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6,190,476 Common Units
NATIONAL PROPANE PARTNERS, L.P.
(a Delaware partnership)
Common Units
Representing Limited Partner Interests
PURCHASE AGREEMENT
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
JANNEY MONTGOMERY SCOTT INC.
RAUSCHER PIERCE REFSNES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
_____, 1996
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6,190,476 Common Units
NATIONAL PROPANE PARTNERS, L.P.
(a Delaware limited partnership)
Common Units
(representing limited partner interests)
PURCHASE AGREEMENT
______, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
JANNEY MONTGOMERY SCOTT INC.
RAUSCHER PIERCE REFSNES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
National Propane Partners, L.P., a Delaware limited partnership (the
"Partnership"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (collectively, "Merrill Lynch"), Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJ"), Janney Montgomery Scott Inc.,
Rauscher Pierce Refsnes, Inc., The Robinson-Humphrey Company, Inc. and each of
the other Underwriters named in Exhibit A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Merrill Lynch, DLJ, Janney
Montgomery Scott Inc., Rauscher Pierce Refsnes, Inc. and The Robinson-Humphrey
Company, Inc. are acting as representatives (in such capacity, Merrill Lynch,
DLJ, Janney Montgomery Scott Inc., Rauscher Pierce Refsnes, Inc. and The
Robinson-Humphrey Company, Inc. shall hereinafter be referred to as the
"Representatives"), with respect to the sale by the Partnership and the purchase
by the Underwriters, acting severally and not jointly, of an aggregate of
6,190,476 common units representing limited partner interests in the Partnership
(the "Common Units") in the respective numbers set forth in Exhibit A, and with
respect to the grant by the Partnership to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof (the
"Over-allotment Option") to purchase all or any part of 928,571 additional
Common Units to cover over-allotments, if any (the "Additional Units"). (The
6,190,476 Common Units are referred to herein as the "Firm Units." The Firm
Units and the Additional Units, if purchased, are collectively referred to
herein as the "Units").
(Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Registration Statement and the Prospectus (each as
defined herein)).
It is understood and agreed to by all parties that the Partnership (through
the Operating Partnership (as hereinafter defined)) was formed to acquire and
operate substantially all of the business and assets of National Propane
Corporation. National Propane Corporation will serve as the managing general
partner (the "General Partner") of both the Partnership and National Propane,
L.P., a Delaware limited partnership (the "Operating Partnership"). National
Propane SGP, Inc. will serve as the non-managing general partner (the "Special
General Partner") of both the Partnership and the Operating Partnership. The
Partnership, the Operating Partnership, the General Partner and the Special
General Partner are collectively referred to herein as the "Propane Entities."
Triarc Companies, Inc. is referred to herein as "Triarc."
It is understood by all parties that concurrently with the closing of the
offering of Firm Units contemplated hereby and as conditions to such closing,
(i) the General Partner will issue $125 million in aggregate principal amount of
First Mortgage Notes due 2010 (the "First Mortgage Notes") in a private
placement pursuant to one or more Note Agreements among the General Partner and
each of the purchasers listed on Schedule I thereto (the "Note Agreements"),
(ii) pursuant to a Conveyance, Contribution and Assumption Agreement, among the
General Partner, the Special General Partner, the Partnership and the Operating
Partnership, and a Contribution and Assumption Agreement, among the General
Partner, the Special General Partner, the Operating Partnership and National
Sales & Service, Inc., a subsidiary of the Operating Partnership ("National
Sales") (both agreements are collectively referred to herein as the "Conveyance
Agreements"), the General Partner and the Special General Partner will convey,
directly and indirectly (the "Conveyance"), substantially all of their assets
(other than certain specified assets) (the "Transferred Assets") to the
Operating Partnership as a capital contribution in exchange for limited partner
interests in the Operating Partnership and the assumption by the Operating
Partnership of substantially all of the liabilities of the General Partner and,
to the extent applicable, the Special General Partner (other than, in the case
of both the General Partner and the Special General Partner, income tax
liabilities), including the First Mortgage Notes, all indebtedness outstanding
under the Revolving Credit and Term Loan Agreement, dated as of October 7, 1994,
as amended, among the General Partner, the Bank of New York, as Administrative
Agent, certain Co-Agents and the several lending institutions party thereto (the
"Existing Credit Facility") and the Other Existing Indebtedness, (iii) pursuant
to the applicable Conveyance Agreement, the General Partner and the Special
General Partner will convey their limited partner interests in the Operating
Partnership to the Partnership, and in exchange for such contributions (x) the
General Partner (A) will maintain its 1% unsubordinated general partner interest
in the Partnership and (B) will receive 4,533,638 subordinated units
representing subordinated general partner interests in the Partnership (the
"Subordinated Units") and the GP Incentive Distribution Rights (as defined
below) and (y) the Special General Partner will maintain its 1% unsubordinated
general partner interest in the Partnership, (iv) the Operating Partnership will
use the net proceeds from the sale of the First Mortgage Notes conveyed to it in
the Conveyance to repay (A) an aggregate of $57.3 million of indebtedness under
the Existing Credit Facility ($30 million of which is evidenced by the Refunding
Notes (as defined in the Existing Credit Facility)) and (B) $4.9 million of
Other Existing Indebtedness, (v) the Partnership will contribute the net
proceeds from the sale of the Units to the Operating Partnership pursuant to the
applicable Conveyance Agreement, and the Operating Partnership will use such
proceeds to (A) repay all remaining indebtedness under the Existing Credit
Facility, (B) make a loan of $40.7 million to Triarc, such loan to be evidenced
by a note issued by Triarc to the Operating Partnership (the "Triarc Note") and
(C) pay certain accrued management fees and tax sharing payments due to Triarc
and certain other intercompany obligations due to Triarc and (vi) the Operating
Partnership will enter into a new $55 million bank credit facility (the ("Bank
Credit Facility") pursuant to a bank credit agreement (the "Bank Credit
Agreement"). The transactions referred to in clauses (i) through (vi) above are
collectively referred to herein as the "Transactions". The Conveyance
Agreements, all conveyances, deeds, bills of sale, assignments and, if executed
and delivered, the Agency Agreement (as defined in the Conveyance Agreements),
are collectively referred to herein as the "Conveyance Documents." The
Conveyance Documents, the Note
2
Agreements, the Bank Credit Agreement and the Triarc Note are collectively
referred to herein as the "Transaction Documents."
Prior to the purchase and public offering of the Firm Units by the several
Underwriters, the Partnership and the Representatives, acting on behalf of the
several Underwriters, shall enter into an agreement substantially in the form of
Exhibit B hereto (the "Pricing Agreement"). The Pricing Agreement may take the
form of an exchange of any standard form of written telecommunication between
the Partnership and the Representatives and shall specify the initial public
offering price, the purchase price with respect to the Firm Units and such other
applicable information as is indicated in Exhibit B hereto. The offering of the
Firm Units will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
The Partnership has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-2768) covering the
registration of the Units under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, at the
time it became effective and including the Rule 430A Information, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The term
"Prospectus" means the prsopectus as first filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations (and any amendments or supplements
thereto whether or not filed pursuant to Rule 424(b)) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the Effective Date.
SECTION 1. Representations and Warranties.
(a) The General Partner, the Special General Partner, the Partnership, the
Operating Partnership and Triarc jointly and severally represent and warrant to
each Underwriter as of the date hereof and as of the date of the Pricing
Agreement (such latter date being hereinafter referred to as the "Representation
Date") as follows:
(i) At the respective times the Registration Statement and any
post-effective amendments thereto become effective and at the Closing Time
(as hereinafter defined), the Registration Statement will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and will not 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. The preliminary prospectus at
June 11, 1996 complied in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the Prospectus at the
Representation Date and at Closing Time and any Date of Delivery referred
to in Section 2, will comply in all material respects with the requirements
of the 1933 Act and
3
the 1933 Act Regulations and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance upon and
in conformity with information furnished to the Partnership in writing by
any Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus.
(ii) Each of the statements made in the Registration Statement and the
Prospectus within the coverage of Rule 175(b) of the 1933 Act Regulations,
including (but not limited to) any statements with respect to future
available cash or future cash distributions of the Partnership, was made or
will be made by the General Partner or the Partnership, as the case may be,
with a reasonable basis and in good faith; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Partnership in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or
Prospectus.
(iii) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission.
(iv) The accountants who certified the financial statements included
in the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The financial statements included in the Registration Statement,
the preliminary prospectus at June 11, 1996 and the Prospectus, together
with any related schedules and notes, present fairly in all material
respects the financial position of the entities purported to be shown
thereby as of the dates indicated and the results of their operations and
cash flows for the periods specified; except as otherwise stated in the
Registration Statement or the Prospectus said financial statements have
been prepared in conformity with accounting principles generally accepted
in the United States ("GAAP") applied on a consistent basis throughout the
periods involved; the summary and selected financial data included in the
Registration Statement and the Prospectus have been compiled on a basis
consistent with that of the audited and unaudited historical financial
statements and pro forma financial statements from which they have been
derived; the pro forma financial statements and the related notes thereto
included in the Registration Statement and the Prospectus present fairly in
all material respects the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements (including the applicable accounting
requirements of Rule 11-02 of Regulation S-X) and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are, in the opinion of the management of the Propane
Entities, reasonable and the adjustments used therein are, in the opinion
of the management of the Propane Entities, appropriate to give effect to
the transactions and circumstances referred to therein; and any other
financial and statistical information and data included in the Registration
Statement and the Prospectus present fairly and, to the extent applicable,
in accordance with GAAP and on a basis consistent with the books and
records of the General Partner, the Partnership and Triarc, the information
required to be stated therein.
(vi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) none of the Propane
4
Entities has sustained any material loss or interference with its business
from fire, explosion, flood, accident or other calamity, whether or not
covered by insurance, (B) there has been no change, or any development
involving a prospective change, in the partners' capital or capital stock
or any material change in long-term or short-term debt of the Propane
Entities, whether or not arising in the ordinary course of business, (C)
there have been no transactions entered into by the Propane Entities, other
than those in the ordinary course of business, which are material with
respect to the Propane Entities taken as a whole, (D) there has been no
dividend or distribution of any kind declared, paid or made by any of the
Propane Entities on any class of their capital stock or units, as the case
may be and (E) there are no liabilities or obligations of the Propane
Entities, direct or indirect, contingent or matured, which are material to
the Propane Entities taken as a whole, other than those reflected in the
Registration Statement and the Prospectus.
(vii) Each of the Partnership and the Operating Partnership (A) has
been duly formed and is validly existing as a limited partnership in good
standing under the Delaware Revised Uniform Limited Partnership Act (the
"Delaware Act"), with all partnership power and authority to (x) own, lease
and operate the properties it currently owns, leases and operates or will
own, lease and operate upon consummation of the Transactions, and conduct
its business as currently conducted or as it will be conducted upon
consummation of the Transactions, in each case as described in the
Registration Statement and the Prospectus, (y) enter into and perform its
obligations under the Transaction Documents to which it is a party and
consummate the Transactions and (z) enter into and perform its obligations
under this Agreement and the Pricing Agreement and, with respect to the
Partnership, issue and sell the Units as provided herein and therein and
(B) is or at the Closing Time will be, duly qualified or registered as a
foreign limited partnership authorized to do business and in good standing
under the laws of each jurisdiction in which the nature of its business or
its leasing or ownership of property requires such qualification or
registration, except where the failure to qualify or register would not
have a Material Adverse Effect. As used herein, a "Material Adverse Effect"
means (i) any material adverse effect on the business, condition (financial
or other), earnings, assets, liabilities, results of operations or business
prospects of the Propane Entities taken as a whole or (ii) any event or
occurrence which subjects the Propane Entities to a liability or disability
that is material to the Propane Entities taken as a whole.
(viii) The Special General Partner (A) has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
state of incorporation, with all corporate power and authority to (x) own
the properties it currently owns or will own upon consummation of the
Transactions, and act as non-managing general partner of the Partnership
and the Operating Partnership, in each case as described in the
Registration Statement and the Prospectus, (y) enter into and perform its
obligations under the Transaction Documents to which it is a party and
consummate the Transactions and (z) enter into and perform its obligations
under this Agreement, and (B) is or at the Closing Time will be, duly
qualified as a foreign corporation authorized to do business and in good
standing under the laws of each jurisdiction in which the nature of its
activities or its ownership of property requires such qualification, except
where the failure to qualify would not have a Material Adverse Effect.
(ix) National Sales (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its state of
incorporation, with all corporate power and authority to (x) own, lease and
operate the properties it currently owns, leases and operates or will own,
lease and operate upon consummation of the Transactions, and conduct its
business as currently conducted or as it will be conducted upon
consummation of the Transactions, in each case as described in the
Registration Statement and the Prospectus, (y) enter into and perform its
obligations under the
5
Transaction Documents to which it is a party and consummate the
Transactions and (B) is or at the Closing Time will be, duly qualified as a
foreign corporation authorized to do business and in good standing under
the laws of each jurisdiction in which the nature of its business or its
leasing or ownership of property requires such qualification, except where
the failure to qualify would not have a Material Adverse Effect.
(x) Each of Triarc and the General Partner (A) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its state of incorporation, with all corporate power and
authority to (x) own, lease and operate its properties, conduct its
business and, in the case of the General Partner, act as general partner of
the Partnership and the Operating Partnership, in each case as described in
the Registration Statement and the Prospectus, (y) enter into and perform
its obligations under the Transaction Documents to which it is a party and
consummate the Transactions and (z) enter into and perform its obligations
under this Agreement and (B) is duly qualified as a foreign corporation
authorized to do business and in good standing in each jurisdiction in
which the nature of its business or its leasing or ownership of property
requires such qualification, except where the failure to qualify would not
have a Material Adverse Effect.
(xi) All of the shares of issued and outstanding capital stock of the
General Partner have been duly authorized and validly issued and are fully
paid and nonassessable, and, are owned by Triarc, directly or through
subsidiaries of Triarc, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity interest (collectively,
"Encumbrances"), other than Encumbrances in favor of the Operating
Partnership or securing obligations under the Existing Credit Facility,
which Encumbrances securing obligations under the Existing Credit Facility
shall have been released at or prior to Closing Time; at March 31, 1996,
the Partnership would have had on a pro forma basis the capitalization as
set forth in the Prospectus in the column entitled "Partnership Pro Forma"
under the caption "Capitalization."
(xii) The General Partner and the Special General Partner are the sole
general partners of the Partnership, each with, at the Closing Time and
upon consummation of the Transactions (assuming the Underwriters have not
exercised the Over-allotment Option), a 1.0% unsubordinated general partner
interest in the Partnership and, in the case of the General Partner, the
related incentive distribution rights in respect thereof (the "GP Incentive
Distribution Rights") pursuant to the Amended and Restated Agreement of
Limited Partnership of National Propane Partners, L.P., dated as of ___,
1996, among the General Partner, the Special General Partner and Triarc, as
organizational limited partner (the "Partnership Agreement"); the General
Partner and the Special General Partner are the sole general partners of
the Operating Partnership, each with, at the Closing Time and upon
consummation of the Transactions (assuming the Underwriters have not
exercised the Over-allotment Option), a 1.0101% unsubordinated general
partner interest in the Operating Partnership pursuant to the Amended and
Restated Agreement of Limited Partnership of National Propane, L.P., dated
as of ____, 1996, among the General Partner, the Special General Partner
and the Partnership (the "Operating Partnership Agreement" and together
with the Partnership Agreement, the "Partnership Agreements"); all such
general partner interests have been duly authorized and have been or at the
Closing Time will be, validly issued to the General Partner and the Special
General Partner, and are or at the Closing Time will be, owned by the
General Partner and the Special General Partner free and clear of all
Encumbrances, except for Encumbrances securing obligations under the Bank
Credit Facility, the Note Agreements and other Parity Debt (as defined in
the Bank Credit Facility); and the GP Incentive Distribution Rights have
been duly authorized and have been or at the Closing Time will be, validly
issued to the General Partner, and are owned by the General Partner, as
applicable, free and clear of all Encumbrances.
6
(xiii) The Partnership is the sole limited partner of the Operating
Partnership with, at the Closing Time and upon consummation of the
Transactions (assuming the Underwriters have not exercised the
Over-allotment Option), an approximately 97.9798% limited partner interest
in the Operating Partnership; such limited partner interest has been or at
the Closing Time will be, duly authorized and validly issued in accordance
wtih the Operating Partnership Agreement, is fully paid (to the extent
required by the Operating Partnership Agreement) and nonassessable (except
as such nonassessability may be affected by matters described in the
Prospectus under the caption "The Partnership Agreement -- Limited
Liability") and is owned by the Partnership free and clear of all
Encumbrances, except for Encumbrances securing obligations under the Bank
Credit Facility, the Note Agreements and other Parity Debt.
(xiv) All of the shares of issued and outstanding capital stock of the
Special General Partner and National Sales have been duly authorized and
validly issued and are fully paid and nonassessable, and are owned by the
General Partner and the Operating Partnership, respectively, free and clear
of all Encumbrances, except for Encumbrances securing obligations under the
Bank Credit Facility, the Note Agreements and other Parity Debt.
(xv) At the Closing Time and upon consummation of the Transactions
(assuming the Underwriters do not exercise the Over-allotment Option and
the Subordinated Units are not converted into limited partner interests),
the only outstanding limited partner interests of the Partnership will be
6,190,476 Firm Units representing in the aggregate an approximate 56.6%
limited partner interest (the 4,533,638 Subordinated Units held by the
General Partner representing a subordinated general partner interest which
is convertible pursuant to the Partnership Agreement into an approximate
41.4% subordinated limited partner interest); at the Closing Time, the Firm
Units (when issued and delivered by the Partnership against payment of the
consideration set forth herein) and the Subordinated Units (when issued and
delivered pursuant to the Conveyance Agreements and the Partnership
Agreement), evidencing limited partner and subordinated general partner
interests, respectively, will be duly authorized by the Partnership
Agreement, will be validly issued to the Underwriters and the General
Partner, respectively, and in the case of the Firm Units will be fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessablility may be affected by matters described in
the Prospectus under the caption "The Partnership Agreement -- Limited
Liability"); at any Date of Delivery, Additional Units, if any (when issued
and delivered by the Partnership against payment of the consideration set
forth herein), will be duly authorized by the Partnership Agreement, will
be validly issued to the Underwriters and will be fully paid (to the extent
required by the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus
under the caption "The Partnership Agreement -- Limited Liability"); at the
Closing Time, the Firm Units will be acquired by the Underwriters free and
clear of all Encumbrances created by the Partnership Agreement, and the
Subordinated Units will be owned by the General Partner free and clear of
all Encumbrances other than Encumbrances in favor of the Operating
Partnership; and at any Date of Delivery, the Additional Units issued and
delivered on such date will be acquired by the Underwriters, free and clear
of all Encumbrances created by the Partnership Agreement.
(xvi) Except as described in the Registration Statement and the
Prospectus, there are no preemptive rights or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of, any
partnership interests or shares of capital stock of any of the Propane
Entities pursuant to the provisions of the certificate of incorporation,
bylaws, agreement of limited partnership or other governing documents or
any agreement or other instrument to which any of the Propane Entities is a
7
party or by which any of them may be bound. Except as described in the
Registration Statement and the Prospectus, neither the filing of the
Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement and the Pricing Agreement gives rise to any
rights for or relating to the registration of any Units or other securities
(debt or equity) of the Partnership. The Units, when issued and delivered
by the Partnership against payment of the consideration set forth herein,
the Subordinated Units, when issued and delivered pursuant to the
Conveyance Agreements and the Partnership Agreement, the unsubordinated
general partner interests in the Partnership and the GP Incentive
Distribution Rights, when issued and delivered pursuant to the Conveyance
Agreements and the Partnership Agreement, will conform in all material
respects to the description thereof contained in the Registration Statement
and the Prospectus. Except as described in the Registration Statement and
Prospectus, there are no outstanding options, warrants, or other rights
calling for the issuance of, and no commitments, plans or arrangements to
issue, any Units or Subordinated Units or any security convertible into or
exercisable or exchangeable for Units or Subordinated Units.
(xvii) This Agreement has been and the Pricing Agreement will be, duly
authorized, executed and delivered by the Propane Entities and Triarc and
are or will be upon execution thereof, the valid and legally binding
agreements of the Propane Entities and Triarc, enforceable against each of
them in accordance with their terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to or affecting
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law) and (B) rights to indemnity or contribution may be limited by
federal or state securities laws or the public policy underlying such laws.
(xviii) The Partnership Agreement is or at Closing Time will be, duly
authorized, executed and delivered by the General Partner, the Special
General Partner and Triarc as the organizational limited partner and will
be a valid and legally binding agreement of the General Partner, the
Special General Partner and Triarc as the organizational limited partner,
enforceable against each of them in accordance with its terms; the
Operating Partnership Agreement is or at Closing Time will be, duly
authorized, executed and delivered by the General Partner, the Special
General Partner and the Partnership and will be a valid and legally binding
agreement of the General Partner, the Special General Partner and the
Partnership, enforceable against each of them in accordance with its terms;
provided that, with respect to each agreement described in this paragraph
(xviii), the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or similar
laws relating to or affecting creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(xix) The Transaction Documents have been or at the Closing Time will
be, duly authorized, executed and delivered by each of the Propane Entities
and Triarc, to the extent they are parties thereto, and are or at the
Closing Time will be, valid and legally binding agreements of such persons,
enforceable against each of such persons in accordance with their
respective terms; provided that, with respect to each agreement described
in this paragraph (xx), the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium,
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(xx) At or prior to Closing Time, all material actions required to be
taken by any of the Propane Entities and Triarc for the authorization,
issuance, sale and delivery of the Units and the
8
Subordinated Units and the consummation of the transactions contemplated by
this Agreement, the Pricing Agreement and the Transaction Documents shall
have been validly taken.
(xxi) Except with respect to motor vehicles and other property
requiring conveyance of certificated title (as to which the Conveyance
Documents are legally sufficient to compel delivery of certificated title),
the Conveyance Documents will be, as of the Closing Time, legally
sufficient, subject to the limitations contained therein, to transfer or
convey to the Operating Partnership or National Sales all of the
Transferred Assets, except in all cases where the failure to transfer or
convey any of the Transferred Assets would not, singly or in the aggregate,
result in a Material Adverse Effect.
(xxii) The General Partner has, and (except for Excluded Assets (as
defined in the Conveyance Agreements) and leased real property and personal
property covered by the Agency Agreement (as defined in the Conveyance
Agreements) upon consummation of the Transactions and at the Closing Time
the Partnership, Operating Partnership or National Sales will have, (1)
title to the real properties set forth on Schedule I hereto (the
"Significant Properties") in fee simple, (2) all of the title to the real
properties that are not Significant Properties that the General Partner had
immediately prior to consummation of the Conveyance and (3) good title to
all other tangible personal properties owned by it (except for motor
vehicles, with respect to which the Partnership, the Operating Partnership
and National Sales will have good title within 180 days of the Closing
Time), in each case, free and clear of all Encumbrances except such as (A)
are described in the Registration Statement and the Prospectus, (B) do not
materially affect the use made or proposed to be made of such properties
taken as a whole, (C) secure obligations under the Bank Credit Facility and
the Note Agreements or (D) are set forth in the Title Policies prepared for
the Significant Properties as delivered as of the Closing Time; all of the
material leases and subleases entered into in connection with the business
of the General Partner and under which the General Partner holds, or the
Partnership, the Operating Partnership or National Sales will hold, the
properties described in the Registration Statement and the Prospectus are
and upon consummation of the Transactions will be, valid and subsisting and
in full force and effect with such exceptions as do not materially
interfere with the use made or proposed to be made of such properties taken
as a whole; and the General Partner does not have, and upon consummation of
the Transactions and at the Closing Time the Partnership, the Operating
Partnership and National Sales will not have, any notice of any claim of
any sort that has been asserted by anyone adverse to the rights of or
affecting or questioning the rights of the General Partner, the
Partnership, the Operating Partnership or National Sales, as applicable, to
the continued possession of the leased or subleased premises under any such
lease or sublease with such exceptions as do not materially interfere with
the use made or proposed to be made of such properties taken as a whole.
Upon consummation of the Transactions, the Partnership, the Operating
Partnership and National Sales will succeed in all material respects to the
business, assets, property and operations reflected in the pro forma
financial statements of the Partnership, except as disclosed in the
Prospectus.
(xxiii) None of the Propane Entities or Triarc is (A) in breach or
violation of the provisions of its certificate of incorporation, bylaws,
agreement of limited partnership or other governing documents, (B) in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other instrument to
which any of such entities 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
(collectively, the "Agreements and Instruments") or (C) in violation of any
applicable law or statute or any rule or regulation or judgment, order,
writ or decree of any court, domestic or foreign, or governmental agency or
body having jurisdiction over them or any of their properties, except in
each case, for such breaches, violations or
9
defaults which would not, either singly or in the aggregate, have a
Material Adverse Effect; to the knowledge of the Propane Entities and
Triarc, no event has occurred which with notice or lapse of time or both
would constitute such a breach, violation or default.
(xxiv) None of (A) the execution and delivery by the Propane Entities
and Triarc of and the performance of their obligations under this
Agreement, the Pricing Agreement and the issuance and sale of the Units as
contemplated herein or therein or (B) the execution and delivery by the
Propane Entities and Triarc and the performance of their respective
obligations under the Transaction Documents and the consummation of the
Transactions (including the use of the proceeds from the sale of the Units
and the sale of the First Mortgage Notes as described in the Prospectus
under the captions "The Transactions" and "Use of Proceeds"), will (in each
case, whether or not with notice or lapse of time or both) (i) result in
any breach or violation of the provisions of the certificate of
incorporation, bylaws, agreement of limited partnership or other governing
documents of any of the Propane Entities or Triarc, (ii) conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any Encumbrance upon any
property or assets of the Propane Entities or Triarc pursuant to any
Agreements and Instruments, except for (A) Encumbrances described in the
Registration Statement and Prospectus, (B) conflicts, breaches, Repayment
Events or Encumbrances that would not, singly or in the aggregate, have a
Material Adverse Effect or (C) conflicts, breaches, Repayment Events or
Encumbrances under the Existing Credit Facility or arising in connection
with the Other Existing Indebtedness (which Existing Credit Facility and
Other Existing Indebtedness are being repaid in their entirety in
connection with the Transactions as described in the Prospectus) or (iii)
result in the violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over any
of the Propane Entities or Triarc or any of their assets or properties,
[except where such violations would not, singly or in the aggregate, have a
Material Adverse Effect]a. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Propane Entities or Triarc.
(xxv) No filing with, permit, consent, approval, license,
registration, qualification, authorization or order or decree
(collectively, the "Consents") of any court, governmental agency or body or
financial institution, is required of any of the Propane Entities or Triarc
in connection with the execution, delivery and performance of this
Agreement, the Pricing Agreement and the Transaction Documents and the
issuance and sale of the Units as contemplated herein and therein, or the
consummation of the Transactions, except such Consents (A) as have already
been or prior to Closing Time will be obtained, (B) as are required under
the 1933 Act, the 1933 Act Regulations, the Securities Exchange Act of 1934
(the "1934 Act"), the rules and regulations of the Commission under the
1934 Act (the "1934 Act Regulations"), or the securities or "blue sky" laws
of certain jurisdictions, (C) which (1) are of a routine or administrative
nature, (2) are not customarily obtained or made prior to the consummation
of transactions such as those contemplated hereby and by the Transaction
Documents and (3) are expected in the reasonable judgment of the General
Partner to be obtained in the ordinary course of business subsequent to the
consummation of the Transactions and (D) which, if not obtained, would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(xxvi) No regulation or order has been enacted, adopted or issued by
any governmental agency or body which prevents the issuance of the Units or
the Subordinated Units, or suspends the effectiveness of the Registration
Statement, prevents or suspends the use of any Prospectus or suspends the
sale of
10
the Units in any jurisdiction in which the Units are qualified pursuant to
Section 3(g) hereof; no injunction, restraining order or order of any
nature by a federal or state court of competent jurisdiction has been
issued with respect to the Propane Entities which would prevent or suspend
the issuance or sale of the Units or the Subordinated Units, as applicable,
the effectiveness of the Registration Statement, or the use of any
Prospectus in any jurisdiction in which the Units are qualified pursuant to
Section 3(g).
(xxvii) No labor dispute with the employees of the Propane Entities
exists or, to the knowledge of the Propane Entities, is imminent, in either
case, which could reasonably be expected to have a Material Adverse Effect,
and to the knowledge of the Propane Entities (without independent inquiry),
there is no existing or imminent labor disturbance by the employees of any
of the principal suppliers, manufacturers, customers or contractors of the
Propane Entities which could reasonably be expected to have a Material
Adverse Effect.
(xxiii) There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Propane Entities, threatened
against or affecting the Propane Entities, which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse
Effect (other than as disclosed in the Registration Statement and the
Prospectus); all pending legal or governmental proceedings to which any of
the Propane Entities is a party or of which any of their respective
property or assets is the subject are described in the Registration
Statement, other than those proceedings (including ordinary routine
litigation incidental to the business) that could not reasonably be
expected to have a Material Adverse Effect.
(xxix) There are no Agreements and Instruments of the Propane Entities
or Triarc which are required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto and the
descriptions thereof or references thereto are accurate in all material
respects.
(xxx) The General Partner carries or is covered by, and upon
consummation of the Transactions the Partnership, the Operating Partnership
and National Sales will carry or be covered by insurance in such amounts
and covering such risks as is, in the reasonable judgment of management of
the Propane Entities, adequate for the conduct of their businesses and the
value of their properties. No such entity has received notice from any
insurer or agent of such insurer that substantial capital improvements or
other expenditures will have to be made in order to continue such
insurance; and on the date hereof all such insurance is, and at the Closing
Time and upon consummation of the Transactions will be, outstanding and
duly in force.
(xxxi) The General Partner owns or possesses, or can acquire on
reasonable terms, and upon consummation of the Transactions, the
Partnership, the Operating Partnership and National Sales, as applicable,
will own or possess, or be able to acquire on reasonable terms, the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names described in the Prospectus as
being owned by them or necessary for the conduct of their respective
businesses (collectively, "patent and proprietary rights"); no such entity
has received or is aware of any notice of any infringement of or conflict
with asserted rights of others with respect to any patent or proprietary
rights, or any facts which would render any patent and proprietary rights
invalid or inadequate to protect the interest of such entities therein, and
which infringement or conflict or
11
invalidity or inadequacy, singly or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(xxxii) The General Partner possesses, and upon consummation of the
Transactions and at the Closing Time the Partnership, the Operating
Partnership and National Sales, as applicable, will possess, such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies as are necessary to
conduct the business operated by them except for any of the foregoing the
absence of which would not have a Material Adverse Effect, and no such
entity has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(xxxiii) The Propane Entities are in compliance with the provisions of
that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba Act") or are exempt
therefrom.
(xxxiv) None of the Propane Entities or Triarc is (a) deemed to be a
"gas utility company" within the meaning of Section 2(a)(4) of the Public
Utility Holding Company Act of 1935, as amended ("PUHCA"), (b) a "holding
company" [or a "subsidiary company" of a "holding company" or an
"affiliate" thereof,] within the meaning of PUHCA or (c) an "investment
company" [or a company "controlled by" an "investment company"] within the
meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder.
(xxxv) Except as set forth in the Registration Statement, the Propane
Entities are in material compliance with all applicable existing federal,
state, local and foreign laws and regulations relating to protection of
human health or the environment or imposing liability or standards of
conduct concerning any Hazardous Material (as hereinafter defined)
("Environmental Laws"), except, in each case, where such noncompliance,
singly or in the aggregate, would not have a Material Adverse Effect. The
term "Hazardous Material" means (A) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (B) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (C) any petroleum or petroleum
product, (D) any polychlorinated biphenyl, and (E) any pollutant or
contaminant or hazardous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law.
(xxxvi) There is no alleged liability, or to the knowledge of the
Propane Entities, circumstance or condition which is reasonably likely to
result in any liability (including, in either case, without limitation,
liability for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries, or
penalties), of the Propane Entities arising out of, based on or resulting
from (A) the presence or release into the environment of any Hazardous
Material at any location, whether or not owned by the Propane Entities or
(B) any violation or alleged violation of any Environmental Law, (x) which
liability is required to be disclosed in the Registration Statement or the
Prospectus (and which is not so disclosed), or (y) (except as described in
the Registration Statement and Prospectus) which liability, singly or in
the aggregate, would have a Material Adverse Effect.
(xxxvii) Each of the Propane Entities is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable
12
event" (as defined in ERISA) has occurred with respect to any "pension
plan" (as defined in ERISA) for which the Propane Entities could reasonably
be expected to have any material liability under Title IV of ERISA; the
Propane Entities have not incurred and, to the knowledge of the Propane
Entities, there is no pending or threatened material liability of the
Propane Entities under (A) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (B) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension
plan" for which the Propane Entities would have any material liability that
is intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified in all
material respects and to the knowledge of the Propane Entities nothing has
occurred, whether by action or by failure to act, which would cause the
loss of such qualification.
(xxxiii) Each of the Propane Entities and Triarc has filed all federal
income tax returns and all other material tax returns, domestic or foreign,
required to be filed by it through the date hereof and has paid all federal
taxes and assessments shown to be due on such returns and all other
material taxes and assessments, domestic and foreign, in each case payable
by it which have become due, other than those not yet delinquent and except
for those contested in good faith and for which adequate reserves have been
provided in accordance with GAAP.
(xxxix) Each of the Propane Entities maintains or causes to be
maintained on its behalf a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general and specific
authorizations, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorizations and (D) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxx) None of the Propane Entities or Triarc has (A) taken, directly
or indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Units, to facilitate the
sale or resale of the Units or (B) since the initial filing of the
Registration Statement, except as contemplated by this Agreement, (i) sold,
bid for, purchased or paid anyone any compensation for soliciting purchases
of, the Units or (ii) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Partnership.
(xxxxi) None of the Partnership, the Operating Partnership or National
Sales has engaged in any business other than in connection with its
organization and the consummation of the Transactions.
(xxxxii) The Units have been approved for listing on the New York
Stock Exchange ("NYSE"), subject only to official notice of issuance.
(xxxxiii) The issuance and delivery of the Subordinated Units to the
General Partner is exempt from the registration requirements of the 1933
Act and the securities laws of any state having jurisdiction with respect
thereto, and none of the Propane Entities or Triarc has taken or will take
any action that would cause the loss of such exemption.
13
(xxxxiv) No relationship, direct or indirect, exists between the
Propane Entities, Triarc or any of their affiliates, on the one hand, and
any director, officer, stockholder, customer or supplier of any of them, on
the other hand, which is required by the 1933 Act or by the 1933 Act
Regulations to be described in the Registration Statement or the Prospectus
which is not so described as required.
(xxxxv) At the Closing Time, each of the General Partner will have
(excluding its interests in the Partnership and the Operating Partnership
and any notes or receivables from or payable to the Partnership and the
Operating Partnership) a net worth of at least $15,000,000 million. For
purposes of this representation, assets will be valued at fair market
value, and the General Partner's interest in the Partnership and the
Operating Partnership (as general partner, limited partner and creditor)
shall not be taken into account except as an offset to the Partnership's or
the Operating Partnership's liabilities that are taken into account in
computing such net worth.
(b) Any certificate signed by any officer of any of the Propane Entities or
Triarc and delivered to the Representatives or to counsel for the Underwriters
on or after the date hereof in connection with this Agreement shall be deemed a
representation and warranty by the Propane Entities or Triarc to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Partnership agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Partnership, at the price
per Unit set forth in the Pricing Agreement, the number of Units set forth in
Exhibit A opposite the name of such Underwriter (except as otherwise provided in
the Pricing Agreement), plus any additional number of Units which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(1) If the Partnership has elected not to rely upon Rule 430A under
the 1933 Act Regulations, the initial public offering price and the
purchase price per Firm Unit to be paid by the several Underwriters for the
Firm Units have each been determined and set forth in the Pricing
Agreement, dated the date hereof, and an amendment to the Registration
Statement and the Prospectus will be filed before the Registration
Statement becomes effective.
(2) If the Partnership has elected to rely upon Rule 430A under the
1933 Act Regulations, the initial public offering price and the purchase
price per Firm Unit to be paid by the several Underwriters for the Firm
Units shall be determined by agreement between the Representatives and the
Partnership and, when so determined, shall be set forth in the Pricing
Agreement. In the event that such prices have not been agreed upon and the
Pricing Agreement has not been executed and delivered by all parties
thereto by the close of business on the fourteenth business day following
the date of this Agreement, this Agreement shall terminate forthwith,
without liability of any party to any other party, unless otherwise agreed
to by the Partnership and the Representatives. For purposes of this
Agreement, the term "business day" means a day on which the New York Stock
Exchange is open and trading in securities thereon is permitted.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Partnership hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to 928,571 Additional Units at the price per Additional
Unit set forth in the Pricing Agreement. The option hereby granted will expire
30 days after (i) the date the Registration Statement becomes
14
effective, if the Partnership has elected not to rely on Rule 430A under the
1933 Act Regulations, or (ii) the Representation Date, if the Partnership has
elected to rely on Rule 430A under the 1933 Act Regulations, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Units upon notice by the Representatives to the
Partnership setting forth the number of Additional Units as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Additional Units. Any such time and date of delivery for the
Additional Units (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, unless otherwise agreed by the Representative and the
Partnership. If the option is exercised as to all or any portion of the
Additional Units, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Additional Units then being
purchased which the number of Firm Units set forth in Exhibit A opposite the
name of such Underwriter bears to the total number of Firm Units (except as
otherwise provided in the Pricing Agreement), subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of certificates for,
the Firm Units shall be made at the office of Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New York, New York 10019, or at such
other place as shall be agreed upon by the Representatives and the Partnership
at 10:00 A.M. on July __, 1996, unless postponed in accordance with the
provisions of Section 10 (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that any or all of the
Additional Units are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Additional Units shall be made
at the above-mentioned offices of Paul, Weiss, Rifkind, Wharton & Garrison, or
at such other place as shall be agreed upon by the Representatives and the
Partnership, on each Date of Delivery as specified in the notice from the
Representatives to the Partnership. Payment shall be made to the Partnership by
same-day funds payable to the order of the Partnership against delivery to the
Underwriters of the Firm Units to be purchased by them. Certificates for the
Firm Units and the Additional Units, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
two business days before the Closing Time or the relevant Date of Delivery, as
the case may be. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Firm Units and the Additional Units, if
any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for, the Firm Units and the Additional Units, if
any, to be purchased by any Underwriter whose funds have not been received by
the Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Firm Units and the Additional Units, if any, will be made
available for examination and packaging by the Representatives in New York City
not later than 2:00 P.M. on the last business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Propane Entities and Triarc. The Propane
Entities and Triarc covenant with each Underwriter as follows, but as to Triarc
only with respect to clause (l) below:
(a) To notify the Representatives promptly, and, if requested by the
Representatives, confirm the notice in writing, (i) of the effectiveness of
the Registration Statement and any amendment thereto (including any
post-effective amendment), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any
15
Prospectus, or of the suspension by any state securities commission of the
qualification of the Units for offering or sale in any jurisdiction, or the
initiation of any proceedings for such purposes. To make every reasonable
effort to prevent the issuance of any such stop order or suspension and, if
any such stop order or suspension is issued, to obtain the lifting thereof
at the earliest reasonably possible moment. If necessary, to file (i) an
amendment to the Registration Statement or (ii) a post-effective amendment
to the Registration Statement, if required, pursuant to Rule 430A under the
1933 Act, as soon as practicable after the execution and delivery of this
Agreement and will use their reasonable best efforts to cause the
Registration Statement or such post-effective amendment to become effective
at the earliest possible time. To prepare and file with the Commission,
promptly upon the Underwriters' reasonable request, any amendment to the
Registration Statement or amendments or supplements to the Prospectus that
may be necessary or advisable in connection with the distribution of the
Units by the several Underwriters and to use their reasonable best efforts
to cause the same to become effective as promptly as possible.
(b) To give the Representatives notice of the intention to file or
prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act or otherwise (including any revised
Prospectus which the Partnership proposes for use by the Underwriters in
connection with the offering of the Units which differs from the Prospectus
on file at the Commission at the time the Registration Statement becomes
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), to furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and not to file any such amendment or supplement or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object in writing within two business days after being furnished
a copy thereof.
(c) To deliver to the Representatives and counsel for the
Underwriters, without charge, photocopies of the signed Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and
photocopies of all signed consents and certificates of experts, and to also
deliver to the Representatives such number of conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) as the Underwriters may reasonably request.
(d) To furnish to each Underwriter, without charge, from time to time
during the period when the Prospectus is required to be delivered (the
"Delivery Period") under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations.
(e) To use reasonable best efforts to comply with the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, so as to
permit the completion of the distribution of the Units as contemplated by
this Agreement and the Prospectus. If during the Delivery Period any event
shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Propane Entities or for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if for any other reason it shall be necessary
to amend or supplement the Prospectus in order to comply with the 1933 Act,
the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or any
other law, to promptly amend or supplement the Prospectus (in form and
substance reasonably
16
satisfactory to counsel for the Underwriters and in compliance with the
1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations) so that, as so amended or supplemented, the Prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time they are delivered to a
purchaser, not misleading and comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations; to promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and to furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
(f) If, at the time that the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance upon Rule
430A of the 1933 Act Regulations, then following the execution of the
Pricing Agreement, to prepare and timely file or transmit for filing with
the Commission in accordance with Rule 430A and Rule 424(b) of the 1933 Act
Regulations, copies of the amended Prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including
an amended Prospectus), containing all information so omitted and to use
its reasonable best efforts to cause such post-effective amendment to be
declared effective as promptly as practicable.
(g) To endeavor, in cooperation with the Underwriters, to qualify the
Units for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriters may
designate, and to maintain such qualifications in effect for as long as may
be required for the distribution of the Units; provided, however that
neither the General Partner, the Special General Partner nor the
Partnership shall be obligated to file any general consent to service,
subject itself (or its partners) to taxation in any such jurisdiction if it
(or its partners) are not so subject, of process or qualify as foreign
corporations or limited partnerships, as the case may be, in any
jurisdiction in which they are not so qualified. In each jurisdiction in
which the Units have been so qualified, to file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be reasonably required in
connection with the distribution of the Units. To supply the
Representatives with such information regarding the Propane Entities as is
necessary for the determination of the legality of the Units for investment
under the laws of such jurisdictions as the Representatives may reasonably
request.
(h) To make generally available to the security holders of the
Partnership as soon as practicable, but not later than 105 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
which need not be audited covering a twelve month period beginning not
later than the first day of the Partnership's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(i) To cause (i) the Partnership to use the net proceeds from the sale
of the Common Units and the Additional Units, if any, (ii) the General
Partner to use the net proceeds from the sale of the First Mortgage Notes
and (iii) the Operating Partnership to apply such net proceeds contributed
to it, in each case, as described in the Prospectus under the captions "The
Transactions" and "Use of Proceeds."
(j) To use reasonable best efforts to effect the listing of the Units
on the NYSE.
17
(k) In the case of the Propane Entities, not to (i) offer, sell,
contract to sell or otherwise dispose of any Common Units, Subordinated
Units or unsubordinated general partner interests in the Partnership or any
securities convertible into or exchangeable or exercisable for Common
Units, Subordinated Units or unsubordinated general partner interests in
the Partnership (other than in connection with the General Partner Merger
or, in the case of the Partnership, the issuance of Common Units in
connection with Acquisitions or Capital Improvements) or (ii) grant any
options or warrants to purchase Common Units, Subordinated Units or
unsubordinated general partner interests in the Partnership or any
securities convertible into or exchangeable or exercisable for Common
Units, Subordinated Units or unsubordinated general partner interests in
the Partnership (other than the grant of options to purchase Common Units
or Subordinated Units pursuant to the National Propane Corporation 1996
Unit Option Plan that are not exercisable until at least 180 days after the
date of the Pricing Agreement) for a period of 180 days after the date of
the Pricing Agreement without the prior written consent of Merrill Lynch.
(l) In the case of Triarc, not to (i) offer, sell, contract to sell or
otherwise dispose of any Common Units, Subordinated Units or unsubordinated
general partner interests in the Partnership or any securities convertible
into or exchangeable or exercisable for Common Units, Subordinated Units or
unsubordinated general partner interests in the Partnership or (ii) grant
any options or warrants to purchase Common Units, Subordinated Units or
unsubordinated general partner interests in the Partnership or any
securities convertible into or exchangeable or exercisable for Common
Units, Subordinated Units or unsubordinated general partner interests in
the Partnership for a period of 180 days after the date of the Pricing
Agreement without the prior written consent of Merrill Lynch.
(m) For a period of five years after the Closing Time, to furnish to
the Representatives, as they may reasonably request, copies of (i) any
reports (excluding exhibits) filed by the Partnership with the Commission
on Forms 10-Q and 10-K, (ii) all reports and financial statements furnished
by the Partnership to the principal national securities exchange or
automated quotation system upon which the Units may be listed pursuant to
requirements of or agreements with such exchange and (iii) all other
reports and information furnished to the Partnership's security holders,
promptly as they become available.
(n) In accordance with the Cuba Act and without limitation to the
provisions of Sections 6 and 7 hereof, to indemnify and hold harmless each
Underwriter from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including fees and disbursements of
counsel), as incurred, arising out of any violation by the Propane Entities
of the Cuba Act.
(o) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of the Rules and Regulations, to furnish a copy
thereof to the counsel for the Underwriters and receive and consider its
comments thereon, and to deliver promptly to the Representatives a signed
copy of each report on Form SR filed by it with the Commission.
(p) To cause to be accomplished or obtained as soon as practicable all
consents, recordings and filings necessary to perfect, preserve and protect
the title of the Operating Partnership and National Sales to the
Transferred Assets owned by them as a result of the Transactions.
(q) To cause the Partnership, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, to use
reasonable best efforts to file all documents
18
required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Propane Entities will pay all expenses
incident to the performance of their obligations under this Agreement and the
Pricing Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Pricing Agreement, the Prospectus (and any amendments or
supplements thereto) and such other documents as may be required in connection
with the offering, purchase, sale and delivery of the Units, (iii) the
preparation, issuance and delivery of the certificates for the Units to the
Underwriters, including any transfer taxes or duties payable upon the sale of
the Units to the Underwriters, (iv) the fees and disbursements of counsel for
the Propane Entities and Triarc, accountants and other advisors, (v) the
qualification of the Units under securities laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky memoranda and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of the
Blue Sky memoranda and any supplement thereto, (viii) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Units, (viii) the fees and
expenses incurred in connection with the listing of the Units on the NYSE and
(ix) the performance by the Propane Entities and Triarc of their other
obligations under this Agreement, the Pricing Agreement and the Transaction
Documents.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5(b), 9(a)(i) or Section 11 hereof, the Propane Entities
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
Except as expressly provided in this Agreement, all other fees and expenses
incurred by or on behalf of the Underwriters shall be borne by the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
(a) The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Propane Entities and
Triarc herein contained, to the performance in all material respects by the
Propane Entities and Triarc of their obligations hereunder to be performed prior
to the Closing Time, and to the following further conditions:
(i) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or with the consent of the
Representatives, at a later time and date, not later, however, than 5:30
P.M. on the first business day following the date hereof, or at such later
time and date as may be approved by a majority in interest of the several
Underwriters; and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission and no stop order suspending the sale of the Units in any
jurisdiction designated by the Underwriters pursuant to Section 3(g) hereof
shall have been issued and no proceeding for that purpose shall have been
commenced. If the Partnership has elected to rely upon Rule 430A of the
1933 Act Regulations, the price of the Units and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period and, prior to Closing Time, the Partnership shall
have provided evidence satisfactory to the Underwriters of such timely
filing, or a post-effective amendment
19
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933 Act
Regulations. Any request on the part of the Commission or any state
securities authority in a jurisdiction designated by the Underwriters
pursuant to Section 3(g) for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters.
(ii) No Underwriter shall have been advised by the Partnership or
shall have discovered and disclosed to the Partnership that the
Registration Statement, as amended at the time it becomes effective, or the
Prospectus, at the Representation Date or at the Closing Time, or any
amendment or supplement thereto, contains an untrue statement of fact which
is material and is required to be stated therein or is necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(iii) At Closing Time the Representatives shall have received an
opinion reasonably satisfactory to the Underwriters of Latham & Watkins,
counsel to the Underwriters, covering such matters as are customarily
covered in such opinions.
(iv) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Paul,
Weiss, Rifkind Wharton & Garrison, counsel for the Propane Entities
and Triarc, in form and substance reasonably satisfactory to counsel
for the Underwriters, to the effect that:
A. Each of the Partnership and the Operating Partnership (A)
has been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Act, with all
partnership power and authority to (x) own, lease and operate the
properties it will own upon consummation of the Transactions, and
conduct its business as it will be conducted upon consummation of
the Transactions, in each case as described in the Registration
Statement and the Prospectus, (y) enter into and perform its
obligations under the Transaction Documents to which it is a
party and (z) enter into and perform its obligations under this
Agreement and the Pricing Agreement and, with respect to the
Partnership, issue and sell the Units as provided herein and
therein.
B. The Special General Partner (A) has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its state of incorporation, with all
corporate power and authority to (x) own the properties it will
own upon consummation of the Transactions, and act as
non-managing general partner of the Partnership and the Operating
Partnership, in each case as described in the Registration
Statement and the Prospectus, (y) enter into and perform its
obligations under the Transaction Documents to which it is a
party and (z) enter into and perform its obligations under this
Agreement.
C. National Sales (A) has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its state of incorporation, with all corporate power and
authority to (x) own, lease and operate the properties it
20
will own upon consummation of the Transactions, and conduct its
business as it will be conducted upon consummation of the
Transactions, in each case as described in the Registration
Statement and the Prospectus and (y) enter into and perform its
obligations under the Transaction Documents to which it is a
party.
D. Each of the General Partner and Triarc (A) has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its state of incorporation, with all
corporate power and authority to (x) own, lease and operate its
properties, conduct its business and, in the case of the General
Partner, act as general partner of the Partnership and the
Operating Partnership, in each case as described in the
Registration Statement and the Prospectus, (y) enter into and
perform its obligations under the Transaction Documents to which
it is a party and (z) enter into and perform its obligations
under this Agreement and (B) in the case of Triarc, based solely
on certificates from such jurisdictions, is duly qualified as a
foreign corporation authorized to do business and in good
standing in each jurisdiction listed on a schedule to such
counsel's opinion, and to such counsel's knowledge such
jurisdictions are the only ones in which the nature of its
business or its leasing or ownership of property requires such
qualification, except where the failure to qualify would not have
a Material Adverse Effect.
E. All of the shares of issued and outstanding capital stock
of the General Partner have been duly authorized and validly
issued and are fully paid and nonassessable, and are owned by
Triarc, directly or through subsidiaries of Triarc, free and
clear of all Encumbrances (i) in respect of which a financing
statement under the Uniform Commercial Code of the State of
Delaware naming Triarc as a debtor is on file in the office of
the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel without independent investigation, except
for Encumbrances created by or arising under the General
Corporation Law of the State of Delaware (the "DGCL") or
Encumbrances in favor of the Operating Partnership and
Encumbrances under the Existing Credit Facility.
F. All of the unsubordinated general partner interests in
the Partnership and the Operating Partnership are owned by the
General Partner and the Special General Partner, and the GP
Incentive Distribution Rights are owned by the General Partner,
in each case, free and clear of all Encumbrances (i) in respect
of which a financing statement under the Uniform Commercial Code
of the State of Delaware naming the General Partner or the
Special General Partner, as the case may be, as a debtor is on
file in the office of the Secretary of State of the State of
Delaware or (ii) otherwise known to such counsel without
independent inquiry, except for Encumbrances created by or
arising under the Delaware Act, and except for Encumbrances
securing obligations under the Bank Credit Facility, the Note
Agreements and other Parity Debt with respect to the
unsubordinated general partner interests held by the General
Partner and the Special General Partner.
G. All of the limited partner interests in the Operating
Partnership are owned by the Partnership free and clear of all
Encumbrances (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming the
Partnership as debtor is on file in the office of the Secretary
of State of the
21
State of Delaware or (ii) otherwise known to such counsel without
independent inquiry, except for Encumbrances created by or
arising under the Delaware Act, and except for Encumbrances
securing obligations under the Bank Credit Facility, the Note
Agreements and other Parity Debt.
H. All of the shares of issued and outstanding capital stock
of the Special General Partner and National Sales have been duly
authorized and validly issued and are fully paid and
nonassessable, and are owned by the General Partner and the
Operating Partnership, respectively, free and clear of all
Encumbrances (i) in respect of which a financing statement under
the Uniform Commercial Code of the State of Delaware naming the
General Partner or the Operating Partnership, respectively, as a
debtor is on file in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel without
independent inquiry, except for Encumbrances created by or
arising under the DGCL, and except for Encumbrances securing
obligations under the Bank Credit Facility, the Note Agreements
and other Parity Debt with respect to the capital stock of
National Sales.
I. The Units, when issued and delivered by the Partnership
against payment of the consideration set forth herein, will be
acquired by the Underwriters free and clear of all Encumbrances
created by the Partnership Agreement.
J. The Subordinated Units, when issued and delivered
pursuant to the Conveyance Agreements and the Partnership
Agreement, will be owned by the General Partner, free and clear
of all Encumbrances (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming
the General Partner is on file in the office of the Secretary of
State of the State of Delaware or (ii) otherwise known to such
counsel without independent investigation, except for
Encumbrances created by or arising under the Delaware Act.
K. Except as described in the Registration Statement and the
Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any partnership interests in the Partnership or
the Operating Partnership pursuant to the provisions of the
Partnership Agreements or any Agreement or Instrument known to
such counsel to which any of the Propane Entities is a party or
by which any of them may be bound. To such counsel's knowledge,
except as described in the Registration Statement and the
Prospectus, neither the filing of the Registration Statement nor
the offering or sale of the Units as contemplated by this
Agreement and the Pricing Agreement gives rise to any rights for
or relating to the registration of any Units or other securities
(debt or equity) of the Partnership. Except as described in the
Registration Statement and the Prospectus, to such counsel's
knowledge, there are no outstanding options, warrants or other
rights calling for the issuance of, and no commitments, plans or
arrangements to issue, any Units or Subordinated Units or any
security convertible into or exercisable or exchangeable for
Units or Subordinated Units.
L. This Agreement and the Pricing Agreement have each been
duly authorized, executed and delivered by the Propane Entities
and Triarc.
22
M. The Transaction Documents have been, or at Closing Time
will be, duly authorized, executed and delivered by each of the
Propane Entities and Triarc, to the extent they are parties
thereto, and (assuming due authorization, execution and delivery
by each other party thereto), the Transaction Documents that are
governed by the laws of the State of New York are valid and
legally binding agreements of the Propane Entities and Triarc, to
the extent they are parties thereto, as applicable, enforceable
against each of them in accordance with their respective terms,
except that the enforceability of any such agreement may be
limited by (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws relating to or affecting
creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), (ii) public policy, applicable
law relating to fiduciary duties and the judicial imposition of
an implied covenant of good faith and fair dealing and (iii)
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
N. None of (A) the execution and delivery by the Propane
Entities and Triarc of and the performance of their obligations
under this Agreement, the Pricing Agreement and the issuance and
sale of the Units as contemplated herein or therein or (B) the
execution and delivery by the Propane Entities and Triarc and the
performance of their obligations under the Transaction Documents
and of the consummation of the Transactions (including the use of
the proceeds from the sale of the Units and the sale of the First
Mortgage Notes as described in the Prospectus under the captions
"The Transactions" and "Use of Proceeds"), will (in each case,
whether or not with notice or lapse of time or both) (i) result
in any breach or violation of the provisions of the certificate
of incorporation or bylaws of any of the General Partner, the
Special General Partner, National Sales or Triarc, (ii) conflict
with or constitute a breach of, or default or Repayment Event
under, or result in the creation or imposition of any Encumbrance
upon any property or assets of the Propane Entities or Triarc
pursuant to any material Agreements and Instruments in effect on
the date of the opinion that have been filed as exhibits to the
Registration Statement, except for (A) Encumbrances described in
the Registration Statement and Prospectus, (B) conflicts,
breaches or Repayment Events under the Existing Credit Facility
and the Other Existing Indebtedness that is being repaid at the
Closing Time, (C) conflicts, breaches, Repayment Events or
Encumbrances that would not, singly or in the aggregate, have a
Material Adverse Effect or (iii) result in the violation of the
DGCL or any applicable New York State or Federal law, statute,
rule or regulation or any judgment, order, writ or decree known
to such counsel of any New York State or Federal government,
government instrumentality or court, having jurisdiction over any
of the Propane Entities or Triarc or any of their assets or
properties.
O. No Consent of any New York, Delaware or Federal court,
governmental agency or body or under the DGCL or the Delaware Act
is required of any of the Propane Entities or Triarc in
connection with the execution, delivery and performance of this
Agreement, the Pricing Agreement and the Transaction Documents
and the issuance and sale of the Units as contemplated herein and
therein, except such Consents (A) as have already been obtained,
(B) as are required under the 1933 Act, the 1933 Act Regulations,
the 1934 Act, the 1934 Act Regulations or securities or
23
"blue sky" laws of certain jurisdictions, (C) which (1) are of a
routine or administrative nature, (2) are not customarily
obtained or made prior to the consummation of transactions such
as those contemplated hereby and by the Transaction Documents and
(3) are expected in the reasonable judgment of the General
Partner to be obtained in the ordinary course of business
subsequent to the consummation of the Transactions, (D) which, if
not obtained, would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and [(E)
as may be required by the Interstate Commerce Commission, the
Federal Communications Commission or under PUHCA.]
P. The issuance and delivery of the Subordinated Units to
the General Partner pursuant to the Conveyance Agreements is
exempt from the registration requirements of the 1933 Act and the
securities laws of any state having jurisdiction with respect
thereto.
Q. To such counsel's knowledge, there is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending or
threatened against or affecting the Propane Entities, which is
required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might reasonably be expected
to result in a Material Adverse Effect (except as disclosed in
the Registration Statement and the Prospectus).
R. To such counsel's knowledge, there are no Agreements and
Instruments of the Propane Entities or Triarc which are required
to be described in the Registration Statement or to be filed as
exhibits thereto other than those described therein or filed as
exhibits thereto.
S. To such counsel's knowledge, (A) none of the Propane
Entities or Triarc is in breach or violation of the provisions of
its certificate of incorporation, bylaws, agreement of limited
partnership or other governing documents and [(B) no default by
any of the Propane Entities exists in the due performance or
observance of any of the material Agreements and Instruments that
are filed as an exhibit to the Registration Statement (other than
under the Existing Credit Facility and the Other Existing
Indebtedness that is being repaid at Closing Time), which default
could reasonably be expected to have a Material Adverse Effect.]
T. The statements in the Registration Statement and the
Prospectus at the time the Registration Statement becomes
effective and in the Prospectus at the Representation Date and at
Closing Time under the captions "The Transactions", "Cash
Distribution Policy -- Partnership Loan", "Management's
Discussion and Analysis of Financial Condition and Results of
Operations --Contingencies" (other than the second paragraph
thereof), "-- Description of Indebtedness", "Business and
Properties -- Government Regulation", "--Litigation and
Contingent Liabilities" and "-- Transfer of the Partnership
Assets", insofar as such statements constitute a summary of the
Transaction Documents or of legal matters or proceedings referred
to therein, fairly and accurately present in all material
respects the information set forth therein with respect to such
documents, legal matters and proceedings.
24
U. Triarc is not (a) deemed to be a "gas utility
company"within the meaning of Section 2(a)(4) of PUHCA, (b) a
"holding company" [or a "subsidiary company" of a "holding
company" or an "affiliate" thereof], within the meaning of PUHCA
or (c) an "investment company" [or a company "controlled by" an
"investment company"] within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
In addition such counsel shall state that the Commission has advised such
counsel that the Registration Statement was declared effective under the 1933
Act on _____, 1996; the Prospectus was filed with the Commission pursuant to
Rule 424(b)(_) of the 1933 Act Regulations on _____, 1996; and to such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission.
In rendering such opinion, counsel may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Propane Entities or Triarc or upon certificates of public
officials and need not express any opinion with regard to the laws of any
jurisdiction other than the federal law of the United States (except that such
counsel need not opine on the Federal Motor Safety Carrier Act and, except in
paragraph U, the 1940 Act and PUHCA), the law of the State of New York (except
that such counsel need not opine on state and municipal fire safety codes and
permits), the DGCL and the Delaware Act.
(2) The favorable opinion, dated as of Closing Time, of Andrews &
Kurth L.L.P., counsel for the Propane Entities, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
A. The Partnership Agreement has been duly authorized,
executed and delivered by the General Partner, the Special
General Partner and Triarc, as the organizational limited
partner, and is a valid and legally binding agreement of the
General Partner, the Special General Partner and Triarc, as the
organizational limited partner, enforceable against each of them
in accordance with its terms; the Operating Partnership Agreement
has been duly authorized, executed and delivered by the General
Partner, the Special General Partner and the Partnership and is a
valid and legally binding agreement of the General Partner, the
Special General Partner and the Partnership, enforceable against
each of them in accordance with its terms; provided that,
enforceability of the Partnership Agreements may be limited by
(i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or affecting
creditors' rights generally, (ii) public policy, applicable law
relating to fiduciary duties and the judicial imposition of an
implied covenant of good faith and fair dealing and (iii) general
equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
B. The General Partner and the Special General Partner are
the sole general partners of the Partnership and the Operating
Partnership, each with, at the Closing Time and upon consummation
of the Transactions (assuming the Underwriters have not exercised
the Over-allotment Option), a 1.0% unsubordinated general partner
interest in the Partnership pursuant to the Partnership Agreement
and a 1.0101% unsubordinated general partner interest in the
Operating Partnership pursuant to the
25
Operating Partnership Agreement; all such general partner
interests and the GP Incentive Distribution Rights have been duly
authorized by the Partnership Agreements and were validly issued
to the General Partner and the Special General Partner, as the
case may be, in accordance with the Operating Partnership
Agreements.
C. The Partnership is the sole limited partner of the
Operating Partnership with, at the Closing Time and upon
consummation of the Transactions (assuming the Underwriters have
not exercised the Over-allotment Option), an approximately
97.9798% limited partner interest in the Operating Partnership;
such limited partner interest in the Operating Partnership has
been duly authorized by the Operating Partnership Agreement, was
validly issued in accordance with the Operating Partnership
Agreement, and is fully paid (to the extent required by the
Operating Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described on the
Prospectus under the caption "The Partnership Agreement --
Limited Liability").
D. The 6,190,476 Firm Units to be issued and sold to the
Underwriters by the Partnership and the limited partner interest
represented thereby are duly authorized by the Partnership
Agreement and, when issued and delivered by the Partnership
against payment of the consideration set forth in the Purchase
Agreement, will be validly issued to the Underwriters in
accordance with the Partnership Agreement, fully paid (to the
extent required by the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by matters
described in the Prospectus under the caption "The Partnership
Agreement -- Limited Liability"); on the date hereof, the Firm
Units are the only limited partner interests of the Partnership.
E. The 4,533,638 Subordinated Units and the GP Incentive
Distribution Rights to be issued to the General Partner pursuant
to the applicable Conveyance Agreement and the subordinated
general partner interests represented thereby are duly authorized
by the Partnership Agreement and, when issued and delivered
pursuant to the terms of the applicable Conveyance Agreement and
the Partnership Agreement, will be validly issued to the General
Partner in accordance with the Partnership Agreement.
F. None of (A) the execution and delivery by the Propane
Entities and Triarc of and the performance of their obligations
under this Agreement and the Pricing Agreement and the issuance
and sale of the Units as contemplated herein or therein or (B)
the execution and delivery by the Propane Entities and Triarc and
the performance of their obligations under the Transaction
Documents and the consummation of the Transactions (including the
use of the proceeds from the sale of the Units and the sale of
the First Mortgage Notes as described in the Prospectus under the
caption "Use of Proceeds"), will (in each case, whether or not
with notice or lapse of time or both) (i) result in any breach or
violation of the provisions of the Partnership Agreements or (ii)
result in the violation of the Delaware Act.
G. The statements in the Registration Statement and
Prospectus under the captions "Conflicts of Interest and
Fiduciary Responsibility", "Cash Distribution Policy" (other than
(i) the table under the subsection "-- Incentive Distributions --
26
Hypothetical Annualized Yield" and (ii) the statements under the
subsection "-- Cash Available for Distribution," as to which such
counsel need not express any opinion), "Description of the Common
Units" and "The Partnership Agreement," insofar as such
statements constitute descriptions of the Partnership Agreements,
or refer to statements of law or legal conclusions, are accurate
and complete in all material respects.
H. None of the Propane Entities is (a) deemed to be a "gas
utility company" within the meaning of Section 2(a)(4) of PUHCA,
(b) a "holding company", within the meaning of PUHCA or (c) an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations
thereunder.
I. The Units, when issued and delivered by the Partnership
against payment of the consideration set forth herein, the
Subordinated Units, the unsubordinated general partner interests
in the Partnership and the GP Incentive Distribution Rights,
conform or will conform in all material respects to the
description thereof contained in the Registration Statement and
the Prospectus.
J. The opinion of Andrews & Kurth L.L.P. filed as Exhibit
8.1 to the Registration Statement is confirmed, and the
Underwriters may rely upon such opinion as if it were addressed
to them.
In rendering such opinion, counsel may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Propane Entities or Triarc or upon certificates of public
officials and need not express any opinion with regard to the laws of any
jurisdiction other than the federal law of the United States, the Delaware Act
and the DGCL.
(3) The favorable opinion, dated as of Closing Time, of local
counsel for the Propane Entities in the states of Arizona, Arkansas,
Colorado Connecticut, Florida, Illinois, Iowa, Kansas, Maine,
Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New
Mexico, New York, Rhode Island, and Wisconsin, (each, a "State") in
form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
A. Each of the Propane Entities and National Sales has been
duly qualified or registered as a foreign corporation or a
foreign limited partnership authorized to do business and in good
standing under the laws of [state].
B. The Partnership has all requisite partnership power and
authority under the laws of [state] to own or lease its
properties and to conduct its business in such state; the
Operating Partnership has all requisite partnership power and
authority under the laws of [state] to own or lease its
properties and to conduct its business in such state; and upon
the execution, delivery and performance of their obligations
under the Conveyance Documents, assuming that the Partnership
will not be liable under the laws of the State of Delaware for
the liabilities of the Operating Partnership and that the
Unitholders will not be liable under the laws of the State of
Delaware for the liabilities of the Partnership or the Operating
Partnership, the Partnership will not be liable under the laws of
such state for the liabilities of the Operating Partnership, and
the Unitholders will not be liable
27
under the laws of such state for the liabilities of the
Partnership or the Operating Partnership.
C. The execution, delivery and performance of the Conveyance
Documents in connection with the Conveyance and relating to the
transfer of the Transferred Assets in [state] in accordance with
the terms thereof will not violate any statute of such state or,
to such counsel's knowledge, any order, rule or regulation of any
agency of such state having jurisdiction over any of the Propane
Entities or any of their respective properties, except for any
such violations which, individually or in the aggregate, would
not have a Material Adverse Effect.
D. To the extent that the Conveyance Documents executed in
connection with the Conveyance are valid and legally binding
agreements under applicable law as stated therein, and assuming
the due authorization, execution and delivery thereof by the
parties thereto, such Conveyance Documents are valid and legally
binding agreements of the parties thereto under the laws of
[state], enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting the rights of contracting parties and to general
equity principles; each of the Conveyance Documents executed in
connection with, and in order to give effect to, the Conveyance,
is in a form legally sufficient as between the parties thereto to
convey to the transferee thereunder all of the right, title and
interest of the transferor stated therein in and to the
properties located in such state, as described in the applicable
Conveyance Documents, subject to the conditions, reservations and
limitations contained in the Conveyance Documents, except motor
vehicles or other property requiring conveyance of certificated
title as to which the applicable Conveyance Documents are legally
sufficient to compel delivery of such certificated title.
E. Each Conveyance Document executed in connection with, or
to give effect to, the Conveyance (including, without limitation,
the form of the exhibits and schedules thereto) is in a form
legally sufficient for recordation in the appropriate public
offices of [state], to the extent such recordation is required,
and, upon proper recordation of any such Conveyance Document
which is required to be recorded, will constitute notice to all
third parties under the recordation statutes of each state
concerning record title to the portion of the Transferred Assets
described in each of the applicable Conveyance Documents.
Recordation in the office of the County Clerk for each county in
which the Propane Entities own property is the appropriate public
office in such state for the recordation of deeds and assignments
of interests in real property located in such county.
F. No consent, approval, authorization, order, registration
or qualification of or with any governmental agency or body of
such [state] governing (A) changes in ownership or control of
industrial or other facilities generally, (B) retail propane
sales generally or (C) the issuance of securities by entities
owning retail propane sales facilities, or, to such counsel's
knowledge, based solely upon their participation as special
[state] counsel with respect to matters relating to the
Transactions and without having conducted an independent
investigation, any other governmental agency or body of such
state having jurisdiction over the Propane Entities
28
or any of their respective properties is required for the issue
and sale of the Units by the Partnership or for the conveyance of
the properties constituting Transferred Assets located in such
state to be conveyed to the Operating Partnership in connection
with the Conveyance and pursuant to the applicable Conveyance
Documents, except such permits, consents, approvals and similar
authorizations (1) required under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations and the
securities or "blue sky" laws of certain jurisdictions, (2)
which, if not obtained, would not, singly or in the aggregate,
have a Material Adverse Effect, (3) which (a) are of a routine or
administrative nature, (b) are not customarily obtained or made
prior to the consummation of transactions such as those
contemplated hereby and by the Transaction Documents and (c) are
expected in the reasonable judgment of the General Partner to be
obtained in the ordinary course of business subsequent to the
consummation of the Transactions or (4) which, if not obtained,
would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
In rendering such opinion, counsel (i) may rely as to factual matters upon
certificates or written statements from officers or other appropriate
representatives of the Propane Entities and Triarc or upon certificates of
public officials, (ii) need not express any opinion with regard to the laws of
any jurisdiction other than their state of practice and (iii) may state that
they express no opinion with respect to the title of any of the Propane Entities
to any of their respective real or personal property.
(3) The favorable opinion, dated as of Closing Time, of Rosen &
Read, L.L.P., tax counsel for the Propane Entities and Triarc in form
and substance reasonably satisfactory to counsel for the Underwriters,
to the effect that: the statements in the Registration Statement and
the Prospectus at the time the Registration STatement becomes
effective and in the Prospectus at the Representation Date and at
Clsoing Time in the second paragraph under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations --Contingencies", insofar as such statements constitute a
summary of he Transaction Documents or of legal matters or proceedings
referred to therein, fairly and accurately present in all material
respects the information set forth therein with respect to such
documents, legeal matters and proceedings.
In giving the opinions required by subsections (iv)(1) of this Section
5(a), Paul, Weiss, Rifkind, Wharton & Garrison shall additionally state that
such counsel participated in the preparation of the Registration Statement and
the Prospectus and in meetings with representatives of the Propane Entities and
Triarc, representatives of the Underwriters and representatives of Deloitte &
Touche L.L.P. at which the contents of the Registration Statement and related
matters were discussed, and although such counsel is not passing upon, and does
not assume responsibility for the accuracy, completeness or fairness of, any
portion of the Registration Statement or the Prospectus, as amended or
supplemented (except to the extent specified in such counsel's opinion), (i)
such counsel is of the opinion that the Registration Statement as of its
effective date, and the Prospectus as of its date and as of the date of such
opinion, complied as to form in all material respects with the requirements of
the 1933 Act and the applicable 1933 Act Regulations, except that such counsel
need express no opinion with respect to the financial statements or other
financial or statistical data contained in the Registration Statement or the
Prospectus and (ii) such counsel has no reason to believe that the Registration
Statement, 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,
as of its date and at the Closing Time, contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that such counsel need express no opinion or belief with
respect to the financial statements or other financial or statistical
29
data contained in the Registration Statement or the Prospectus or the statements
under the captions "Prospectus Summary -- Tax Risks", "-- Summary of Tax
Considerations", "Risk Factors -- Tax Risks", "Cash Distribution Policy"
(except for the subsection " -- Partnership Loan"), "Description of the Common
Units", "The Partnership Agreement", "Tax Considerations", "Investment in the
Partnership by Employee Benefit Plans."
In giving the opinion required by subsection (iv)(2) of this Section 5(a),
Andrews & Kurth L.L.P. shall additionally state that such counsel has
participated in meetings with representatives of the Propane Entities and
Triarc, representatives of the Underwriters and representatives of Deloitte &
Touche L.L.P. at which the contents of the Registration Statement and related
matters were discussed, and although such counsel is not passing upon, and does
not assume responsibility for the accuracy, completeness or fairness of, any
portion of the Registration Statement or the Prospectus, as amended or
supplemented (except to the extent specified in such counsel's opinion), such
counsel has no reason to believe that, as of its effective date, the statements
in the Registration Statement under the captions "Prospectus Summary -- Tax
Risks", "-- Summary of Tax Considerations", "Risk Factors -- Tax Risks", "Cash
Distribution Policy" (other than (i) the table under the subsection "--
Incentive Distributions-Hypothetical Annualized Yield", (ii) the statements
under the subsection "-- Cash Available for Distribution", and (iii) the
statements under the subsection "-- Partnership Loan", as to which such counsel
need express no opinion), "Description of Common Units", "Tax Considerations",
"Risk Factors -- "Tax Risks", "The Partnership Agreement" and "Investment in the
Partnership by Employee Benefit Plans" (other than the financial data and other
statistical data included therein, as to which such counsel need express no
opinion) 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, as of its date or the Closing Time, the
statements in the Prospectus under the captions "Prospectus Summary -- Tax
Risks", "-- Summary of Tax Considerations", "Risk Factors -- Tax Risks", "Cash
Distribution Policy" (other than (i) the table under the subsection "--
Incentive Distributions-Hypothetical Annualized Yield", (ii) the statements
under the subsection "-- Cash Available for Distribution", and (iii) the
statements under the subsection "-- Partnership Loan", as to which such counsel
need express no opinion), "Description of Common Units", "Tax Considerations",
"Investment in the Partnership by Employee Benefit Plans" and "The Partnership
Agreement" (other than the financial data and other statistical data included
therein, as to which such counsel need express no opinion) contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(v) Except as contemplated by the Prospectus, at Closing Date
there shall not have been, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(i) any material change in the partners' capital, capital stock,
short-term or long-term debt of any of the Propane Entities, taken as
a whole, or Triarc, (ii) any liabilities or obligations incurred by
the Propane Entities or Triarc, direct or indirect, contingent or
matured, which are material to the Propane Entities, taken as a whole,
or Triarc other than such liabilities or obligations as are reflected
in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) or (iii) any other event or development that may
reasonably be expected, either singly or in the aggregate, to result
in a Material Adverse Effect.
(vi) The Representatives shall have received a certificate signed
on behalf of the Partnership and the Operating Partnership by the
President, or a Vice President of the General Partner and by the
principal financial or principal accounting officer of the General
Partner, dated as of Closing Time, to the effect that (i) the
representations and warranties of the Partnership and the Operating
Partnership in Section 1 hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time
(except to the extent any relate to a specific date), (ii) the
Partnership and the Operating
30
Partnership have complied in all material respects with all agreements
and satisfied all conditions on their part to be performed or
satisfied pursuant to the Agreement, the Pricing Agreement, the
Transaction Documents or otherwise at or prior to Closing Time, (iii)
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission, (iv) such persons have
carefully examined the Registration Statement and the Prospectus, and
any amendments or supplements thereto, and to such persons' knowledge
such documents do not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (v) no
event of the type contemplated in subsection (v) of this Section 5(a)
in respect of the Partnership or the Operating Partnership has
occurred.
(vii) The Representatives shall have received a certificate
signed on behalf of the General Partner and the Special General
Partner by the Chairman, the President or a Vice President and the
chief financial or accounting officer of the General Partner and the
Special General Partner to the effect that (i) the representations and
warranties of such entity contained in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of Closing Time (except to the extent any relate to a specific
date), (ii) such entity has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied pursuant to the Agreement, the Pricing Agreement, the
Transaction Documents or otherwise at or prior to Closing Time, (iii)
such persons have carefully examined the Registration Statement and
the Prospectus, and any amendments or supplements thereto, and to such
persons' knowledge, such documents do not include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and (iv) no event of the type contemplated in subsection
(v) of this Section 5(a) in respect of such entity has occurred.
(viii) The Representatives shall have received a certificate
signed on behalf of Triarc by the Chairman, the President or a Vice
President and the chief financial or accounting officer of Triarc to
the effect that (i) the representations, warranties and agreements of
Triarc contained in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of Closing
Time, (ii) Triarc has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied pursuant to the Agreement, the Pricing Agreement, the
Transaction Documents or otherwise at or prior to Closing Time (iii)
such persons have carefully examined the Registration Statement and
the Prospectus, and any amendments or supplements thereto, and to such
persons' knowledge such documents do not include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and (iv) no event of the type contemplated in subsection
(v) of this Section 5(a) in respect of Triarc has occurred.
(ix) At the time of the execution of this Agreement, the
Underwriters shall have received an accountants' "comfort letter" from
Deloitte & Touche, dated such date, in form and substance reasonably
satisfactory to the Underwriters,
(x) At Closing Time the Underwriters shall have received from
Deloitte & Touche a bring-down letter, dated as of Closing Time, to
the effect that Deloitte & Touche, LLP reaffirms the statements made
in the letter furnished pursuant to subsection (ix) of this Section
5(a), except that the specified date referred to shall be a date not
more than five days prior to Closing Time and, if the Partnership has
elected to rely on Rule 430A of the 1933 Act Regulations, to the
further effect that it has carried out certain specified procedures
with respect to certain amounts, percentages and financial
31
information specified by the Underwriters and deemed to be a part of
the Registration Statement pursuant to Rule 430A(b).
(xi) At the Closing Time the Units shall have been approved for
listing on the NYSE, subject only to official notice of issuance, and
the NASD shall have approved the Underwriters' participation in the
distribution of the Units and such approval shall not have been
withdrawn or limited.
(xii) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Pricing
Agreement, the Transaction Documents, the Registration Statement and
Prospectus and all other legal matters relating to this Agreement and
the Transactions shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Propane Entities and
Triarc shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(xiii) The Existing Credit Facility shall have will be repaid in
its entirety and all obligations thereunder discharged, cancelled or
extinguished substantially contemporaneously with the Closing Time.
(xiv) The Operating Partnership shall have entered into the Bank
Credit Facility and the Representatives shall have received
counterparts, conformed as executed, thereof.
(xv) Simultaneously with or prior to the sale of the Firm Units
at the Closing Time, the Transactions shall have been consummated and
shall conform in all material respects to the description thereof in
the Registration Statement and the Prospectus.
(xvi) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Additional Units, the representations and warranties of the Propane
Entities and Triarc contained herein and the statements in any
certificates furnished by the Propane Entities or Triarc hereunder
shall be true and correct as of each Date of Delivery (except to the
extent any relate to a specific date) and, at the relevant Date of
Delivery, the Representatives shall have received:
(1) Certificates, dated such Date of Delivery, of officers
of the Propane Entities and Triarc, as applicable, confirming
that the certifications made in the applicable certificate
delivered at the Closing Time pursuant to Sections 5(a)(vi)
through 5(a)(viii) hereof remain true and correct as of such Date
of Delivery.
(2) The favorable opinions of Paul, Weiss, Rifkind, Wharton
& Garrison and Andrews & Kurth L.L.P., counsel for the Propane
Entities and Triarc, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Additional Units to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required
by Sections 5(a)(iv)(1) and 5(a)(iv)(2) hereof.
(3) The favorable opinion of Latham & Watkins, counsel for
the Underwriters, dated such Date of Delivery, relating to the
Additional Units to be purchased on such Date of Delivery.
32
(4) A letter from Deloitte & Touche LLP, in form and
substance satisfactory to the Representatives and dated such Date
of Delivery, substantially the same in form and substance as the
letter furnished to the Representatives pursuant to Section
5(a)(ix) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(b) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Partnership at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 3(n), 6
and 7 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) The Partnership, the Operating Partnership, the General Partner, the
Special General Partner and Triarc jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each officer and director of each Underwriter and of any such
controlling person as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Partnership; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the reasonable fees and disbursements of
counsel chosen by the Underwriters), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement (A) shall not apply
to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or alleged
omission made in reliance upon and in conformity with written information
furnished to the Partnership by any Underwriter through the Representatives
expressly for use in the Registration
33
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) and (B) with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter
or any officer or director of such Underwriter or of any such controlling
person) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Units by such Underwriter to any person if the
Partnership shall sustain the burden of proving that the Prospectus or any
subsequent amendment or supplement to such Prospectus (whether or not filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations)
shall not have been delivered or sent to such person within the time
required by the 1933 Act or the 1933 Act Regulations and the untrue
statement contained in or omission from such preliminary prospectus was
corrected in the Prospectus, provided that the Partnership has delivered
the Prospectus to the several Underwriters in compliance with Section 3(d)
hereof in reasonably requested quantities and on a timely basis to permit
such delivery or sending.
In making a claim for indemnification under this Section 6 (other
than pursuant to clause (a)(iii) of this Section 6) or contribution under
Section 7 by the Propane Entities or Triarc, the indemnified parties may
proceed against either (i) both the Propane Entities and Triarc or (ii)
the Propane Entities only, but may not proceed solely against Triarc. In
the event that the indemnified parties are entitled to seek indemnity or
contribution hereunder against any loss, liability, claim, damage ad
expense incurred with respect to a final judgment from a trial court then,
as a precondition to any indemnified party obtaining indemnification or
contribution from Triarc (but not any of the Propane Entities), the
indemnified parties shall first obtain a final judgment from a trial court
that such indemnified parties are entitled to indemnity or contribution
under this Agreement with respect to such loss, liability, claim, damage
or expense (the "Final Judgment") from the Propane Entities and Triarc and
shall seek to satisfy such Final Judgment in full from the Propane
Entities by making a written demand upon the Partnership for such
satisfaction. Only in the event such Final Judgment shall remain
unsatisfied in whole or in part 45 days following the date of receipt by
the Partnership of such demand shall any indemnified party have the right
to take action to satisfy such Final Judgment by making demand directly on
Triarc (but only if and to the extent the Propane Entities have not
already satisfied such Final Judgment, whether by settlement, release or
otherwise). The indemnified parties may exercise this right to first seek
to obtain payment from the Propane Entities and thereafter obtain payment
from Triarc without regard to the pursuit by any party of its rights to
the appeal of such Final Judgment. The indemnified parties shall, however,
be relieved of their obligation to first obtain a Final Judgment, to seek
to obtain payment from the Propane Entities with respect to such Final
Judgment or, having sought such payment, to wait such 45 days after
failure by the Propane Entities to immediately satisfy any such Final
Judgment if (i) any of the Propane Entities files a petition for relief
under the United States Bankruptcy Code (the "Bankruptcy Code"), (ii) an
order for relief is entered against any of the Propane Entities in an
involuntary case under the Bankruptcy Code and the continuance in effect
of such order for 60 consecutive days, (iii) any of the Propane Entities
makes an assignment for the benefit of its creditors, or (iv) any court
orders or approves the appointment of a receiver or custodian for any of
the Propane Entities or a substantial portion of its assets and the
continuance in effect of such order for 60 consecutive days. The foregoing
provisions of this paragraph are not intended to require any indemnified
party to obtain a Final Judgment against the Propane Entities or Triarc
before obtaining reimbursement of expenses pursuant to clause (a)(iii) of
this Section 6. However, the indemnified parties shall first seek to
obtain such reimbursement in full from the Propane Entities by making a
written demand upon the Partnership for such reimbursement. Only in the
event such expenses shall remain unreimbursed in whole or in part 45 days
following the date of receipt by the Partnership of such demand shall any
indemnified party have the right to receive reimbursement of such expenses
from Triarc by making written demand directly on Triarc (but only if and
to the extent the Propane Entities have not already
34
satisfied the demand for reimbursement, whether by settlement, release or
otherwise). The indemnified parties shall, however, be relieved of their
obligation to first seek to obtain such reimbursement in full from the
Propane Entities or, having made written demand therefor, to wait such 45
days after failure by the Propane Entities to immediately reimburse such
expenses if (i) any of the Propane Entities files a petition for relief
under the Bankruptcy Code, (ii) an order for relief is entered against any
of the Propane Entities in an involuntary case under the Bankruptcy Code
and the continuance in effect of such order for 60 consecutive days, (iii)
any of the Propane Entities makes an appointment for the benefit of its
creditors, or (iv) any court orders or approves the appointment of a
receiver or custodian for any of the Propane Entities or a substantial
portion of its assets and the continuance in effect of such order for 60
consecutive days.
(b) Each Underwriter severally, but not jointly, agrees to indemnify and
hold harmless the Propane Entities and Triarc, their respective directors, each
of their officers who signed the Registration Statement, and each person, if
any, who controls any of the Propane Entities or Triarc within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Partnership by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
Prospectus (or any amendment or supplement thereto). The parties hereto
severally acknowledge that the only information expressly provided in writing by
the Underwriters for inclusion in the Registration Statement and the preliminary
prospectus and the Prospectus are the statements with respect to Underwriting
discounts and commission on the cover page of the Prospectus, the last full text
paragraph on the cover page of the Prospectus, the legend concerning
stabilization on the inside front cover page of the Prospectus, and the second
and fifth full text paragraphs of the "Underwriting" section of the Prospectus.
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement except to the extent
the indemnifying party is materially prejudiced thereby. An indemnifying party
may participate at its own expense in the defense of such action if it so elects
within a reasonable time after receipt of such notice. An indemnifying party,
jointly with any other indemnifying parties receiving such notice, may assume
the defense of such action with counsel chosen by it, unless such indemnified
parties reasonably object to such assumption on the ground that such indemnified
party shall have been advised by its counsel that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of appropriate conduct due to actual or
potential differing interests between them. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is a party and indemnity has been sought hereunder by such
indemnified party (whether or not the indemnified parties are actual
35
or potential parties thereto), unless such settlement includes a release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding. No indemnifying party shall be liable for any settlement of any
such action effected without its prior written consent, but if settled with its
prior written consent, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by reason
of such settlement.
(d) Triarc shall not be responsible for the payment of an amount pursuant
to this Section 6 which exceeds the net proceeds received by the Partnership
from the sale of the Units pursuant to this Agreement and the Pricing Agreement.
(e) If any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(c) hereof effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Propane Entities,
Triarc and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by a Propane Entity or Triarc and one or more of
the Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the initial
public offering price appearing thereon and the Propane Entities and Triarc
shall be responsible for the balance on the same basis as the Propane Entities
and Triarc would have been obligated to provide indemnification pursuant to
Section 6; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 7, (a) no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Units underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay pursuant to Section 6 and
(b) Triarc shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by the Partnership from the sale of
the Units pursuant to this Agreement and the Pricing Agreement exceeds the
aggregate amount Triarc has otherwise paid pursuant hereto and to Section 6(a).
For purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each officer and director of each Underwriter and of any such controlling
person shall have the same rights to contribution as such Underwriter, and each
director of any of the Propane Entities or Triarc, each officer of any of the
Propane Entities or Triarc who signed the Registration Statement, and each
person, if any, who controls any of the Propane Entities or Triarc within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each
officer and director of any such controlling person shall have the same rights
to contribution as the Propane Entities and Triarc.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties, indemnities and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Propane Entities or Triarc submitted pursuant hereto, shall remain operative
and in
36
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Partnership,
and shall survive delivery of and payment for the Units.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Partnership, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any Material Adverse Effect,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or elsewhere, any outbreak of hostilities or escalation thereof or other
calamity or crisis, in each case the effect of which on the financial markets of
the United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Units or to enforce contracts for the sale of the
Units, or (iii) if trading generally on the American Stock Exchange, the NYSE or
the NASDAQ National Market System has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, (iv) if a banking
moratorium has been declared by either Federal or New York authorities, or (v)
if there has occurred any change or development involving a prospective change
in national or international political, financial or economic conditions or
currency exchange rates or exchange controls which, in the reasonable opinion of
the Representatives, is likely to have a material and adverse effect on the
market for the Units. As used in this Section 9(a), the term "Prospectus" means
the Prospectus in the form first used by the Underwriters to confirm sales of
the Units.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 3(n), 6 and 7
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Units which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Units"), the Representatives shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Units in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Units does not exceed 10% of the number
of Units to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Units exceeds 10% of the number of
Units to be purchased on such date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
37
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Partnership shall have the
right to postpone Closing Time or a Date of Delivery for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Default by the Partnership. If the Partnership shall fail at
Closing Time to sell and deliver the aggregate principal amount of Units which
it is obligated to sell hereunder, then this Agreement shall terminate.
The termination of this Agreement pursuant to this Section shall not
relieve the Partnership from liability, if any, in respect of the default
resulting in such termination.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York 10281-1209, attention of Theodore D. Sands,
or to such other address designated in a notice so delivered; notices to the
Partnership shall be directed to it at Suite 1700, IES Tower, 200 1st Street,
S.E., P.O. Box 2067, Cedar Rapids, Iowa, 52401-2067, attention of Ronald R.
Rominiecki, Senior Vice President and Chief Financial Officer, or to such other
address designated in a notice so delivered.
SECTION 13. Parties. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters and the Propane
Entities and Triarc and their respective successors. Nothing expressed or
mentioned in this Agreement or the Pricing Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Propane Entities and Triarc and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the Pricing Agreement or any
provision herein or therein contained. This Agreement and the Pricing Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Propane Entities, Triarc and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Units from an Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. EXCEPT AS OTHERWISE SET FORTH HEREIN SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
38
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Partnership a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters, the Propane Entities and Triarc in accordance with its terms.
Very truly yours,
NATIONAL PROPANE CORPORATION
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
NATIONAL PROPANE SGP, INC.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
NATIONAL PROPANE PARTNERS, L.P.
By: National Propane Corporation,
its Managing General Partner
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
39
NATIONAL PROPANE, L.P.
By: National Propane Corporation,
its Managing General Partner
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
TRIARC COMPANIES, INC.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
40
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
JANNEY MONTGOMERY SCOTT INC.
RAUSCHER PIERCE REFSNES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:__________________________________
Name:
Title:
For itself and as Representatives of the other
Underwriters named in Exhibit A hereto.
41
EXHIBIT A
Name of Underwriter Number of Firm Units
Merrill Lynch, Pierce, Fenner & Smith Incorporated............................
Donaldson, Lufkin & Jenrette Securities Corporation...........................
Janney Montgomery Scott Inc...................................................
Rauscher Pierce Refsnes, Inc..................................................
The Robinson-Humphrey Company, Inc............................................
---------
Total................................................................6,190,476
=========
EXHIBIT B
6,190,476 Firm Units
NATIONAL PROPANE PARTNERS, L.P.
(a Delaware limited partnership)
Common Units
(representing limited partner interests)
Pricing Agreement
_____, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
JANNEY MONTGOMERY SCOTT INC.
RAUSCHER PIERCE REFSNES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
as Representatives of the several Underwriters
named in the within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated _____, 1996 (the
"Purchase Agreement") relating to the purchase by the several Underwriters named
in Exhibit A thereto, for whom Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, Janney Montgomery Scott Inc., Rauscher Pierce Refsnes, Inc. and The
Robinson-Humphrey Company, Inc. are acting as representatives (the
"Representatives"), of the above Units (the "Firm Units"), of National Propane
Partners, L.P., a Delaware limited partnership (the "Partnership").
Pursuant to Section 2 of the Purchase Agreement, the Partnership agrees
with each Underwriter as follows:
1. The initial public offering price per Firm Unit, determined as provided
in said Section 2, shall be $____.
43
2. The purchase price per Firm Unit to be paid by the several Underwriters
shall be $____, being an amount equal to the initial public offering price set
forth above less $____ per Firm Unit.
3. Incentive Distributions shall be made as follows:
Marginal Percentage
Interest in Distributions
-------------------------
Quarterly
Distribution Hypothetical
Target Annualized General
Amount Yield Unitholders Partners
------ ----- ----------- --------
Minimum Quarterly Distribution....... $ % 96% 4%
First Target Distribution............ $ % 96% 4%
Second Target Distribution........... $ % 85% 15%
Third Target Distribution............ $ % 75% 25%
Thereafter........................... above $ above % 50% 50%
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Partnership a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Partnership in accordance with its terms.
Very truly yours,
NATIONAL PROPANE PARTNERS, L.P.
By: National Propane Corporation,
its Managing General Partner
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
44
CONFIRMED AND ACCEPTED,
as of the date first above written:
45
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
JANNEY MONTGOMERY SCOTT INC.
RAUSCHER PIERCE REFSNES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:________________________________
Name:
Title:
For itself and as Representatives of the other
Underwriters named in Exhibit A hereto.
46