL
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PARTNERS") are collectively referred to herein as the "PARTNERSHIP ENTITIES."
The Partnership Entities hereby agree with the Underwriter as follows:
2. Representations and Warranties. The Issuers, the Operating
Partnerships and the General Partners jointly and severally represent and
warrant to, and agree with, the Underwriter that:
(a) A registration statement (No. 333-83942) relating to the
Notes, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and has been declared
effective under the Securities Act of 1933, as amended ("Act"). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to such
registration statement means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) or (d). The registration
statement, as amended at its Effective Time, including all material
incorporated by reference therein, is hereinafter referred to as the
"REGISTRATION STATEMENT". The form of prospectus (the "BASE
PROSPECTUS") relating to the Notes and included in the Registration
Statement, as supplemented by a final prospectus supplement (the
"PROSPECTUS SUPPLEMENT") reflecting the terms of the Notes, the terms
of the offering thereof and other matters relating to the Notes
including all material incorporated by reference into such prospectus
and Prospectus Supplement, is hereinafter referred to as the
"PROSPECTUS". The Base Prospectus, as supplemented by a prospectus
supplement in the form filed prior to the Prospectus Supplement, is
hereinafter referred to as the "PRELIMINARY PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) At the Effective Time, the Registration Statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. On the date of this Agreement, the
Registration Statement conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b), the Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentences do not apply
to statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Issuers by
the Underwriter specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c) hereof.
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(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 their respective properties to be owned and operated at the
Closing Date and to conduct their respective businesses to be conducted
at the Closing Date in all material respects as described in the
Prospectus, and each of the Partnership and the Operating Partnerships
is, or at the 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 does not have a material adverse effect on
the financial condition, business, properties, results of operations,
or prospects ("MATERIAL ADVERSE EFFECT") of the Issuers and the
Operating Partnerships taken as a whole.
(d) Finance Corp. is a corporation duly incorporated, validly
existing and in good standing under the laws of 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 in
all material respects as described in the Prospectus, and Finance Corp.
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 does
not have a Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole.
(e) The General Partner is a corporation duly incorporated and
presently subsisting 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 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 does not have a Material Adverse Effect on the Issuers and
the Operating Partnerships, taken as a whole, or the General Partner.
(f) The Eagle General Partner is a corporation duly
incorporated, 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, in all material respects as described in the
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 does not have a
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Material Adverse Effect on the Issuers and the Operating Partnerships,
taken as a whole.
(g) None of the General Partners, the Partnership nor the
Operating Partnerships has any subsidiaries, other than the Partnership
and the 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).
(h) None of the Issuers, the Operating Partnerships or the
General Partners is in violation of its partnership agreement,
certificate or articles of incorporation or by-laws, or other
organizational documents. None of the Issuers, AmeriGas Propane or the
General Partner is in violation of any law, ordinance, administrative
or governmental rule or regulation applicable to the Issuers, AmeriGas
Propane, or the General Partner, as applicable, or of any decree or any
court or governmental agency or body having jurisdiction over the
Issuers, AmeriGas Propane and the General Partner, which violation
would, if continued, have a Material Adverse Effect on the Issuers, or
the Operating Partnerships, taken as a whole. 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 Eagle General Partner, as
applicable, or of any decree or any court or governmental agency or
body having jurisdiction over AmeriGas Eagle or the Eagle General
Partner. None of the Issuers, 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 Issuers,
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
which breach, default or violation would, if continued, have a Material
Adverse Effect on the Issuers and the Operating Partnerships, taken as
a whole.
(i) None of the offering, issuance and sale of the Notes or
the execution, delivery or performance of the Note Indenture and the
Notes by the Issuers and the General Partner or the execution, delivery
or performance of this Agreement by the Partnership Entities or the
consummation by the Issuers, 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 which has not
been obtained or conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership,
certificate or articles of incorporation or by-laws or other
organizational documents of any of the Issuers the Operating
Partnerships or the General Partners or (B) conflicts or will conflict
with or constitutes or will constitute a breach or violation of, or a
default under, any agreement, indenture, lease or other instrument to
which any of the Issuers, the
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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 Prospectus, or (C) violates or will violate
any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to any of the Issuers, the Operating Partnerships
or the General Partners or any of their respective properties, or (D)
will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Issuers, 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 Prospectus),
which conflict, breach, violation, default or lien would, if continued,
have a Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole, except for such as have been obtained
and made under the Act, the Trust Indenture Act and state securities or
blue sky laws and regulations, or such as may be required by the
National Association of Securities Dealers, Inc. (the "NASD"), which,
if not obtained, would not, individually or in the aggregate, have a
Material Adverse Effect on the Issuers and the Operating Partnerships,
taken as a whole.
(j) None of the Issuers, the Operating Partnerships or the
General Partners has distributed or, prior to the later to occur of (i)
the Closing Date and (ii) completion of the distribution of the Notes,
will distribute, any prospectus in connection with the sale of the
Notes other than the Preliminary Prospectus and the Prospectus, or
other material, if any, permitted by the Act, including Rule 134 of the
general rules and regulations promulgated thereunder.
(k) Except as disclosed in the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the
Preliminary Prospectus and the Prospectus (or any amendment or
supplement thereto), none of the Issuers, 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 Issuers and the Operating
Partnerships, taken as a whole.
(l) Each of the Issuers, 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 or the Operating
Partnerships, taken as a whole or (ii) which are being contested in
good faith.
(m) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), none of the Operating Partnerships or the
General Partners has sustained any material loss or interference with
its business from fire, explosion, flood or other calamity, not
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covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and, other than as described in
the Prospectus since the respective dates as of which information is
given in the Prospectus, there has not been any material change or
development involving a prospective material adverse change (i) in the
capitalization or long-term debt of any of the Issuers, the Operating
Partnerships or the General Partners or (ii) affecting the financial
condition, business, properties, results of operations or prospects of
the Issuers and the Operating Partnerships, taken as a whole, and (iii)
none of the Issuers, Operating Partnerships, or General Partners has
incurred any material liability or obligations direct or contingent
other than in the ordinary course of business (any such event in this
paragraph being termed a "MATERIAL ADVERSE CHANGE") except for (A)
changes in accumulated other comprehensive income (loss) attributable
to the Partnership's derivative instruments, (B) the issuance of equity
in January 2002, (C) a reduction in long-term indebtedness of $60
million and (D) income and distributions during the quarter ended March
31, 2002.
(n) The accountants, Arthur Andersen LLP, who have certified
the consolidated financial statements incorporated by reference in the
Preliminary Prospectus and the Prospectus (or any amendment or
supplement thereto) are independent public accountants as required by
the Act.
(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 of the Partnership (as it may be
amended or restated at or prior to the Closing Date, 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(as it may be amended or restated at or
prior to the Closing Date, the "AMERIGAS PROPANE PARTNERSHIP AGREEMENT"
and, together with the Partnership Agreement, the "PARTNERSHIP
AGREEMENTS").
(p) As of the Closing Date, the General Partner and its
consolidated subsidiaries will continue to 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" and, collectively with the common units,
"UNITS").
(q) As of the Closing Date, the Partnership will continue to
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) The 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,
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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, as amended, and AmeriGas Propane's
General Security Agreement, as amended, 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) 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 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, except
as set forth in the Prospectus.
(u) 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 Prospectus
and except for security interests under AmeriGas Propane's 1995
Intercreditor and Agency Agreement, as amended, AmeriGas Propane's
General Security Agreement, as amended, and AmeriGas Propane's
Subsidiary Security Agreement, as amended, 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, equities or claims.
(v) Each of the Issuers, the Operating Partnerships and the
General Partners has all requisite corporate or partnership power and
authority to execute, deliver and perform its obligations under this
Agreement and, to the extent applicable, the Note Indenture and the
Notes (the Note Indenture and the Notes are referred to as the
"OPERATIVE DOCUMENTS") to which it is a party and to consummate the
transactions contemplated hereby and thereby, including, without
limitation, with respect to the Partnership, the partnership power and
authority to issue, sell and deliver the Notes as provided herein and
therein, and with respect to Finance Corp., the corporate power and
authority to issue, sell and deliver the Notes as provided herein and
therein.
(w) This Agreement has been duly and validly authorized,
executed and delivered by each of the Issuers, the Operating
Partnerships and the General Partners.
(x) At the Closing Date, (i) the Issuers shall issue $40
million of the Notes pursuant to the terms of the Prospectus, (ii) the
Partnership shall contribute the net proceeds of the Notes to the
Operating Partnerships as a capital contribution and
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(iii) the Operating Partnerships shall use such proceeds as set forth
in the Prospectus.
(y) Each of the Partnership and the Operating Partnerships has
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 conduct its business as set forth or
contemplated in the Prospectus, except such consents, approvals,
authorizations, orders, registrations or qualifications which, if not
obtained, would not, individually or in the aggregate, have a Material
Adverse Effect upon the Issuers or the Operating Partnerships, taken as
a whole.
(z) Except as described in the Prospectus, there is (i) no
action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending
or, to the knowledge of any of the Issuers, the Operating Partnerships
or the General Partners, threatened, to which any of the Issuers, the
Operating Partnerships or the General Partners, or any of their
respective subsidiaries is or may be a party or to which the business
or property of any of the Issuers, the Operating Partnerships or the
General Partners, or any of their respective subsidiaries is or may be
subject, (ii) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has been
proposed by any governmental body, (iii) no injunction, restraining
order or order of any nature by a federal or state court or foreign
court of competent jurisdiction to which any of the Issuers, the
Operating Partnerships or the General Partners, or any of their
respective subsidiaries is or may be subject, that is reasonably
expected to (x) singly or in the aggregate, have a Material Adverse
Effect on the Issuers and the Operating Partnerships, taken as a whole
(y) prevent or result in the suspension of the issuance of the Notes or
(z) in any manner draw into question the validity of the Operative
Documents.
(aa) None of the Issuers, AmeriGas Propane or the General
Partner (i) has violated any environmental, safety, health or similar
law or regulation applicable to its 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
Issuers 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 their business as described in the Prospectus, or is
violating any terms and conditions of any such permit, license or
approval, which would have a Material Adverse Effect on the Issuers 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 their business as described
in the
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Prospectus, or is violating any terms and conditions of any such
permit, license or approval.
(bb) Each of the Issuers, the Operating Partnerships and the
General Partners maintains insurance covering their 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 Issuers, the Operating
Partnerships and the General Partners and their businesses. None of the
Issuers, the Operating Partnerships or the General Partners 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.
(cc) The Base Indenture has been duly and validly authorized
by each of the Issuers, has been duly qualified under the Trust
Indenture Act and, when the Supplemental Indenture has been duly
executed and delivered by each Issuer and the Trustee, the Note
Indenture will be the legally valid and binding obligation of each
Issuer, enforceable against each Issuer in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles and except that
rights to indemnification and contribution thereunder may be limited by
federal or state securities law or policy relating thereto. The
description of the Note Indenture in the Prospectus will conform to the
Note Indenture when the Supplemental Indenture is executed and
delivered.
(dd) The Notes have been duly and validly authorized for
issuance and sale to the Underwriter by each of the Issuers pursuant to
this Agreement and, when issued and authenticated in accordance with
the terms of the Note Indenture and delivered against payment therefor
in accordance with the terms hereof, will be the legally valid and
binding obligations of the Issuers, enforceable against the Issuers in
accordance with their terms and entitled to the benefits of the Note
Indenture, except as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The description of
the Notes in the Prospectus will conform to the terms of the Notes,
when issued, authenticated and delivered.
(ee) None of the Issuers, the Operating Partnerships or the
General Partners is and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described
in the Prospectus, will be an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
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(ff) None of the Issuers, the Operating Partnerships, the
General Partners or any of their affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes, and each of
the Issuers, the Operating Partnerships and the General Partners agrees
to comply with such Section if prior to the completion of the
distribution of the Notes it commences doing such business.
Each of the Issuers, the Operating Partnerships and the General
Partners acknowledge that the Underwriter and, for purposes of the opinions to
be delivered to the Underwriter pursuant to Section 6 hereof, counsel to the
Issuers, the Operating Partnerships and the General Partners and counsel to the
Underwriter will rely upon the accuracy and truth of the foregoing
representations and hereby consent to such reliance.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Issuers agree to sell to the
Underwriter, and the Underwriter agrees to purchase from the Issuers, at a
purchase price of 102.25% of the principal amount thereof plus accrued interest
from November 20, 2001 to the Closing Date an aggregate of $40,000,000 principal
amount of the Notes.
The Issuers will deliver against payment of the purchase price the
Notes in the form of one or more permanent global Securities in definitive form
(the "GLOBAL SECURITIES") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Notes shall be made by the Underwriter by wire
transfer of immediately available funds to an account designated by the General
Partner by 6:00 P.M. (New York time), on May 3, 2002, or at such other time or
place as the Underwriter and the Issuers determine, such time being herein
referred to as the "CLOSING DATE", against delivery to the Trustee as custodian
for DTC of the Global Securities representing all of the Notes.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Notes for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the Issuers, the Operating Partnerships and
the General Partners. The Issuers, the Operating Partnerships and the General
Partners jointly and severally agree with the Underwriter that:
(a) The Issuers will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) or (2) (as
consented to by the Underwriter) of Rule 424(b) not later than the
second business day following the execution and delivery of this
Agreement) (or, if applicable and if consented to by the Underwriter,
subparagraph (4) or (5)). The Issuers will advise the Underwriter
promptly of any such filing pursuant to Rule 424(b).
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(b) The Issuers will advise the Underwriter promptly of any
proposal to amend or supplement the Registration Statement or any
additional registration statement as filed or the related prospectus or
the Prospectus and will not effect such amendment or supplementation
(except for reports filed under the Securities Exchange Act or 1934, as
amended, the "EXCHANGE ACT") to the extent the Underwriter reasonably
objects to such amendment or supplementation after receiving a final
draft copy thereof from the Issuers; and the Issuers will also advise
the Underwriter promptly of any amendment or supplementation of the
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use their best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by the
Underwriter or any dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Issuers will promptly notify the Underwriter of such event and will
promptly prepare and file with the Commission, at their own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither the
Underwriter's consent to, nor the Underwriter's delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6. The Underwriter will advise the
Issuers that it has completed the distribution of the Notes by the
close of business on the day following the completion of such
distribution.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Issuers will make generally
available to their securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Time of the
Registration Statement which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Time, except that, if such fourth fiscal quarter is the last
quarter of the Issuers' fiscal year, "AVAILABILITY DATE" means the 90th
day after the end of such fourth fiscal quarter.
(e) The Issuers will furnish to the Underwriter copies of the
Registration Statement (which will include all exhibits but none of the
incorporated documents), each related preliminary prospectus, and, so
long as a prospectus relating to the Notes is required to be delivered
under the Act in connection with sales by any Underwriter or dealer,
the Prospectus and all amendments and supplements to such documents, in
each case in such quantities as the Underwriter requests. The
Prospectus shall be so furnished on or prior to 11:55 P.M., New
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York time, on the Closing Date or as soon thereafter as reasonably
practicable. All other documents shall be so furnished as soon as
available. The Issuers will pay the expenses of printing and
distributing to the Underwriter all such documents.
(f) The Issuers will arrange for the qualification of the
Notes for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Underwriter
designates on or prior to the Closing Date and will continue such
qualifications in effect so long as required for the distribution;
provided, however, that the Issuers shall not be required to qualify to
do business or consent to service of process in any jurisdiction in
which they are not so qualified or have not so consented and are not
now so subject.
(g) The Issuers will pay all expenses incident to the
performance of their obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel up
to $3,000) incurred in connection with qualification of the Notes for
sale and determination of their eligibility for investment under the
laws of such jurisdictions as the Underwriter designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any filing
fee incident to the review by the NASD of the Notes, for any travel
expenses of the officers and employees of the Issuers, the Operating
Partnerships or the General Partners and any other expenses of the
Issuers, the Operating Partnerships or the General Partners in
connection with attending or hosting meetings with prospective
purchasers of the Notes and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments
and supplements thereto) to the Underwriter.
6. Conditions of the Obligations of the Underwriter. The obligations of
the Underwriter under this Agreement are subject to the satisfaction of each of
the following conditions:
(a) All of the representations and warranties of the Issuers,
the Operating Partnerships and the General Partners contained in this
Agreement shall be true and correct on the date hereof and on the
Closing Date with the same force and effect as if made on and as of the
date hereof and the Closing Date, respectively. The Issuers, the
Operating Partnerships and the General Partners shall have in all
material respects performed or complied with all of the agreements
herein contained and required to be performed or complied with by them
at or prior to the Closing Date.
(b) The Prospectus shall be filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. As of the Closing Date, 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, to the
knowledge of the Issuers, the Operating Partnerships, the General
Partners or the Underwriter, shall be contemplated by the Commission.
12
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the
issuance of the Notes;
(d) On the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or
withdrawal of, or any review (or of any potential or intended review)
for a possible change that does not indicate the direction of the
possible change in, any rating of the Issuers, the General Partners, or
the Operating Partnerships or any securities of the Issuers, the
General Partners, or the Operating Partnerships (including, without
limitation, the placing of any of the foregoing ratings on credit watch
with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act, (ii) there shall not have occurred any change, nor shall
any notice have been given of any potential or intended change, in the
outlook for any rating of the Issuers, the General Partners, or the
Operating Partnerships or any securities of the Issuers, the General
Partners, or the Operating Partnerships by any such rating organization
and (iii) no such rating organization shall have given notice that it
has assigned (or is considering assigning) a lower rating to the Notes
than that on which the Notes were marketed.
(e) Since the dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any material change in
the partners' capital or capital stock of any of the Issuers, the
Operating Partnerships or the General Partners, as the case may be, nor
any material increase in the long-term debt of any of the Issuers, the
Operating Partnerships or the General Partners (in each case, other
than in the ordinary course of business), (ii) there shall not have
been any material adverse change or development involving a prospective
change in or affecting the financial condition, business, properties,
results of operations or prospects of the Issuers and the Operating
Partnerships, taken as a whole and (iii) none of the Issuers, the
General Partners or the Operating Partnerships shall have incurred any
liability or obligation, direct or contingent, the effect of which, in
any such case described in this paragraph 6(e), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to
market the Notes on the terms and in the manner contemplated in the
Prospectus.
(f) The Underwriter shall have received certificates, dated as
of the Closing Date, signed by the President or any Vice President and
a principal financial or accounting officer of Finance Corp. and of the
General Partners confirming, as of the Closing Date, the matters set
forth in paragraphs (a), (b), (c), (d) and (e) of this Section 6.
13
(g) The Underwriter shall have received an opinion, dated as
of the Closing Date, of Morgan, Lewis & Bockius LLP, counsel for the
Issuers, the Operating Partnerships and the General Partners, to the
effect that:
(i) Finance Corp. is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
organization, with all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now
being conducted;
(ii) The General Partner is a corporation duly incorporated,
and presently subsisting under the laws of the jurisdiction of its
organization, with all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business and to
act as general partner of the Partnership and AmeriGas Propane;
(iii) Eagle General Partner is a corporation duly
incorporated, validly existing and in good standing under the laws of
the jurisdiction of its organization, with all requisite corporate
power and authority to own, lease and operate its properties and to
carry on its business and to act as general partner of AmeriGas Eagle;
(iv) Each of the Partnership, AmeriGas Propane and AmeriGas
Eagle has been duly formed and each of the Partnership and the
Operating Partnerships is validly existing as a limited partnership
under the Delaware 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 Prospectus;
(v) The Issuers and the General Partner have all requisite
corporate or partnership power and authority to execute, deliver and
perform their obligations under this Agreement and the Note Indenture,
and to consummate the transactions contemplated hereby or thereby,
including, without limitation, the corporate or partnership power to
issue, sell and deliver the Notes as provided herein;
(vi) The statements in the Prospectus under the caption
"Description of the Notes," insofar as they constitute descriptions of
the Note Indenture and the Notes or refer to statements of law or legal
conclusions under state corporate or partnership law or federal law
(except for the Federal Motor Carrier Safety Act and any state or
municipal fire safety codes, as to which such counsel need not express
any opinion), constitute fair summaries thereof in all material
respects;
(vii) No consent, approval, waiver, license or authorization,
or other action by any state corporate or partnership or federal
governmental authority is required in connection with the issuance and
sale of the Notes by the Issuers or for the consummation by each of the
Issuers and the General Partner of their
14
obligations under this Agreement, the Note Indenture and the Notes,
except in each case such consents, approvals, waivers, licenses and
other actions (1) as have been obtained and made under the Act and the
Trust Indenture Act and state securities laws or (2) which, if not
obtained, would not have a material adverse effect upon the financial
condition, business or results of operations of the Issuers and the
Operating Partnerships, taken as a whole;
(viii) This Agreement has been duly authorized and validly
executed and delivered by each of the Issuers, the Operating
Partnerships and the General Partners;
(ix) Neither of the Issuers, neither of the Operating
Partnerships and neither of the General Partners is an "investment
company" or a company "controlled by" an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended;
(x) The execution and delivery of this Agreement by Finance
Corp. and the consummation by the Issuers, the Operating Partnerships
and the General Partners of the transactions contemplated hereby will
not conflict with, constitute a default under or violate (x) any of the
terms, conditions or provisions of the certificate of incorporation or
bylaws of Finance Corp., (y) any of the terms, conditions or provisions
of any document, agreement or other instrument known to such counsel to
which any of the Issuers, the Operating Partnerships or the General
Partners is a party or by which any of such entities is bound (other
than as described in the Prospectus and except for documents,
agreements or other instruments that will be extinguished on the
Closing Date), (z) any state corporate or partnership law or federal
law or regulation (assuming compliance with all applicable state
securities or blue sky laws and assuming the receipt of all consents,
approvals, waivers, licenses and other actions, which, if not obtained,
would not have a material adverse effect upon the financial condition,
business or results of operations of the Issuers and the Operating
Partnerships, taken as a whole, as to which such counsel need not
express any opinion) or (aa) any judgment, writ, injunction, decree,
order or ruling known to such counsel applicable to any of the Issuers,
the Operating Partnerships or the General Partners, except for such
conflicts, breaches and defaults which would not have a material
adverse effect on the financial condition, business or results of
operations of the Issuers and the Operating Partnerships, taken as a
whole;
(xi) Neither the execution and delivery of this Agreement by
the General Partner nor the consummation by the General Partner of any
of the transactions contemplated hereby, will conflict with, constitute
a default under or violate any of the terms, conditions or provisions
of the articles of incorporation or by-laws of the General Partner;
(xii) The Note Indenture has been duly qualified under the
Trust Indenture Act, has been duly and validly authorized, executed and
delivered by
15
each of the Issuers and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes the legal, valid and
binding obligation of each such person, enforceable against each such
person in accordance with its terms, subject (A) to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws relating to or affecting creditors' rights
and remedies generally and (B) 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 except
(x) to the extent that a waiver of rights under any usury laws may be
unenforceable and (y) that rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or public
policy relating thereto;
(xiii) The issuance and sale of the Notes have been duly and
validly authorized by each of the Issuers and, when issued and
authenticated in accordance with the terms of the Note Indenture by the
Issuers and paid for by the Underwriter in accordance with the
provisions of the Agreement and the Prospectus and authenticated by the
Trustee, will constitute the legal, valid and binding obligations of
the Issuers, enforceable against the Issuers in accordance with their
terms and entitled to the benefits of the Note Indenture, subject (A)
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws relating to or affecting
creditors' rights and remedies generally and (B) 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 except
(x) to the extent that a waiver of rights under any usury laws may be
unenforceable and (y) that rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or public
policy relating thereto;
The Registration Statement was declared effective under the
Act as of the date and time specified in such opinion and the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified therein,
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the Registration
Statement and the Prospectus, and each amendment or supplement thereto,
as of their respective effective or issue dates, complied as to form in
all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that any part of the Registration Statement or any
amendment thereto, as of its effective date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
16
statements therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel do not
know of any legal or governmental proceedings required to be described
in the Registration Statement or the Prospectus which are not described
as required or of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statements or the Prospectus.
In rendering the opinion as aforesaid, such counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by them or any of the Issuers, the Operating
Partnerships or the General Partners as to laws of any jurisdiction
other than the United States or the States of New York, Pennsylvania
and Delaware; provided that (1) each such local counsel is reasonably
acceptable to the Underwriter and (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriter and is, in form and substance,
reasonably satisfactory to the Underwriter and its counsel.
In rendering such opinion, such counsel may (A) rely in
respect of matters of fact upon certificates (original counterparts of
which shall be furnished to you) of the Issuers and the Operating
Partnerships and the General Partners and of officers and employees of
the Issuers, the Operating Partnerships and the General Partners and
upon information obtained from public officials, (B) state that their
opinion is limited to federal laws, New York law, Pennsylvania law, and
the DGCL, (C) assume that all documents submitted to them as originals
are authentic, that all copies submitted to them conform to the
originals thereof, and that the signatures on all documents examined by
such counsel are genuine, (D) state that they express no opinion with
respect to the title of any of the Issuers, the Operating Partnerships
or the General Partners or any of their affiliates to any real or
personal property transferred by or to them and (E) state that they
express no opinion with respect to state or local taxes or tax statutes
to which any of the limited partners of the Partnership or the
Operating Partnerships may be subject.
(h) You shall have received an opinion dated as of the Closing
Date of Milbank, Tweed, Hadley & McCloy LLP, your counsel, in form and
substance reasonably satisfactory to you, covering such matters as are
customarily covered in such opinions.
(i) At the time this Agreement is executed and delivered by
the Issuers, the Operating Partnerships and the General Partners, and
on the Closing Date, you
17
shall have received letters substantially in the form previously
approved by you, from Arthur Andersen LLP, independent public
accountants.
(j) Prior to the Closing Date, the Issuers, the Operating
Partnerships and the General Partners shall have furnished to you such
further information, customary certificates and documents as you may
reasonably request.
(k) The Issuers and the Trustee shall have entered into the
Note Indenture and you shall have received counterparts, conformed as
executed, thereof.
All opinions, certificates, letters and other documents required by
this Section 6 to be delivered by the Issuers, the Operating Partnerships and
the General Partners will be in compliance with the provisions hereof only if
they are reasonably satisfactory in form and substance to you. The Issuers will
furnish you with such conformed copies of such opinions, certificates, letters
and other documents as you shall reasonably request. Any certificate or document
signed by any officer of any of the Issuers, the Operating Partnerships or the
General Partners and delivered to you or to your counsel, shall be deemed a
representation and warranty by any of the Issuers, the Operating Partnerships or
the General Partners to you as to the statements made therein.
7. Indemnification.
(a) The Issuers, the Operating Partnerships and the General Partners,
jointly and severally, agree to indemnify and hold harmless (i) the Underwriter
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) the Underwriter (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "CONTROLLING
PERSON") and (iii) the respective officers, directors, partners, employees,
representatives and agents of the Underwriter or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "INDEMNIFIED PERSON") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and reasonable
expenses (including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Person) directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information furnished in writing to the Issuers or the General Partners by or on
behalf of the Underwriter expressly for use therein; provided, however, that the
indemnification contained in this paragraph (a) with respect to the Preliminary
Prospectus shall not inure
18
to the benefit of the Underwriter (or to the benefit of any person controlling
the Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Notes by the Underwriter to any person if a
copy of the Prospectus shall not have been delivered or sent to such person
within the time required by the Act and the Rules and Regulations for delivery
of a prospectus, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus; provided that the Partnership has
delivered the Prospectus to the Underwriter in reasonably requested quantities
and on a timely basis to permit such delivery or sending. The Issuers, the
General Partners and the Operating Partnerships shall notify you promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Issuers, the General Partners,
the Operating Partnerships or an Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Issuers, the
General Partners or the Operating Partnerships, such Indemnified Person shall
promptly notify the Issuers, the Operating Partnerships and the General Partners
in writing (provided, that the failure to give such notice shall not relieve the
Issuers, the General Partners or the Operating Partnerships of their obligations
pursuant to this Agreement unless each of the Issuers, the Operating
Partnerships and the General Partners is foreclosed by reason of such failure
from asserting a defense otherwise available to it). Such Indemnified Person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in (but not control) the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person, rather than the Issuers, the Operating Partnerships or the General
Partners, as the case may be, unless (i) the Partnership has agreed in writing
to pay such fees and expenses, (ii) the Issuers, the Operating Partnerships and
the General Partners have failed to assume the defense and employ counsel or
(iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Indemnified Person and the Issuers, the
Operating Partnerships or the General Partners, and such Indemnified Person
shall have been advised by its counsel that representation of such Indemnified
Person and the Issuers, the Operating Partnerships or the General Partners, as
the case may be, by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the Issuers, the Operating Partnerships or the
General Partners shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Indemnified Person). The Issuers, the
Operating Partnerships and the General Partners shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for the Indemnified Persons, which firm shall be designated
by the Underwriter. The Issuers, the Operating
19
Partnerships and the General Partners shall be liable for any settlement of any
such action or proceeding effected with the prior written consent of the
Issuers, the Operating Partnerships and the General Partners, and the Issuers,
the Operating Partnerships and the General Partners, jointly and severally,
agree to indemnify and hold harmless any Indemnified Person from and against any
loss, claim, damage, liability or expense by reason of any settlement of any
action effected with the written consent of the Issuers, the Operating
Partnerships and the General Partners. Notwithstanding the immediately preceding
sentence, if at any time an Indemnified Person shall have requested an
indemnifying party to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent (unless such consent has been
reasonably withheld) if (i) such settlement is entered into more than twenty
business days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement
(unless the right to such reimbursement shall have been previously disputed in
good faith). The Issuers, the Operating Partnerships and the General Partners
shall not, without the prior written consent of an Indemnified Person, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes a release of such Indemnified Person from all
liability arising out of such action, claim, litigation or proceeding to at
least the same extent as any release of the Issuers, the Operating Partnerships
or the General Partners obtained in connection with such settlement.
(c) The Underwriter agrees to indemnify and hold harmless the Issuers,
the Operating Partnerships and the General Partners, and their respective
directors, officers, partners, employees or representatives and any person
controlling (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Issuers, the Operating Partnerships or the General Partners,
and the respective officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity from
the Issuers, the Operating Partnerships and the General Partners to each of the
Indemnified Persons, but only with respect to claims and actions based on
information furnished in writing by or on behalf of the Underwriter to the
Issuers and the General Partners expressly for use in the Prospectus.
The cover page of the Prospectus Supplement (regarding the terms of the
offering by the Underwriter), and the third and fourth sentences of the third
paragraph and the fifth, sixth and seventh paragraphs under the caption
"Underwriting" in the Prospectus Supplement (concerning the secondary market
making activities of the Underwriter and regarding over-allotment, stabilization
and syndicate covering transactions by the Underwriter) constitute the only
information heretofore furnished to the Issuers and the General Partners in
writing by the Underwriter expressly for use in the Preliminary Prospectus or
the Prospectus, or any amendment or supplement thereto.
20
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. The relative benefits received by the Issuers, the
Operating Partnerships and the General Partners, on the one hand, and the
Underwriter, on the other hand, shall be deemed to be in the same proportion as
the total proceeds from the offering of the Notes (net of commissions but before
deducting expenses) received by the Issuers and the total commissions received
by the Underwriter bear to the total price of the Notes. The relative fault of
the Issuers, the Operating Partnerships and the General Partners, on the one
hand, and the Underwriter, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
related to information supplied by the Issuers, the Operating Partnerships or
the General Partners, on the one hand, and the Underwriter, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The indemnity set
forth herein shall be in addition to any liability or obligation the Issuers,
the Operating Partnerships and the General Partners may otherwise have to any
Indemnified Person.
The Issuers, the Operating Partnerships, the General Partners and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, neither the Underwriter nor
the related Indemnified Persons shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discounts and
commissions received by the Underwriter with respect to the Notes exceeds the
amount of any damages which the Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The Operating Partnerships and the General Partners hereby
designate Corporation Service Company, 80 State Street, Albany, New York as
their authorized
21
agent upon whom process may be served in any action, suit or proceeding that may
be instituted in any state or federal court in the State of New York by the
Underwriter or any person controlling the Underwriter asserting a claim for
indemnification or contribution under or pursuant to this Section 7, and the
Issuers, the Operating Partnerships and the General Partners will accept the
jurisdiction of such court in such action, and waive, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue. A copy of any such process shall be sent or given to the
Issuers, the Operating Partnerships and the General Partners at the address for
notices specified in Section 9 hereof.
8. Effective Time of Agreement and Termination. This Agreement shall
become effective upon the execution hereof.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by notice to the Issuers if any of the following has occurred: (i)
any outbreak or escalation of hostilities or other national or international or
domestic calamity or crisis or material adverse change in the financial markets
of the United States, or any other substantial national or international
calamity or emergency if the effect of such outbreak, escalation, calamity,
crisis, material adverse change or emergency would, in your judgment, make it
impracticable or inadvisable to market the Notes or to enforce contracts for the
sale of any of the Notes, in either case on the terms and in the manner
contemplated in the Prospectus, (ii) any suspension or limitation of trading
generally in securities on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange or market, (iii) the suspension of trading
of any securities of the Partnership in any exchange or in the over-the-counter
market, (iv) any declaration of a general moratorium by either federal or New
York authorities, (v) the taking of any action by any federal or state
government or agency in respect of its monetary or fiscal affairs that in your
judgment has a material adverse effect on the financial markets in the United
States, and would, in your judgment, make it impracticable or inadvisable to
market any of the Notes or to enforce contracts for the sale of any of the Notes
or (vi) the enactment, publication, decree or other promulgation of any federal
or state statute, regulation, rule or order of any court or other federal or
state governmental authority which, in your judgment, would have a Material
Adverse Effect on the Issuers and the Operating Partnerships, taken as a whole.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Issuers, the Operating Partnerships and
the General Partners, their respective officers and directors and of the
Underwriter set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Notes, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriter or by or on behalf of
the Issuers, the Operating Partnerships and the General Partners, the officers
or directors of any of the Issuers, the Operating Partnerships or the General
Partners or controlling person of any of the Issuers, the Operating Partnerships
or the General
22
Partners, (ii) acceptance of the Notes and payment for them hereunder and (iii)
termination of this Agreement.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Issuers, the Operating
Partnerships, the General Partners, the Underwriter, any Indemnified Person
referred to herein and their respective successors and assigns, all as and to
the extent provided in this Agreement, and no other person shall acquire or have
any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Notes from the Underwriter
merely because of such purchase.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telegraphed and confirmed
to the Underwriter at c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: John A. Cavalier with a copy to
Milbank, Tweed, Hadley & McCloy LLP, One Chase Manhattan Plaza, New York, New
York 10005-1413, Attention: Joris M. Hogan, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at the office of the
Partnership at 460 North Gulph Road, King of Prussia, Pennsylvania 19406,
Attention: Brendan P. Bovaird, Esq., Vice President and General Counsel; with a
copy to Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue, N.W., Washington,
D.C. 20004, Attention: Linda L. Griggs; provided, however, that any notice to
the Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to the Underwriter.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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If the foregoing is in accordance with the Underwriter's understanding
of our agreement, kindly sign and return to the Issuers one of the counterparts
hereof, whereupon it will become a binding agreement among the Partnership
Entities and the Underwriter in accordance with its terms.
Very truly yours,
AMERIGAS PARTNERS, L.P.
By: AmeriGas Propane, Inc.,
its general partner
By:
---------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AP EAGLE FINANCE CORP.
By:
---------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AMERIGAS PROPANE, INC.
By:
---------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
its general partner
By:
---------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AMERIGAS EAGLE PROPANE, L.P.
By: AmeriGas Eagle Holdings, Inc.,
its general partner
By:
---------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
24
AMERIGAS EAGLE HOLDINGS, INC.
By:
--------------------------------
Name: Robert H. Knauss
Title: Vice President - Law
25
Accepted and agreed to as of the date first above written:
CREDIT SUISSE FIRST
BOSTON CORPORATION
By:
--------------------------------------
Name: John A. Cavalier
Title: Managing Director
26