Execution Copy
Exhibit 1.1
AMERIGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
New York, New York
June 11, 2003
Citigroup Global Markets Inc.
A.G. Edwards & Sons, Inc.
Credit Suisse First Boston LLC
UBS Securities LLC
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
AmeriGas Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, 2,900,000 units (the "Underwritten Securities), representing
limited partner interests in the Partnership ("Common Units"), in the amounts
set forth opposite such Underwriter's name in Schedule I. The Partnership also
proposes to grant to the Underwriters an option to purchase up to 435,000
additional Common Units to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
The Partnership, AmeriGas Propane, L.P., a Delaware limited partnership
("AmeriGas Propane"), AmeriGas Eagle Propane, L.P., a Delaware limited
partnership ("AmeriGas Eagle," and together with AmeriGas Propane, the
"Operating Partnerships"), and AmeriGas Propane, Inc., a Pennsylvania
corporation and general partner of both the Partnership and AmeriGas Propane
(the "General Partner"), and AmeriGas Eagle Holdings, Inc., a Delaware
corporation and general partner of AmeriGas Eagle (the "Eagle General Partner,"
and together with the General Partner, the "General Partners"), are collectively
referred to herein as the "Partnership Entities".
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1. Representations and Warranties. The Partnership Entities, jointly and
severally, represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Partnership meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission two registration
statements (registration numbers 333-73686 and 333-45902) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Registration Statement has been
declared effective by the Commission and no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or overtly threatened by
the Commission. The Partnership has included in such Registration
Statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder as of
such date. As filed, the Final Prospectus or any such supplement to the
Final Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Partnership has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x). The
Partnership may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished
to you. The Partnership will next file with the Commission a Final
Prospectus relating to the Securities in accordance with Rules 430A and
424(b).
(b) On the Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, at the Execution Time, the Preliminary Final
Prospectus did not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date and any settlement date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Partnership Entities make no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Final
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Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Partnership by or on behalf of
any Underwriter through the Representatives.
(c) Each of the Partnership and the Operating Partnerships has been
duly formed and is validly existing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") with
full partnership power and authority to own, lease and operate its
respective properties to be owned and operated at the Closing Date and to
conduct its respective businesses to be conducted at the Closing Date in
all material respects as described in the Registration Statement and the
Final Prospectus, and each of the Partnership and the Operating
Partnerships is, or at each Closing Date will be, duly registered or
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify (i) does not have a material adverse
effect on the financial condition, results of operations, prospects,
business or properties, whether or not arising from transactions in the
ordinary course of business, except as set forth in the Final Prospectus
(exclusive of any supplement thereto) ("Material Adverse Effect") of the
Partnership and the Operating Partnerships, taken as a whole, or (ii) would
not subject the limited partners of the Partnership that are common
unitholders to any material liability or disability.
(d) The General Partner is a corporation duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with full corporate power and authority to own, lease and
operate its properties and to conduct its business and to act as general
partner of the Partnership and of AmeriGas Propane, in each case in all
material respects as described in the Registration Statement and the Final
Prospectus, and the General Partner is duly registered or qualified to
conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to register
or qualify,
(i) does not have a Material Adverse Effect on the Partnership
and the Operating Partnerships, taken as a whole or
(ii) would not subject the limited partners that are common
unitholders of the Partnership to any material liability or
disability.
(e) The Eagle General Partner is a corporation duly incorporated,
validly existing and in good standing under the Delaware General
Corporation Law (the "DGCL"), with full corporate power and authority to
own, lease and operate its properties and to conduct its business and to
act as general partner of AmeriGas Eagle, in all material respects as
described in the Registration Statement and the Final Prospectus, and the
Eagle General Partner is duly registered or qualified to conduct its
business and is
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in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify,
(i) does not have a Material Adverse Effect on the
Partnership and the Operating Partnerships, taken as a whole or
(ii) would not subject the limited partners that are common
unitholders of the Partnership to any material liability or
disability.
(f) None of the Partnership, the Operating Partnerships or the
General Partners has any subsidiaries (other than the Partnership and
Operating Partnerships themselves and Petrolane Incorporated, a
Pennsylvania corporation ("Petrolane")) which would be deemed to be a
significant subsidiary (as such term is defined in Section 1-02 of
Regulation S-X) to the Partnership on a consolidated basis.
(g) None of the Partnership, the Operating Partnerships or the
General Partners is in violation of its partnership agreement, certificate
or articles of incorporation, by-laws, or certificates of limited
partnership. None of the Partnership, the Operating Partnerships or the
General Partners is in breach, default or violation in the performance of
any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which the Partnership, the
Operating Partnerships or the General Partners is a party or by which any
of them or any of its respective properties may be bound which breach,
default or violation would, if continued, (i) have a Material Adverse
Effect on the Partnership or the Operating Partnerships, taken as a whole,
or (ii) subject the limited partners of the Partnership that are common
unitholders to any material liability or disability. None of the
Partnership, the Operating Partnerships or the General Partner is in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Partnership, the Operating Partnerships or the
General Partner, as applicable, including effective provisions of the
Sarbanes-Oxley Act of 2002, or of any decree of any court or governmental
agency or body having jurisdiction over the Partnership, the Operating
Partnerships and the General Partner, which violation would, if continued,
(i) have a Material Adverse Effect on the Partnership or the Operating
Partnerships, taken as a whole, or (ii) subject the limited partners of the
Partnership that are common unitholders to any material liability or
disability.
(h) None of the offering, issuance and sale of the Securities by the
Partnership, the execution, delivery or performance of this Agreement by
the Partnership, the Operating Partnerships or the General Partners nor the
consummation by the Partnership, the Operating Partnerships or the General
Partners of the transactions contemplated hereby (A) requires any permit,
consent, approval, authorization or other
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order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official or (B)
conflicts or will conflict with or constitutes or will constitute a
violation of the agreement of limited partnership, certificate or articles
of incorporation, bylaws or certificates of limited partnership of the
Partnership, the Operating Partnerships or the General Partners or (C)
conflicts or will conflict with or constitutes or will constitute a breach
or violation of, or a default under, any material agreement, indenture,
lease or other instrument to which the Partnership, the Operating
Partnerships or the General Partners is a party or by which any of them or
any of their respective properties may be bound other than as described in
the Final Prospectus and except for agreements, indentures, leases or other
instruments that will be extinguished on the Closing Date, or (D) violates
or will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Partnership, the Operating
Partnerships or the General Partners or any of their respective properties,
or (E) will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Partnership, the Operating
Partnerships or the General Partners pursuant to the terms of any agreement
or instrument to which any of them is a party or by which any of them may
be bound or to which any of the property or assets of any of them is
subject (other than as described in the Final Prospectus) which conflict,
breach, violation or default would, if continued, in the case of (A), (C),
(D) and (E), (i) have a Material Adverse Effect on the Partnership and the
Operating Partnerships, taken as a whole, or (ii) subject the limited
partners of the Partnership that are common unitholders to any material
liability or disability, except for permits, consents, approvals and
similar authorizations required under the Act and the securities or blue
sky laws of certain jurisdictions.
(i) The accountants, PricewaterhouseCoopers LLP, who have certified
the fiscal year 2002 financial statements included or incorporated by
reference in the Final Prospectus (or any amendment or supplement thereto)
are independent public accountants as required by the Act.
(j) Arthur Anderson LLP, who have certified the fiscal year 2000 and
2001 financial statements included or incorporated by reference in the
Final Prospectus (or any amendment or supplement thereto), were independent
public accountants as required by the Act when such financial statements
were certified and the reports concerning such financial statements were
prepared.
(k) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which information is given in the Registration
Statement and the Final Prospectus (or any amendment or supplement
thereto), none of the Partnership, the Operating Partnerships or the
General Partners has incurred any liability or obligation, direct or
contingent, or
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entered into any transaction, not in the ordinary course of business, that
is material to the Partnership and the Operating Partnerships, taken as a
whole.
(l) The Partnership has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of
the Securities, will not distribute, any prospectus (as defined under the
Act) in connection with the offering and sale of the Securities other than
the Registration Statement, the Basic Prospectus, the Preliminary Final
Prospectus, the Final Prospectus or any amendment or supplement thereto, or
other materials, if any, permitted by the Act, including Rule 134 of the
general rules and regulations promulgated thereunder.
(m) Each of the Partnership, the Operating Partnerships and the
General Partners has filed all material tax returns required to be filed
and has timely paid all taxes shown to be due pursuant to said returns,
other than those (i) which, if not paid, would not have a Material Adverse
Effect on the Partnership and the Operating Partnerships, taken as a whole,
or (ii) which are being contested in good faith.
(n) Except as described in the Final Prospectus, none of the
Partnership, the Operating Partnerships and the General Partners has
sustained since the date of the latest audited financial statements
included in the Final Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Final
Prospectus; and, except as described in the Final Prospectus since the
respective dates as of which information is given in the Registration
Statement and the Final Prospectus, and except for changes in accumulated
other comprehensive income (loss) attributable to the Operating
Partnerships' derivative instruments, there has not been any material
change in the partners' equity or capital stock or long-term debt of the
Partnership, the Operating Partnerships or the General Partners other than
the partnership distribution on May 18, 2003; and there has not been any
material adverse change in or affecting the financial condition, business,
properties, results of operations or prospects of the Partnership and the
Operating Partnerships, taken as a whole.
(o) At March 31, 2003, the Partnership had and would have had on the
pro forma and adjusted bases indicated in the Final Prospectus, a duly
authorized and outstanding capitalization as set forth therein; the
consolidated historical financial statements together with the related
schedules and notes of the Partnership and its subsidiaries included or
incorporated by reference in the Final Prospectus and the Registration
Statement present fairly in all material respects the financial condition,
results of operations and cash flows of the Partnership as of the dates and
the periods indicated, comply as to form with the applicable requirements
as to financial statements of the Act, the Exchange Act and the rules
promulgated under the Act or the Exchange Act and have been prepared in
conformity with accounting principles generally accepted
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in the United States; the historical information set forth in the Final
Prospectus under the caption "Summary Historical Financial and Other Data"
accurately presents, on the bases stated in the Registration Statement and
Final Prospectus, the information included therein.
(p) The Partnership maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(q) The General Partner is the sole general partner of the
Partnership and AmeriGas Propane with a general partner interest in the
Partnership of 1.0% pursuant to the Second Amended and Restated Agreement
of Limited Partnership, dated as of September 30, 2000 (the "Partnership
Agreement"), and a general partner interest in AmeriGas Propane of 1.0101%
pursuant to the Amended and Restated Agreement of Limited Partnership of
AmeriGas Propane, dated as of April 12, 1995 (the "AmeriGas Propane
Partnership Agreement" and, together with the Partnership Agreement and the
AmeriGas Eagle Partnership Agreement, the "Partnership Agreements").
(r) As of the Closing Date, the General Partner and its consolidated
subsidiaries will own limited partner interests in the Partnership
represented by 24,525,004 Common Units.
(s) As of the Closing Date, the Partnership will be the sole limited
partner of AmeriGas Propane, with a limited partner interest of 98.9899%,
and will own such limited partner interest in AmeriGas Propane free and
clear of all liens, encumbrances, charges or claims other than those
arising pursuant to the AmeriGas Propane Partnership Agreement.
(t) Eagle General Partner is the sole general partner of AmeriGas
Eagle with a general partner interest in AmeriGas Eagle of less than 0.5%
pursuant to the Amended and Restated Agreement of Limited Partnership of
AmeriGas Eagle Propane, L.P., dated as of July 19, 1999 (the "AmeriGas
Eagle Partnership Agreement").
(u) AmeriGas Propane is a limited partner of AmeriGas Eagle with a
limited partner interest of more than 99% in AmeriGas Eagle, and, except
for security interests under AmeriGas Propane's April 1995 Intercreditor
and Agency Agreement, as amended, AmeriGas Propane's General Security
Agreement, as amended, and AmeriGas Propane's
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Subsidiary Security Agreement, as amended, AmeriGas Propane owns such
limited partner interest in AmeriGas Eagle free and clear of all liens,
encumbrances, charges or claims. An unaffiliated third party is a special
limited partner of AmeriGas Eagle, with a special limited partner interest
of less than 0.5%.
(v) At the Closing Date, or the settlement date, as the case may be,
the Securities and the limited partner interests represented thereby will
be duly authorized by the Partnership Agreement and, when issued and
delivered against payment therefor as provided herein, will be validly
issued, fully paid (to the extent required under the Partnership Agreement)
and non-assessable (except as such non-assessability may be affected by the
provisions of Section 17-607 of the Delaware Act).
(w) Other than the right of the special limited partner to maintain
a 1% ownership interest in AmeriGas Eagle, and as described in the Basic
Prospectus, there are no preemptive rights or other rights to subscribe for
or to purchase limited or general partner interests from the Partnership or
the Operating Partnerships, nor any restriction upon the voting or transfer
of, any Common Units of the Partnership or limited partner interests of the
Operating Partnerships pursuant to any of the Partnership Agreements or any
agreement or other instrument to which the Partnership or the Operating
Partnerships is a party or by which any of them may be bound, except for
restrictions on transfer of the unregistered Common Units issued pursuant
to acquisition agreements.
(x) All of the issued shares of capital stock of the General Partner
have been duly authorized and validly issued and are fully paid and
non-assessable; and, except as set forth in the Final Prospectus, all of
the issued shares of capital stock of the General Partner are held directly
or indirectly by UGI Corporation, free and clear of all liens,
encumbrances, equities or claims.
(y) All of the issued shares of capital stock of the Eagle General
Partner have been duly authorized and validly issued and are fully paid and
non-assessable; except as set forth in the Final Prospectus and except for
security interests under AmeriGas Propane's April 1995 Intercreditor and
Agency Agreement, as amended, AmeriGas Propane's General Security
Agreement, as amended, and AmeriGas Propane's Subsidiary Security
Agreement, as amended, all of the issued shares of capital stock of the
Eagle General Partner are held directly or indirectly by AmeriGas Propane
free and clear of all liens, encumbrances and claims whatsoever.
(z) This Agreement has been duly authorized, executed and delivered
by the Partnership Entities and each of the Partnership Entities has all
requisite corporate and partnership power and authority to execute, deliver
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
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(aa) Each of the Partnership and the Operating Partnerships has, or
at or before the Closing Date will have, all necessary consents, approvals,
authorizations, orders, registrations and qualifications of or with any
court or governmental agency or body having jurisdiction over it or any of
its properties or of or with any other person to acquire its properties and
to conduct its business as set forth or contemplated in the Final
Prospectus, except such consents, approvals, authorizations, orders,
registrations or qualifications which, if not obtained, would not (i)
individually or in the aggregate, have a Material Adverse Effect on the
Partnership and the Operating Partnerships taken as a whole, or (ii) affect
the limited liability of the limited partners of the Partnership that are
common unitholders.
(bb) None of the Partnership Entities (i) has violated any
environmental, safety, health or similar law or regulation applicable to
its business relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), which violation would have a Material
Adverse Effect on the Partnership or the Operating Partnerships, taken as a
whole, or (ii) lacks any permits, licenses or other approvals required of
them under applicable Environmental Laws to own, lease or operate their
properties and conduct its businesses as described in the Final Prospectus
or is violating any terms and conditions of any such permit, license or
approval, which would have a Material Adverse Effect on the Partnership or
the Operating Partnerships, taken as a whole.
(cc) The Partnership Entities have insurance covering their
respective properties, operations, personnel and businesses. In the General
Partners' reasonable judgment, such insurance insures against such losses
and risks and is adequate to protect the Partnership, the Operating
Partnerships and the General Partners and their businesses. No Partnership
Entity has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be made
in order to continue such insurance; all such insurance is outstanding and
duly in force on the date hereof and will be outstanding and duly in force
on the Closing Date.
(dd) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Partnership, any of its subsidiaries or the General Partners or its or
their property is pending or, to the knowledge of the Partnership or the
General Partners, threatened that (i) would reasonably be expected to have
a Material Adverse Effect on the Partnership and the Operating
Partnerships, taken as a whole, or prevent or result in the suspension of
the offering and issuance of the Securities or (ii) would in any manner
question the validity of this Agreement.
(ee) Except as provided in the Partnership Agreement, no holders of
securities of the Partnership have rights to the registration of such
securities under the Registration Statement.
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(ff) None of the Partnership Entities is, or after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus will be, an "investment
company" as that term is defined in the Investment Company Act of 1940, as
amended.
(gg) Any certificate signed by any officer of the General Partner on
behalf of the Partnership and delivered to the Representatives or counsel
for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Partnership, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership agrees to
sell to the Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price of $25.9674
per unit, the number of Underwritten Securities set forth opposite the name
of such Underwriter in Schedule I hereto (or such number of Underwritten
Securities increased as set forth in Section 9 hereof).
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership hereby
grants an option to the several Underwriters to purchase, severally and not
jointly, up to 435,000 Option Securities at the same purchase price per
unit as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised
in whole or in part at any time (but not more than once) on or before the
30th day after the date of the Final Prospectus upon written or telegraphic
notice by the Representatives to the Partnership setting forth the number
of Option Securities as to which the several Underwriters are exercising
the option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be in the same percentage of the total
number of Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate
any fractional units.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on June 17,
2003, or at such time on such later date and time after the foregoing date as
may be determined by agreement between the Representatives and the Partnership
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the
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order of the Partnership by wire transfer payable in same-day funds to the
account specified by the Partnership. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Partnership will deliver the
Option Securities (at the expense of the Partnership) to the Representatives,
through the system of the Depository Trust Company (DTC), on the date specified
by the Representatives (which shall be no earlier than three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Partnership by wire transfer payable in same-day funds to an account specified
by the Partnership.
If settlement for the Option Securities occurs after the Closing Date, the
Partnership will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements.
(i) The Partnership agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Partnership will not file any amendment of the Registration Statement or
supplement (including any Final Prospectus) to the Basic Prospectus or any
Rule 462(b) Registration Statement relating to the Securities (except any
documents required to be filed under the Exchange Act) unless the
Partnership has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Partnership will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Partnership
will promptly advise the Representatives (1) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement relating to the Securities shall have been filed with the
Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (3) of any request by the Commission or its
staff for any amendment of
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the Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (4) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (5) of
the receipt by the Partnership of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Partnership will use its best efforts to prevent the issuance
of any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, upon
request from the Underwriters, the Partnership promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) As soon as practicable, the Partnership will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Partnership which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Partnership will furnish to Citigroup Global Markets Inc.,
on behalf of the Representatives and counsel for the Underwriters, without
charge, one signed copy of the Registration Statement (including exhibits
thereto but excluding documents incorporated by reference) and to each
other Underwriter a copy of the Registration Statement (excluding exhibits
thereto and documents incorporated by reference) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably request.
The Partnership will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Partnership will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Partnership be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any
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action that would subject it to service of process in suits, in any
jurisdiction where it is not now so subject. The Partnership acknowledges
that the offer or sale of the Securities in any jurisdiction may subject
the Partnership to service of process in suits arising out of the offer or
sale of the Securities in such jurisdiction.
(f) Except as disclosed in the Final Prospectus, the Partnership
will not, without the prior written consent of Citigroup Global Markets
Inc., offer, sell, contract to sell, pledge, grant any options or warrants
to purchase Common Units or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Partnership or any affiliate of the Partnership or any person in privity
with the Partnership or any affiliate of the Partnership), directly or
indirectly, including through the filing (or participation in the filing)
of a registration statement with the Commission in respect of, or the
establishment of or increase in a put equivalent position in or liquidation
or the decrease in a call equivalent position in, within the meaning of
Section 16 of the Exchange Act, any other Common Units or rights that
represent the right to receive Common Units or any securities that are
senior to or pari passu with Common Units or publicly announce an intention
to effect any such transaction, for a period of ninety (90) days from the
Execution Time, other than
(i) in connection with the acquisition of assets, businesses
or the capital stock or other ownership interests of businesses
by the Partnership or the Operating Partnerships in exchange
for securities of the Partnership that are substantially
similar to the Common Units, if the recipient(s) of such
securities agree(s) not to offer, sell, contract to sell, or
otherwise dispose of such securities or take any of the other
actions restricted by this Section 5(f) during such lock-up
period or
(ii) pursuant to employee benefit plans or unit option plans,
or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this
Agreement.
(g) The Partnership and the General Partners will not take,
directly or indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Partnership to facilitate the sale or resale of the
Securities.
(h) The Partnership will apply the net proceeds from the sale of
the Underwritten Securities substantially in accordance with the
description set forth in the Final Prospectus.
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(i) The Partnership, during the period of time referred to in
paragraph (d) above, will file all reports and documents required to be
filed with the Commission pursuant to the Exchange Act within the time
periods required by the Exchange Act.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Partnership Entities contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the
Partnership made in any certificates pursuant to the provisions hereof, to the
performance by the Partnership Entities of their obligations hereunder and to
the following additional conditions:
(a) The Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Partnership shall have requested and caused Morgan, Lewis &
Bockius LLP, counsel for the Partnership, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of the Partnership and the Operating Partnerships
has been duly formed and each of the Partnership and the
Operating Partnerships is validly existing as a limited
partnership under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") with full partnership
power and authority to own or lease, as the case may be, and to
operate its properties and conduct its respective businesses as
described in the Final Prospectus, and each of the Partnership
and the Operating Partnerships is duly registered or qualified
to conduct its business and is in good standing under the laws
of each jurisdiction or place where the nature of its
properties or the conduct of its business requires registration
or qualification (except where failure to so qualify would not
have a Material Adverse Effect on the Partnership on a
consolidated basis). Each of the Partnership Agreements has
been duly authorized and validly executed and delivered by the
Partnership, the Operating Partnerships and the General
Partners, as the case may be, and constitutes a valid and
binding obligation of the Partnership, the Operating
Partnerships and the General Partners, as the case may be,
enforceable against such party in accordance with its terms
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith
and fair dealing (regardless of
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whether enforcement is sought in a proceeding at law or in
equity) and securities laws and public policy underlying such
laws with respect to rights to indemnification and
contribution.
(ii) The General Partner is a corporation duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, with full corporate power and
authority to own, lease and operate its properties and to
conduct its business and to act as general partner of the
Partnership and AmeriGas Propane and the General Partner is
duly registered or qualified to conduct its business and is in
good standing under the laws of each jurisdiction or place
where the nature of its properties or the conduct of its
business requires registration or qualification (except where
failure to so qualify would not have a Material Adverse Effect
on the Partnership on a consolidated basis).
(iii) The Eagle General Partner is a corporation validly
existing and in good standing under the DGCL, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business and to act as general
partner of AmeriGas Eagle, and the Eagle General Partner is
duly registered or qualified to conduct its business and is in
good standing under the laws of each jurisdiction or place
where the nature of its properties or the conduct of its
business requires registration or qualification (except where
failure to so qualify would not have a Material Adverse Effect
on the Partnership on a consolidated basis).
(iv) The outstanding Common Units have been duly and validly
authorized and issued and are fully paid and nonassessable;
upon official notice of issuance, the Securities will be duly
listed, and admitted and authorized for trading on the New York
Stock Exchange; the certificates for the Securities are in
valid and sufficient form; and the holders of outstanding
Common Units of the Partnership are not entitled to preemptive
or other rights to subscribe for the Securities other than
preemptive rights of the General Partner pursuant to the
Partnership Agreement and, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, Common
Units of or ownership interests in the Partnership are
outstanding.
(v) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator
involving the Partnership Entities or its or their property of
a character required to be
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disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and to the knowledge of such
counsel, there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements in the Partnership's Annual Report on Form 10-K for
its fiscal year ended September 30, 2002 under the heading
"Business - Government Regulation," which are incorporated by
reference in the Final Prospectus, insofar as such statements
summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(vi) The Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened
and the Registration Statement and the Final Prospectus (other
than the financial statements and other financial information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder.
(vii) This Agreement has been duly authorized and validly
executed and delivered by the Partnership, the Operating
Partnerships and the General Partners, as the case may be, and
each of the Partnership Entities has all requisite corporate
and partnership power and authority to execute, deliver and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby.
(viii) The Partnership is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus will not
be, an "investment company" as defined in the Investment
Company Act of 1940, as amended.
(ix) Neither the General Partners, the Partnership nor the
Operating Partnerships has any subsidiaries (other than the
Partnership and Operating Partnerships themselves and
Petrolane) which would be deemed to be a significant subsidiary
(as such term is defined in Section 1-02 of Regulation S-X) to
the Partnership on a consolidated basis.
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(x) The General Partner is the sole general partner of the
Partnership and AmeriGas Propane with a general partner
interest in the Partnership of 1.0% and a general partner
interest in AmeriGas Propane of 1.0101%; such general partner
interests are duly authorized by the Partnership Agreement and
the AmeriGas Propane Partnership Agreement, respectively, are
validly issued and are owned by the General Partner free and
clear of all liens, encumbrances, charges or claims of record
(A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Pennsylvania naming the General
Partner as debtor is on file in the office of the Secretary of
State of the State of Pennsylvania or (B) otherwise known to
such counsel, without independent investigation, other than
those created by or arising under the Delaware Act.
(xi) The Partnership is the sole limited partner of AmeriGas
Propane, with a limited partner interest of 98.9899%; such
limited partner interest is duly authorized by the AmeriGas
Propane Partnership Agreement and is validly issued, fully paid
(to the extent required) and non-assessable (except as such
non-assessability may be affected by the provisions of Section
17-607 of the Delaware Act); and the Partnership owns such
limited partner interest in AmeriGas Propane free and clear of
all liens, encumbrances, charges or claims of record (A) in
respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Partnership
as debtor is on file in the office of the Secretary of State of
the State of Delaware or (B) otherwise known to such counsel,
without independent investigation, other than those created by
or arising under the Delaware Act.
(xii) The Eagle General Partner is the sole general partner
of AmeriGas Eagle with a general partner interest in AmeriGas
Eagle of 1%; such general partner interest is duly authorized
by the AmeriGas Eagle Partnership Agreement, and is validly
issued and, except for security interests under AmeriGas
Propane's April 1995 Intercreditor and Agency Agreement, as
amended, AmeriGas Propane's General Security Agreement, as
amended, and AmeriGas Propane's Subsidiary Security Agreement,
as amended, are owned by the Eagle General Partner free and
clear of all liens, encumbrances, charges or claims of record
(A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the Eagle
General Partner as debtor is on file in the office of the
Secretary of State of the State of Delaware or (B) otherwise
known to such counsel, without independent investigation, other
than those created by or arising under the Delaware Act.
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(xiii) AmeriGas Propane is a limited partner of AmeriGas
Eagle, with a limited partner interest of more than 99%, and an
unaffiliated third party is a special limited partner of
AmeriGas Eagle, with a special limited partner interest of less
than 0.5%. AmeriGas Propane's limited partner interests are
duly authorized by the AmeriGas Eagle Partnership Agreement and
are validly issued, fully paid (to the extent required) and
non-assessable (except as such non-assessability may be
affected by the provisions of Section 17-607 of the Delaware
Act); and, except for security interests under AmeriGas
Propane's 1995 Intercreditor and Agency Agreement, as amended,
AmeriGas Propane's General Security Agreement, as amended, and
AmeriGas Propane's Subsidiary Security Agreement, as amended,
AmeriGas Propane owns such limited partner interests in
AmeriGas Eagle free and clear of all liens, encumbrances,
charges or claims of record (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of
Delaware naming the Partnership as debtor is on file in the
office of the Secretary of State of the State of Delaware or
(B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the
Delaware Act.
(xiv) The Securities to be issued and sold to the
Underwriters by the Partnership hereunder and the limited
partner interests represented thereby have been duly and
validly authorized by the General Partner on behalf of the
Partnership pursuant to the Partnership Agreement and, when
issued and delivered against payment therefor as provided in
this Agreement, will be validly issued, fully paid (to the
extent required) and nonassessable (except as such
non-assessability may be affected by the provisions of Section
17-607 of the Delaware Act).
(xv) The statements incorporated in the Registration
Statement and in the Final Prospectus under the caption
"Description of Common Units" insofar as they constitute
descriptions of the Partnership Agreement or refer to
statements of law or legal conclusions, are accurate and
complete in all material respects.
(xvi) Except as described in the Final Prospectus, there are
no preemptive rights or other rights to subscribe for limited
partner interests or to purchase, nor any restriction upon the
voting or transfer by any owners of, Common Units of the
Partnership or the Operating Partnerships pursuant to any of
the Partnership Agreements.
(xvii) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required
in connection with the transactions contemplated herein, except
such as have been obtained under
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the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and in the Final
Prospectus and such other approvals (specified in such opinion)
as have been obtained.
(xviii) Neither the issue, offer, sale or delivery of the
Securities, the execution, delivery or performance of this
Agreement, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with or result in a breach of,
default under or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the
Partnership Entities pursuant to, (i) the charter, by-laws,
Partnership Agreements or certificates of limited partnership
of the Partnership Entities, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant
or instrument to which any of the Partnership Entities is a
party or bound or to which any of their property is subject and
which is filed as an exhibit to the Partnership's Annual Report
on Form 10-K for the fiscal year ended September 30, 2002, as
an exhibit to either of the Partnership's Quarterly Reports for
the quarters ended December 31, 2002 or March 31, 2003 or as an
exhibit to any Current Report on Form 8-K filed by the
Partnership after September 30, 2002 or (iii) to the knowledge
of such counsel, any statute, law, rule, regulation, judgment,
order or decree applicable to the Partnership Entities of any
court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over
the Partnership or its subsidiaries or any of its or their
properties.
(xix) Except as provided in the Partnership Agreement, to the
knowledge of such counsel, no holders of securities of the
Partnership have rights to the registration of such securities
under the Registration Statement.
(xx) Neither the Partnership nor the General Partner is a
"holding company" within the meaning of the Section 2(a)(7) of
the 1935 Act, and neither the Operating Partnerships, the
Partnership, nor the General Partners is subject to regulation
under the 1935 Act.
(xxi) The opinion of Morgan, Lewis & Bockius LLP filed as
Exhibit 8.1 to the Form 8-K, to be filed prior to the Closing
Date, is confirmed and the Representatives may rely on such
opinion as if it were addressed to such representatives.
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In addition, such counsel shall state that in the course of the
preparation of the Registration Statement, Basic Prospectus and Final
Prospectus, such counsel has participated in conferences with officers and
other representatives of the Partnership, representatives of the
independent accountants of the Partnership, representatives of the
Underwriters, and representatives of counsel for the Underwriters, at which
the contents of the Registration Statement, Basic Prospectus and Final
Prospectus and related matters were discussed and, although such counsel
does not pass upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of any statement contained in the
Registration Statement, Basic Prospectus or Final Prospectus and such
counsel has made no independent check or verification thereof (except as
set forth in paragraphs (v) and (xv) above), based in part upon the
foregoing, no facts have come to such counsel's attention that have led
such counsel to believe that the Registration Statement (except as to the
financial statements and notes thereto and other financial data included
therein as to which such counsel need not express any opinion or belief),
as of the date of effectiveness, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading
or that the Basic Prospectus and Preliminary Final Prospectus and the Final
Prospectus (except as to the financial statements and the notes thereto and
other financial data included therein or excluded therefrom as to which
such counsel need not express any opinion or belief), as of its date or as
of the date of such opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In rendering such opinion such
counsel may rely as to matters of fact, to the extent such counsel deems
reasonable, upon certificates of public officials and officers of the
Company, provided that the extent of such reliance is specified in such
opinion.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Partnership and public officials.
(c) The Representatives shall have received from Andrews & Kurth
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Partnership shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Partnership shall have furnished to the Representatives a
certificate of the Partnership, signed on behalf of the General Partner by
a President or Vice President thereof dated the Closing Date, to the effect
that the signers of such certificate have
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carefully examined the Registration Statement, the Final Prospectus, any
supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Partnership
contained in this Agreement are true and correct on and as of
the Closing Date as though made at and as of the Closing Date;
(ii) the Partnership has performed all obligations required
to be performed by it pursuant to the terms of this Agreement
at or prior to the Closing Date;
(iii) the Registration Statement has become effective and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Partnership,
threatened by the Commission, and all requests for additional
information on the part of the Commission have been complied
with or otherwise satisfied;
(iv) the Common Units have been duly listed, subject to
official notice of issuance, on the New York Stock Exchange;
and
(v) no event contemplated by subsection (i) of this
Section 6 in respect of the Partnership or the Operating
Partnerships shall have occurred; and since the date of the
most recent financial statements included or incorporated by
reference in the Final Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Effect on the
Partnership and its subsidiaries, taken as a whole.
(e) The Partnership shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters (which may refer to letters
previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Partnership for the six
months ended March 31, 2003, and as at March 31, 2003, in accordance with
Statement on Auditing Standards No. 71, and stating in effect, except as
provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Preliminary
Final Prospectus and reported
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on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of (a) a reading of the latest unaudited
financial statements made available by the Partnership (b)
their limited review, in accordance with standards established
under Statement on Auditing Standards No. 71, of the unaudited
interim financial information for the six months ended March
31, 2003, and as at March 31, 2003, carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter (c) a reading of the minutes
of the meetings of the Board of Directors of the General
Partner and (d) inquiries of certain officials of the General
Partner who have responsibility for financial and accounting
matters of the Partnership as to transactions and events
subsequent to September 30, 2002, nothing came to their
attention which caused them to believe that:
(A) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Preliminary Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and with
the related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by reference
in quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with generally
accepted accounting principles;
(B) with respect to the period subsequent to March 31,
2003, there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of the
Partnership or capital of the Partnership or decreases in the
unitholders' equity of the Partnership as of March 31, 2003 as
compared with the amounts shown on the March 31, 2003 consolidated
balance sheet included or incorporated by reference in the
Registration Statement and the Preliminary Final Prospectus, or for
the period from April 1, 2003 to such specified date there were any
decreases, as compared with March 31, 2002, in net revenues or income
before income taxes or in total or per unit amounts of net income of
the Partnership, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied by
an explanation by the Partnership as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; or
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(C) the information included or incorporated by
reference in the Registration Statement and Preliminary Final
Prospectus in response to Regulation S-K, Item 301 (Selected Financial
Data) and Item 302 (Supplementary Financial Information) is not in
conformity with the applicable disclosure requirements of Regulation
S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information
derived from the general accounting records of the Partnership
and its subsidiaries) set forth in the Registration Statement
and the Preliminary Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Capitalization" and "Summary Historical
Financial and Other Data" in the Preliminary Final Prospectus,
the information included or incorporated by reference in Items
1, 2, 6, 7 and 11 of the Partnership's Annual Report on Form
10-K, incorporated by reference in the Registration Statement
and the Preliminary Final Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated by reference in the Partnership's Quarterly
Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Preliminary Final Prospectus,
agrees with the accounting records of the Partnership,
excluding any questions of legal interpretation. References to
the Preliminary Final Prospectus in this paragraph (h) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any material change or
decrease specified in the letter or letters referred to in paragraph (e) of
this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the financial condition, results of
operations, prospects, business or properties of the Partnership and the
Operating Partnerships, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto),
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
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(g) On or prior to the Closing Date, the Partnership shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(h) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change in or affecting the financial condition,
business, properties or results of operations or prospects of the
Partnership, the Operating Partnerships or the General Partners not
contemplated by the Final Prospectus, which in your reasonable opinion, as
Representatives of the several Underwriters would materially adversely
affect the market for the Securities, or (ii) any event or development
relating to or involving the Partnership, the Operating Partnerships or the
General Partners which makes any statement of material fact made in the
Final Prospectus untrue or which, in the opinion of the Partnership and its
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Final Prospectus in order to state a material
fact required by the Act or any other applicable law to be stated therein
or necessary in order to make the statements therein not misleading, if
amending or supplementing the Final Prospectus to reflect such event or
development would, in your opinion, as Representatives of the several
Underwriters, materially adversely affect the market for the Securities.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Partnership's or Operating
Partnerships' debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate
the direction of the possible change.
(j) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, subject to official
notice of issuance, and satisfactory evidence of such actions shall have
been provided to the Representatives.
(k) On or prior to the Closing Date, the Partnership shall have
furnished to the Representatives a letter substantially in the form of
Annex I hereto from the General Partner, Petrolane and each executive
officer of the General Partner addressed to the Representatives. All such
opinions, certificates, letters and other documents referred to in this
Section 6 will be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to you and your counsel. Any
certificate or document signed by any officer of the Partnership, the
Operating Partnerships or the General Partners and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters,
shall be deemed a representation and warranty by the Partnership, the
Operating Partnerships or the General Partners to each Underwriter as to
the statements made therein. If any of the conditions specified in this
Section 6 shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if
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any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be
canceled at the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Partnership in writing or by telephone
or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Morgan, Lewis & Bockius LLP, counsel for the Partnership, at
101 Park Avenue, New York, New York 10178, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Partnership Entities to
perform any agreement herein or comply with any provision hereof other than by
reason of a default or termination by any of the Underwriters pursuant to
Sections 9 or 10 hereof, the Partnership Entities will reimburse the
Underwriters severally, through Citigroup Global Markets Inc. on demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Partnership Entities, jointly and severally, agree to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Partnership Entities will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the
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Partnership or the General Partner by or on behalf of any Underwriter
through the Representatives, specifically for inclusion therein. With
respect to any untrue statement or omission of material fact made in any
Preliminary Final Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such loss, claim, damage or liability purchased
the Securities, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs under the circumstance where it shall
have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Partnership had previously furnished
copies of the Final Prospectus to the Representatives, (x) delivery of the
Final Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the
Preliminary Final Prospectus was corrected in the Final Prospectus
(excluding documents incorporated by reference) and (z) there was not sent
or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Final Prospectus.
This indemnity agreement will be in addition to any liability that the
Partnership Entities may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Partnership Entities, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Partnership Entities within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Partnership Entities to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Partnership or the General Partner by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability that any Underwriter may otherwise have. The
Partnership Entities acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities, and under
the heading "Underwriting" in the Preliminary Final Prospectus regarding
(i) the list of Underwriters and their respective participation in the sale
of the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final Prospectus
and the Final Prospectus, constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure to so notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such
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failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraphs (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) based on the advice of counsel, the use of counsel chosen by
the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded (based on the advice of counsel) that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding. An indemnifying party will
not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld).
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Partnership Entities and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Partnership Entities and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Partnership Entities and by the
Underwriters from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in
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any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Partnership Entities
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Partnership Entities and of the Underwriters in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Partnership Entities shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on
the cover page of the Final Prospectus. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Partnership
Entities, on the one hand, or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Partnership Entities and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation that does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls any of the
Partnership Entities within the meaning of either the Act or the Exchange Act,
each officer of the Partnership Entities who shall have signed the Registration
Statement and each director or officer of the Partnership Entities shall have
the same rights to contribution as the Partnership Entities, subject in each
case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event
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that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Partnership Entities.
In the event of a default by any Underwriter as set forth in this Section
9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Partnership Entities and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Partnership
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Partnership's Common Units shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Partnership Entities or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Partnership
Entities or any of the officers, directors, employees, agents or controlling
persons referred to in Section 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (212) 816-7457) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel; or, if sent to any of the Partnership Entities, will be mailed,
delivered or telefaxed to the office of the Partnership at 460 North Gulph Road,
King of Prussia,
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Pennsylvania, 19406, Attention: Managing Counsel and confirmed to it at (610)
992-3258, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms that follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph 1(a)
above contained in the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
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"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus that describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean both of the registration statements
referred to in paragraph 1(a) above (registration numbers 333-73686 and
333-45902), including exhibits and financial statements, as amended at the
Execution Time and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
[Signature Pages Follows]
Citigroup Global Markets Inc.
A.G. Edwards & Sons, Inc.
Credit Suisse First Boston LLC
UBS Securities LLC
Signature Page
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Partnership Entities and the several Underwriters.
Very truly yours,
AmeriGas Partners, L.P.
By: AmeriGas Propane, Inc., its General Partner
By: /s/ Robert W. Krick
----------------------------------------------
Name: Robert W. Krick
Title: Treasurer
AmeriGas Propane, L.P.
By: AmeriGas Propane, Inc., its General Partner
By: /s/ Robert W. Krick
----------------------------------------------
Name: Robert W. Krick
Title: Treasurer
AmeriGas Propane, Inc.
By: /s/ Robert W. Krick
----------------------------------------------
Name: Robert W. Krick
Title: Treasurer
AmeriGas Eagle Propane, L.P.
By: AmeriGas Eagle Holdings, Inc., its General
Partner
By: /s/ Robert W. Krick
----------------------------------------------
Name: Robert W. Krick
Title: Treasurer
Citigroup Global Markets Inc.
A.G. Edwards & Sons, Inc.
Credit Suisse First Boston LLC
UBS Securities LLC
Signature Page
AmeriGas Eagle Holdings, Inc.
By: /s/ Robert W. Krick
----------------------------------------------
Name: Robert W. Krick
Title: Treasurer
Citigroup Global Markets Inc.
A.G. Edwards & Sons, Inc.
Credit Suisse First Boston LLC
UBS Securities LLC
Signature Page
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above.
Citigroup Global Markets Inc.
A.G. Edwards & Sons, Inc.
Credit Suisse First Boston LLC
UBS Securities LLC
By: Citigroup Global Markets Inc.
By: /s/ Abhay Pande
-------------------------------------------
Name: Abhay Pande
Title: Director
For themselves and the other several
Underwriters, if any, named in Schedule I
to the foregoing Agreement.
SCHEDULE I
Number of Underwritten
----------------------
Securities to be Purchased
Underwriters --------------------------
- ------------ from the Partnership
--------------------
Citigroup Global Markets Inc. .................... 957,000
A.G. Edwards & Sons, Inc. ........................ 551,000
Credit Suisse First Boston LLC ................... 435,000
UBS Securities LLC ............................... 957,000
---------
Total 2,900,000
---------
Schedule I-1
ANNEX I
[Letterhead of AmeriGas Propane, Inc., Petrolane Incorporated and executive
officers of AmeriGas Propane, Inc.]
AmeriGas Partners, L.P. Public Offering of Common Units
June 11, 2003
Citigroup Global Markets Inc.
A.G. Edwards & Sons, Inc.
Credit Suisse First Boston LLC
UBS Securities LLC
As Representatives of the Several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the Underwriting
Agreement (the "Underwriting Agreement") by and among AmeriGas Partners, L.P., a
Delaware limited partnership (the "Partnership"), AmeriGas Propane, L.P., a
Delaware limited partnership ("AmeriGas Propane"), AmeriGas Eagle Propane, L.P.,
a Delaware limited partnership ("AmeriGas Eagle"), AmeriGas Propane, Inc., a
Pennsylvania corporation (the "General Partner"), and AmeriGas Eagle Holdings,
Inc., a Delaware corporation ("Eagle General Partner," and collectively, the
"Partnership Entities"), and you as the representatives of a group of
Underwriters named therein, relating to the sale of an aggregate of 2,900,000
common units of limited partner interests in the Partnership (the "Common
Units") (said units to be issued and sold by the Partnership being hereinafter
called the "Underwritten Securities") and the option to purchase up to 435,000
additional Common Units to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities").
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
Common Units of limited partner
Annex I-1
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Page 2
interests or any securities convertible into or exercisable or exchangeable for
such units, or publicly announce an intention to effect any such transaction,
for a period of 90 days after the date of the Final Prospectus; provided
however, the exercise of options pursuant to an employee stock option plan
should not be considered a disposition covered by this paragraph.
If for any reason the Underwriting Agreement should be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
[Signature of AmeriGas Propane, Inc. and Petrolane
Incorporated and executive officers of AmeriGas
Propane, Inc.]
Annex I-2