EXHIBIT 10.1
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EXECUTION COPY
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (this "Agreement") is made and entered into as
of July 27, 2006 by and among Suburban Propane Partners, L.P., a Delaware
limited partnership (the "MLP"), Suburban Propane, L.P., a Delaware limited
partnership and the operating partnership of the MLP (the "OLP"), and Suburban
Energy Services Group LLC, a Delaware limited liability company (the "General
Partner").
RECITALS
WHEREAS, the General Partner is the general partner of each of
the MLP and the OLP and holds the following interests: the General Partner
Interest (the "MLP GP Interest") and the Incentive Distribution Rights (each as
defined in the Second Amended and Restated Agreement of Limited Partnership of
Suburban Propane Partners, L.P., dated as of May 26, 1999 (the "MLP Partnership
Agreement")) in the MLP and the General Partner Interest (as defined in the
Second Amended and Restated Agreement of Limited Partnership of Suburban
Propane, L.P., dated as of May 26, 1999 (the "OLP Partnership Agreement")) in
the OLP (the "OLP GP Interest"); and
WHEREAS, the General Partner wishes to exchange the Incentive
Distribution Rights, the entire economic interest in the MLP included in the MLP
GP Interest and the entire economic interest in the OLP included in the OLP GP
Interest for Common Units (as defined in the MLP Partnership Agreement) of the
MLP ("Common Units"), and the MLP wishes to issue Common Units to the General
Partner in exchange for the Incentive Distribution Rights, the entire economic
interest in the MLP included in the MLP GP Interest and the entire economic
interest in the OLP included in the OLP GP Interest.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Exchange. The General Partner hereby elects to exchange (the
"Exchange") the Incentive Distribution Rights, in accordance with Section 5.8 of
the MLP Partnership Agreement, the entire economic interest in the MLP included
in the MLP GP Interest and the entire economic interest in the OLP included in
the OLP GP Interest (collectively, the "Exchange Holdings") for an aggregate of
two million, three hundred thousand (2,300,000) Common Units (the "Consideration
Units"), thereby reducing the economic interest in the MLP included in the MLP
GP Interest to zero, and the economic interest in the OLP included in the OLP GP
Interest to zero, as provided in the Third Amended and Restated Agreement of
Limited Partnership of the MLP (the "Restated MLP Partnership Agreement") and
the Third Amended and Restated Agreement of Limited Partnership of the OLP (the
"Restated OLP Partnership Agreement"), respectively, which are Exhibits A and
B-2 hereto and will be entered into at the Closing (as defined herein). Without
further action by the General Partner, as of the Closing, all of the General
Partner's right, title and interest in and to the Exchange Holdings will be
hereby assigned, transferred and delivered to
the MLP free and clear of all mortgages, liens, pledges, security interests,
charges, claims, restrictions and encumbrances of any nature whatsoever
(collectively, "Liens"), it being understood that, notwithstanding that the
economic interest in the MLP included in the MLP GP Interest and the economic
interest in the OLP included in the OLP GP Interest shall each be reduced to
zero, the General Partner shall remain admitted to the MLP as the general
partner of the MLP and shall remain admitted to the OLP as the general partner
of the OLP.
2. Issuance, Retention and Registration of the Consideration
Units.
a. As consideration for the Exchange Holdings, at the
Closing, the MLP will issue the Consideration Units to, and registered in the
name of, the General Partner. The General Partner hereby acknowledges and agrees
that receipt of the Consideration Units shall constitute complete satisfaction
of all obligations or any other sums due to the General Partner with respect to
the Exchange Holdings. Subject to the Distribution, Release and Lockup Agreement
referred to below, the General Partner may distribute the Consideration Units to
its members, including Suburban Energy Membership LLC ("LLC 2"), and LLC 2 may
distribute its portion of the Consideration Units to its members, upon the
effectiveness of the registration statement referred to below; provided,
however, that the General Partner shall retain 784 of the Consideration Units,
which will continue to be held in the name of the General Partner. All members
of the General Partner and LLC 2 who are executive officers of the MLP or the
OLP have executed that certain Distribution, Release and Lockup Agreement (the
"Distribution Agreement") simultaneously with the execution and delivery hereof.
If, for any reason, such agreement is not executed by all members of the General
Partner by the Closing, as soon as practicable after the Closing, the General
Partner agrees to effectuate the General Partner Merger as contemplated by such
agreement.
b. As soon as practicable but no later than five
business days following the Closing, and subject to receipt of all required
information from holders of Consideration Units, the MLP shall file with the
Securities and Exchange Commission (the "SEC") a shelf registration statement
(the "Registration Statement") to register the resale by members of the General
Partner and/or LLC 2 of the Consideration Units. The MLP shall use commercially
reasonable efforts to cause the Registration Statement to remain effective until
the second anniversary of the Closing (or such earlier date as all Common Units
registered thereunder have been sold); provided, however, that the Board of
Supervisors of the MLP shall have the right to suspend the rights of any member
of the General Partner and/or LLC 2 to make sales pursuant to the Registration
Statement upon the happening of any event which makes any statement made in the
Registration Statement or related prospectus untrue or which requires the making
of any changes in such Registration Statement or prospectus so that they will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, including as a result of a pending transaction,
investigation or other event. As promptly as is reasonably practicable
thereafter, but after such time period as the Audit Committee of the Board of
Supervisors of the MLP determines in its good faith judgment is in the best
interests of the MLP and its partners, the MLP shall prepare and file with the
SEC and furnish a supplement or amendment to such prospectus so that, as
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thereafter deliverable to the purchasers of Common Units, such prospectus will
not contain any untrue statement of a material fact or omit a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If, for any reason, the Registration
Statement is suspended or ceases to be effective, the MLP shall give notice
thereof to each person named as a selling unitholder in the Registration
Statement.
c. The MLP shall, to the fullest extent permitted by
law, indemnify and hold harmless the members of the General Partner and LLC 2
(collectively, the "Indemnified Persons") against any losses, claims, demands,
actions, causes of action, assessments, damages, liabilities (joint or several),
costs and expenses (including interest, penalties and reasonable attorneys' fees
and disbursements), resulting from, imposed upon, or incurred by the Indemnified
Persons, directly or indirectly, under the Securities Act of 1933, as amended
(the "Securities Act"), or otherwise ("Claims"), based upon, arising out of or
resulting from any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, in any preliminary prospectus (if
used prior to the effective date of such Registration Statement), or in any
summary or final prospectus or in any amendment or supplement thereto (if used
during the period the MLP is required to keep the Registration Statement
current), or arising out of, based upon or resulting from the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein not misleading; provided,
however, that the MLP shall not be liable to any Indemnified Person to the
extent that any such Claim arises out of, is based upon or results from an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, such preliminary, summary or final
prospectus or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the MLP by or on behalf of such
Indemnified Person specifically for use in the preparation thereof.
3. Cancellation of Incentive Distribution Rights and Economic
Interest in the MLP Included in the MLP GP Interest. Upon the Exchange, without
further action by the MLP, (i) the Incentive Distribution Rights shall be
cancelled and have no further force or effect; and (ii) the economic interest in
the MLP included in the MLP GP Interest shall be cancelled as provided in the
Restated MLP Partnership Agreement.
4. OLP GP Interest. At the Closing and pursuant to an amendment
to the OLP Partnership Agreement substantially in the form of Exhibit B-1 hereto
to be entered into at the Closing by the General Partner, the MLP, a to be
formed Delaware limited liability company and direct and indirect wholly-owned
subsidiary of the MLP ("New LLC") and a to be formed Delaware corporation and
wholly-owned subsidiary of the MLP ("New Corp."), the MLP shall make a capital
contribution of, and assign, a 0.05% limited partner interest in the OLP to New
LLC and a 0.05% limited partner interest in the OLP to New Corp., immediately
following which New Corp. shall make a capital contribution of, and assign, a
0.05% limited partner interest in the OLP to New LLC. Simultaneously therewith,
New LLC shall be admitted to the OLP as a limited partner with a 0.1% limited
partner interest in the OLP, and the economic interest in the OLP included in
the OLP GP Interest shall be assigned to the MLP and converted into a limited
partner interest in the OLP, resulting in the MLP having a 99.9% limited partner
interest in the OLP. The General Partner shall continue as the general partner
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of the OLP with a 0% general partner interest, and the business of the OLP shall
continue without dissolution, with the General Partner continuing as the General
Partner of the OLP and with the MLP and New LLC as the two limited partners
thereof.
5. Closing. The closing of the transactions contemplated hereby
(the "Closing") shall take place at the offices of Weil, Gotshal & Xxxxxx LLP at
10:00 a.m. on the second business day following satisfaction of the conditions
set forth in Section 10 of this Agreement (or such other place, date and/or time
as are agreed upon by the parties hereto).
6. Change of Control. If, prior to the Closing, a Change of
Control (as defined herein) shall occur, (i) the parties hereto agree that the
MLP GP Interest, the Incentive Distribution Rights and the OLP GP Interest shall
be exchanged or otherwise treated in any such transaction as if the Exchange had
been consummated and, as a result thereof, the General Partner owned two
million, three hundred thousand (2,300,000) Common Units, and (ii) the General
Partner agrees to participate in any Change of Control as directed by the Audit
Committee of the Board of Supervisors of the MLP. For purposes of this Section
6, a "Change of Control" shall mean:
a. an acquisition (other than directly from the MLP) of
Common Units or voting equity interests of the MLP
("Voting Securities") by any Person (as that term is
used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than the MLP, the OLP, the
General Partner and any of their affiliates,
immediately after which such Person has beneficial
ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of more than twenty five percent (25%)
of the combined voting power of the MLP's then
outstanding Voting Securities; provided, however,
that in determining whether a Change of Control has
occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" shall not constitute an
acquisition which would cause a Change of Control.
For purposes of this definition of Change of Control,
a "Non-Control Acquisition" means an acquisition by
(1) an employee benefit plan (or trust forming a part
thereof) maintained by (A) the MLP or the OLP or any
of its affiliates or (B) any corporation, partnership
or other Person of which a majority of its voting
power or its voting equity securities or equity
interests is owned, directly or indirectly, by the
MLP (for purposes of this definition, a
"Subsidiary"), (2) the MLP or its Subsidiaries, or
(3) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined); or
b. approval by the requisite percentage of the partners
of the MLP of (A) a merger, consolidation or
reorganization involving the MLP, unless (x) the
holders of Voting Securities immediately before such
merger, consolidation or reorganization own, directly
or indirectly immediately following such merger,
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consolidation or reorganization, at least sixty
percent (60%) of the combined voting power of the
outstanding voting securities of the entity resulting
from such merger, consolidation or reorganization
(the "Surviving Entity") in substantially the same
proportion as their ownership of the Voting
Securities immediately before such merger,
consolidation or reorganization, and (y) no person or
entity (other than the MLP, any Subsidiary, any
employee benefit plan (or any trust forming a part
thereof) maintained by the MLP, the OLP, the
Surviving Entity or any person who, immediately prior
to such merger, consolidation or reorganization had
beneficial ownership of more than twenty five percent
(25%) of the then outstanding Voting Securities), has
beneficial ownership of more than twenty five percent
(25%) of the combined voting power of the Surviving
Entity's then outstanding voting securities; (B) a
complete liquidation or dissolution of the MLP; or
(C) the sale or other disposition of 50% or more of
the net assets of the MLP to any Person (other than a
transfer to a Subsidiary). A transaction described in
clause (x) or (y) above shall be referred to as a
"Non-Control Transaction."
Notwithstanding the foregoing, a Change of Control
shall not be deemed to occur solely because any
Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the
acquisition of Voting Securities by the MLP which, by
reducing the number of Voting Securities outstanding,
increases the proportional number of units
Beneficially Owned by the Subject Person, provided
that if a Change in Control would occur (but for the
operation of this sentence) as a result of the
acquisition of Voting Securities by the MLP, and
after such acquisition by the MLP, the Subject Person
becomes the Beneficial Owner of any additional Voting
Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control shall
occur.
7. Representations and Warranties of the General Partner. To
induce the MLP to issue the Consideration Units in exchange for the Exchange
Holdings as herein provided, the General Partner makes the following
representations and warranties to the MLP and the OLP, each and all of which are
true and correct as of the date of this Agreement and shall be true and correct
as of the Closing and shall not survive the Closing:
a. Title to Exchange Holdings. The General Partner is
the beneficial and record owner of the Exchange Holdings, and the Exchange
Holdings are owned by the General Partner free and clear of all Liens. There is
no subscription, option, warrant, call, right, agreement or commitment relating
to the issuance, sale, delivery, repurchase or transfer by the General Partner
of such Exchange Holdings except as set forth in the MLP Partnership Agreement
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or the Distribution Agreement. Upon transfer of the Exchange Holdings as
contemplated hereunder, the MLP will acquire good title to such Exchange
Holdings, free and clear of all Liens.
b. Authority; Binding Effect. The General Partner has
full legal capacity and power, and has received the requisite approvals of its
members and its Board of Managers, to execute and deliver this Agreement and any
other agreements or instruments executed or to be executed by it in connection
with the Exchange and to consummate the transactions contemplated herein or
therein. This Agreement is, and the other agreements and instruments executed or
to be executed by the General Partner in connection with the Exchange and the
other transactions contemplated hereby will each be, a valid and binding
obligation of the General Partner enforceable against it in accordance with its
respective terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
c. No Violation. None of the execution and delivery of
this Agreement by the General Partner, the exchange by the General Partner of
the Exchange Holdings pursuant to this Agreement or the execution and delivery
by the General Partner of any other agreements or instruments to be executed by
it in connection herewith will (i) result in a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any agreement, lease or other instrument or
obligation to which the General Partner or LLC 2 is a party, or (ii) violate any
order, writ, injunction or decree applicable to the General Partner or any of
the General Partner's assets.
d. Securities Act Exemption. The General Partner
acknowledges that the Consideration Units are being issued pursuant to an
exemption from the Securities Act. The General Partner is an accredited
investor, as defined in Regulation D under the Securities Act. It is acquiring
the Consideration Units for its own account and without a view to the
distribution thereof, except for the transfer of the Consideration Units to its
members or by LLC 2 to its members as referred to in Section 2 hereof.
8. Representations and Warranties of the MLP. To induce the
General Partner to deliver the Exchange Holdings in exchange for the
Consideration Units as herein provided, the MLP makes the following
representations and warranties to the General Partner and the OLP, each and all
of which are true and correct as of the date of this Agreement and shall be true
and correct as of the Closing and shall not survive the Closing:
a. Authority; Binding Effect. The MLP has full legal
capacity and power, and has received the unanimous approval of its Board of
Supervisors and its Audit Committee (which constitutes Special Approval),
subject to the requisite approval of the holders of Common Units, to execute and
deliver this Agreement and any other agreements or instruments executed or to be
executed by it in connection with the Exchange and to consummate the
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transactions contemplated herein or therein. This Agreement is, and the other
agreements and instruments executed or to be executed by the MLP in connection
with the Exchange will each be, a valid and binding obligation of the MLP
enforceable against it in accordance with its respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
b. No Violation. None of the execution and delivery of
this Agreement by the MLP and, subject to the satisfaction of the conditions in
Sections 10(a)(i) and 10(a)(iii), the issuance of the Consideration Units by the
MLP as contemplated herein, or the execution and delivery by the MLP of any
other agreements or instruments to be executed by it in connection herewith will
(i) result in a default (or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or provisions of any
agreement, lease or other instrument or obligation to which the MLP is a party,
or (ii) violate any order, writ, injunction or decree applicable to the MLP or
any of the MLP's assets.
c. Issuance of the Common Units. The Consideration Units
have been, subject to obtaining the Unitholder Approval referred to in Section
10(a)(i), duly authorized and, when issued upon the Exchange, will be validly
issued and fully paid, and free and clear of all Liens.
d. Capitalization. There are 30,314,262 outstanding
Common Units, and an additional 341,911 outstanding restricted Common Units,
granted under the MLP's 2000 Restricted Unit Plan, which shall become
outstanding Common Units upon vesting.
9. Representations and Warranties of the OLP. To induce the
General Partner and the MLP to exchange the Exchange Holdings for Common Units
as herein provided, the OLP makes the following representations and warranties
to the MLP and the General Partner, each and all of which are true and correct
as of the date of this Agreement and shall be true and correct as of the Closing
and shall not survive the Closing:
a. Authority; Binding Effect. The OLP has full legal
capacity and power, and has received the unanimous approval of its Board of
Supervisors and its Audit Committee (which constitutes Special Approval), to
execute and deliver this Agreement and any other agreements or instruments
executed or to be executed by it in connection with the Exchange and to
consummate the transactions contemplated herein or therein. This Agreement and
the other agreements and instruments executed or to be executed by the OLP in
connection with the Exchange will each be a valid and binding obligation of the
OLP enforceable against it in accordance with its respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
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b. No Violation. None of the execution and delivery of
this Agreement by the OLP, or the execution and delivery by the OLP of any other
agreements or instruments to be executed by it in connection herewith will (i)
result in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any agreement,
lease or other instrument or obligation to which the OLP is a party, or (ii)
violate any order, writ, injunction or decree applicable to the OLP or any of
the OLP's assets.
10. Conditions to Closing.
a. The respective obligations of each of the MLP, the
OLP and the General Partner to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction of each of the following
conditions:
(i) Unitholder Approval. The MLP shall have
received approval of this Agreement and the transactions contemplated hereby
(including approval of the Restated MLP Partnership Agreement, other than those
amendments relating to (x) restrictions on business combinations with interested
unitholders and (y) requiring a 66-2/3% vote for changes to the procedures to
nominate supervisors) by (A) the holders of a majority of the Outstanding (as
defined in the MLP Partnership Agreement) Common Units and (B) the holders of a
majority of the Outstanding (as defined in the MLP Partnership Agreement) Common
Units other than the Common Units held by the General Partner or the members of
the General Partner or LLC 2.
(ii) Amendment of Agreements. The MLP Partnership
Agreement (other than as to the items referred to in the first parenthetical in
clause (i) above), the OLP Partnership Agreement and the Operating Agreement of
the General Partner (the "GP Agreement") shall have been restated and/or amended
substantially in the forms attached as Exhibit A, Exhibit B-1, Exhibit B-2 and
Exhibit C hereto.
(iii) NYSE Approval. The New York Stock Exchange
shall have approved the supplemental listing application filed therewith in
connection with the Consideration Units.
b. The respective obligations of each of the MLP and the
OLP to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction of each of the following conditions, unless any such
condition is waived by the Board of Supervisors of the MLP:
(i) Representations and Warranties of the
General Partner; Officer's Certificate. The representations and warranties of
the General Partner contained herein shall be true and correct in all material
respects as of the date of the Closing as though made on and as of the date of
the Closing, and the General Partner shall have furnished each of the MLP and
OLP with a certificate to that effect, dated as of the date of the Closing and
signed on its behalf by a duly authorized officer.
(ii) No Material Adverse Effect. Since the date
of this Agreement, there shall have been no material adverse effect on the
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business, assets, condition (financial or otherwise) or prospects of the MLP and
its subsidiaries, taken as a whole.
c. The obligations of the General Partner to consummate
the transactions contemplated by this Agreement shall be subject to the
satisfaction of the following condition:
(i) Representations and Warranties of the MLP
and the OLP; Officer's Certificate. The representations and warranties of the
MLP and the OLP contained herein shall be true and correct in all material
respects as of the date of the Closing as though made on and as of the date of
the Closing, and each of the MLP and the OLP shall have furnished the General
Partner with a certificate, dated as of the date of the Closing and signed on
its behalf by a duly authorized officer, to the effect that its respective
representations and warranties are true and correct in all material respects as
of the date of the Closing.
11. Termination.
a. This Agreement and the rights and obligations of the
parties hereto shall automatically terminate and be of no further force and
effect if this Agreement and the transactions contemplated hereby do not receive
unitholder approval as contemplated in Section 10(a)(i) hereof.
b. This Agreement may be terminated by the MLP or the
General Partner if the Closing has not occurred by December 31, 2006.
12. Miscellaneous.
a. Amendments and Waivers. Amendments or modifications
to this Agreement may only be made, and compliance with any term, covenant,
agreement, condition or provision set forth herein may only be omitted or waived
(either generally or in a particular instance and either retroactively or
prospectively), upon the written consent of the MLP, the OLP and the General
Partner. Any action to be taken hereunder at the discretion of the MLP or the
Board of Supervisors of the MLP shall be taken at the direction of the Audit
Committee of the Board of Supervisors of the MLP.
b. Further Assurances. The parties hereto hereby agree
to enter into the amendments to the agreements referred to in Section 10(a)(ii)
hereof at the Closing. The General Partner further agrees it shall not sell,
transfer or otherwise dispose of the Exchange Holdings (whether directly or
indirectly, by merger, consolidation or otherwise) from and after the date
hereof except in accordance with this Agreement. From time to time, as and when
requested by the MLP or the OLP, the General Partner will execute and deliver,
or cause to be executed and delivered, all such documents and instruments as may
be reasonably necessary to consummate the transactions contemplated by this
Agreement.
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c. Entire Agreement. This Agreement and the Exhibits
hereto constitute the full and complete agreement of the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
d. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon the earlier of (i)
delivery thereof if by hand; (ii) receipt if sent by mail (registered or
certified mail, postage prepaid, return receipt requested); (iii) the second
business day after deposit if sent by a recognized overnight delivery service;
or (iv) transmission if sent by telecopy or facsimile transmission (with request
of assurance of receipt in a manner customary for communication of such type) as
follows:
If to the MLP:
Suburban Propane Partners, L.P.
000 Xxxxx 00 Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxx, General Counsel and Secretary
Facsimile No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the OLP:
Suburban Propane, L.P.
000 Xxxxx 00 Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxx, General Counsel and Secretary
Facsimile No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the General Partner:
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Suburban Energy Services Group LLC
000 Xxxxx 00 Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Block, Esq.
Facsimile No.: (000) 000-0000
e. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
regard to the conflict of laws rules thereof.
f. Assignment. This Agreement shall be binding upon the
MLP, the OLP and the General Partner and each of their respective successors and
permitted assigns. This Agreement may not be assigned by any party hereto
without the prior written consent of the other parties hereto.
g. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
h. Headings. The article and section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement.
i. Severability. In case any provision in this Agreement
shall be held invalid, illegal or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby.
j. Fees and Expenses. All fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees or expenses, whether or not the Closing
occurs.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Exchange Agreement
as of the date first written above.
SUBURBAN PROPANE PARTNERS, L.P.
By: /s/ XXXX X. XXXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
SUBURBAN PROPANE, L.P.
By: /s/ XXXX X. XXXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
SUBURBAN ENERGY SERVICES GROUP LLC
By: /s/ XXXX X. XXXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman
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