Exhibit 1.1
Draft of July 31, 2000
Suburban Propane Partners, L.P.
[2,175,000] Common Units
Representing Limited Partner Interests
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Underwriting Agreement
, 2000
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
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 Goldman, Sachs & Co. ("Goldman Sachs") an aggregate of
[2,175,000] common units (the "Firm Units") representing limited partner
interests in the Partnership (the "Common Units") and, at the election of
Goldman Sachs, up to [325,000] additional Common Units (the "Optional Units").
The Firm Units and the Optional Units that Goldman Sachs elects to purchase
pursuant to Section 2 hereof are collectively called the "Units."
The Partnership, Suburban Propane, L.P., a Delaware limited
partnership (the "Operating Partnership"), Suburban Energy Services Group LLC, a
Delaware limited liability company (the "General Partner"), Suburban Sales and
Service, Inc., a Delaware corporation (the "Service Company"), Suburban @ Home,
Inc., a Delaware corporation ("Suburban @ Home") and Gas Connection Inc., an
Oregon corporation ("Gas Connection"), are collectively referred to herein as
the "Partnership Entities."
1. The Partnership Entities represent and warrant to, and agree with,
Goldman Sachs that:
(a) A registration statement on Form S-3 (File No. 33-....) (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 Goldman Sachs, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus contained
therein, 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
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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, 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 Goldman
Sachs 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 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
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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 Goldman Sachs 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 Goldman Sachs expressly for use therein;
(e) None of the Partnership Entities has sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus any material 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, 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 capitalization or long-term
debt 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, unitholders' or stockholders'
equity or results of operations of the Partnership Entities, otherwise than as
set forth or contemplated in the Prospectus;
(f) Each of the Partnership Entities has good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, 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 interfere with the use
made and proposed to be made of such property by each of the Partnership
Entities; and any real property and buildings held under lease by a Partnership
Entity are held under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Partnership Entities;
(g) Each of the Partnership and the Operating Partnership is and at
each Time of Delivery (as defined in Section 3(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
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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, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction. 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 Goldman Sachs;
(h) 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, or is
subject to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction. 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 Goldman
Sachs;
(i) The Service Company 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 state of Delaware, 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, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction.
Complete and correct copies of the certificate of incorporation and the bylaws
of the Service Company, and all amendments thereto, have been delivered to
Goldman Sachs;
(j) Suburban @ Home 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 state of Delaware, 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, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction.
Complete and correct copies of the certificate of incorporation and the bylaws
of the Suburban @ Home, and all amendments thereto, have been delivered to
Goldman Sachs;
(k) Gas Connection 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 state of Oregon, 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
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as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction.
Complete and correct copies of the certificate of incorporation and the bylaws
of Gas Connection, and all amendments thereto, have been delivered to Goldman
Sachs;
(l) None of the Partnership Entities has any subsidiaries (other than
the Operating Partnership, the Service Company, Suburban @ Home and Gas
Connection) which, 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);
(m) The General Partner is the sole general partner of the
Partnership with a 1% 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, 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);
(n) 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);
(o) 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 certain provisions of the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act")); 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);
(p) [All] of the outstanding shares of capital stock of each of the
Service Company, Suburban @ Home and Gas Connection have been duly authorized
and are fully paid and nonassessable; and [all] of the issued shares of capital
stock of each of the Service Company, Suburban @ Home and Gas Connection are
registered on its books in the name of the Operating Partnership, free and clear
of all liens, encumbrances, security interests, equities, charges or other
claims;
(q) 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
non-assessable (except as nonassessability may be affected by certain provisions
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of the Delaware Act) and conform to the description of the Common Units
contained in the Prospectus;
(r) The unissued Units to be issued and sold by the Partnership to
Goldman Sachs 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 non-assessable and will conform to the
description of the Common Units contained in the Prospectus;
(s) The issue and sale of the Units by the Partnership and the
compliance by the Partnership Entities with all of the provisions of this
Agreement 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 any of the
Partnership Entities is a party or by which any of the Partnership Entities is
bound or to which any of the property or assets of the Partnership Entities is
subject, nor will such action result in any violation of the provisions of the
certificate of incorporation, by-laws, partnership agreement or limited
liability company agreement of any of the Partnership Entities or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Partnership Entities or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Units or the consummation by the Partnership Entities of the
transactions contemplated by this Agreement, 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 Goldman Sachs;
(t) 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 Entities, as of the respective dates thereof and the consolidated
results of operations and cash flows of the Partnership Entities 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
Entities;
(u) The execution and delivery of, and the performance by each of the
Partnership Entities of its obligations under this Agreement have been duly and
validly authorized by each of such Partnership Entities, as the case may be, and
this Agreement has been duly executed and delivered by each of the Partnership
Entities;
(v) None of the Partnership Entities 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,
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lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(w) 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, complete
and fair;
(x) There are no preemptive rights or other rights to subscribe for
or to purchase, nor any restrictions upon the voting or transfer of, any
partnership interests, member interests or shares of stock of any of the
Partnership Entities pursuant to any partnership agreement, limited liability
company agreement, any articles or certificates of incorporation or other
governing documents or any agreement or other instrument to which any of the
Partnership Entities is a party or by which any of such entities may be bound.
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
the Partnership Entities. There are no outstanding options or warrants to
purchase any Common Units or other securities of any of the Partnership
Entities. There are no rights entitling any holder of partnership interests of
the Partnership to cause the Partnership to register any of such interests;
(y) All of the Partnership Entities (i) are 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) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are 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, singly or in the aggregate, have a material
adverse effect upon the Partnership Entities taken as a whole;
(z) 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, singly
or in the aggregate, have a material adverse effect on the Partnership Entities,
taken as whole;
(aa) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Partnership Entities is a party or
of which any property of the Partnership Entities, is the subject which, if
determined adversely to the Partnership Entities, would individually or in the
aggregate have a material adverse effect on the current or future consolidated
financial position, unitholders' or stockholders' equity or results of
operations of the Partnership Entities; and, to the best of the Partnership
Entities' knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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(bb) None of the Partnership Entities is and, after giving effect to
the offering and sale of the Units, will not 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 and "affiliate" thereof, under
the Public Utility Holding Company Act of 1935, as amended (the "PUHCA");
(cc) None of the Partnership Entities 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; and
(dd) PricewaterhouseCoopers, 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 Goldman Sachs, and Goldman Sachs agrees
to purchase from the Partnership, at a purchase price per unit of
$................, [2,175,000] Firm Units and (b) in the event and to the extent
that Goldman Sachs shall exercise the election to purchase Optional Units as
provided below, the Partnership agrees to issue and sell to Goldman Sachs, and
Goldman Sachs agrees 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 Goldman Sachs so as to eliminate fractional shares).
The Partnership hereby grants to Goldman Sachs the right to purchase
at its election up to [325,000] Optional Units, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares 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 delivered, as determined by
Goldman Sachs but in no event earlier than the First Time of Delivery (as
defined in Section 3(a) hereof) or, unless Goldman Sachs 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 Goldman Sachs of the release of the Firm
Units, Goldman Sachs proposes to offer the Firm Units for sale upon the terms
and conditions set forth in the Prospectus.
(a) The Units to be purchased by Goldman Sachs hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman Sachs may request upon at least forty-eight hours' prior notice
to the Partnership shall be delivered by or on behalf of the Partnership to
Goldman Sachs through the facilities of the Depository Trust Company ("DTC"),
for the account of Goldman Sachs, against payment by or on behalf of Goldman
Sachs of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Partnership to Goldman Sachs 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
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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 ............., 2000 or such
other time and date as Goldman Sachs 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 Goldman Sachs in the written notice given by Goldman Sachs
its election to purchase such Optional Units, or such other time and date as
Goldman Sachs 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"; and
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 6 hereof, including the cross
receipt for the Units and any additional documents requested by Goldman Sachs
pursuant to Section 6(i) hereof, will be delivered at the offices of Vinson &
Elkins L.L.P., 1325 Avenue of the Americas, 17th floor, New York, New York 10019
(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 .......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 3, "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.
4. Each of the Partnership Entities agrees with Goldman Sachs:
(a) To prepare the Prospectus in a form approved by Goldman Sachs 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
the last Time of Delivery which shall be disapproved by Goldman Sachs promptly
after reasonable notice thereof; to advise Goldman Sachs, 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 Goldman Sachs
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 Goldman Sachs, 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;
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(b) Promptly from time to time to take such action as Goldman Sachs
may reasonably request to qualify the Units for offering and sale under the
securities laws of such jurisdictions as Goldman Sachs 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
Goldman Sachs with copies of the Prospectus in New York City in such quantities
as Goldman Sachs 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 Goldman Sachs and upon your request to file such document and to
prepare and furnish without charge to Goldman Sachs and to any dealer in
securities as many copies as Goldman Sachs 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
Goldman Sachs 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 and at the expense of Goldman Sachs, to prepare
and deliver to Goldman Sachs as many copies as Goldman Sachs may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its 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 Entities (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 unit
option 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;
(f) To furnish to its unitholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, unitholders' equity and cash flows of the Partnership
Entities certified by independent public accountants) and, as soon as
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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 Entities for such quarter in
reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to Goldman Sachs copies of all reports or
other communications (financial or other) furnished to unitholders, and to
deliver to Goldman Sachs (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 Goldman Sachs may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Partnership Entities 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
(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.
5. The Partnership Entities covenant and agree with Goldman Sachs
that the Partnership Entities 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 Goldman Sachs; (ii) the cost of printing or producing this Agreement,
the Blue Sky Memorandum, 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 4(b) hereof, including the fees and disbursements of counsel for Goldman
Sachs in connection with such qualification and in connection with the Blue Sky
survey; (iv) all fees and expenses in connection with listing the Units on The
New York Stock Exchange the filing fees incident to, and the fees and
disbursements of counsel for Goldman Sachs in connection with, the cost of
preparing unitholder certificates; (v) the cost and charges of any transfer
agent or registrar; and (vi) all other costs and expenses incident to the
performance of its 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 7 and 9 hereof, Goldman Sachs will pay
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all of its own costs and expenses, including the fees of its counsel, stock
transfer taxes on resale of any of the Units by it, and any advertising expenses
connected with any offers it may make.
6. The obligations of Goldman Sachs hereunder, as to the Units to be
delivered at each Time of Delivery, shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the
Partnership Entities herein are, at and as of such Time of Delivery, true and
correct, the condition that the Partnership Entities shall have performed all of
their 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 4(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) Vinson & Elkins L.L.P., counsel for Goldman Sachs, shall have
furnished to Goldman Sachs such written opinion (a draft of such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, with respect to
the matters covered in paragraphs [(i)], [(vi)], [(viii)], [(xi)], [(xv)],
[(xvi]) and [(xx)] of subsection (c) below as well as such other related matters
as Goldman Sachs 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 & Manges LLP, counsel for the Company, shall have
furnished to Goldman Sachs such written opinion or opinions (a draft of each
such opinion is attached as Annex II(b) hereto), dated such Time of Delivery, in
form and substance satisfactory to Goldman Sachs, to the effect that:
(i) The Partnership has been duly formed and 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 General Partner is the sole general partner of
the Partnership with a 1% 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,
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);
(iii) 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
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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);
(iv) 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 certain
provisions of the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act")); 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);
(v) [All] of the outstanding shares of capital stock of
each of the Service Company, Suburban @ Home and Gas
Connection have been duly authorized and are fully
paid and nonassessable; and [all] of the issued
shares of capital stock of each of the Service
Company, Suburban @ Home and Gas Connection are
registered on its books in the name of the Operating
Partnership, free and clear of all liens,
encumbrances, security interests, equities, charges
or other claims.
(vi) The Partnership has an authorized capitalization as
set forth in the Prospectus, and all of the issued
and outstanding Common Units of the Partnership
(including the Units being delivered at such Time of
Delivery) have been duly and validly authorized and
issued and are fully paid and non-assessable; and the
Units conform to the description of the Common Units
contained in the Prospectus;
(vii) The Partnership has been duly qualified as a foreign
partnership 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 or is subject to no material liability
or disability by reason of failure to be so qualified
in any such jurisdiction (such counsel being entitled
to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters
of fact upon certificates of officers of the
Partnership, provided that such counsel shall state
that they believe that both Goldman Sachs and they
are justified in relying upon such opinions and
certificates);
(viii) Each of the Operating Partnership, the General
Partner, the Service Company and Suburban @ Home has
been duly formed and is validly existing as a
partnership, a limited liability company or a
corporation in good standing under the laws of the
State of Delaware; and Gas Connection has been duly
formed and is validly existing as a corporation in
good standing under the laws of the State of Oregon;
and all of the issued shares of capital stock of each
such entity have been duly and validly authorized and
issued, are fully paid and non-assessable, and
(except for directors' qualifying shares and except
as otherwise set forth in the Prospectus) are owned
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directly or indirectly by the Partnership, free and
clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local
counsel and in respect to matters of fact upon
certificates of officers of the Partnership or its
subsidiaries, provided that such counsel shall state
that they believe that both Goldman Sachs and they
are justified in relying upon such opinions and
certificates;
(ix) Each of the Partnership Entities has good and
marketable title in fee simple to all real 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 interfere with the use made and proposed to be
made of such property by each of the Partnership
Entities; and any real property and buildings held
under lease by each of the Partnership Entities are
held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and
do not interfere with the use made and proposed to be
made of such property and buildings by each of the
Partnership Entities (in giving the opinion in this
clause, such counsel may state that no examination of
record titles for the purpose of such opinion has
been made, and that they are relying upon a general
review of the titles of each of the Partnership
Entities, upon opinions of local counsel and
abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of
acquisition of such property by any of the
Partnership Entities, upon opinions of counsel to the
lessors of such property and, in respect to matters
of fact, upon certificates of officers of any of the
Partnership Entities, provided that such counsel
shall state that they believe that both Goldman Sachs
and such counsel are justified in relying upon such
opinions, abstracts, reports, policies and
certificates);
(x) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which
any of the Partnership Entities is a party or of
which any property of any of the Partnership Entities
is the subject which, if determined adversely to any
of the Partnership Entities, would individually or in
the aggregate have a material adverse effect on the
current or future consolidated financial position,
unitholders' equity or results of operations of each
of the Partnership Entities; and, to the best of such
counsel's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others;
(xi) This Agreement has been duly authorized, executed and
delivered by the Partnership;
(xii) The issue and sale of the Units being delivered at
such Time of Delivery by the Partnership and the
compliance by the Partnership with all of the
provisions of this Agreement 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 known to such counsel to which any of the
Partnership Entities is a party or by which any of
the Partnership Entities is bound or to which any of
the property or assets of any of the Partnership
Entities is subject, nor will such action result in
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any violation of the provisions of the certificate of
incorporation, certificate of formation, by-laws,
partnership agreement or limited liability company
agreement of any of the Partnership Entities or any
statute or any order, rule or regulation known to
such counsel of any court or governmental agency or
body having jurisdiction over any of the Partnership
Entities or any of their properties;
(xiii) 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 each of the Partnership Entities of the
transactions contemplated by this Agreement, 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 Goldman
Sachs;
(xiv) None of the Partnership Entities 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;
(xv) 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, complete and fair;
(xvi) None 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;
(xvii) The Units to be issued and sold to Goldman Sachs by
the Partnership hereunder have been duly and validly
authorized by the Partnership and, when issued and
delivered to Goldman Sachs against payment therefor
in accordance with the terms hereof, will be validly
issued, fully paid and non-assessable, and free of
any preemptive or similar rights that entitle or will
entitle any person to acquire any partnership
interest in the Partnership, upon the issuance
thereof by the Partnership, arising under the
Partnership Agreement or, to the knowledge of such
counsel without any independent investigation, any
other agreement to which the Partnership is a party
or by which it is bound, and Goldman Sachs will
acquire the Units free and clear of any liens,
encumbrances, security interests, charges or claims
of record (A) in respect to which a financing
statement under the Uniform Commercial Code of the
State of Delaware naming the General Partner, the
Partnership or the Operating Partnership as debtor is
on file in the office the Secretary of State of the
State of Delaware or (B) otherwise known (based
solely upon its participation as counsel in matters
relating to the offering of the Units and without
having conducted an independent investigation) to
such counsel, except as created by this Agreement or
by Goldman Sachs or any person who acquires and
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<PAGE>
interest in the Units through Goldman Sachs or as
provided by the Delaware Act;
(xviii) 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, 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 and
(D) the enforceability of the indemnity and
contribution provisions of such document may be
limited by federal and state securities laws; the
Operating Partnership Agreement has been duly
authorized, executed and delivered by the General
Partner and the Partnership and is a valid and
legally binding agreement of the General Partner in
accordance with its terms, subject to the
qualifications that (A) 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 and
(D) the enforceability of the indemnity and
contribution provisions of such document may be
limited by federal and state securities laws;
(xix) The Registration Statement was 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 is pending, threatened
or contemplated. 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;
(xx) The documents incorporated by reference in the
Prospectus or any further amendment or supplement
thereto made by the Partnership prior to such Time of
Delivery (other than the financial statements and
related schedules therein, as to which such counsel
need express no opinion), when they became effective
or were filed with the Commission, as the case may
be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; and they have no reason to
believe that any of such documents, when such
documents became effective or were so filed, as the
case may be, contained, in the case of a registration
statement which became effective under the Act, 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
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misleading, or, in the case of other documents which
were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(xxi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by
the Partnership 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; although they do not assume
any responsibility for the accuracy, completeness or
fairness of the statements contained in the
Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection [(vi)]
of this section 6(c), they have no reason to believe
that, as of its effective date, the Registration
Statement or any further amendment thereto made by
the Partnership prior to such Time of Delivery (other
than the financial statements and related schedules
therein, as to which such counsel need express no
opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement
thereto made by the Partnership prior to such Time of
Delivery (other than the financial statements and
related schedules therein, as to which such counsel
need express no opinion) contained an untrue
statement of a material fact or omitted to state a
material fact necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading or that, as of
such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment
or supplement thereto made by the Partnership prior
to such Time of Delivery (other than the financial
statements and related schedules therein, as to which
such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state
a material fact necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; and they do not
know of any amendment to the Registration Statement
required to be filed or of any contracts or other
documents of a character required to be filed as an
exhibit to the Registration Statement or required to
be incorporated by reference into the Prospectus or
required to be described in the Registration
Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
(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
shall have furnished to Goldman Sachs a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to Goldman Sachs,
to the 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 and a draft of the form of letter to be delivered on the effective date
of any post-effective amendment to the Registration Statement and as of each
Time of Delivery is attached as Annex I(b) hereto);
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(e) (i) None 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, capital stock or long-term
debt of any of the Partnership Entities or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, unitholders' or stockholders' equity or results of
operations 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 Goldman Sachs 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;
(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 (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iv) in the
judgment of Goldman Sachs 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 shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement; and
(j) The Partnership shall have furnished or caused to be furnished to
Goldman Sachs at such Time of Delivery certificates of officers of the
Partnership satisfactory to Goldman Sachs 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 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 Goldman Sachs may reasonably request.
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7. (a) The Partnership Entities, jointly and severally, will
indemnify and hold harmless Goldman Sachs against any losses, claims, damages or
liabilities, joint or several, to which Goldman Sachs 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
Goldman Sachs for any legal or other expenses reasonably incurred by Goldman
Sachs in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Partnership Entities
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon 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 Goldman Sachs expressly for use therein;
(b) Goldman Sachs will indemnify and hold harmless the Partnership
Entities against any losses, claims, damages or liabilities to which 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 Entities by
Goldman Sachs expressly for use therein; and will reimburse the Partnership
Entities for any legal or other expenses reasonably incurred by the Partnership
Entities in connection with investigating or defending any such action or claim
as such expenses are incurred;
(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
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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 7 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
Goldman Sachs 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 Goldman Sachs 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 Goldman Sachs 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 Goldman Sachs, 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 Goldman Sachs 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
Goldman Sachs agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation 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), Goldman
Sachs shall not be required to contribute any amount in excess of the amount by
which the total price at which the Units were offer to the public exceeds the
amount of any damage which Goldman Sachs 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; and
20
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(e) The obligations of the Partnership Entities under this Section 7
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 Goldman Sachs within the meaning of the Act; and
the obligations of Goldman Sachs under this Section 7 shall be in addition to
any liability which Goldman Sachs may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Partnership and
to each person, if any, who controls the Partnership within the meaning of the
Act.
8. The respective indemnities, agreements, representations,
warranties and other statements of the Partnership Entities and Goldman Sachs,
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 Goldman Sachs or any controlling person of Goldman Sachs, or the
Partnership Entities, and shall survive delivery of and payment for the Units.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Partnership Entities in subsection (a) of Section 7 hereof, the
representations and warranties in subsections (b), (c) and (d) of Section 1
hereof and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Partnership Entities pursuant to Section 6 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Partnership Entities of expenses incurred or paid in the successful defense
of any action, suit or proceeding) arising under the Act, shall not extend to
the extent of any interest therein of a controlling person or partner of Goldman
Sachs who is a director, officer or controlling person of the Partnership when
the Registration Statement has become effective, except in each case to the
extent that an interest of such character shall have been determined by a court
of appropriate jurisdiction as not against public policy as expressed in the
Act. Unless in the opinion of counsel for the Partnership the matter has been
settled by controlling precedent, the Partnership Entities will, if a claim for
such indemnification is asserted, submit to a court of appropriate jurisdiction
the question of whether such interest is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
9. If for any reason any Units are not delivered by or on behalf of
the Partnership Entities as provided herein, the Partnership Entities will
reimburse Goldman Sachs for all out-of-pocket expenses approved in writing,
including fees and disbursements of counsel, reasonably incurred by Goldman
Sachs in making preparations for the purchase, sale and delivery of the Units
not so delivered, but the Partnership Entities shall then be under no further
liability to Goldman Sachs except as provided in Sections 5 and 7 hereof.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to Goldman Sachs shall be delivered or sent by mail, telex or
facsimile transmission to them at 32 Old Slip, 21st Floor, New York, New York
10005, 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. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
10. This Agreement shall be binding upon, and inure solely to the
benefit of, Goldman Sachs, the Partnership and, to the extent provided in
Sections 7 and 8 hereof, the officers and directors of the General Partner and
each person who controls the Partnership or Goldman Sachs, and their respective
21
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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 Goldman Sachs shall be deemed a successor or
assign by reason merely of such purchase.
11. 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.
12. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
13. 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.
22
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Partnership and for Goldman Sachs plus one for
each counsel counterparts hereof, and upon the acceptance hereof by Goldman
Sachs, this letter and such acceptance hereof shall constitute a binding
agreement between Goldman Sachs and the Partnership.
Very truly yours,
SUBURBAN PROPANE PARTNERS, L.P.
By: ..........................................
Name:
Title:
SUBURBAN PROPANE, L.P.
By: ..........................................
Name:
Title:
SUBURBAN ENERGY SERVICES GROUP, LLC
By: ..........................................
Name:
Title:
SUBURBAN SALES AND SERVICE, INC.
By: ..........................................
Name:
Title:
SUBURBAN @ HOME, INC.
By: ..........................................
Name:
Title:
GAS CONNECTION INC.
By: ..........................................
Name:
Title:
23
<PAGE>
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
BY:.......................................................
(Goldman, Sachs & Co.)
24
<PAGE>
ANNEX I
Pursuant to Section 6(d) of the Underwriting Agreement, the
accountants shall furnish letters to Goldman Sachs 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 furnished Goldman Sachs
(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 furnished to
Goldman Sachs; 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;
<PAGE>
(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;
F-2
<PAGE>
(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 capital stock (other than
issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference in the
Prospectus) or any increase in the consolidated
long-term debt of the Partnership and its
subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by Goldman Sachs, or any increases in any
items specified by Goldman Sachs, 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
net revenues or operating profit or the total or per
share amounts of consolidated net income or other
items specified by Goldman Sachs, or any increases in
any items specified by Goldman Sachs, in each case as
compared with the comparable period of the preceding
year and with any other period of corresponding
length specified by Goldman Sachs, 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 Goldman
Sachs 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 Goldman Sachs or in
documents incorporated by reference in the Prospectus
specified by Goldman Sachs, 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
