Ferrellgas Partners, L.P.
9,000,000 Subordinated Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
November ___, 1997
Smith Barney Inc.
Goldman, Sachs & Co.
Donaldson, Lufkin & Jenrette Securities Corporation
A.g. Edwards & Sons, Inc.
PaineWebber Incorporated
As Representatives of the Several Underwriters
c/o SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Ferrellgas, Inc., a Delaware corporation ("Ferrellgas" or the "General
Partner"), a wholly owned subsidiary of Ferrell Companies, Inc., a Kansas
corporation ("Ferrell"), proposes to sell an aggregate of 9,000,000 subordinated
units (the "Initial Subordinated Units") representing limited partner interests
in Ferrellgas Partners, L.P., a Delaware limited partnership (the
"Partnership"), of which Ferrellgas is the general partner, to the several
Underwriters named in Schedule I hereto (the "Underwriters"). The General
Partner also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 2 hereof, up to an additional 1,350,000 subordinated units
(the "Option Subordinated Units"). The Initial Subordinated Units and the
Option Subordinated Units are hereinafter collectively referred to as the
"Offered Subordinated Units."
The General Partner, the Partnership and Ferrell wish to confirm as follows
their respective agreements with you (the "Representatives") and the other
several Underwriters on whose behalf you are acting, in connection with the
several purchases of the Offered Subordinated Units by the Underwriters. The
General Partner, the Partnership and Ferrellgas, L.P., a Delaware limited
partnership (the "Operating Partnership") are sometimes collectively referred to
herein as the "Companies."
1. Registration Statement and Prospectus. The Partnership has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Offered Subordinated Units. The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
and exhibits) as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a post-
effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Offered Subordinated Units may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. If an
abbreviated registration statement is prepared and filed with the Commission in
accordance with Rule 462(b) under the Act ("an Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectus" as used
in this Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectus" as used in this Agreement means the prospectus in
the form included in the Registration Statement as supplemented by the addition
of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus subject to completion in the form included
in the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such prospectus shall have
been amended from time to time prior to the date of the Prospectus. Any
reference in this Agreement to the registration statement, the Registration
Statement, any Prepricing Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of the registration statement, the
Registration Statement, such Prepricing Prospectus or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Prepricing Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the registration statement, the Registration Statement, any Prepricing
Prospectus, the Prospectus, or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. Subject to such adjustments as you may
determine in order to avoid fractional units, the General Partner hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the General Partner and the Partnership herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the General Partner, at a
purchase price of $________ per Offered Subordinated Unit (the "Purchase Price
Per Unit"), the number of Offered Subordinated Units which bears the same
proportion to the aggregate number of Initial Subordinated Units to be sold by
the General Partner as the number of Initial Subordinated Units set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Initial Subordinated Units increased
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as set forth in Section 11 hereof) bears to the aggregate number of Initial
Subordinated Units to be sold by the General Partner.
The General Partner also agrees, subject to all the terms and conditions
set forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the General Partner and the
Partnership herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the General
Partner, at the Purchase Price Per Unit, pursuant to an option (the "over-
allotment option") which may be exercised at any time and from time to time
prior to 9:00 P.M., New York City time, on the 30th day after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading), up to an aggregate of 1,350,000 Option Subordinated Units from the
General Partner. Option Subordinated Units may be purchased only for the
purpose of covering over-allotments made in connection with the offering of the
Initial Subordinated Units. Upon any exercise of the over-allotment option,
each Underwriter, severally and not jointly, agrees to purchase from the General
Partner the number of Option Subordinated Units (subject to such adjustments as
you may determine in order to avoid fractional units) which bears the same
proportion to the number of Option Subordinated Units to be sold by the General
Partner as the number of Initial Subordinated Units set forth opposite the name
of such Underwriter in Schedule I hereto (or such number of Initial Subordinated
Units increased as set forth in Section 11 hereof) bears to the aggregate number
of Initial Subordinated Units to be sold by the General Partner.
3. Terms of Public Offering. The General Partner has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Offered Subordinated Units as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Offered Subordinated Units upon the terms
set forth in the Prospectus.
4. Delivery of the Subordinated Units and Payment Therefor. Delivery to the
Underwriters of and payment for the Offered Subordinated Units shall be made at
the office of [Smith Barney Inc., 388 Greenwich Street, New York, NY 10013, at
10:00 A.M., New York City time], on _______________, 1997 (the "Closing Date").
The place of closing for the Initial Subordinated Units and the Closing Date may
be varied by agreement among you, the General Partner and the Partnership.
Delivery to the Underwriters of and payment for any Option Subordinated
Units to be purchased by the Underwriters shall be made at the aforementioned
office of [Smith Barney Inc.] at such time on such date (the "Option Closing
Date"), which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than two nor later than ten business
days after the giving of the notice hereinafter referred to, as shall be
specified in a written notice from you on behalf of the Underwriters to the
General Partner of the Underwriters' determination to purchase a number,
specified in such notice, of Option Subordinated Units. The place of closing
for any Option Subordinated Units and the Option Closing Date for such Option
Subordinated Units may be varied by agreement among you, the General Partner and
the Partnership.
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Certificates for the Initial Subordinated Units and for any Option
Subordinated Units to be purchased hereunder shall be registered in such names
and in such denominations as you shall request prior to 9:30 A.M., New York City
time, on the second business day preceding the Closing Date or any Option
Closing Date, as the case may be. Such certificates shall be made available to
you in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the
Initial Subordinated Units and any Option Subordinated Units to be purchased
hereunder shall be delivered to you on the Closing Date or the Option Closing
Date, as the case may be, against payment of the purchase price therefor in
immediately available funds.
5. Agreements of the General Partner, the Partnership and Ferrell. (A) The
General Partner and the Partnership agree with the several Underwriters as
follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Offered Subordinated Units
may commence, the Partnership will endeavor to cause the Registration Statement
or such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice in
writing, when the Registration Statement or such post-effective amendment has
become effective.
(b) The Partnership will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Offered
Subordinated Units for offering or sale in any jurisdiction or the initiation of
any proceeding for such purpose; and (iii) within the period of time referred to
in paragraph 5(f) below, of any change in the Companies' condition (financial or
other), business, prospects, properties, net worth or results of operations, or
of the happening of any event, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Partnership will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Partnership will furnish to you, without charge (i) six signed
copies of the registration statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment thereto, but
without exhibits, as you may request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv) six
copies of the exhibits to the Incorporated Documents.
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(d) The Partnership will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior to the
end of the period of time referred to in the first sentence in subsection (f)
below, file any document that upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(e) Prior to the execution and delivery of this Agreement, the
Partnership has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the Prepricing Prospectus. The Partnership
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Offered
Subordinated Units are offered by the several Underwriters and by dealers, prior
to the date of the Prospectus, of each Prepricing Prospectus so furnished by the
Partnership.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Partnership will
expeditiously deliver to each Underwriter and dealer, without charge, as many
copies of the Prospectus (and of any amendment or supplement thereto) as you may
request. The Partnership consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Offered Subordinated Units are offered by the several Underwriters and by all
dealers to whom Offered Subordinated Units may be sold, both in connection with
the offering and sale of the Offered Subordinated Units and for such period of
time thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the General Partner or the
Partnership or in the opinion of counsel for the Underwriters is required to be
set forth in the Prospectus (as then amended or supplemented) or should be set
forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document that upon filing becomes an Incorporated Document) in order to comply
with the Act or any other law, the Partnership will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Partnership and you, as Representatives of
the several Underwriters, agree that the Prospectus should be amended or
supplemented, the Partnership, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Partnership will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Offered
Subordinated Units for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or qualification;
provided that in no event shall the Partnership be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits,
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other than those arising out of the offering or sale of the Offered Subordinated
Units, in any jurisdiction where it is not now so subject.
(h) The Partnership will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Partnership will
furnish to you (i) as soon as available, a copy of each report of the
Partnership mailed to holders of the Subordinated Units of limited partner
interests in the Partnership ("Subordinated Units") or filed with the
Commission, and (ii) from time to time such other information concerning the
Partnership as you may request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the General Partner and the Partnership to comply with the terms or
fulfill any of the conditions of this Agreement, the General Partner and the
Partnership, jointly and severally, agree to reimburse the Representatives for
all out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(k) If Rule 430A of the Act is employed, the Partnership will timely
file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(l) Except as stated in this Agreement and in the Prepricing Prospectus
and Prospectus, the General Partner and the Partnership have not taken, nor will
they take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Subordinated Units or the common units of limited partner
interest of the Partnership (the "Common Units") to facilitate the sale or
resale of the Offered Subordinated Units. The Common Units, the Subordinated
Units and the Junior Subordinated Units (as defined below) are sometimes herein
collectively referred to as the "Units."
(m) For a period of 90 days from the date of the Prospectus, the General
Partner and the Partnership will not, without the prior written consent of Smith
Barney Inc., sell, contract to sell or otherwise dispose of, except as provided
hereunder and except for any Units which may be issued in connection with
acquisitions by the Partnership, any Units or any securities substantially
similar to, convertible into or exercisable or exchangeable for Units or grant
any options or warrants to purchase any Units.
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(n) The General Partner and the Partnership will use their best efforts
to have the Offered Subordinated Units listed, subject to notice of issuance, on
the New York Stock Exchange on or before the Closing Date.
(B) Ferrell agrees with the several Underwriters as follows:
(a) Except as stated in this Agreement and in the Prepricing Prospectus
and Prospectus, Ferrell has not taken, nor will it take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Subordinated Units or the
Common Units to facilitate the sale or resale of the Offered Subordinated Units.
(b) For a period of 90 days from the date of the Prospectus, Ferrell
will not, without the prior written consent of Smith Barney Inc., sell, contract
to sell or otherwise dispose of, except as provided hereunder, any Units or any
securities substantially similar to, convertible into or exercisable or
exchangeable for the Units or grant any options or warrants to purchase Units,
except (i) transfers to James E. Ferrell or his spouse, lineal descendants or
brothers or sisters, entities controlled by James E. Ferrell or his spouse,
lineal descendants or brothers or sisters or trusts for the benefit of James E.
Ferrell or his spouse, lineal descendants or brothers or sisters, (ii) in
connection with the sale of the Partnership or substantially all of its assets,
(iii) as collateral in connection with good faith borrowing, (iv) gifts of up to
20% of such Units to charitable organizations or (v) in the event of the death
or permanent disability of James E. Ferrell, provided, however, that in the case
of (i) above the transferee shall enter into an agreement with you agreeing to
comply with the above restrictions for the remainder of the 90-day period.
6. Representations and Warranties of the General Partner and the
Partnership. The General Partner and the Partnership represent and warrant to
each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act. The Commission has not issued
any order preventing or suspending the use of any Prepricing Prospectus.
(b) The Partnership and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The registration
statement in the form in which it became or becomes effective and also in such
form as it may be when any post-effective amendment thereto shall become
effective and the Prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and will not at any such
times contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except that this representation and warranty does not apply to
statements in or omissions from the registration statement or the prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Partnership in writing by or on behalf of any
Underwriter through you expressly for use therein.
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(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder; any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) The capitalization of the Partnership is as set forth in the most
recent balance sheet of the Partnership incorporated by reference into the
Registration Statement and the Prospectus. All outstanding Subordinated Units
(including the Offered Subordinated Units), other Units and incentive
distribution rights ("Incentive Distribution Rights") of the Partnership have
been duly authorized and validly issued, are fully paid and nonassessable
(except as such non-assessability may be affected by matters described in the
Prospectus under the caption "Partnership Agreement--Limited Liability") and are
free of any preemptive or similar rights; the Junior Subordinated Units have
been duly authorized (including due authorization under the Partnership
Agreement (as defined below)) and, when issued and delivered to the General
Partner in exchange for Subordinated Units in accordance with the terms hereof,
will be validly issued, fully paid and nonassessable (except as such non-
assessability may be affected by matters described in the Prospectus under the
caption "Partnership Agreement--Limited Liability") and free of any preemptive
or similar rights; and the Subordinated Units, the other Units and the Incentive
Distribution Rights conform to the respective descriptions thereof in the
Registration Statement and the Prospectus.
(e) The Partnership is a limited partnership duly organized and validly
existing under the laws of the State of Delaware, with full partnership power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business 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 condition (financial or
other), business, properties, net worth or results of operations of the
Partnership and the Operating Partnership, taken as a whole (the
"Partnerships").
(f) The Operating Partnership is a limited partnership duly organized
and validly existing under the laws of the State of Delaware, with full
partnership power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus. The Operating Partnership has been duly qualified or registered as a
foreign limited partnership for the transaction of business in every state
except Alaska, Delaware, Hawaii and New Hampshire, and there are no other
jurisdictions where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
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register or qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Partnerships.
(g) The General Partner has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties, to
conduct its business and to act as general partner of the Partnership and the
Operating Partnership, in each case as described in the Registration Statement
and the Prospectus. The General Partner has been duly qualified or registered as
a foreign corporation for the transaction of business, and is in good standing,
in every state except Alaska, Delaware, Hawaii and New Hampshire, and there are
no other jurisdictions 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
condition (financial or other), business, properties, net worth or results of
operations of the Partnerships.
(h) All of the issued and outstanding shares of capital stock of the
General Partner have been duly authorized and validly issued and are fully paid
and non-assessable and are free of any preemptive or similar rights; and all of
the issued and outstanding shares of capital stock of the General Partner are
owned by Ferrell, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance.
(i) The General Partner is the sole general partner of the Partnership
with a general partner interest in the Partnership of 1%; such general partner
interest is duly authorized by the Agreement of Limited Partnership of the
Partnership (the "Partnership Agreement"), and was validly issued to the General
Partner and is fully paid; and the General Partner owns such general partner
interest free and clear of any lien, adverse claim, security interest, equity or
other encumbrance.
(j) The General Partner is the sole general partner of the Operating
Partnership with a general partner interest in the Operating Partnership of
1.0101%; such general partner interest is duly authorized by the Agreement of
Limited Partnership of the Operating Partnership, as amended to date (the
"Operating Partnership Agreement"), by and between the General Partner and the
Partnership, and was validly issued to the General Partner and is fully paid;
and the General Partner owns such general partner interest free and clear of any
lien, adverse claim, security interest, equity or other encumbrance.
(k) The Partnership is the sole limited partner of the Operating
Partnership, with a limited partner interest in the Operating Partnership of
98.9899%; such limited partner interest is authorized by the Operating
Partnership Agreement, has been validly issued and is fully paid and non-
assessable (except as such non-assessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement--
Limited Liability"); and the Partnership owns such limited partner interest in
the Operating Partnership free and clear of any lien, adverse claim, security
interest, equity, or other encumbrance.
(l) The Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding agreement of
the General Partner,
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enforceable against the General Partner in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equitable principles; and the Operating Partnership Agreement has been duly
authorized, executed and delivered by the General Partner and the Partnership
and is a valid and legally binding agreement of the General Partner and the
Partnership, enforceable against the General Partner and the Partnership in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors, rights and to general equitable principles.
(m) Upon consummation of the Transactions and the sale of the Initial
Subordinated Units, the General Partner will own a limited partner interest in
the Partnership represented by 1,210,612 Common Units, no Subordinated Units and
7,593,721 Junior Subordinated Units; such Units (other than the Junior
Subordinated Units) are, and upon consummation of the Transactions such Junior
Subordinated Units will be, duly authorized by the Partnership Agreement,
validly issued, fully paid and non-assessable (except as such non-assessability
may be affected by matters described in the Prospectus under the caption "The
Partnership Agreement--Limited Liability") and owned by the General Partner free
and clear of a liens, encumbrances, charges or claims.
(n) Other than as set forth in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending to which the Companies are a
party, or of which any of their respective properties is the subject, which are
required to be disclosed in the Prospectus and are not so disclosed, which, if
determined adversely to such person, would individually or in the aggregate have
a material adverse effect upon the properties, business, general affairs,
management condition (financial or otherwise), financial position, security
holders' equity, results of operations or prospects of either the Companies,
taken as a whole, or which could reasonably be expected to materially and
adversely affect the consummation of this Agreement or the Transactions, and, to
the best of the knowledge of the Companies, no such actions, suits or
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(o) None of the Companies is in: (i) breach or violation of the
provisions of its partnership agreements or of its charter or bylaws, as the
case may be; or (ii) default (and no event has occurred which, with notice or
lapse of time or both, would constitute such a default) in the due performance
or observance of any term, covenant or condition contained in any bond, note,
debenture or other evidence of indebtedness or any indenture, mortgage, deed of
trust, loan agreement, contract, lease or other agreement or instrument to which
it is a party or by which its is bound or to which any of its properties or
assets is subject or violation of any statute, rule or regulation or
administrative or court decree applicable to it or any of its properties, which
default or violation, individually or in the aggregate, could have a material
adverse effect upon the holders of the Subordinated Units or the properties,
business, general affairs, management, prospects, condition (financial or
otherwise), financial position, security holders' equity or results of
operations of any of the Partnership and the Operating Partnership, taken as a
whole, or the General Partner.
(p) Neither the sale of the Offered Subordinated Units, the execution,
delivery or performance of this Agreement by the General Partner and the
Partnership nor the consummation
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by the General Partner and the Partnership of the Transactions (i) requires any
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 (except such as may be required for the registration of
the Offered Subordinated Units under the Act and the Exchange Act and compliance
with the securities or Blue Sky laws of various jurisdictions, all of which have
been or will be effected in accordance with this Agreement) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
the partnership agreement, the certificate of incorporation or bylaws of any of
the Companies or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any material agreement, indenture,
lease or other instrument to which any of the Companies are a party or by which
any of them or any of their respective properties may be bound, or violates or
will violate any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to any of the Companies or any of their respective
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Companies 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.
(q) The accountants, Deloitte & Touche LLP, who have certified or shall
certify the financial statements incorporated by reference in the Registration
Statement and the Prospectus (or any amendment or supplement thereto) are
independent public accountants as required by the Act.
(r) The historical financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Partnership on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Partnership.
(s) The execution and delivery of, and the performance by the General
Partner and the Partnership of their obligations under, this Agreement have been
duly and validly authorized by the General Partner and the Partnership, and this
Agreement has been duly executed and delivered by the General Partner and the
Partnership and constitutes the valid and legally binding agreement of the
General Partner and the Partnership, enforceable against the General Partner and
the Partnership in accordance with its terms, except (i) as rights to indemnity
and contribution hereunder may be limited by federal or state securities laws
and (ii) as enforcement generally may be subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles.
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(t) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), subsequent to the respective dates as
of which such information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), none of the Companies 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
Companies, and there has not been any change in the capital stock, or material
increase in the short-term debt or long-term debt, of the Partnerships, or any
material adverse change, or any development involving or which may reasonably be
expected to involve, a prospective material adverse change, in the condition
(financial or other), business, net worth or results of operations of the
Partnerships.
(u) Each of the Partnerships has good and marketable title to all
property (real and personal) described in the Prospectus as being owned by it,
free and clear of all liens, claims, security interests or other encumbrances
except such as are described in the Registration Statement or except as do not
materially interfere with the ownership or benefits of ownership of such
property, taken as a whole, and all the property described in the Prospectus as
being held under lease by each of the Partnerships is held by it under valid,
subsisting and enforceable leases.
(v) The General Partner and the Partnership have not distributed and,
prior to the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Offered Subordinated Units, will not distribute any offering
material in connection with the offering and sale of the Offered Subordinated
Units other than the Registration Statement, the Prepricing Prospectus, the
Prospectus or other materials, if any, permitted by the Act.
(w) The Companies have such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own their respective properties and to conduct their business in
the manner described in the Prospectus, subject to such qualifications as may be
set forth 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
properties, business, general affairs, management, condition (financial or
otherwise), financial position, security holders' equity, results of operations
or prospects of the Partnerships, or upon the holders of Subordinated Units; the
Companies have fulfilled and performed all their material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth 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 properties,
business, general affairs, management, condition (financial or otherwise),
financial position, security holders' equity, results of operations or prospects
of the Partnerships, or upon the holders of Subordinated Units; and, except as
described in the Prospectus, none of such permits contains any restriction that
is materially burdensome to the Companies.
(x) The General Partner and the Partnership maintain 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
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necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and 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 accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(y) The Companies have filed all tax returns required to be filed, which
returns are complete and correct, and none of the Companies is in default in the
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto.
(z) No person other than the General Partner has any right to require
registration of any Units of limited partner interests of the Partnership
because of the filing of the Registration Statement, the sale of the Offered
Subordinated Units or consummation of the Transactions contemplated by this
Agreement.
(aa) Neither of the Partnerships nor any person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with the Partnership does or conducts business in or with
the government of Cuba or with any person or affiliate located in Cuba. If prior
to the completion of the distribution of the Offered Subordinated Units, the
Partnership commences engaging in business in or with the government of Cuba or
with any person or affiliate located in Cuba, the Partnership will comply with
all the provisions of Florida Statutes, Section 517.075, relating to issuers
doing business with Cuba.
(bb) None of the Companies is, or as of the Closing Date will be, an
"investment company" as that term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or subject to regulation under
the Investment Company Act.
(cc) None of the Companies is a "public utility company" or a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," as such
terms are defined in the Public Utility Company Act of 1935, as amended; none of
the Companies is subject to regulation under the Public Utility Holding Company
Act of 1935, as amended.
7. Additional Representations and Warranties of the General Partner. The
General Partner represents and warrants to each Underwriter that:
(a) The General Partner now has, and on the Closing Date and any Option
Closing Date will have, valid and marketable title to the Offered Subordinated
Units, free and clear of any lien, claim, security interest or other
encumbrance, including, without limitation, any restriction on transfer.
(b) The General Partner now has, and on the Closing Date and any Option
Closing Date will have, full legal right, power and authorization, and any
approval required by law, to sell, assign transfer and deliver the Offered
Subordinated Units in the manner provided in this Agreement, and upon delivery
of and payment for such Offered Subordinated Units hereunder, the several
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Underwriters will acquire valid and marketable title to such Offered
Subordinated Units free and clear of any lien, claim, security interest, or
other encumbrance.
(c) The General Partner has not taken, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of any class of the Units to
facilitate the sale or resale of the Offered Subordinated Units, except for the
lock-up arrangements described in the Prospectus.
8. Representations and Warranties of Ferrell. Ferrell represents and
warrants to, and agrees with, each of the Underwriters that:
(a) Ferrell directly owns the Incentive Distribution Rights; such
Incentive Distribution Rights are duly authorized by the Partnership Agreement
and are validly issued, fully paid and non-assessable (except as such non-
assessability may be affected by matters described in the Prospectus under the
caption "The Partnership Agreement--Limited Liability"); and Ferrell owns such
Incentive Distribution Rights free and clear of all liens, encumbrances, charges
or claims.
(b) This Agreement has been duly authorized, executed and delivered by
Ferrell;
(c) The sale of the Offered Subordinated Units by the General Partner,
and the execution, delivery and performance by the Partnership, the General
Partner and Ferrell, as the case may be, of this Agreement and the consummation
by the Partnership, the General Partner and Ferrell, as the case may be, of the
Transactions will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default or cause an acceleration of
any obligation under, or result in the imposition or creation of (or the
obligation to create or impose) a Lien with respect to, any material bond, note,
debenture or other evidence of indebtedness or any material indenture, mortgage,
deed of trust, loan agreement, contract, lease or other agreement or instrument
to which Ferrell is a party or by which Ferrell is bound or to which any of its
properties or assets is subject, nor will such action result in any breach or
violation of the provisions of the charter or bylaws of Ferrell, or contravene
any order of any court or governmental agency or body having jurisdiction over
Ferrell or any of its properties, or violate or conflict with any statute, rule
or regulation or administrative or court decree applicable to Ferrell or any of
its properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the performance by Ferrell of its obligations under this Agreement.
(d) Ferrell has not taken, directly or indirectly, any action designed
to or that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Units to facilitate the sale or resale of the
Offered Subordinated Units, except for the lock-up arrangements described in the
Prospectus.
9. Indemnification and Contribution. (a) The General Partner and the
Partnership, jointly and severally, agree to indemnify and hold harmless each of
you and each other Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue
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statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon 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 arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to such
Underwriter furnished in writing to the General Partner and the Partnership by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Offered Subordinated Units by such 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 regulations thereunder,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the General Partner and the
Partnership has delivered the Prospectus to the several Underwriters in
requisite quantity on a timely basis to permit such delivery or sending. The
foregoing indemnity agreement shall be in addition to any liability which the
General Partner and the Partnership may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the General Partner and the Partnership, such
Underwriter or such controlling person shall promptly notify the parties against
whom indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties 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
Underwriter or such controlling person and the indemnifying parties and such
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and any indemnifying party 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 indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Smith Barney Inc., and
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that all such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, which consent shall
not be unreasonably withheld, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless any
Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the General Partner, the Partnership, the General Partner's
directors and officers who sign the Registration Statement and any person who
controls the General Partner and the Partnership within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the General Partner and the Partnership to each
Underwriter, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the General Partner, the Partnership, any of
the General Partner directors, any such officer or any such controlling person
based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the General Partner
and the Partnership by paragraph (b) above (except that if the General Partner
and the Partnership shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the General Partner, the
Partnership, the General Partner's directors, any such officer and any such
controlling person shall have the rights and duties given to the Underwriters by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which any Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 9 is unavailable
to an indemnified party under paragraph (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
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 or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the General
Partner and the Partnership on the one hand and the Underwriters on the other
hand from the offering of the Offered Subordinated Units, 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 General
Partner and the Partnership on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the General Partner
and the Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the General Partner and the Partnership
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in
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the table on the cover page of the Prospectus; provided that, in the event that
the Underwriters shall have purchased any Option Subordinated Units hereunder,
any determination of the relative benefits received by the General Partner and
the Partnership, on the one hand, or the Underwriters, on the other hand, from
the offering of the Offered Subordinated Units shall include the net proceeds
(before deducting expenses) received by the General Partner and the Partnership,
and the underwriting discounts and commissions received by the Underwriters,
from the sale of such Option Subordinated Units, in each case computed on the
basis of the respective amounts set forth in the notes to the table on the cover
page of the Prospectus. The relative fault of the General Partner and the
Partnership on the one hand and the Underwriters 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 relates to information supplied by the General Partner and the
Partnership on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The General Partner and the Partnership and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above 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 any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Subordinated Units underwritten by it and
distributed to the public exceeds the amount of any damages which such
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. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to the respective numbers
of Initial Subordinated Units set forth opposite their names in Schedule I
hereto (or such numbers of Initial Subordinated Units increased as set forth in
Section 12 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
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representations and warranties of the General Partner and the Partnership set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the General Partner, the Partnership,
the General Partner's directors or officers or any person controlling the
General Partner and the Partnership, (ii) acceptance of any Offered Subordinated
Units and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the General Partner, the Partnership, the General Partner's
directors or officers or any person controlling the General Partner, the
Partnership, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 9.
10. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Firm Units hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Offered Subordinated Units
may commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
you, and all filings, if any, required by Rules 424 and 430A under the Act shall
have been timely made; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the General Partner and the
Partnership or any Underwriter, threatened by the Commission, and any request of
the Commission for additional information (to be included in the registration
statement or the prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective change,
in or affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Partnerships not contemplated by the
Prospectus, which in your opinion, as Representatives of the several
Underwriters, would materially adversely affect the market for the Offered
Subordinated Units, or (ii) any event or development relating to or involving
the General Partner and the Partnership or any officer or director of the
General Partner which makes any statement made in the Prospectus untrue or
which, in the opinion of the General Partner and the Partnership and their
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Offered Subordinated Units.
(c) You shall have received on the Closing Date, an opinion of Andrews &
Kurth, L.L.P., counsel for the General Partner and the Partnership, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
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(i) The Partnership is a limited partnership duly organized and
validly existing under the laws of the State of Delaware, with full partnership
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
(ii) The Operating Partnership is a limited partnership duly
organized and validly existing under the laws of the State of Delaware, with
full partnership power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the
Prospectus.
(iii) The General Partner is the sole general partner of the
Partnership with a general partner interest in the Partnership of 1%; such
general partner interest is duly authorized by the Partnership Agreement and was
validly issued to the General Partner and is fully paid; and the General Partner
owns such general partner interest free and clear of any lien, adverse claim,
security interest, equity, or other encumbrance.
(iv) The General Partner is the sole general partner of the
Operating Partnership with a general partner interest in the Operating
Partnership of 1.0101%; such general partner interest is duly authorized by the
Operating Partnership Agreement and was validly issued to the General Partner
and is fully paid; and the General Partner owns such general partner interest
free and clear of any lien, adverse claim, security interest, equity, or other
encumbrance.
(v) The Partnership is the sole limited partner of the Operating
Partnership, with a limited partner interest in the Operating Partnership of
98.9899%; such limited partner interest is authorized by the Operating
Partnership Agreement, has been validly issued and is fully paid and non-
assessable (except as such non-assessability may be affected by matters
described in the Prospectus under the caption "The Partnership Agreement--
Limited Liability"); and the Partnership owns such limited partner interest in
the Operating Partnership free and clear of any lien, adverse claim, security
interest, equity, or other encumbrance.
(vi) The Partnership Agreement Amendments have been duly and
validly approved by the General Partner, and no approval of the limited partners
of the Partnership is required for their adoption; the Partnership Agreement,
including the Partnership Agreement Amendments, has been duly authorized,
executed and delivered by the General Partner and is a valid and legally binding
agreement of the General Partner, enforceable against the General Partner in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equitable principles; and the
Operating Partnership Agreement has been duly authorized, executed and delivered
by the General Partner and the Partnership and is a valid and legally binding
agreement of the General Partner and the Partnership, enforceable against the
General Partner and the Partnership in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors, rights and to general
equitable principles.
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(vii) The number of authorized and outstanding Units of each
class are set forth in the most recent balance sheet of the Partnership
incorporated by reference into the Prospectus, and the Units of each class of
the Partnership conform in all material respects as to legal matters to the
descriptions thereof contained in the Prospectus;
(viii) All Units of the Partnership outstanding at or issued on
the date hereof, including without limitation the Offered Subordinated Units and
the Junior Subordinated Units, have been duly authorized and validly issued and
are fully paid and nonassessable (except as such non-assessability may be
affected by matters described in the Prospectus under the caption "Partnership
Agreement--Limited Liability");
(ix) The form of certificates for the Subordinated Units
conforms to the requirements of the Delaware Revised Limited Partnership Act;
(x) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the best
knowledge of such counsel after reasonable inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose are pending before or contemplated by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
(xi) Neither the offer, sale or delivery of the Offered
Subordinated Units, the execution, delivery or performance of this Agreement,
compliance by the Partnership with the provisions hereof nor consummation by the
Partnership of the Transactions contemplated hereby conflicts, or will conflict
with, or constitutes, or will constitute, a breach of, or a default under, the
Partnership Agreement;
(xii) No 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 is required on the part of the
Partnership (except as have been obtained under the Act and the Exchange Act or
such as may be required under state securities or Blue Sky laws governing the
purchase and distribution of the Offered Subordinated Units) for the sale of the
Offered Subordinated Units to the Underwriters as contemplated by this
Agreement;
(xiii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and the
notes thereto and the schedules and other financial and statistical data
included therein, as to which such counsel need not express any opinion) comply
as to form in all material respects with the requirements of the Act; and each
of the Incorporated Documents (except for the financial statements and the notes
thereto and the schedules and other financial and statistical data included
therein, as to which counsel need not express any opinion) complies as to form
in all material respects with the Exchange Act and the rules and regulations of
the Commission thereunder;
(xiv) The statements in the Registration Statement and the
Prospectus under the captions "Prospectus Summary - The Partnership,"
"Prospectus Summary - Risk Factors -
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Conflicts of Interest and Fiduciary Responsibilities," "Prospectus Summary - The
Offering," "Risk Factors - Conflicts of Interest and Fiduciary
Responsibilities," "Cash Distribution Policy," "Conflicts of Interest and
Fiduciary Responsibilities," "Description of the Subordinated Units," "The
Partnership Agreement," "Selling Unitholder and Units Eligible for Future Sale"
and "Underwriting" and in the Registration Statement in Item 14, in each case
insofar as such statements constitute descriptions of this Agreement and the
Partnership Agreements or summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for with
respect to this Agreement and such Partnership Agreements, legal matters,
documents and proceedings and fairly summarize the matters referred to therein.
(xv) The opinion of Andrews & Kurth L.L.P. that is filed as
Exhibit 8 to the Registration Statement is confirmed and the Underwriters may
rely upon such opinion as if it were addressed to them.
(xvi) Such counsel shall have participated in conferences with
officers and other representatives of the Companies, counsel for the Companies,
representatives of the independent accountants of the Companies and
Underwriters' representatives, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed. Although they
shall not pass upon, and shall not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement and the Prospectus (except for the
statements contained in the second clause of paragraph (vii) and paragraph (xv)
of their opinion, upon which they shall pass), they shall advise you that, on
the basis of the foregoing (relying as to materiality to a large extent upon
officers and other representatives of the Companies and upon Underwriters'
representatives), no facts have come to their attention which lead them to
believe that the Registration Statement (other than (i) the financial statements
and related schedules included or incorporated by reference therein, including
the notes thereto and the auditors' reports thereon, (ii) the other financial
information included or incorporated by reference therein and (iii) the exhibits
thereto, as to which such counsel has not been asked to comment), as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus (other than (i) the
financial statements included or incorporated by reference therein, including
the notes thereto and the auditors' reports thereon, and (ii) the other
financial information included or incorporated by reference therein, as to which
such counsel has not been asked to comment), as of its issue date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of the Partnerships and of officers and employees of
the General Partner and upon information obtained from public officials and upon
other counsel issued in connection with the sale of the Offered Subordinated
Units and Transactions, and may assume that all documents examined by such
counsel are genuine, (B) state that their opinion is limited to federal laws,
the Delaware Revised Limited Partnership Act, the Delaware General Corporation
Law and the laws of the State of Texas and Missouri, (C) state that they express
no opinion with respect to the title of any of the Companies to any real or
personal property transferred by or to them, (D) state that they express no
-21-
opinion with respect to state or local taxes or tax statutes to which any of the
limited partners of the Partnership or the Companies may be subject and (E)
state that their opinion is furnished as special counsel for the Companies to
you, and is solely for your benefit.
(d) You shall have received on the Closing Date, an opinion of Bryan
Cave, corporate counsel for the General Partner and the Partnership, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Companies have full corporate power and authority or
partnership power and authority, as the case may be, and all necessary
governmental authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental regulatory officials and
bodies (except where the failure so to have any such authorizations, approvals,
orders, licenses, certificates, franchises or permits, individually or in the
aggregate, would not have a material adverse effect on the business, properties,
operations or financial condition of the Companies), to own their respective
properties and to conduct their respective businesses as now being conducted, as
described in the Prospectus;
(ii) The General Partner has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own, lease and operate its
properties, to conduct its business and to act as general partner of the
Partnership and the Operating Partnership, in each case as described in the
Registration Statement and the Prospectus. The General Partner has been duly
qualified or registered as a foreign corporation for the transaction of
business, and is in good standing, in every state except Alaska, Delaware,
Hawaii and New Hampshire, and there are no other jurisdictions 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 condition (financial or other), business,
properties, net worth or results of operations of the Partnerships.
(iii) All of the issued and outstanding shares of capital stock
of the General Partner have been duly authorized and validly issued and are
fully paid and non-assessable and are free of any preemptive or similar rights;
and all of the issued and outstanding shares of capital stock of the General
Partner are owned by Ferrell, free and clear of any lien, adverse claim,
security interest, equity, or other encumbrance;
(iv) The Partnership is duly registered and qualified to conduct
its business 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 condition (financial or other), business, properties, net worth or
results of operations of the Partnerships;
(v) The Operating Partnership has been duly qualified or
registered as a foreign limited partnership for the transaction of business, and
is in good standing, in every state except Alaska, Delaware, Hawaii and New
Hampshire, and there are no other jurisdictions 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
-22-
condition (financial or other), business, properties, net worth or results of
operations of the Partnerships;
(vi) Ferrell has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Kansas, with
full corporate power and authority to own, lease and operate its properties, and
conduct its businesses; and Ferrell has full corporate power and authority to
execute, deliver and perform this Agreement;
(vii) This Agreement has been duly authorized, executed and
delivered by Ferrell and is a valid, legal and binding agreement of Ferrell,
enforceable against Ferrell in accordance with its terms, except as enforcement
of rights to indemnity and contribution hereunder may be limited by Federal or
state securities laws or principles of public policy and subject to the
qualification that the enforceability of Ferrell's obligations hereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights generally
and by general equitable principles;
(viii) Neither the offer, sale or delivery of the Offered
Subordinated Units, the execution, delivery or performance of this Agreement,
compliance by the General Partner with the provisions hereof nor consummation by
the General Partner of the Transactions contemplated hereby conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
the certificate of incorporation or bylaws of the General Partner;
(ix) Neither the offer, sale or delivery of the Subordinated
Units, the execution, delivery or performance of this Agreement, compliance by
the General Partner and the Partnership with the provisions hereof nor
consummation by the General Partner and the Partnership of the Transactions
contemplated hereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any agreement, indenture, lease or
other instrument to which the General Partner or the Partnership is a party or
by which either of them or any of their respective properties is bound that is
an exhibit to the Registration Statement or to any Incorporated Document, or is
known to such counsel after reasonable inquiry, or will result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Companies, nor will any such action result in any violation of any existing
law, regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree known to
such counsel after reasonable inquiry, applicable to the Companies or any of
their respective properties;
(x) No 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 is required on the part of the
General Partner (except as have been obtained under the Act and the Exchange Act
or such as may be required under state securities or Blue Sky laws governing the
purchase and distribution of the Offered Subordinated Units) for the sale of the
Offered Subordinated Units to the Underwriters as contemplated by this
Agreement;
(xi) The sale of the Offered Subordinated Units by the General
Partner and the execution, delivery and performance by the General Partner, the
Partnership and Ferrell of this
-23-
Agreement and the consummation by the General Partner, the Partnership and
Ferrell of the Transactions will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default or cause an acceleration
of any obligation under, or result in the imposition or creation of (or the
obligation to create or impose) a lien with respect to, any bond, note,
debenture or other evidence of indebtedness or any indenture, mortgage, deed of
trust, loan agreement, contract, lease or other agreement or instrument relating
to indebtedness for borrowed money known to such counsel to which the Companies
or Ferrell is a party or by which the Companies or Ferrell is bound or to which
any of the property or assets of the Companies or Ferrell is subject, excluding
in each case any conflict, breach, default or acceleration which, individually
or in the aggregate, would not have a material adverse effect upon the holders
of the Subordinated Units or on the properties, business, general affairs,
management, prospects, condition (financial or otherwise), financial position,
security holders' equity or results of operations of the Partnerships, the
General Partner or Ferrell; or violate the provisions of the charter or bylaws
of the General Partner or Ferrell; nor will the sale of the Offered Subordinated
Units by the General Partner, and the execution and delivery by the Partnership,
the General Partner and Ferrell, as the case may be, of this Agreement or the
Partnership Agreement Amendments violate the Delaware General Corporation Law,
Delaware Revised Limited Partnership Act or any federal law of the United States
or law of the State of Missouri or any rules or regulations adopted by a
governmental agency thereof applicable to the Companies or Ferrell, excluding in
each case any violation which, individually or in the aggregate, would not have
a material adverse effect upon the holders of the Subordinated Units or on the
properties, business, general affairs, management, prospects, condition
(financial or otherwise), financial position, security holders' equity or
results of operations of the Partnerships, the General Partner or Ferrell;
(xii) To the best knowledge of such counsel after reasonable
inquiry, there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement or any Incorporated Document that are not
described or filed as required;
(xiii) The General Partner has corporate power and authority and
to sell and deliver the Offered Subordinated Units to be sold to the
Underwriters as provided herein, the Partnership has partnership power and
authority to enter into this Agreement and this Agreement has been duly
authorized, executed and delivered by the General Partner and the Partnership
and is a valid, legal and binding agreement of the General Partner and the
Partnership, enforceable against the General Partner and the Partnership in
accordance with its terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws or
principles of public policy and subject to the qualification that the
enforceability of the General Partner and the Partnership's obligations
hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights generally and by general equitable principles;
(xiv) Neither the General Partner nor either of the Partnerships
is in violation of its certificate of incorporation or bylaws or Partnership
Agreement;
-24-
(xv) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus (or any
supplement thereto), there are no legal or governmental proceedings pending or
threatened against any of the Companies, or to which any of them or any of their
property is subject, which are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto);
(xvi) To the best knowledge of such counsel after reasonable
inquiry, none of the Companies is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Companies or
of any decree of any court or governmental agency or body having jurisdiction
over the Companies;
(xvii) Except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance of, and
such counsel does not know of any commitment, plan or arrangement to issue, any
Units of or other interests in the Partnership or any security convertible into
or exchangeable or exercisable for Units of or other interests in the
Partnership; and
(xviii) Except as described in the Prospectus, there is no
holder of any security of the Partnership or any other person who has the right,
contractual or otherwise, to cause the Partnership to sell or otherwise issue to
them, or to permit them to underwrite the sale of, the Offered Subordinated
Units or the right to have any Units or other securities of the Partnership
included in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require registration under the Act of any
Units or other securities of the Partnership.
(xix) Upon delivery of the Offered Subordinated Units pursuant
to this Agreement and payment therefor as contemplated herein, the Underwriters
will acquire good and marketable title to the Offered Subordinated Units free
and clear of any lien, claim, security interest, or other encumbrance,
restriction on transfer or other defect in title.
(xx) Except as described in the Prospectus and except as
provided in Section 5.2(e) of the Partnership Agreement, there are no preemptive
rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any limited partner interests pursuant to either of
the Partnership Agreements.
(xxi) The Offered Subordinated Units have been approved for
listing on the New York Stock Exchange, subject only to official notice of
issuance.
Additionally, such counsel shall state that they have participated in
conferences with officers and other representatives of the Companies, counsel
for the Companies, representatives of the independent accountants of the
Companies and Underwriters' representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were discussed.
Although they shall not pass upon, and shall not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the Prospectus, they
shall advise you that, on the basis of the foregoing (relying as to materiality
to a large extent upon officers and other representatives of the Companies and
upon Underwriters'
-25-
representatives), no facts have come to their attention which lead them to
believe that the Registration Statement (other than (i) the financial statements
and related schedules included or incorporated by reference therein, including
the notes thereto and the auditors' reports thereon, (ii) the other financial
and statistical information included or incorporated by reference therein and
(iii) the exhibits thereto, as to which we have not been asked to comment), as
of the date of the Transactions, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the Prospectus
(other than (i) the financial statements included or incorporated by reference
therein, including the notes thereto and the auditors' reports thereon, and (ii)
the other financial and statistical information included or incorporated by
reference therein, as to which we have not been asked to comment), as of its
issue date and as of the date hereof, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) You shall have received on the Closing Date an opinion of Baker &
Botts, L.L.P., counsel for the Underwriters, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, with respect
to the matters referred to in clauses (viii), (x), (xiii) and (xvi) of the
foregoing paragraph (c) and clause (xiii) of the foregoing paragraph (d) and
such other related matters as you may request.
(f) On or before the first Closing Date, the Partnership Agreement shall
have been amended to create junior subordinated units (the "Junior Subordinated
Units") representing limited partner interests in the Partnership; and such
amendments to the Partnership Agreement (the "Partnership Agreement Amendments")
shall have been duly approved by all necessary partnership action and shall be
in full force and effect.
(g) On or before the first Closing Date, the Partnership issued
7,593,721 Junior Subordinated Units to the General Partner in exchange for an
identical number of Subordinated Units; such Junior Subordinated Units, when
issued and delivered to the General Partner upon such terms, will be validly
issued, fully paid and nonassessable (except as such nonassessability may be
affected by matters described in the Prospectus under the caption "Partnership
Agreement--Limited Liability") and free of any preemptive or similar rights.
(h) On or before the first Closing Date, the General Partner shall have
exchanged 7,593,721 Subordinated Units with the Partnership for an identical
number of Junior Subordinated Units, and shall own such Junior Subordinated
Units free and clear of any lien, adverse claim, security interest, equity or
other encumbrance. The offering and sale of the Subordinated Units and the
exchange of the Junior Subordinated Units are sometimes herein referred to as
the "Transactions."
(i) You shall have received letters addressed to you, as Representatives
of the several Underwriters, and dated the date hereof and the Closing Date from
Deloitte & Touche LLP, independent certified public accountants, substantially
in the forms heretofore approved by you.
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(j) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Partnerships, shall be contemplated by
the Commission at or prior to the Closing Date; (ii) there shall not have been
any change in the partnership interests of the Partnerships nor any material
increase in the short-term or long-term debt of the Partnerships (other than in
the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Partnerships;
(iv) the Partnerships shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Partnerships other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the General Partner, the Partnership
and Ferrell contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the chief financial officer of the
General Partner and Ferrell (or such other officers as are acceptable to you),
to the effect set forth in this Section 10(j) and in Section 10(k) hereof.
(k) None of the General Partner, the Partnership and Ferrell shall have
failed at or prior to the Closing Date to have performed or complied with any of
its agreements herein contained and required to be performed or complied with by
it hereunder at or prior to the Closing Date.
(l) The Offered Subordinated Units shall have been listed, subject to
notice of issuance, on the New York Stock Exchange.
(m) The General Partner and the Partnership shall have furnished or
caused to be furnished to you such further certificates and documents as you
shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the General Partner
and delivered to you, as Representatives of the Underwriters, or to counsel for
the Underwriters, shall be deemed a representation and warranty by the General
Partner and, if such certificate is delivered by the General Partner in its
capacity as the General Partner of the Partnership, the Partnership to each
Underwriter as to the statements made therein.
Any certificate or document signed by any officer of Ferrell and delivered
to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by Ferrell.
-27-
The several obligations of the Underwriters to purchase Option Subordinated
Units hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (i) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Option Subordinated Units.
11. Expenses. The Partnership agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by General Partner
and the Partnership of their obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the registration
statement (including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
registration statement, each Prepricing Prospectus, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Offered Subordinated Units; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Offered Subordinated Units,
including any stamp taxes in connection with the sale of the Offered
Subordinated Units; (iv) the printing (or reproduction) and delivery of this
Agreement, the Blue Sky Memorandum and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Offered
Subordinated Units; (v) the listing of the Offered Subordinated Units on the New
York Stock Exchange; (vi) the registration or qualification of the Subordinated
Units for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the Blue Sky Memorandum
and such registration and qualification); (vii) the filing fees and the fees and
expenses of counsel for the Underwriters in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of the General
Partner's and the Partnership's representatives in connection with presentations
to prospective purchasers of the Offered Subordinated Units; and (ix) the fees
and expenses of the Partnership's accountants and the fees and expenses of
counsel (including local and special counsel) for the General Partner and the
Partnership.
12. Effective Date of Agreement. This Agreement shall become effective: (i)
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Offered Subordinated Units may commence,
when notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the General
Partner and the Partnership, by notifying you, or by you, as Representatives of
the several Underwriters, by notifying the General Partner and the Partnership.
If any one or more of the Underwriters shall fail or refuse to purchase
Offered Subordinated Units which it or they are obligated to purchase hereunder
on the Closing Date, and the aggregate number of Offered Subordinated Units
which such defaulting Underwriter or Underwriters are
-28-
obligated but fail or refuse to purchase is not more than one-tenth of the
aggregate number of Offered Subordinated Units which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Offered
Subordinated Units set forth opposite its name in Schedule I hereto bears to the
aggregate number of Offered Subordinated Units set forth opposite the names of
all non-defaulting Underwriters or in such other proportion as you may specify
in accordance with Section 20 of the Master Agreement Among Underwriters of
Smith Barney Inc., to purchase the Offered Subordinated Units which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Offered Subordinated Units which it or they are obligated to purchase
on the Closing Date and the aggregate number of Offered Subordinated Units with
respect to which such default occurs is more than one-tenth of the aggregate
number of Offered Subordinated Units which the Underwriters are obligated to
purchase on the Closing Date and arrangements satisfactory to you and the
General Partner and the Partnership for the purchase of such Offered
Subordinated Units by one or more non-defaulting Underwriters or other party or
parties approved by you and the General Partner and the Partnership are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the General Partner
and the Partnership. In any such case which does not result in termination of
this Agreement, either you or the General Partner and the Partnership shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the General Partner and the Partnership,
purchases Offered Subordinated Units which a defaulting Underwriter is
obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to termination
in your absolute discretion, without liability on the part of any Underwriter to
the General Partner or the Partnership, by notice to the General Partner and the
Partnership, if prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to the Option Subordinated
Units), as the case may be, (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall
have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York, Texas or Missouri shall have been
declared by either federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the Offered Subordinated Units at the offering price
to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Offered Subordinated Units by the Underwriters.
Notice of such termination may be given to the General Partner and the
Partnership by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
-29-
14. Information Furnished by the Underwriters. The statements set forth in
the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first, third and fifth paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 6(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12 and 13
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the General Partner and the
Partnership, at the office of the General Partner and the Partnership at One
Liberty Plaza, Liberty, Missouri 64068, Attention: President; or (ii) if to you,
as Representatives of the several Underwriters, care of Smith Barney Inc., 388
Greenwich Street, New York, New York 10013, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the General Partner and the Partnership, its directors and
officers, and the other controlling persons referred to in Section 9 hereof and
their respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any Underwriter of any
of the Offered Subordinated Units in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement among
the General Partner and the Partnership and the several Underwriters.
Very truly yours,
FERRELLGAS PARTNERS, L.P.
By:
----------------------------
[Title]
FERRELLGAS COMPANIES, INC.
-30-
By:
----------------------------
[Title]
FERRELLGAS COMPANIES, INC.
By:
----------------------------
[Title]
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Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
SMITH BARNEY INC.
GOLDMAN, SACHS & CO.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
A.G. EDWARDS & SONS, INC.
PAINEWEBBER INCORPORATED
As Representatives of the Several Underwriters
By: SMITH BARNEY INC.
By:
---------------------------
Managing Director
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SCHEDULE I
NAME OF COMPANY
Underwriter Number of Number of
Firm Units Underwriter Firm Units
Smith Barney Inc......................
Goldman, Sachs & Co...................
Donaldson, Lufkin & Jenrette..........
A.G. Edwards & Sons, Inc..............
PaineWebber Incorporated..............
TOTAL:
-33-