EXECUTION COPY
$32,000,000
AMERIGAS PARTNERS, L.P.
AP EAGLE FINANCE CORP.
8-7/8% SERIES B SENIOR NOTES DUE 2011
UNDERWRITING AGREEMENT
April 11, 2003
Credit Suisse First Boston LLC
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 LLC ("YOU" or the "UNDERWRITER") an aggregate of $32 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") dated May 3, 2002, a Second Supplemental Indenture (the "SECOND
SUPPLEMENTAL INDENTURE") dated December 3, 2002 and a Third Supplemental
Indenture (the "THIRD SUPPLEMENTAL INDENTURE" and, together with the
Supplemental Indenture, the Second Supplemental Indenture and the Base
Indenture, the "NOTE INDENTURE"), to be dated as of the Closing Date as defined
below, in each case, 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 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 Base Prospectus
and Prospectus Supplement, is hereinafter referred to as the "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
or on behalf of 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.
(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 and to conduct their respective businesses in all
material respects as described in the Prospectus, and each of the
Partnership and the Operating Partnerships 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
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 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.
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(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 Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole, or the Eagle General Partner.
(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, the Operating Partnerships or the General Partners is
in violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Issuers, the Operating Partnerships, or the
General Partners, as applicable, or of any decree or any court or
governmental agency or body having jurisdiction over the Issuers, the
Operating Partnerships and the General Partners, which violation would, if
continued, have a Material Adverse Effect on the Issuers, or the Operating
Partnerships, taken as a whole. 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 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, in the case of (A), for such permits, consents,
approvals, authorizations, orders, registrations or filings 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
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"NASD"), which, if not obtained or made, 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
Prospectus, or other material, if any, permitted by the Act, including Rule
134 of the Rules and Regulations.
(k) Except as disclosed in the Prospectus (or any amendment or
supplement thereto), subsequent to the respective dates as of which such
information is given in 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 and 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 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,
or the General Partners 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, with respect to "capitalization" in clause (i) above and
"financial condition" in clause (ii) above, for (A) changes in accumulated
other comprehensive income (loss) attributable to the Operating
Partnerships' derivative instruments and (B) income and distributions since
December 31, 2002.
(n) The accountants, PricewaterhouseCoopers LLP, who have certified
the consolidated financial statements incorporated by reference in the
Prospectus (or any amendment or supplement thereto) are independent public
accountants as required by the Act.
(o) The consolidated financial statements and other financial
information included or incorporated by reference in the Registration
Statement and the Prospectus present fairly, in all material respects, the
financial position of the Partnership as of the dates shown and its results
of operations and cash flows for the periods shown, and such consolidated
financial statements have been prepared in all material respects in
conformity with accounting principles generally accepted in the United
States applied on a substantially consistent basis, except to the extent
disclosed therein.
(p) The Partnership maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary: (x) to permit preparation of
financial statements in conformity with generally accepted accounting
principles or any other criteria applicable to such statements and (y) to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and
(iv) the recorded
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accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(q) 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").
(r) As of the Closing Date, the General Partner and its consolidated
subsidiaries will continue to own limited partner interests in the
Partnership represented by 24,525,004 Units (as defined in the Partnership
Agreement).
(s) 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.
(t) The Eagle General Partner is the sole general partner of AmeriGas
Eagle with a general partner interest in AmeriGas Eagle of less than 1.0%
pursuant to the Amended and Restated Agreement of Limited Partnership of
AmeriGas Eagle Propane, L.P., dated as of July 19, 1999.
(u) 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 1.0%.
(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 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.
(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 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.
(x) 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.
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(y) This Agreement has been duly and validly authorized, executed and
delivered by each of the Issuers, the Operating Partnerships and the
General Partners.
(z) At the Closing Date, (i) the Issuers shall issue $32 million of
the Notes pursuant to the terms of the Prospectus and (ii) the Partnership
shall use such proceeds as set forth in the Prospectus.
(aa) 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.
(bb) 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 and
(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) individually 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.
(cc) None of the Issuers, the Operating Partnerships or the General
Partners (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.
(dd) The Issuers, the Operating Partnerships and the General Partners
maintain 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.
(ee) 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 Third 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
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affecting creditors' rights and to general equity principles and except
that rights to indemnification 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 Third Supplemental Indenture is executed and delivered.
(ff) The Notes have been duly and validly authorized for issuance and
sale to you 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.
(gg) 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.
(hh) 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 105.25% of the principal amount thereof plus accrued interest
from November 20, 2002 to the Closing Date an aggregate of $32,000,000 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 at 9:00 a.m., New York City time, on
April 16, 2003 at the offices of Milbank, Tweed, Hadley & McCloy LLP, One
Chase Manhattan Plaza, New York, New York, 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.
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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).
(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 supplement (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
supplement after receiving a final draft copy thereof from the Issuers; and
the Issuers will also advise the Underwriter promptly of any amendment or
supplement 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), 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 as soon as available and in such quantities as
the Underwriter requests. 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.
8
(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 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 initiated or, to the knowledge of the Issuers, the
Operating Partnerships, the General Partners or the Underwriter, shall be
pending or threatened.
(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 or after 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
9
been any material adverse change or material adverse 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 the
Closing Date, signed by (i) the President or any Vice President and (ii) 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.
(g) The Underwriter shall have received an opinion, dated the Closing
Date, of Morgan, Lewis & Bockius LLP, counsel to 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 and the Operating Partnerships
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, the Operating Partnerships and the General
Partners have all requisite corporate and partnership power and authority
to execute, deliver and perform their respective obligations under this
Agreement and the Note Indenture, and to consummate the transactions
contemplated herein and therein, 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 authority 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 obligations under this Agreement, the Note
Indenture and the Notes, except in each case where such consents,
approvals, waivers, licenses and other actions (x) may be required under
federal or state securities laws or blue sky laws (as to which such counsel
need not express any
10
opinion), or (y) 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 Partnership Entities;
(ix) None of the Issuers, the Operating Partnerships or 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, (z) any state corporate or
partnership law or federal law or regulation (assuming compliance with all
applicable federal and state securities or blue sky laws, as to which such
counsel need not express any opinion, and assuming the receipt of all
consents, approvals, waivers and licenses 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) 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 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 to the extent that a waiver of rights under any usury
laws may be unenforceable;
(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 this Agreement and the Prospectus and authenticated by the Trustee, the
Notes 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 to the extent that a waiver of rights under any
usury laws may be unenforceable; and
11
(xiv) 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 any of their property of a character required to be
disclosed in the Registration Statement which is not adequately disclosed
in the Prospectus, and to the knowledge of such counsel, there is no
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required; and the statements in the
Partnership's Annual Report on Form 10-K for its fiscal year ended
September 30, 2002 under the heading "Business - Government Regulation,"
which are incorporated by reference in the Registration Statement and
Prospectus, 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 as of the
filing date of the Partnership's Annual Report on Form 10-K for its fiscal
year ended September 30, 2002, and to the knowledge of such counsel, such
summaries are accurate and fair summaries as of the Closing Date in all
material respects, except with respect to the Federal Motor Carrier Safety
Act and any state or municipal fire safety codes, as to which such counsel
need not express any opinion.
Such counsel shall state that 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 has been issued, no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement as of its effective date and the Prospectus as of
its date (other than the financial statements and other financial
information contained therein, as to which such counsel need not express an
opinion) complied as to form in all material respects with the applicable
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; in addition, such counsel shall state that, in the course of
the preparation of the Registration Statement and the Prospectus, it
participated in conferences with officers and other representatives of the
General Partners and Finance Corp., representatives of the independent
public accountants for each of the Issuers, the Operating Partnerships and
the General Partners, representatives of the Underwriter and
representatives of counsel to the Underwriter, at which conferences the
contents of the Registration Statement and the Prospectus and related
matters, including the offer and sale of the Notes, were discussed, and
that such counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its effective 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 the Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; 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, 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, the Delaware Act and
12
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 shall have received letters substantially in the form
previously approved by you, from PricewaterhouseCoopers 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.
(l) You shall have received on each of the date hereof and the Closing
Date a certificate of the Vice President and Chief Financial Officer of the
General Partner, dated the date hereof or the Closing Date, as the case may
be, in the form attached hereto as Exhibit A.
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 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
13
with information furnished in writing to the Issuers or the General Partner by
or on behalf of the Underwriter expressly for use therein. 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 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
14
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 or on behalf of the Underwriter expressly for use in the Prospectus,
or any amendment or supplement thereto.
(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 Issuers, the Operating Partnerships and the General Partners hereby
designate Corporation Service Company, 80 State Street, Albany, New York as
their authorized 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
15
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 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 LLC, 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
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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 your 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: /s/ Martha B. Lindsay
--------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AP EAGLE FINANCE CORP.
By: /s/ Martha B. Lindsay
--------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AMERIGAS PROPANE, INC.
By: /s/ Martha B. Lindsay
--------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
its general partner
By: /s/ Martha B. Lindsay
--------------------------------------
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: /s/ Martha B. Lindsay
--------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
AMERIGAS EAGLE HOLDINGS, INC.
By: /s/ Martha B. Lindsay
--------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance
and Chief Financial Officer
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Accepted and agreed to as of the date first above written:
CREDIT SUISSE FIRST
BOSTON LLC
By: /s/ John A. Cavalier
--------------------------------------
Name: John A. Cavalier
Title: Managing Director
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