[Form of Underwriting Agreement]
Suburban Propane Partners, L.P.
2,075,000 Common Units
Representing Limited Partner Interests
----------------------
Underwriting Agreement
, 2003
Xxxxxxx, Xxxxx & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Suburban Propane Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 2,075,000 common units (the "Firm Units")
representing limited partner interests in the Partnership (the "Common Units")
and, at the election of the Underwriters, up to 311,250 additional Common Units
(the "Optional Units"). The Firm Units and the Optional Units that the
Underwriters elect to purchase pursuant to Section 2 hereof are collectively
called the "Units."
The Partnership and Suburban Propane, L.P., a Delaware limited
partnership (the "Operating Partnership"), are collectively referred to herein
as the "Partnership Entities," and Suburban Sales & Service, Inc., a Delaware
corporation, Suburban Holdings, Inc., a Delaware corporation, Suburban @ Home,
Inc., a Delaware corporation, Suburban Franchising, Inc., a Nevada corporation,
and Gas Connection, Inc., an Oregon corporation, all of which are subsidiaries
of the Operating Partnership, are collectively referred to herein as the
"Subsidiaries."
1. The Partnership represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-104415)
(the "Initial Registration Statement") in respect of the Units has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the "Act"),
which became effective upon filing, no other document with respect to
the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission; any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time
such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; and any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act (the "Incorporated Documents"), as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Partnership filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Partnership by
an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
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regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Partnership by an Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto, and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Partnership by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(e) Neither of the Partnership Entities nor any of the
Subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, that, individually or in the aggregate, would have a
material adverse effect on the business, prospects, operations,
financial condition or results of operations of the Partnership
Entities and the Subsidiaries taken as a whole (a "Material Adverse
Effect"), otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the partners' capital or long-term debt of either of
the Partnership Entities or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
partners' capital or results of operations of either of the Partnership
Entities, otherwise than as set forth or contemplated in the
Prospectus;
(f) Each of the Partnership Entities and the Subsidiaries has
good and marketable title in fee simple to all real property and good
and marketable title to all personal property owned by it, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by that Partnership
Entity or Subsidiary; and all real property and buildings held under
lease by a Partnership Entity or Subsidiary are held under valid,
subsisting and enforceable leases with
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such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and
buildings by the lessee;
(g) Each of the Partnership Entities is and at each Time of
Delivery (as defined in Section 4(a) hereof) will be a limited
partnership duly formed, validly existing and in good standing under
the laws of the state of Delaware, with all necessary partnership power
and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly licensed or qualified to
do business and is in good standing as a foreign limited partnership in
all jurisdictions in which it owns or leases properties or conducts any
business so as to require such licensing or qualification, except where
the failure to be so qualified or in good standing would not have a
Material Adverse Effect. Complete and correct copies of the
certificates of limited partnership of the Partnership and the
Operating Partnership, and all amendments thereto, and of the
agreements of limited partnership of the Partnership, as amended and
restated (the "Partnership Agreement") and the Operating Partnership,
as amended and restated (the "Operating Partnership Agreement"), have
been delivered to the Underwriters;
(h) Suburban Energy Services Group LLC, the general partner of
each of the Partnership Entities (the "General Partner"), has been, and
at the applicable Time of Delivery will be, duly formed and is validly
existing as a limited liability company in good standing under the laws
of the state of Delaware, with limited liability company power and
authority to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign limited
liability company for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect. Complete and correct
copies of the certificate of formation and the limited liability
company agreement of the General Partner, and all amendments thereto,
have been delivered to the Underwriters;
(i) Each of the Subsidiaries has been, and at the applicable Time
of Delivery will be, duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect. Complete
and correct copies of the certificate of incorporation and the bylaws
of each of the Subsidiaries have been delivered to the Underwriters;
(j) The Partnership has no direct or indirect subsidiaries (other
than the Operating Partnership and the Subsidiaries) that, taken as a
whole, would be deemed to be a significant subsidiary (as such term is
defined in Section 1-02 of Regulation S-X under the Act);
(k) The General Partner is the sole general partner of the
Partnership with a 0.88% general partner interest in the Partnership;
such general partner interest is duly authorized by the Partnership
Agreement and was validly issued to the General Partner; and, the
General Partner owns such general partner interest free and clear of
all liens, encumbrances, security interests, equities, charges or
claims (except for such liens, encumbrances, security interests,
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equities, charges or claims as are not, individually or in the
aggregate, material to such ownership or as described in the
Registration Statement or the Prospectus);
(l) The General Partner is the sole general partner of the
Operating Partnership with a 1.0101% general partner interest in the
Operating Partnership; such general partner interest is duly authorized
by the Operating Partnership Agreement, and was validly issued to the
General Partner; and the General Partner owns such general partner
interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances,
security interests, equities, charges or claims as would not,
individually or in the aggregate, be material to such ownership or as
described in the Registration Statement or the Prospectus);
(m) The Partnership is the sole limited partner of the Operating
Partnership with a limited partner interest of 98.9899%; such limited
partner interest is duly authorized by the Operating Partnership
Agreement, and was validly issued to the Partnership and is fully paid
and nonassessable (except as nonassessability may be affected by the
legal issues described with respect to holders of the Common Units in
the "Risk Factors" section of the Prospectus under the captions
"Unitholders may not have limited liability in some circumstances and
may be liable for the return of some distributions" and "Unitholders
may have liability to repay distributions"); and the Partnership owns
such limited partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (except
for such liens, encumbrances, security interests, equities, charges or
claims as would not, individually or in the aggregate, be material to
such ownership or as described in the Registration Statement or the
Prospectus);
(n) All of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and are fully paid and
nonassessable; and the issued shares of capital stock of each of the
Subsidiaries are owned by the Operating Partnership, free and clear of
all liens, encumbrances, security interests, equities, charges or other
claims; all of the outstanding membership interests of the General
Partner are owned by management and other key employees of the
Partnership;
(o) The Partnership has an authorized capitalization as set forth
in the Prospectus, and all of the issued and outstanding Common Units
of the Partnership have been duly and validly authorized and issued,
are fully paid and nonassessable (except as nonassessability may be
affected by the legal issues described with respect to holders of the
Common Units in the "Risk Factors" section of the Prospectus under the
captions "Unitholders may not have limited liability in some
circumstances and may be liable for the return of some distributions"
and "Unitholders may have liability to repay distributions") and
conform to the description of the Common Units contained in the
Prospectus;
(p) The Units to be issued and sold by the Partnership to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and nonassessable (except as
nonassessability may be affected by the legal issues described with
respect to holders of the Common Units in the "Risk Factors" section of
the Prospectus under the captions "Unitholders may not have limited
liability in some circumstances and may be liable for the return of
some distributions" and "Unitholders may have liability to repay
distributions") and will conform to the description of the Common Units
contained in the Prospectus;
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(q) The issue and sale of the Units by the Partnership and the
compliance by the Partnership with all of the provisions of this
Agreement and compliance by the Operating Partnership with the
provisions of Section 7 hereof, and the consummation of the
transactions herein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which either of the Partnership
Entities or any of the Subsidiaries is a party or by which either of
the Partnership Entities or any of the Subsidiaries is bound or to
which any of the property or assets of either of the Partnership
Entities or any of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the partnership agreement
of either of the Partnership Entities or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over either of the Partnership Entities or any of the
Subsidiaries or any of their properties, except for breaches,
violations or defaults (other than those relating to the partnership
agreement of either of the Partnership Entities) that would not,
individually or in the aggregate, have a Material Adverse Effect or
impair the Partnership's ability to consummate the transactions herein
contemplated; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Units or the
consummation by the Partnership of the transactions contemplated by
this Agreement and the Operating Partnership with the provisions in
Section 7 hereof, except the registration under the Act of the Units
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Units by
the Underwriters;
(r) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration
Statement or the Prospectus present fairly the consolidated financial
condition of the Partnership, as of the respective dates thereof and
the consolidated results of operations and cash flows of the
Partnership for the respective periods covered thereby; such statements
and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the entire period involved, except as otherwise disclosed in
the Prospectus; and the other financial and statistical information
included or incorporated by reference in the Registration Statement or
the Prospectus are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Partnership. No other financial statements or schedules of the
Partnership are required by the Act, the Exchange Act or the rules and
regulations of the Commission under such acts to be included in the
Registration Statement or the Prospectus;
(s) The Partnership and the Operating Partnership (with respect
to Section 7 hereof) have all necessary partnership power and authority
to enter into this Agreement. This Agreement has been duly authorized,
executed and delivered by each of the Partnership Entities and
constitutes a valid and binding agreement of each of the Partnership
Entities and is enforceable against each of the Partnership Entities in
accordance with its terms; provided that such enforceability may be
limited (i) by bankruptcy, insolvency, fraudulent transfer, moratorium
and similar laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
(ii) as to rights to indemnification or contribution by considerations
of public policy related to federal or state securities laws;
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(t) The Partnership Agreement has been duly authorized, executed
and delivered by the General Partner and is a valid and legally binding
agreement of the General Partner, enforceable against the General
Partner in accordance with its terms; the Operating Partnership
Agreement has been duly authorized, executed and delivered by each of
the General Partner and the Partnership, and is a valid and legally
binding agreement of the General Partner and the Partnership,
enforceable against each of them in accordance with its terms; provided
that, with respect to each such agreement, the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(u) None of the Partnership Entities, the Subsidiaries and the
General Partner is in violation of its certificate of incorporation,
certificate of formation, by-laws, partnership agreement or limited
liability company agreement, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for such
defaults that, individually or in the aggregate, would not have a
Material Adverse Effect;
(v) The statements set forth in the Prospectus under the caption
"Description of Common Units," insofar as they purport to constitute a
summary of the terms of the Common Units, under the caption "Tax
Considerations" and under the caption "Underwriting," insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate and complete in all material respects;
(w) There are no preemptive rights or other rights to subscribe
for or to purchase, nor any restrictions upon the voting or transfer
of, any common units, equity interests or shares of stock in any of the
Partnership Entities and the Subsidiaries, except as described in the
Prospectus. The offering and sale of Units as contemplated by this
Agreement does not give rise to any rights, other than those which have
been waived or satisfied, for or relating to the registration of any
partnership interests or other securities of either of the Partnership
Entities. Other than as described in the Prospectus, there are no
outstanding options or warrants to purchase any Common Units or other
securities of either of the Partnership Entities. There are no rights
entitling any holder of partnership interests in the Partnership to
cause the Partnership to register any of such interests, other than
pursuant to the Partnership Agreement or as described in the
Prospectus, and such registration rights will not be triggered in
connection with the offering and sale of Units as contemplated by this
Agreement;
(x) Each of the Partnership Entities and the Subsidiaries (i) is
in compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants, or contaminants ("Environmental Laws"), (ii) has received
all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its respective businesses and
(iii) is in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, individually or in the
aggregate, have a Material Adverse Effect;
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(y) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean up, closure or properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, individually or in the
aggregate, have a Material Adverse Effect;
(z) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which either of the Partnership
Entities or any of the Subsidiaries is a party or of which any property
of either of the Partnership Entities or any of the Subsidiaries is the
subject which, if determined adversely to either of the Partnership
Entities or any of the Subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect; and, to the knowledge of the
Partnership's management, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(aa) Neither of the Partnership Entities is, nor, after giving
effect to the offering and sale of the Units, will be, (i) an
"investment company", as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act"), or (ii) subject
to regulation as a "holding company" or a "subsidiary company" of a
holding company or "affiliate" thereof, under the Public Utility
Holding Company Act of 1935, as amended (the "PUHCA");
(ab) Each of the Partnership Entities and the Subsidiaries has
such permits, consents, licenses, franchises, certificates and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its properties and to conduct its business in the
manner described in the Prospectus, subject to such qualifications as
may be set forth in the Prospectus and except for such permits the
failure of which to have obtained would not have, individually or in
the aggregate, a Material Adverse Effect; each of the Partnership
Entities and the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any impairment of the
rights of the holder of any such permit, except for such revocations,
terminations and impairments that would not have a Material Adverse
Effect; and, except as described in the Prospectus, none of such
permits contains any restriction that is materially burdensome to the
Partnership Entities and the Subsidiaries considered as a whole;
(ac) Neither of the Partnership Entities nor any of their
respective affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes;
(ad) The Partnership Entities maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as 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;
(ae) The Partnership has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under
the Exchange Act), which (i) are designed to
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ensure that material information relating to the Partnership, including
its consolidated subsidiaries, is made known to its principal executive
officer and its principal financial officer by others within those
entities, particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) have been
evaluated for effectiveness as of a date within 90 days prior to the
filing of the Partnership's most recent annual or quarterly report
filed with the Commission; and (iii) are effective in all material
respects to perform the functions for which they were established;
(af) Based on the evaluation of its disclosure controls and
procedures, the Partnership is not aware of (i) any significant
deficiency in the design or operation of internal controls which could
adversely affect the Partnership's ability to record, process,
summarize and report financial data or any material weaknesses in
internal controls; or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in
the Partnership's internal controls;
(ag) Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses;
(ah) For each taxable year of the Partnership, less than 10% of
the gross income of the Partnership has been derived from sources other
than (i) the exploration, development, production, processing,
refining, transportation or marketing of any mineral or natural
resource, including oil, gas or products thereof, or (ii) other items
of qualifying income within the meaning of Section 7704(d) of the
Internal Revenue Code of 1986, as amended; and
(ai) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Partnership Entities, are independent
public accountants as required by the Act and the rules and regulations
of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Partnership agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Partnership, at a purchase price per Unit of $................, the number of
Firm Units set forth opposite the name of such Underwriter in Schedule I hereto
and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Units as provided below, the Partnership agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Partnership, at the purchase
price per share set forth in clause (a) of this Section 2, that portion of the
number of Optional Units as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional units) determined by
multiplying such number of Optional Units by a fraction, the numerator of which
is the maximum number of Optional Units which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum number of Optional Units that all of
the Underwriters are entitled to purchase hereunder.
The Partnership hereby grants to the Underwriters the right to purchase
at their election up to 311,250 Optional Units, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
Units in excess of the number of Firm Units. Any such election to purchase
Optional Units may be exercised only by written notice from you to the
Partnership, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Units to be purchased
and the date on which such Optional Units are to be
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delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4(a) hereof) or, unless you and the Partnership
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of the release of the Firm Units, the
several Underwriters propose to offer the Firm Units for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Units to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Partnership shall be delivered
by or on behalf of the Partnership to Xxxxxxx, Sachs & Co. through the
facilities of the Depository Trust Company ("DTC"), for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Partnership to Xxxxxxx, Xxxxx &
Co. at least forty-eight hours in advance. The Partnership will cause
the certificates representing the Units to be made available for
checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC
or its designated custodian (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm
Units, 9:30 a.m., New York City time, on ............., 2003 or such
other time and date as Xxxxxxx, Sachs & Co. and the Partnership may
agree upon in writing, and, with respect to the Optional Units, 9:30
a.m., New York time, on the date specified by Xxxxxxx, Xxxxx & Co. in
the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Units, or such other time and date
as Xxxxxxx, Xxxxx & Co. and the Partnership may agree upon in writing.
Such time and date for delivery of the Firm Units is herein called the
"First Time of Delivery", such time and date for delivery of the
Optional Units, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is
herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including
the cross receipt for the Units and any additional documents requested
by the Underwriters pursuant to Section 7(k) hereof, will be delivered
at the offices of Fulbright & Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the Units will be
delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at 4:00 p.m., New York
City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 4(b),
"New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive
order to close.
5. The Partnership agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to
10
the last Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Partnership with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Units; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or Prospectus, of the suspension
of the qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Units for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Units, provided that in connection
therewith the Partnership shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the Units
and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act or the Exchange Act,
to notify you and upon your request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Units at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
11
(d) To make generally available to the Partnership's
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the
Partnership and its consolidated subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Partnership,
Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Partnership
that are substantially similar to the Units, including but not limited
to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Common Units or any such
substantially similar securities (other than pursuant to employee
benefit plans, unit option plans or restricted unit plans existing on,
or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your
prior written consent, it being expressly agreed that the foregoing
restriction shall preclude the Partnership from engaging in any hedging
or other transaction which is designed to or reasonably expected to
lead to or result in a sale or disposition of the Common Units even if
such Common Units would be disposed of by someone other than the
Partnership, including, without limitation, any short sale or any
purchase, sale or grant of any right (including, without limitation,
any put or call option) with respect to any of the Common Units or with
respect to any security that includes, relates to, or derives any
significant part of its value from such Common Units;
(f) To furnish to the Partnership's unitholders as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, partners' capital
and cash flows of the Partnership and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to its
unitholders consolidated summary financial information of the
Partnership and its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to unitholders, and
to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Partnership is listed; and (ii) such additional
information concerning the business and financial condition of the
Partnership as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Partnership and its subsidiaries are consolidated in
reports furnished to its unitholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Units pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Units on The New York Stock Exchange (the "Exchange");
and
12
(j) If the Partnership elects to rely upon Rule 462(b), the
Partnership shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Partnership shall at
the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Partnership covenants and agrees with the several Underwriters
that the Partnership will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Partnership's counsel and accountants in
connection with the registration of the Units under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Units; (iii) all expenses in
connection with the qualification of the Units for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification; (iv) all fees and expenses in connection with listing the Units
on the Exchange; (v) the filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Units; (vi) the cost of preparing certificates representing Common Units,
if any; (vii) the cost and charges of any transfer agent or registrar; and
(viii) all other costs and expenses incident to the performance of the
Partnership's obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Units by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Units to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Partnership herein are, at and as of such Time of Delivery, true and
correct, the condition that the Partnership shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Partnership has elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 p.m., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Fulbright & Xxxxxxxx L.L.P., counsel for the Underwriters,
shall have furnished to you their written opinion, dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii),
(iv), (vii) and (xiii) of subsection (c) below as well as such other
related
13
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Weil, Gotshal & Xxxxxx LLP, counsel for the Partnership,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Each of the Partnership Entities is validly
existing as a limited partnership in good standing under the
laws of the State of Delaware, with power and authority to
own its properties and conduct its business as described in
the Prospectus;
(ii) The Partnership has an authorized capitalization
as set forth in the Prospectus, and all of the issued and
outstanding Common Units of the Partnership have been duly
and validly authorized and issued and are fully paid and
nonassessable (except as nonassessability may be affected by
the legal issues described with respect to holders of the
Common Units in the "Risk Factors" section of the Prospectus
under the captions "Unitholders may not have limited
liability in some circumstances and may be liable for the
return of some distributions" and "Unitholders may have
liability to repay distributions"); and the Units conform in
all material respects to the description of the Common Units
contained in the Prospectus;
(iii) There is no legal or governmental proceeding
pending, or, to such counsel's knowledge, threatened,
against either of the Partnership Entities or its property
that is required to be described in the Prospectus and that
has not been so described;
(iv) This Agreement has been duly authorized, executed
and delivered by each of the Partnership and the Operating
Partnership;
(v) The issue and sale of the Units being delivered at
such Time of Delivery by the Partnership, the compliance by
the Partnership with all of the provisions of this Agreement
and the compliance by the Operating Partnership with the
provisions of Section 8 hereof and the consummation of the
transactions herein contemplated do not conflict with or
violate any of the terms or provisions of, or constitute a
breach or default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which either of the Partnership Entities
is a party or is bound and that is material to that
Partnership Entity, nor will such action result in any
violation of the provisions of the partnership agreement of
either of the Partnership Entities or any Delaware
partnership or federal statute or any order, rule or
regulation (other than foreign and state securities or Blue
Sky Laws, as to which such counsel expresses no opinion), or
any judgment, writ, injunction, decree, order or ruling of
any court or governmental agency or body having jurisdiction
over either of the Partnership Entities of which such
counsel is aware;
(vi) No consent, approval, authorization, order,
registration or qualification of or with any Delaware or
federal governmental agency or body is required for the
issue and sale of the Units or the consummation by the
Partnership of the transactions contemplated by this
Agreement and the Operating Partnership with respect to
14
Section 8 hereof, except the registration under the Act of
the Units and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws or the by-laws or rules of
NASD Regulation, Inc. in connection with the purchase and
distribution of the Units by the Underwriters (it being
understood that the opinion may be limited to those
consents, approvals, authorizations, orders, registrations
or qualifications that, in such counsel's experience, are
normally applicable to transactions of the type contemplated
by this Agreement);
(vii) The statements set forth in the Prospectus under
the caption "Description of Common Units," insofar as they
purport to constitute a summary of the terms of the Common
Units, or under the caption "Tax Considerations," insofar as
they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in
all material respects;
(viii) Neither of the Partnership Entities is (i) an
"investment company", as such term is defined in the
Investment Company Act, or (ii) subject to regulation as a
"holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof, under PUHCA;
(ix) The Units to be issued and sold to the
Underwriters by the Partnership hereunder have been duly and
validly authorized by the Partnership and, when issued and
delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued,
fully paid and nonassessable (except as nonassessability may
be affected by the legal issues described with respect to
holders of the Common Units in the "Risk Factors" section of
the Prospectus under the captions "Unitholders may not have
limited liability in certain circumstances and may be liable
for the return of certain distributions" and "Unitholders
may have liability to repay distributions"), and free of any
preemptive or similar rights that entitle or will entitle
any person to acquire any partnership interest in the
Partnership;
(x) The Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and is a valid
and legally binding agreement of the General Partner,
enforceable against the General Partner in accordance with
its terms; the Operating Partnership Agreement has been duly
authorized, executed and delivered by each of the General
Partner and the Partnership and is a valid and legally
binding agreement of the General Partner and the
Partnership, enforceable against each in accordance with its
terms, provided that the enforceability of each such
agreement is subject to the qualifications that (A) the
enforceability of such document may be limited by
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights generally, (B) the enforceability of such document
may be limited by public policy, applicable law relating to
fiduciary duties and the judicial imposition of an implied
covenant of good faith and fair dealing, (C) the
enforceability of equitable rights and remedies provided for
in such document is subject to equitable defenses and
judicial discretion, and the enforceability of such document
may be limited by general equitable principles (regardless
of whether enforcement is sought in a proceeding at law or
in equity) and
15
(D) the enforceability of the indemnity and contribution
provisions of such document may be limited by federal and
state securities laws;
(xi) The Registration Statement has been declared
effective under the Act by the Commission and to the
knowledge of such counsel after due inquiry, no order
suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or overtly threatened. Any required filing of the
Prospectus relating to the sale of the Units pursuant to
Rule 424(b) under the Act has been made in the manner and
within the time period required by such rule; and
(xii) The Incorporated Documents (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they were
filed with the Commission complied as to form in all
material respects with the requirements of the Exchange Act.
In addition, such counsel will provide you a letter of negative
assurance, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that: the Registration Statement and
the Prospectus, as amended and/or supplemented prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder. The opinion letter of such counsel
also shall include a statement to the effect that such counsel has
participated in conferences with officers and other representatives of
the Partnership, representatives of the independent public accountants
for the Partnership, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which conferences
the contents of the Registration Statement and the Prospectus and
related matters were discussed, and, although such counsel has not
independently verified and are not passing upon and assume no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(except to the extent specified in subsection (vii) of this section
7(c)), no facts have come to their attention that lead them to believe
that the Registration Statement, on the effective date thereof,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements contained therein not misleading or that the Prospectus, on
the date thereof or on the date of such letter, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
express no view with respect to the financial statements and related
notes, the financial statement schedules and the other financial and
accounting data included or incorporated by reference in the
Registration Statement or Prospectus);
(d) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, PricewaterhouseCoopers LLP shall have furnished
to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the
16
effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto);
(e) (i) Neither of the Partnership Entities shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or 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 Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the Common Units, partners' capital or long-term
debt of either of the Partnership Entities or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, partners' capital or results
of operations of either of the Partnership Entities, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is in the judgment of
the Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Units being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Partnership's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Partnership's debt securities
(other than as part of a downgrading or public announcement of
surveillance or review, with possible negative implications, of the
industry sector in which the Partnership conducts business by any such
nationally recognized statistical rating organization);
(g) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Partnership's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption
in commercial banking or securities settlement or clearance services in
the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such
event specified in clause (iv) or (v) in the judgment of Xxxxxxx, Xxxxx
& Co. makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Units being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(h) The Units to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the Exchange;
(i) The Partnership has obtained and delivered to the
Underwriters executed copies of an agreement from each of the officers
of the Partnership and members of the Board of Supervisors of the
Partnership, substantially to the effect set forth in Subsection 5(e)
hereof in form and substance satisfactory to you; provided, however,
that such agreement shall provide that Xxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxxx,
17
Xxxx Xxxxx XX, Xxxxx X'Xxxxxxxx and Xxxxxxx Xxxxxxx may sell or dispose
of up to an aggregate of 75,000 Common Units solely for the purposes
set forth in such agreement;
(j) The Partnership shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(k) The Partnership shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of
the General Partner or the Partnership satisfactory to you as to the
accuracy of the representations and warranties of the Partnership
herein at and as of such Time of Delivery, as to the performance by the
Partnership Entities of all of their obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as you may reasonably request.
8. (a) Each of the Partnership Entities, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment 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 will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
of the Partnership Entities shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Partnership by any Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless each of the
Partnership Entities against any losses, claims, damages or liabilities to which
either of the Partnership Entities may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Partnership by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse each of the Partnership Entities for any legal or other expenses
reasonably incurred by either of them in connection with investigating or
defending any such action or claim as such expenses are incurred.
18
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Partnership Entities on the one hand and the
Underwriters on the other from the offering of the Units. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Partnership Entities on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Partnership Entities on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Partnership Entities bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Partnership Entities on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Partnership
Entities and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the
19
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Units underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations under this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Partnership Entities under this Section 8
shall be in addition to any liability which the Partnership Entities may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to the General Partner, to each
officer and member of the Board of Supervisors of the Partnership and to each
person, if any, who controls either of the Partnership Entities within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Units which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Units on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Units, then the Partnership shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Units on such terms. In the event that,
within the respective prescribed periods, you notify the Partnership that you
have so arranged for the purchase of such Units, or the Partnership notifies you
that it has so arranged for the purchase of such Units, you or the Partnership
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Partnership agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Units.
(b) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Partnership as
provided in subsection (a) above, the aggregate number of such Units which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Units to be purchased at such Time of Delivery, then the Partnership shall
have the right to require each non-defaulting Underwriter to purchase the number
of units which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Units which such Underwriter
agreed to purchase hereunder) of the Units of such defaulting Underwriter or
20
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Partnership as
provided in subsection (a) above, the aggregate number of such Units which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Units to be purchased at such Time of Delivery, or if the Partnership shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Units of a defaulting Underwriter or Underwriters, then
this Agreement (or, with respect to the Second Time of Delivery, the obligations
of the Underwriters to purchase and of the Partnership to sell the Optional
Units) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Partnership, except for the expenses to be
borne by the Partnership and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Partnership Entities and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
either Partnership Entity, or any officer, member of the Board of Supervisors or
controlling person of either Partnership Entity, and shall survive delivery of
and payment for the Units.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Partnership shall then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Units are
not delivered by or on behalf of the Partnership as provided herein, the
Partnership will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Units not so delivered, but the Partnership
shall then be under no further liability to any Underwriter except as provided
in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the
Partnership shall be delivered or sent by mail to the address of the Partnership
set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Partnership by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Partnership Entities and, to the extent
provided in Sections 8 and 10 hereof, the officers and members of the Board of
Supervisors of either Partnership Entity and each person who
21
controls either Partnership Entity or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Units from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Partnership is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Underwriters imposing
any limitation of any kind.
22
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Partnership. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Partnership for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
Suburban Propane Partners, L.P.
By: ...........................................
Name:
Title:
Suburban Propane, L.P.
By: ...........................................
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Wachovia Securities, LLC
Xxxxxxx Xxxxx & Associates, Inc.
By:...............................................
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
Number of
Optional
Units to be
Total Number of Purchased if
Firm Units Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ---------
Xxxxxxx, Xxxxx & Co. .............................................
Wachovia Securities, LLC..........................................
Xxxxxxx Xxxxx & Associates, Inc. .................................
--------- -------
Total........................................................ 2,075,000 311,250
========= =======
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Partnership and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Partnership for the periods specified in
such letter, as indicated in their reports thereon, copies of which
have been separately furnished to Xxxxxxx, Xxxxx & Co., the
representative of the Underwriters (the "Representative");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Partnership's
quarterly reports on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which have
been separately furnished to the Representative; and on the basis of
specified procedures including inquiries of officials of the
Partnership who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in the related in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Partnership for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Partnership's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Partnership's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with
the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Partnership and its subsidiaries,
inspection of the minute books of the Partnership and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Partnership and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Partnership's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be
made to the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or
included in the Partnership's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated
by reference in the Partnership's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in the Partnership's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated partners' capital or any
F-2
increase in the consolidated long-term borrowings of the
Partnership and its subsidiaries, or any decreases in
consolidated net current assets or partners' capital or
other items specified by the Underwriters, or any increases
in any items specified by the Underwriters, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
clause (E) there were any decreases in consolidated revenues
or income before interest expense and provision for income
taxes or the total or per unit amounts of consolidated net
income or other items specified by the Representative, or
any increases in any items specified by the Representative,
in each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representative, except in each case
for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representative which are derived from the general
accounting records of the Partnership and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by
reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representative or in documents
incorporated by reference in the Prospectus specified by the
Representative, and have compared certain of such amounts, percentages
and financial information with the accounting records of the
Partnership and its subsidiaries and have found them to be in
agreement.
F-3
