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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
SECURITIES EXCHANGE ACT OF 1934
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DATE OF THE EARLIEST EVENT REPORTED: NOVEMBER 14, 1996
NATIONAL PROPANE PARTNERS, L.P.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
Delaware 1-11867 42-1453040
(State or other jurisdiction of (Commission File No.) (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
Suite 1700, IES Tower, 200 1st Street, S.E.
Cedar Rapids, Iowa 52401-1409
(Address of principal executive offices) (Zip Code)
(319) 365-1550
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits
Filed herewith are certain agreements and documents entered into by or
otherwise relating to the Registrant and its subsidiaries.
(c) Exhibits.
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3.1 Amendment No. 1 to the Amended and Restated Agreement of Limited Partnership of National Propane,
L.P., dated November 1, 1996.
10.1 Purchase Agreement, dated November 7, 1996.
10.2 Registration Agreement, dated November 7, 1996.
99.1 National Propane Partners, L.P. Press Release, dated October 22, 1996, regarding quarterly
distribution.
99.2 National Propane Partners, L.P. Press Release, dated November 7, 1996, regarding sale of 400,000
common units.
</TABLE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONAL PROPANE PARTNERS, L.P.
By NATIONAL PROPANE CORPORATION,
AS MANAGING GENERAL PARTNER
By: /s/ Ronald R. Rominiecki
----------------------------------
Name: Ronald R. Roniniecki
Title: Senior Vice President and
Chief Financial Officer
Date: November 14, 1996
STATEMENT OF DIFFERENCES
The division sign shall be expressed as ..........[div]
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EXHIBIT INDEX
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<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
3.1 Amendment No. 1 to the Amended and Restated Agreement of Limited Partnership of National
Propane, L.P., dated as of November 1, 1996.
10.1 Purchase Agreement, dated November 7, 1996.
10.2 Registration Agreement, dated November 7, 1996.
99.1 National Propane Partners, L.P. Press Release, dated October 22, 1996, regarding quarterly
distribution.
99.2 National Propane Partners, L.P. Press Release, dated November 7, 1996, regarding sale of
400,000 common units.
</TABLE>
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AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
NATIONAL PROPANE, L.P.
This Amendment No. 1 to the Partnership Agreement of National Propane,
L.P. (the "Partnership") is hereby made as of this 1st day of November, 1996, by
and among National Propane Corporation, a Delaware corporation, as the Managing
General Partner, National Propane SGP, Inc., a Delaware corporation, as the
Special General Partner, and the limited partner of the Partnership.
W I T N E S S E T H:
WHEREAS, the Partnership was heretofore organized and now exists
pursuant to the Amended and Restated Agreement of Limited Partnership of
National Propane, L.P., dated as of July 2, 1996 (the "Partnership Agreement");
WHEREAS, Section 13.1 of the Partnership Agreement provides procedures
for the amendment of the Partnership Agreement by the Managing General Partner
without obtaining the approval of any Partner; and
WHEREAS, the Managing General Partner proposes to adopt an amendment to
the Partnership Agreement pursuant to the authority granted in such Section
13.1.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants of
the parties hereto and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as follows:
1. Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Partnership Agreement.
2. The Partnership Agreement is hereby amended as follows:
ARTICLE V is amended by deleting the reference in the second
sentence of Section 5.3 to "1.0101 [div] 98.9899" and
substituting therefore the following: "1.0101 [div] 97.9798."
3. Except as above set forth, all provisions of the Partnership
Agreement shall remain in full force and effect.
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MANAGING GENERAL PARTNER
National Propane Corporation
By: /s/ Ronald R. Rominiecki
_____________________________
Name: Ronald R. Rominiecki
Title: Senior Vice President
SPECIAL GENERAL PARTNER
National Propane SGP, Inc.
By: /s/ Ronald R. Rominiecki
_____________________________
Name: Ronald R. Rominiecki
Title: Senior Vice President
LIMITED PARTNER
The limited partner of the Partnership
pursuant to a Power of Attorney executed
in favor of, and granted and delivered
to, the Managing General Partner.
By: National Propane Corporation, the
Managing General Partner, as
attorney-in-fact for all Limited
Partners pursuant to the Power of
Attorney granted pursuant to
Section 2.6 of the Partnership
Agreement.
By: /s/ Ronald R. Rominiecki
_____________________________
Name: Ronald R. Rominiecki
Title: Senior Vice President
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400,000 Common Units
NATIONAL PROPANE PARTNERS, L.P.
(a Delaware partnership)
Common Units
Representing Limited Partner Interests
PURCHASE AGREEMENT
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
November 7, 1996
- --------------------------------------------------------------------------------
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400,000 Common Units
NATIONAL PROPANE PARTNERS, L.P.
(a Delaware limited partnership)
Common Units
(representing limited partner interests)
PURCHASE AGREEMENT
November 7, 1996
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
National Propane Partners, L.P., a Delaware limited partnership (the
"Partnership"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (collectively, "Merrill Lynch"), with
respect to the sale by the Partnership and the purchase by Merrill Lynch, of
400,000 common units representing limited partner interests in the Partnership
(the "Common Units"). The Common Units to be purchased hereunder are referred to
herein as the "Units".
(Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Registration Statement (as defined herein) which is a
part of the Disclosure Document (as defined herein)).
The Partnership (through the Operating Partnership (as hereinafter
defined)) was formed to acquire and operate substantially all of the business
and assets of National Propane Corporation. National Propane Corporation serves
as the managing general partner (the "General Partner") of both the Partnership
and National Propane, L.P., a Delaware limited partnership (the "Operating
Partnership"). National Propane SGP, Inc. serves as the non-managing general
partner (the "Special General Partner") of both the Partnership and the
Operating Partnership. The Partnership, the Operating Partnership, the General
Partner and the Special General Partner are collectively referred to herein as
the "Propane Entities." Triarc Companies, Inc. is referred to herein as
"Triarc."
Merrill Lynch will have the registration rights with respect to the
Units set forth in the Registration Agreement in the form of Exhibit A hereto
(the "Registration Agreement").
SECTION 1. Representations and Warranties.
(a) The Propane Entities jointly and severally represent and warrant to
you as follows (except as set forth in the Disclosure Document):
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(i) The Registration Statement on Form S-1 (Registration No.
333-2768), including the exhibits and schedules thereto, filed by the
Partnership with the Securities and Exchange Commission (the
"Commission") on March 26, 1996, as amended on May 14, 1996, May 31,
1996, June 11, 1996 and June 25, 1996 and including such information
deemed to be incorporated therein pursuant to Rule 430A of the 1933 Act
Regulations (as defined below) (the "Registration Statement"), as the
information in such Registration Statement has been amended,
supplemented or modified by the Form 10-Q (the "Form 10-Q") of the
Partnership dated August 19, 1996 and by the press release of the
Partnership dated July 2, 1996 and the press releases of Triarc dated
July 8, 1996, July 9, 1996, August 12, 1996, September 5, 1996 and
October 29, 1996 (collectively, the "Press Releases"), the Form 8-K/A of
Triarc (the "Form 8-K/A"), dated July 2, 1996, the Form 8-K of Triarc
(the "Form 8-K"), dated October 29, 1996, the Form 8-K of RC/Arby's
Corporation (the "RC-8-K"), dated October 29, 1996 and the Form 10-Q of
Triarc (the "Triarc 10-Q") dated August 14, 1996 (the Registration
Statement as so amended, supplemented and modified by the Form 10-Q, the
Press Releases, the Form 8-K/A, the Form 8-K, the RC-8-K, the Triarc
10-Q and Schedule I to this Agreement, being referred to herein
collectively as the "Disclosure Document"), does not contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Disclosure
Document made in reliance upon and in conformity with information
furnished to the Partnership in writing by Merrill Lynch or, in the case
of the Registration Statement, any other underwriter named therein,
expressly for use in the Disclosure Document.
(ii) Each of the statements made in the Disclosure Document (as
of the date when made) within the coverage of Rule 175(b) of the rules
and regulations (the "1933 Act Regulations") of the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933,
as amended (the "1933 Act"), including (but not limited to) any
statements with respect to future available cash or future cash
distributions of the Partnership, was made or will be made by the
General Partner or the Partnership, as the case may be, with a
reasonable basis and in good faith; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Disclosure Document made in reliance
upon and in conformity with information furnished to the Partnership in
writing by Merrill Lynch or, in the case of the Registration Statement,
any other underwriter named therein, expressly for use in the Disclosure
Document.
(iii) The accountants who certified the financial statements
included in the Disclosure Document are independent public accountants
as contemplated by the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements included in the Disclosure Document
together with any related schedules and notes, present fairly in all
material respects the financial position of the entities purported to be
shown thereby as of the dates indicated and the results of their
operations and cash flows for the periods specified; except as otherwise
stated in the Disclosure Document said financial statements have been
prepared in conformity with accounting principles generally accepted in
the United States ("GAAP") applied on a consistent basis throughout the
periods involved; the summary and selected financial data included in
the Disclosure Document have been compiled on a basis consistent with
that of the audited and unaudited historical
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financial statements and pro forma financial statements from which they
have been derived; the pro forma financial statements and the related
notes thereto included in the Disclosure Document with respect to the
Propane Entities present fairly in all material respects the information
shown therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements
(including the applicable accounting requirements of Rule 11-02 of
Regulation S-X) and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are, in the
judgment of the management of the Propane Entities, reasonable and the
adjustments used therein are, in the opinion of the judgment of the
Propane Entities, appropriate to give effect to the transactions and
circumstances referred to therein; provided, however, that such pro
forma financial statements and certain other financial statements are at
and for the period ended March 31, 1996 or June 30, 1996 and have not
been revised to reflect any events or circumstances since such date; and
any other financial and statistical information and data (other than
projections to the extent such projections are within the scope of
Section 1(a)(ii) hereof) included in the Disclosure Document are, in the
judgment of management of the Propane Entities, accurate in all material
respects and present in accordance with GAAP (to the extent applicable)
and on a basis consistent with the books and records of the General
Partner and the Partnership, the information required to be stated
therein.
(v) Since the respective dates as of which information is given
in the Disclosure Document, except as otherwise stated therein or
contemplated thereby, (A) none of the Propane Entities has sustained any
material loss or interference with its business from fire, explosion,
flood, accident or other calamity, whether or not covered by insurance,
(B) there has been no change, or any development involving a prospective
change, in the partners' capital or capital stock or any material change
in long-term or short-term debt of the Propane Entities, whether or not
arising in the ordinary course of business, (C) there have been no
transactions entered into by the Propane Entities, other than those in
the ordinary course of business, which are material with respect to the
Propane Entities taken as a whole, (D) there has been no dividend or
distribution of any kind declared, paid or made by any of the Propane
Entities on any class of their capital stock or units, as the case may
be, and (E) there are no liabilities or obligations of the Propane
Entities, direct or indirect, contingent or matured, which are material
to the Propane Entities taken as a whole, other than those reflected in
the Disclosure Document.
(vi) Each of the Partnership and the Operating Partnership (A)
has been duly formed and is validly existing as a limited partnership in
good standing under the Delaware Revised Uniform Limited Partnership Act
(the "Delaware Act"), with all partnership power and authority to (x)
own, lease and operate its properties and conduct its business in each
case as described in the Disclosure Document and (y) enter into and
perform its obligations under this Agreement and, with respect to the
Partnership, the Registration Agreement and issue and sell the Units as
provided herein and (B) is duly qualified or registered as a foreign
limited partnership authorized to do business and in good standing under
the laws of each jurisdiction in which the nature of its business or its
leasing or ownership of property requires such qualification or
registration, except where the failure to qualify or register would not
have a Material Adverse Effect. As used herein, a "Material Adverse
Effect" means (i) any material adverse effect on the business, condition
(financial or other), earnings, assets, liabilities, results of
operations or business prospects of the Propane Entities taken as a
whole or (ii) any event or occurrence which subjects the Propane
Entities to a liability or disability that is material to the Propane
Entities taken as a whole.
3
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(vii) The Special General Partner (A) has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of its state of incorporation, with all corporate power and authority to
(x) own its properties and act as non-managing general partner of the
Partnership and the Operating Partnership, in each case as described in
the Disclosure Document and (y) enter into and perform its obligations
under this Agreement, and (B) is duly qualified as a foreign corporation
authorized to do business and in good standing under the laws of each
jurisdiction in which the nature of its activities or its ownership of
property requires such qualification, except where the failure to
qualify would not have a Material Adverse Effect.
(viii) National Sales & Service, Inc., a subsidiary of the
Operating Partnership ("National Sales") (A) has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of its state of incorporation, with all corporate power and authority to
own, lease and operate its properties and conduct its business, in each
case as described in the Disclosure Document and (B) is duly qualified
as a foreign corporation authorized to do business and in good standing
under the laws of each jurisdiction in which the nature of its business
or its leasing or ownership of property requires such qualification,
except where the failure to qualify would not have a Material Adverse
Effect.
(ix) The General Partner (A) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
state of incorporation, with all corporate power and authority to (x)
own, lease and operate its properties, conduct its business and act as
general partner of the Partnership and the Operating Partnership, in
each case as described in the Disclosure Document and (y) enter into and
perform its obligations under this Agreement and (B) is duly qualified
as a foreign corporation authorized to do business and in good standing
in each jurisdiction in which the nature of its business or its leasing
or ownership of property requires such qualification, except where the
failure to qualify would not have a Material Adverse Effect.
(x) All of the shares of issued and outstanding capital stock of
the General Partner have been duly authorized and validly issued and are
fully paid and nonassessable, and, are owned by Triarc, directly or
through subsidiaries of Triarc, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity interest
(collectively, "Encumbrances"), other than Encumbrances in favor of the
Operating Partnership; at March 31, 1996, the Partnership would have had
on a pro forma basis the capitalization as set forth in the Prospectus
included in the Registration Statement which is part of the Disclosure
Document in the column entitled "Partnership Pro Forma" under the
caption "Capitalization."
(xi) The General Partner and the Special General Partner are the
sole general partners of the Partnership, each with a 1.0%
unsubordinated general partner interest in distributions from the
Partnership (other than upon liquidation) and, in the case of the
General Partner, the related incentive distribution rights in respect
thereof (the "GP Incentive Distribution Rights") pursuant to the Amended
and Restated Agreement of Limited Partnership of National Propane
Partners, L.P., dated as of July 2, 1996, among the General Partner, the
Special General Partner and Triarc, as organizational limited partner
(the "Partnership Agreement"); the General Partner and the Special
General Partner are the sole general partners of the Operating
Partnership, each with a 1.0101% unsubordinated general partner interest
in distributions from the Operating Partnership (other than upon
liquidation) pursuant to the Amended and Restated Agreement of Limited
Partnership of National Propane, L.P., dated as
4
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of July 2, 1996, among the General Partner, the Special General Partner
and the Partnership (as such agreement may have been amended prior to
the date hereof, the "Operating Partnership Agreement" and together with
the Partnership Agreement, the "Partnership Agreements"); all such
general partner interests have been duly authorized and have been
validly issued to the General Partner and the Special General Partner,
and are owned by the General Partner and the Special General Partner
free and clear of all Encumbrances, except for Encumbrances securing
obligations under the Operating Partnership's bank credit facility (the
"Bank Credit Facility"), the Note Agreements in respect of the First
Mortgage Notes due 2010 (the "Note Agreements") and other Parity Debt
(as defined in the Bank Credit Facility); and the GP Incentive
Distribution Rights have been duly authorized and have been validly
issued to the General Partner, and are owned by the General Partner, as
applicable, free and clear of all Encumbrances.
(xii) The Partnership is the sole limited partner of the
Operating Partnership with an approximately 97.9798% limited partner
interest in distributions from the Operating Partnership (other than
upon liquidation); such limited partner interest has been duly
authorized and validly issued in accordance with the Operating
Partnership Agreement, is fully paid (to the extent required by the
Operating Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Disclosure
Document under the caption "The Partnership Agreement -- Limited
Liability") and is owned by the Partnership free and clear of all
Encumbrances, except for Encumbrances securing obligations under the
Bank Credit Facility, the Note Agreements and other Parity Debt.
(xiii) All of the shares of issued and outstanding capital stock
of the Special General Partner and National Sales have been duly
authorized and validly issued and are fully paid and nonassessable, and
are owned by the General Partner and the Operating Partnership,
respectively, free and clear of all Encumbrances, except for
Encumbrances securing obligations under the Bank Credit Facility, the
Note Agreements and other Parity Debt.
(xiv) Upon consummation of the sale of the Units contemplated
hereby, the only outstanding limited partner interests of the
Partnership will be 6,701,550 Common Units (the 4,533,638 subordinated
units representing subordinated general partner interests in the
Partnership (the "Subordinated Units") held by the General Partner
representing a subordinated general partner interest which is
convertible pursuant to the Partnership Agreement); the outstanding
Common Units and the Subordinated Units, evidencing limited partner and
subordinated general partner interests, respectively, have been duly
authorized by the Partnership Agreement and validly issued and in the
case of the outstanding Common Units are fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described in the
Prospectus included in the Registration Statement which is part of the
Disclosure Document under the caption "The Partnership Agreement --
Limited Liability"); the Units to be sold hereunder, when issued and
delivered by the Partnership against payment of the consideration set
forth herein, will be duly authorized by the Partnership Agreement, will
be validly issued to Merrill Lynch and will be fully paid (to the extent
required by the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in the Prospectus
included in the Registration Statement which is part of the Disclosure
Document under the caption "The Partnership Agreement -- Limited
Liability"); the Subordinated Units are owned by the General Partner
free and clear of all Encumbrances other than Encumbrances in favor of
the Operating Partnership; and the Units to be issued and delivered to
Merrill Lynch will be acquired by
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Merrill Lynch free and clear of all Encumbrances created by the
Partnership other than restrictions on transfer under the Partnership
Agreement.
(xv) Except as described in the Disclosure Document, there are no
preemptive rights or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any partnership
interests or shares of capital stock of any of the Propane Entities
pursuant to the provisions of the certificate of incorporation, bylaws,
agreement of limited partnership or other governing documents or any
agreement or other instrument to which any of the Propane Entities is a
party or by which any of them may be bound. The Units, when issued and
delivered by the Partnership against payment of the consideration set
forth herein, the outstanding Common Units, the Subordinated Units, the
unsubordinated general partner interests in the Partnership and the GP
Incentive Distribution Rights, conform in all material respects to the
description thereof contained in the Disclosure Document. Except as
described in the Disclosure Document, there are no outstanding options,
warrants, or other rights calling for the issuance of, and no
commitments, plans or arrangements to issue, any Common Units or
Subordinated Units or any security convertible into or exercisable or
exchangeable for Common Units or Subordinated Units.
(xvi) This Agreement and the Registration Agreement have been
duly authorized, executed and delivered by the Propane Entities, as
applicable, and are the valid and legally binding agreements of the
Propane Entities, as applicable, enforceable against each of them in
accordance with their terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws relating to or affecting
creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (B) rights to indemnity or contribution may be
limited by federal or state securities laws or the public policy
underlying such laws.
(xvii) The Partnership Agreement has been duly authorized,
executed and delivered by the General Partner, the Special General
Partner and Triarc as the organizational limited partner and is a valid
and legally binding agreement of the General Partner, the Special
General Partner and Triarc as the organizational limited partner,
enforceable against each of them in accordance with its terms; the
Operating Partnership Agreement has been duly authorized, executed and
delivered by the General Partner, the Special General Partner and the
Partnership and is a valid and legally binding agreement of the General
Partner, the Special General Partner and the Partnership, enforceable
against each of them in accordance with its terms; provided that, with
respect to each agreement described in this paragraph (xvii), the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or similar laws
relating to or affecting creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(xviii) At or prior to Closing Time, all material actions
required to be taken by any of the Propane Entities for the
authorization, issuance, sale and delivery of the Units and the
consummation of the transactions contemplated by this Agreement shall
have been validly taken.
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(xix) The Partnership, the Operating Partnership and National
Sales have, (1) good and marketable title to the real properties owned
by them in fee simple, other than certain real properties not material
to the business or operations of the Partnership, the Operating
Partnership or National Sales, title to which has not yet been conveyed
to them, (2) good and valid leasehold interests in the real property
leased by them, other than certain immaterial leased property subject to
the Agency Agreement, dated as of July 2, 1996, between the Special
General Partner and the Operating Partnership, and certain other
immaterial leased property as to which the Partnership, the Operating
Partnership or National Sales shall otherwise enjoy undisturbed
possession thereof and (3) good and sufficient title to the personal
property owned by them for the use and operation of such personal
property as it has been used in the past and as it is proposed to be
used by such entities, other than certain immaterial personal property
which will be subject to the Agency Agreement, in each case free and
clear of all Encumbrances except such as (A) are described in the
Disclosure Document, (B) do not materially affect the use made or
proposed to be made of such properties taken as a whole, (C) secure
obligations under the Bank Credit Facility and the Note Agreements, (D)
are set forth in the title policies in respect of certain properties
securing obligations under the Bank Credit Facility and the Note
Agreements or (E) are otherwise permitted under the Bank Credit Facility
and the Note Agreements; all of the material leases and subleases under
which the Partnership, the Operating Partnership or National Sales holds
the properties described in the Disclosure Document are valid and
subsisting and in full force and effect with such exceptions as do not
materially interfere with the use made or proposed to be made of such
properties taken as a whole; none of the Partnership, the Operating
Partnership or National Sales has any notice of any claim of any sort
that has been asserted by anyone adverse to the rights of or affecting
or questioning the rights of the Partnership, the Operating Partnership
or National Sales, as applicable, to the continued possession of the
leased or subleased premises under any such lease or sublease with such
exceptions as do not materially interfere with the use made or proposed
to be made of such properties taken as a whole. After giving effect to
the Agency Agreement, the Partnership, the Operating Partnership and
National Sales have succeeded in all material respects to the business,
assets, property and operations reflected in the pro forma financial
statements of the Partnership, except as disclosed in the Disclosure
Document.
(xx) None of the Propane Entities is (A) in breach or violation
of the provisions of its certificate of incorporation, bylaws, agreement
of limited partnership or other governing documents, (B) in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other instrument to which any
of such entities is a party or by which any of them may be bound, or to
which any of the property or assets of any of them is subject
(collectively, the "Agreements and Instruments") or (C) in violation of
any applicable law or statute or any rule or regulation or judgment,
order, writ or decree of any court, domestic or foreign, or governmental
agency or body having jurisdiction over them or any of their properties,
except in each case, for such breaches, violations or defaults which
would not, either singly or in the aggregate, have a Material Adverse
Effect; to the knowledge of the Propane Entities, no event has occurred
which with notice or lapse of time or both would constitute such a
breach, violation or default.
(xxi) None of the execution and delivery by the Propane Entities
of and the performance of their obligations under this Agreement and the
Registration Agreement, as applicable, and the issuance and sale of the
Units as contemplated herein or therein (including
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the use of the proceeds from the sale of the Units), will (in each case,
whether or not with notice or lapse of time or both) (i) result in any
breach or violation of the provisions of the certificate of
incorporation, bylaws, agreement of limited partnership or other
governing documents of any of the Propane Entities, (ii) conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any Encumbrance
upon any property or assets of the Propane Entities pursuant to any
Agreements and Instruments, except for (A) Encumbrances described in the
Disclosure Document or (B) conflicts, breaches, Repayment Events or
Encumbrances that would not, singly or in the aggregate, have a Material
Adverse Effect or (iii) result in the violation of any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over any of the Propane Entities or any of their
assets or properties, except where such violations would not, singly or
in the aggregate, have a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Propane Entities.
(xxii) No filing with, permit, consent, approval, license,
registration, qualification, authorization or order or decree
(collectively, the "Consents") of any court, governmental agency or body
or financial institution, is required of any of the Propane Entities in
connection with the execution, delivery and performance of this
Agreement and the Registration Agreement and the issuance and sale of
the Units as contemplated herein and therein, except such Consents (A)
as are required under the 1933 Act, the 1933 Act Regulations, the
Securities Exchange Act of 1934 (the "1934 Act"), the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), or the securities or "blue sky" laws of certain
jurisdictions pursuant to the Registration Agreement and (B) which, if
not obtained, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xxiii) No labor dispute with the employees of the Propane
Entities exists or, to the knowledge of the Propane Entities, is
imminent, in either case, which could reasonably be expected to have a
Material Adverse Effect, and to the knowledge of the Propane Entities
(without independent inquiry), there is no existing or imminent labor
disturbance by the employees of any of the principal suppliers,
manufacturers, customers or contractors of the Propane Entities which
could reasonably be expected to have a Material Adverse Effect.
(xxiv) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending or, to the knowledge of the Propane
Entities, threatened against or affecting the Propane Entities, which is
required to be disclosed in the Disclosure Document (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect (other than as disclosed in the Disclosure
Document); all pending legal or governmental proceedings to which any of
the Propane Entities is a party or of which any of their respective
property or assets is the subject are described in the Disclosure
Document, other than those proceedings (including ordinary routine
litigation incidental to the business) that could not reasonably be
expected to have a Material Adverse Effect.
(xxv) The Partnership, the Operating Partnership and National
Sales own or possess, or are able to acquire on reasonable terms, the
patents, patent rights, licenses, inventions,
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copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names described in the
Disclosure Document as being owned by them or necessary for the conduct
of their respective businesses (collectively, "patent and proprietary
rights"); no such entity has received or is aware of any notice of any
infringement of or conflict with asserted rights of others with respect
to any patent or proprietary rights, or any facts which would render any
patent and proprietary rights invalid or inadequate to protect the
interest of such entities therein, and which infringement or conflict or
invalidity or inadequacy, singly or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
(xxvi) The Partnership, the Operating Partnership and National
Sales possess such certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as
are necessary to conduct the business operated by them except for any of
the foregoing the absence of which would not have a Material Adverse
Effect, and no such entity has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
(xxvii) None of the Propane Entities or Triarc is (a) deemed to
be a "gas utility company" within the meaning of Section 2(a)(4) of the
Public Utility Holding Company Act of 1935, as amended ("PUHCA"), (b) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" thereof, within the meaning of PUHCA or (c) an "investment
company" or a company "controlled by" an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder.
(xxviii)Except as set forth in the Disclosure Document, the
Propane Entities are in material compliance with all applicable existing
federal, state, local and foreign laws and regulations relating to
protection of human health or the environment or imposing liability or
standards of conduct concerning any Hazardous Material (as hereinafter
defined) ("Environmental Laws"), except, in each case, where such
noncompliance, singly or in the aggregate, would not have a Material
Adverse Effect. The term "Hazardous Material" means (A) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (B) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act, as
amended, (C) any petroleum or petroleum product, (D) any polychlorinated
biphenyl, and (E) any pollutant or contaminant or hazardous or toxic
chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law.
(xxix) There is no alleged liability, or to the knowledge of the
Propane Entities, circumstance or condition which is reasonably likely
to result in any liability (including, in either case, without
limitation, liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property
damages, personal injuries, or penalties), of the Propane Entities
arising out of, based on or resulting from (A) the presence or release
into the environment of any Hazardous Material at any location, whether
or not owned by the Propane Entities or (B) any violation or alleged
violation of any Environmental Law, which liability is not disclosed in
the Disclosure Document and which liability, singly or in the aggregate,
would have a Material Adverse Effect.
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(xxx) Each of the Propane Entities is in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Propane Entities
could reasonably be expected to have any material liability under Title
IV of ERISA; the Propane Entities have not incurred and, to the
knowledge of the Propane Entities, there is no pending or threatened
material liability of the Propane Entities under (A) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan"
or (B) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Propane
Entities would have any material liability that is intended to be
qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified in all material respects and
to the knowledge of the Propane Entities nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(xxxi) Each of the Propane Entities has filed all federal income
tax returns and all other material tax returns, domestic or foreign,
required to be filed by it through the date hereof and has paid all
federal taxes and assessments shown to be due on such returns and all
other material taxes and assessments, domestic and foreign, in each case
payable by it which have become due, other than those not yet delinquent
and except for those contested in good faith and for which adequate
reserves have been provided in accordance with GAAP.
(xxxii) Assuming the accuracy of your representations and
warranties contained in Section 2, the issuance and delivery of the
Units to Merrill Lynch is exempt from the registration requirements of
the 1933 Act and the securities laws of any state having jurisdiction
with respect thereto, and none of the Propane Entities has taken or will
take any action that would cause the loss of such exemption.
(xxxiii)The General Partner has (excluding its interests in the
Partnership and the Operating Partnership and any notes or receivables
from or payable to the Partnership and the Operating Partnership) a net
worth of at least $15,000,000. For purposes of this representation,
assets will be valued at fair market value, and the General Partner's
interest in the Partnership and the Operating Partnership (as general
partner, limited partner and creditor) shall not be taken into account
except as an offset to the Partnership's or the Operating Partnership's
liabilities that are taken into account in computing such net worth.
(b) Any certificate signed by any officer of any of the Propane Entities
and delivered to you or your counsel on or after the date hereof in connection
with this Agreement shall be deemed a representation and warranty by the Propane
Entities to you as to the matters covered thereby.
SECTION 2. Merrill Lynch's Representations; Legends.
(a) You represent that you are purchasing the Units for your own account
and not with a view to, or for offer or sale in connection with, any
distribution thereof (within the meaning of the 1933 Act) that would be in
violation of the 1933 Act, without prejudice, however, to your right at all
times to sell or otherwise dispose of all or any part of the Units under a
registration under the 1933 Act or
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under an exemption from such registration available under the 1933 Act, and
subject, nevertheless, to the disposition of your property being at all times
within your control.
You further represent that you are knowledgeable, sophisticated and
experienced in business and financial matters and are capable of evaluating the
merits and risks of the acquisition of the Units; that you have previously
invested in securities similar to the Units and fully understand the limitations
on transfer described in Section 2(b) hereof; that you are able to bear the
economic risk of your investment in the Units and are presently able to afford
the complete loss of such investment.
You understand that the Units have not been registered under the 1933
Act and may not be sold or otherwise disposed of except pursuant to an effective
registration statement or pursuant to an available exemption from such
registration requirements.
You further represent that you are an "accredited investor" (as such
term is defined in Rule 501(a) of Regulation D under the 1933 Act).
You acknowledge receipt of the Disclosure Document and further
acknowledge that you have been afforded the opportunity to ask such questions as
you have deemed necessary of, and to receive answers from, representatives of
the Partnership concerning the terms and conditions of the offering of the Units
and the merits and risks of investing in the Units.
You also understand that the Partnership and, for purposes of the
opinions to be delivered pursuant to Section 5 hereof, Paul, Weiss, Rifkind,
Wharton & Garrison, will rely upon the accuracy and truth of the foregoing
representations and you hereby consent to such reliance.
(b) Upon original issuance thereof, and until such time as the same is
no longer required under the applicable requirements of the 1933 Act, the Units
shall bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES OR THE PARTNERSHIP RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF SUCH SECURITIES REASONABLY SATISFACTORY TO THE
PARTNERSHIP STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT."
SECTION 3. Sale and Delivery to Merrill Lynch Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Partnership agrees
to sell to Merrill Lynch, and Merrill Lynch agrees to purchase from the
Partnership, 400,000 Units at the price of $21.00 per Unit, for an aggregate
purchase price of $8,400,000.
(b) Concurrently with the closing of the transactions contemplated by
this Agreement, the Partnership will pay to Merrill Lynch a fee in an amount
equal to $588,000.
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(c) Payment of the purchase price for, and delivery of certificates for,
the Units and payment of the fee referred to in Section 3(b) hereof shall be
made at the office of Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of
the Americas, New York, New York 10019, at 10:00 A.M. on November 7, 1996, or at
such other place and time as shall be agreed upon by you and the Partnership
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Partnership by same-day funds payable to the order
of the Partnership, in an amount equal to the purchase price in respect of the
Units ($8,400,000) less the fee referred to in Section 3(b) hereof ($588,000)
for a net payment of $7,812,000, against delivery to you of the Units to be
purchased by you. Certificates for the Units shall be in such denominations and
registered in your name or the name of such nominee or nominees as you may
request.
(d) The Units will share equally with the outstanding Common Units in
all distributions by the Partnership, including any distribution in respect of
the quarterly period ending December 31, 1996.
SECTION 4. Payment of Expenses. The Propane Entities will pay all
expenses incident to the transactions contemplated by this Agreement, including
(i) the preparation of the Disclosure Document, (ii) the preparation of this
Agreement, the Registration Agreement and such other documents as may be
required in connection with the purchase, sale and delivery of the Units, (iii)
the preparation, issuance and delivery of the certificates for the Units to
Merrill Lynch, including any transfer taxes or duties payable upon the sale of
the Units to Merrill Lynch, (iv) the fees and disbursements of counsel for the
Propane Entities, accountants and other advisors, (v) the out-of-pocket expenses
of Merrill Lynch in connection with the transactions contemplated by this
Agreement, including the reasonable fees and disbursements of counsel for
Merrill Lynch and (vi) the performance by the Propane Entities of their other
obligations under this Agreement and the Registration Agreement; provided, that
the amount payable by the Partnership in respect of the out-of-pocket fees and
expenses incurred by Merrill Lynch in connection with this Agreement, and
incurred by Merrill Lynch or its affiliates in connection with the Registration
Agreement and the transactions contemplated thereby, including, without
limitation, the fees and expenses of counsel for such persons, shall not exceed
$125,000.
SECTION 5. Conditions of Merrill Lynch's Obligations.
(a) The obligations of Merrill Lynch hereunder are subject to the
accuracy of the representations and warranties of the Propane Entities herein
contained, to the performance in all material respects by the Propane Entities
of their obligations hereunder to be performed prior to the Closing Time, and to
the following further conditions:
(i) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Paul, Weiss, Rifkind Wharton & Garrison, counsel for the Propane
Entities, in form and substance reasonably satisfactory to your
counsel, to the effect that:
A. Each of the Partnership and the Operating
Partnership has been duly formed and is validly existing
as a limited partnership in good standing under the
Delaware Act, with all partnership power and authority to
(x) own, lease and operate its properties and conduct its
business, in each case as described in the Registration
Statement and (y) enter into and perform its
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obligations under this Agreement and, with respect to the
Partnership, the Registration Agreement and with respect
to the Partnership, issue and sell the Units as provided
herein and therein.
B. The Special General Partner has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of its state of
incorporation, with all corporate power and authority to
(x) own its properties and act as non-managing general
partner of the Partnership and the Operating Partnership,
in each case as described in the Registration Statement
and (y) enter into and perform its obligations under this
Agreement.
C. National Sales has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of its state of incorporation, with all corporate
power and authority to own, lease and operate its
properties and conduct its business in each case as
described in the Registration Statement.
D. The General Partner has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of its state of incorporation, with all
corporate power and authority to (x) own, lease and
operate its properties, conduct its business and act as
general partner of the Partnership and the Operating
Partnership, in each case as described in the Registration
Statement and (y) enter into and perform its obligations
under this Agreement.
E. All of the shares of issued and outstanding
capital stock of the General Partner have been duly
authorized and validly issued and are fully paid and
nonassessable, and are owned of record and to such
counsel's knowledge beneficially, by Triarc, directly or
through subsidiaries of Triarc, free and clear of all
Encumbrances (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware
naming Triarc as a debtor is on file in the office of the
Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel without independent
inquiry, except for Encumbrances created by or arising
under the General Corporation Law of the State of Delaware
(the "DGCL") or Encumbrances in favor of the Operating
Partnership created under the Triarc Note.
F. All of the unsubordinated general partner
interests in the Partnership and the Operating Partnership
are owned of record and to such counsel's knowledge
beneficially, by the General Partner and the Special
General Partner, and the GP Incentive Distribution Rights
are owned of record and, to such counsel's knowledge,
beneficially, by the General Partner, in each case, free
and clear of all Encumbrances (i) in respect of which a
financing statement under the Uniform Commercial Code of
the State of Delaware naming the General Partner or the
Special General Partner, as the case may be, as a debtor
is on file in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel
without independent inquiry, except for Encumbrances
created by or arising under the Delaware Act or
restrictions on transfer under the Partnership Agreement,
and except for
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Encumbrances securing obligations under the Bank Credit
Facility, the Note Agreements and other Parity Debt with
respect to the unsubordinated general partner interests
held by the General Partner and the Special General
Partner.
G. All of the limited partner interests in the
Operating Partnership are owned of record and to such
counsel's knowledge beneficially, by the Partnership free
and clear of all Encumbrances (i) in respect of which a
financing statement under the Uniform Commercial Code of
the State of Delaware naming the Partnership as debtor is
on file in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel
without independent inquiry, except for Encumbrances
created by or arising under the Delaware Act or
restrictions on transfer under the Operating Partnership
Agreement, and except for Encumbrances securing
obligations under the Bank Credit Facility, the Note
Agreements and other Parity Debt.
H. All of the shares of issued and outstanding
capital stock of the Special General Partner and National
Sales have been duly authorized and validly issued and are
fully paid and nonassessable, and are owned of record and
to such counsel's knowledge beneficially, by the General
Partner and the Operating Partnership, respectively, free
and clear of all Encumbrances (i) in respect of which a
financing statement under the Uniform Commercial Code of
the State of Delaware naming the General Partner or the
Operating Partnership, respectively, as a debtor is on
file in the office of the Secretary of State of the State
of Delaware or (ii) otherwise known to such counsel
without independent inquiry, except for Encumbrances
created by or arising under the DGCL, and except for
Encumbrances securing obligations under the Bank Credit
Facility, the Note Agreements and other Parity Debt.
I. The Units, when issued and delivered by the
Partnership against payment of the consideration set forth
herein, will be acquired by Merrill Lynch free and clear
of all Encumbrances created by the Partnership, other than
restrictions on transfer under the Partnership Agreement.
J. The Subordinated Units are owned by the General
Partner, free and clear of all Encumbrances (i) in respect
of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the
General Partner is on file in the office of the Secretary
of State of the State of Delaware or (ii) otherwise known
to such counsel without independent inquiry, except for
Encumbrances created by or arising under the Delaware Act
or under the Triarc Note or restrictions on transfer under
the Partnership Agreement.
K. Except as described in the Disclosure Document,
there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any partnership interests in the
Partnership or the Operating Partnership pursuant to the
provisions of the Partnership Agreements or any Agreement
or Instrument to which any of the Propane Entities is a
party or by which any of them may be bound that is filed
as an exhibit to the Registration Statement. Except as
described in the
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Disclosure Document, 9 to such counsel's knowledge, as of
July 2, 1996 there were no outstanding options, warrants
or other rights calling for the issuance of, and no
commitments, plans or arrangements to issue, any Common
Units or Subordinated Units or any security convertible
into or exercisable or exchangeable for Common Units or
Subordinated Units.
L. This Agreement and the Registration Agreement
have each been duly authorized, executed and delivered by
the Propane Entities, as applicable, and the Registration
Agreement is the valid and legally binding agreement of
the Partnership, enforceable against the Partnership in
accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws relating to or affecting
creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (B)
rights to indemnity or contribution may be limited by
federal or state securities laws or the public policy
underlying such laws.
M. None of the execution and delivery by the
Propane Entities of and the performance of their
obligations under this Agreement and the Registration
Agreement and the issuance and sale of the Units as
contemplated herein or therein will (in each case, whether
or not with notice or lapse of time or both) (i) result in
any breach or violation of the provisions of the
certificate of incorporation or bylaws of any of the
General Partner, the Special General Partner or National
Sales, (ii) conflict with or constitute a breach of, or
default or Repayment Event under, or result in the
creation or imposition of any Encumbrance upon any
property or assets of the Propane Entities pursuant to any
material Agreements and Instruments in effect on the date
of the opinion that have been filed as exhibits to the
Registration Statement, except for (A) Encumbrances
described in the Disclosure Document and (B) conflicts,
breaches, Repayment Events or Encumbrances that would not,
singly or in the aggregate, have a Material Adverse Effect
or (iii) result in the violation of (A) the DGCL or any
applicable New York State law, statute, rule or regulation
(except with respect to permits and approvals required in
New York State for the operation of the business of the
Propane Entities) or Federal law, statute, rule or
regulation or (B) any judgment, order, writ or decree
known to such counsel (it being understood that such
counsel has not conducted any inquiry subsequent to July
2, 1996 in respect of such judgments, orders, writs or
decrees) of any New York State or Federal government,
government instrumentality or court, having jurisdiction
over any of the Propane Entities or any of their assets or
properties, except where such violations would not, singly
or in the aggregate, have a Material Adverse Effect.
N. No Consent of any New York or Federal court,
governmental agency or body or under the DGCL or the
Delaware Act is required of any of the Propane Entities in
connection with the execution, delivery and performance of
this Agreement and the Registration Agreement and the
issuance and sale of the Units as contemplated herein and
therein, except such Consents (A) as are
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required in the State of New York for the operation of the
business of the Propane Entities, (B) as are required
under the 1933 Act, the 1933 Act Regulations, the 1934
Act, the 1934 Act Regulations or securities or "blue sky"
laws of certain jurisdictions pursuant to the Registration
Agreement, or (C) which, if not obtained, would not,
individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
O. Assuming the accuracy of Merrill Lynch's
representations and warranties in Section 2 of the
Agreement, the issuance and delivery of the Units to
Merrill Lynch pursuant hereto is exempt from the
registration requirements of the 1933 Act.
P. To such counsel's knowledge, as of July 2, 1996,
there was no action, suit, proceeding, inquiry or
investigation before or by any court or governmental
agency or body, domestic or foreign, pending or threatened
against or affecting the Propane Entities, which was
required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse
Effect (except as disclosed in the Registration
Statement).
Q. To such counsel's knowledge, as of July 2, 1996
none of the Propane Entities was in breach or violation of
the provisions of its certificate of incorporation,
bylaws, agreement of limited partnership or other
governing documents.
R. The statements in the Prospectus included in the
Registration Statement which is part of the Disclosure
Document under the captions "Cash Distribution Policy --
Partnership Loan", "Management's Discussion and Analysis
of Financial Condition and Results of Operations --
Contingencies" (other than the second paragraph thereof),
"-- Description of Indebtedness", "Business and Properties
-- Government Regulation" and "-- Litigation and
Contingent Liabilities", insofar as such statements
constitute a summary of the debt instruments or legal
matters or proceedings referred to therein, fairly and
accurately presented in all material respects the
information set forth therein with respect to such
documents, legal matters and proceedings as of July 2,
1996.
S. As of July 2, 1996, Triarc was not an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and
regulations thereunder.
In rendering such opinion, counsel may rely as to factual
matters upon certificates or written statements from officers or other
appropriate representatives of the Propane Entities or Triarc or upon
certificates of public officials and need not express any opinion with
regard to the laws of any jurisdiction other than the federal law of the
United States (except that such counsel need not opine on the Federal
Motor Safety Carrier Act and, except in paragraph S, the 1940 Act and
PUHCA), the law of the State of New York (except
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that such counsel need not opine on state and municipal fire safety
codes and permits), the DGCL and the Delaware Act.
(2) The favorable opinion, dated as of Closing Time, of
Andrews & Kurth L.L.P., counsel for the Propane Entities, in form
and substance reasonably satisfactory to your counsel, to the
effect that:
A. The Partnership Agreement has been duly
authorized, executed and delivered by the General Partner,
the Special General Partner and Triarc, as the
organizational limited partner, and is a valid and legally
binding agreement of the General Partner, the Special
General Partner and Triarc, as the organizational limited
partner, enforceable against each of them in accordance
with its terms; the Operating Partnership Agreement has
been duly authorized, executed and delivered by the
General Partner, the Special General Partner and the
Partnership and is a valid and legally binding agreement
of the General Partner, the Special General Partner and
the Partnership, enforceable against each of them in
accordance with its terms; provided that, enforceability
of the Partnership Agreements may be limited by (i)
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or
affecting creditors' rights generally, (ii) public policy,
applicable law relating to fiduciary duties and the
judicial imposition of an implied covenant of good faith
and fair dealing and (iii) general equitable principles
(regardless of whether such enforceability is considered
in a proceeding in equity or at law).
B. The General Partner and the Special General
Partner are the sole general partners of the Partnership
and the Operating Partnership, each with a 1.0%
unsubordinated general partner interest in distributions
from the Partnership (other than upon liquidation)
pursuant to the Partnership Agreement and a 1.0101%
unsubordinated general partner interest in distributions
from the Operating Partnership (other than upon
liquidation) pursuant to the Operating Partnership
Agreement; all such general partner interests and the GP
Incentive Distribution Rights have been duly authorized by
the Partnership Agreements and were validly issued to the
General Partner and the Special General Partner, as the
case may be, in accordance with the Partnership
Agreements.
C. The Partnership is the sole limited partner of
the Operating Partnership with an approximately 97.9798%
limited partner interest in distributions from the
Operating Partnership (other than upon liquidation); such
limited partner interest in the Operating Partnership has
been duly authorized by the Operating Partnership
Agreement, was validly issued in accordance with the
Operating Partnership Agreement, and is fully paid (to the
extent required by the Operating Partnership Agreement)
and nonassessable (except as such nonassessability may be
affected by matters described in the Prospectus included
in the Registration Statement which is a part of the
Disclosure Document under the caption "The Partnership
Agreement -- Limited Liability").
D. The Units to be issued and sold to Merrill Lynch
by the Partnership and the limited partner interest
represented thereby are duly
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authorized by the Partnership Agreement and, when issued
and delivered by the Partnership against payment of the
consideration set forth in this Agreement, will be validly
issued to Merrill Lynch in accordance with the Partnership
Agreement, fully paid (to the extent required by the
Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in
the Prospectus included in the Registration Statement
which is a part of the Disclosure Document under the
caption "The Partnership Agreement -- Limited Liability");
on the date hereof, the Units, together with 6,301,550
outstanding Common Units, are the only limited partner
interests of the Partnership.
E. The 4,533,638 Subordinated Units and the GP
Incentive Distribution Rights issued to the General
Partner and the subordinated general partner interests
represented thereby have been duly authorized by the
Partnership Agreement and were validly issued to the
General Partner in accordance with the Partnership
Agreement.
F. None of the execution and delivery by the
Propane Entities of and the performance of their
obligations under this Agreement and the Registration
Agreement and the issuance and sale of the Units as
contemplated herein or therein will (in each case, whether
or not with notice or lapse of time or both) (i) result in
any breach or violation of the provisions of the
Partnership Agreements or (ii) result in the violation of
the Delaware Act.
G. The statements in the Prospectus included in the
Registration Statement which is a part of the Disclosure
Document under the captions "Conflicts of Interest and
Fiduciary Responsibility", "Cash Distribution Policy"
(other than (i) the table under the subsection "--
Incentive Distributions -- Hypothetical Annualized Yield"
and (ii) the statements under the subsection "-- Cash
Available for Distribution," as to which such counsel need
not express any opinion), "Description of the Common
Units" and "The Partnership Agreement," insofar as such
statements constitute descriptions of the Partnership
Agreements, or refer to statements of law or legal
conclusions, were accurate and complete in all material
respects as of July 2, 1996.
H. As of July 2, 1996, none of the Propane Entities
was (a) deemed to be a "gas utility company" within the
meaning of Section 2(a)(4) of PUHCA, (b) a "holding
company", within the meaning of PUHCA or (c) an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and
regulations thereunder. As of July 2, 1996, Triarc was not
(a) deemed to be a "gas utility company" within the
meaning of Section 2(a)(4) of PUHCA or (b) a "holding
company" within the meaning of PUHCA.
I. The Units, when issued and delivered by the
Partnership against payment of the consideration set forth
herein, the outstanding Common Units, the Subordinated
Units, the unsubordinated general partner interests in the
Partnership and the GP Incentive Distribution Rights,
conform or will conform in all material respects to the
description thereof contained in the Prospectus
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included in the Registration Statement which is a part of
the Disclosure Document.
J. The opinion of Andrews & Kurth L.L.P. filed as
Exhibit 8.1 to the Registration Statement is confirmed as
of July 2, 1996, and Merrill Lynch may rely upon such
opinion as if it were addressed to it.
In rendering such opinion, counsel may rely as to factual
matters upon certificates or written statements from officers or other
appropriate representatives of the Propane Entities or Triarc or upon
certificates of public officials and need not express any opinion with
regard to the laws of any jurisdiction other than the federal law of the
United States, the Delaware Act and the DGCL.
(3) A statement, dated as of Closing Time, of the General Counsel
of the General Partner, in form and substance reasonably satisfactory to
your counsel, to the effect that although such counsel is not passing
upon, and does not assume responsibility for the accuracy, completeness
or fairness of, any portion of the Disclosure Document, such counsel has
no reason to believe that the Disclosure Document, as of its date and at
the Closing Time, contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that such counsel need not make any statement with
respect to the financial statements or other financial or statistical
data contained in the Disclosure Document.
In giving the opinions required by subsection (i)(1) of this Section
5(a), Paul, Weiss, Rifkind, Wharton & Garrison shall additionally state that
although such counsel is not passing upon, and does not assume responsibility
for the accuracy, completeness or fairness of, any portion of the Registration
Statement (except to the extent specified in such counsel's opinion and that
such counsel has not conducted any due diligence investigation of the Propane
Entities subsequent to July 2, 1996), such counsel had no reason to believe that
the Registration Statement, at the time of the closing of the initial public
offering of Common Units on July 2, 1996, 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, except that such
counsel need not make any statement with respect to the financial statements or
other financial or statistical data contained in the Registration Statement or
the statements in the Registration Statement under the captions "Prospectus
Summary -- Tax Risks", "-- Summary of Tax Considerations", "Risk Factors -- Tax
Risks", "Cash Distribution Policy" (except for the subsection " -- Partnership
Loan"), "Description of the Common Units", "The Partnership Agreement", "Tax
Considerations", "Investment in the Partnership by Employee Benefit Plans."
In giving the opinion required by subsection (i)(2) of this Section
5(a), Andrews & Kurth L.L.P. shall additionally state that although such counsel
is not passing upon, and does not assume responsibility for the accuracy,
completeness or fairness of, any portion of the Registration Statement (except
to the extent specified in such counsel's opinion and without conducting any due
diligence investigation of the Propane Entities subsequent to July 2, 1996),
such counsel has no reason to believe that at the time of the closing of the
initial public offering of Common Units on July 2, 1996, the statements in the
Prospectus included in the Registration Statement which is a part of the
Disclosure Document under the captions "Prospectus Summary -- Tax Risks", "--
Summary of Tax Considerations", "Cash Distribution Policy" (other than (i) the
table under the subsection "-- Incentive Distributions-Hypothetical Annualized
Yield", (ii) the statements under the subsection "-- Cash
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<PAGE>
Available for Distribution", and (iii) the statements under the subsection "--
Partnership Loan", as to which such counsel need express no opinion),
"Description of Common Units", "Tax Considerations", "Investment in the
Partnership by Employee Benefit Plans" and "The Partnership Agreement" (other
than the financial data and other statistical data included therein, as to which
such counsel need express no opinion) contained 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.
(ii) Except as contemplated by the Disclosure Document, at the
Closing Date there shall not have been, since the respective dates as of
which information is given in the Disclosure Document, (i) any material
change in the partners' capital, capital stock, short-term or long-term
debt of any of the Propane Entities, taken as a whole, or Triarc, (ii)
any liabilities or obligations incurred by the Propane Entities or
Triarc, direct or indirect, contingent or matured, which are material to
the Propane Entities, taken as a whole, or Triarc other than such
liabilities or obligations as are reflected in the Disclosure Document
or incurred in the ordinary course of business or (iii) any other event
or development that may reasonably be expected, either singly or in the
aggregate, to result in a Material Adverse Effect.
(iii) You shall have received a certificate signed on behalf of
the Partnership and the Operating Partnership by the President, or a
Vice President of the General Partner and by the principal financial or
principal accounting officer of the General Partner, dated as of Closing
Time, to the effect that (i) the representations and warranties of the
Partnership and the Operating Partnership in Section 1 hereof are true
and correct with the same force and effect as though expressly made at
and as of Closing Time (except to the extent any relate to a specific
date), (ii) the Partnership and the Operating Partnership have complied
in all material respects with all agreements and satisfied all
conditions on their part to be performed or satisfied pursuant to the
Agreement, the Registration Agreement, or otherwise at or prior to
Closing Time, (iii) such persons have carefully examined the Disclosure
Document and to such persons' knowledge such document does not include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and (v) no event of the type contemplated in subsection
(ii) of this Section 5(a) in respect of the Partnership or the Operating
Partnership has occurred.
(iv) You shall have received a certificate signed on behalf of
the General Partner and the Special General Partner by the Chairman, the
President or a Vice President and the chief financial or accounting
officer of the General Partner and the Special General Partner to the
effect that (i) the representations and warranties of such entity
contained in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time (except to
the extent any may relate to a specific date), (ii) such entity has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the
Agreement, the Registration Agreement or otherwise at or prior to
Closing Time, (iii) such persons have carefully examined the Disclosure
Document and to such persons' knowledge, such document does not include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and (iv) no event of the type contemplated in subsection
(iii) of this Section 5(a) in respect of such entity has occurred.
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(v) The Partnership shall have entered into the Registration
Agreement and you shall have received an original, duly executed by the
Partnership, of the Registration Agreement.
(vi) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Registration Agreement, the Disclosure Document and all other legal
matters relating to this Agreement shall be reasonably satisfactory in
all material respects to your counsel, and the Propane Entities shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(b) The obligations of the Propane Entities hereunder are subject to
Merrill Lynch furnishing to the General Partner evidence of its acceptance of
the terms and conditions of the Partnership Agreement as contemplated by Section
10.4(a)(i) thereof.
(c) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Partnership or by the Partnership by notice to you at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6 and 7 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) The Propane Entities jointly and severally agree to indemnify and
hold harmless you and each person, if any, who controls you within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each of your
officers and directors and of any such controlling person as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Disclosure
Document, or the omission or alleged omission therefrom of a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or alleged omission made in
reliance upon and in conformity with written information furnished to the
Partnership by Merrill Lynch or, in the case of the Registration Statement, any
other underwriter named therein, expressly for use in the Disclosure Document.
The parties hereby agree that for all purposes of this Agreement, the only
written information furnished to the Partnership by Merrill Lynch or, in the
case of the Registration Statement, any other underwriter named therein,
expressly for use in the Disclosure Document is the last paragraph on the cover
page of the Prospectus included in the Registration Statement, the stabilization
legend on page 2 of the Prospectus included in the Registration Statement and
the information under the caption "Underwriting" contained in the first
paragraph following the chart on page 152 of the Prospectus included in the
Registration Statement.
(b) Each indemnified party shall give prompt written notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement except to the extent
the indemnifying party is materially prejudiced thereby. An indemnifying party
may participate at its own expense in the defense of such action if it so elects
within a reasonable time after receipt of such notice. An indemnifying party,
jointly with any other indemnifying parties receiving such notice, may assume
the defense of such action with counsel chosen by it, unless such indemnified
parties reasonably object to such assumption on the ground that such indemnified
party shall have been advised by its counsel that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of appropriate conduct due to actual or
potential differing interests between them. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is a party and indemnity has been sought hereunder by such
indemnified party (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement includes a release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding. No indemnifying party shall be liable for any settlement of any
such action effected without its prior written consent, but if settled with its
prior written consent, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by reason
of such settlement.
(c) If any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(b) hereof effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
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(d) If an indemnified party is reimbursed hereunder for any expenses,
the amount so paid shall be refunded to the indemnifying party if it is finally
judicially determined that the indemnifying party was not obligated to indemnify
the indemnified party regarding the claim, demand, action or proceeding with
respect to which such expense was incurred.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Propane Entities
and Merrill Lynch shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by Merrill Lynch, as incurred, in such proportion as is appropriate to
reflect the relative fault of the indemnifying parties and the indemnified
parties in connection with the actions that resulted in such losses,
liabilities, claims, damages and expenses as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding sentence.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Notwithstanding the provisions
of this Section 7, Merrill Lynch shall not be required to contribute any amount
in excess of the total purchase price of the Units. For purposes of this
Section, each person, if any, who controls Merrill Lynch or the Propane Entities
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each officer and director of Merrill Lynch or the Propane Entities and of
any such controlling person shall have the same rights to contribution as
Merrill Lynch or the Propane Entities, as the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties, indemnities and agreements contained
in this Agreement and the Registration Agreement, or contained in certificates
of officers of the Propane Entities submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of Merrill Lynch or any controlling person, or by or on behalf of
the Partnership, and shall survive delivery of and payment for the Units.
SECTION 9. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to Merrill Lynch
shall be directed to Merrill Lynch at North Tower, World Financial Center, New
York, New York 10281-1209, attention of Theodore D. Sands, or by telecopy to
(212) 449-3150 or to such other address or telecopy number designated in a
notice so delivered; notices to the Partnership shall be directed to it at Suite
1700, IES Tower, 200 1st Street, S.E., P.O. Box 2067, Cedar Rapids, Iowa,
52401-2067, attention of Secretary or by telecopy to 319-365-3672, (with a copy
to Triarc Companies, Inc., 900 Third Avenue, New York, New York 10022, (and
after November 30, 1996, 280 Park Avenue, New York, New York, 10017) attention
of Secretary or by telecopy to 212-230-3216 (and after November 30, 1996,
212-451-3216) or to such other address or telecopy number designated in a notice
so delivered.
SECTION 10. Parties. This Agreement shall inure to the benefit of and be
binding upon Merrill Lynch and the Propane Entities and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than Merrill
Lynch and the Propane Entities and their respective successors and the
controlling persons and
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officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of Merrill Lynch, the Propane Entities, and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Units from Merrill Lynch who is not an affiliate of
Merrill Lynch shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. EXCEPT AS OTHERWISE SET FORTH
HEREIN SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Partnership a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between Merrill Lynch and the Propane Entities in accordance with its
terms.
Very truly yours,
NATIONAL PROPANE CORPORATION
By: /s/ Ronald R. Rominiecki
-------------------------------
Name:
Title: Senior Vice President
NATIONAL PROPANE SGP, INC.
By: /s/ Ronald R. Rominiecki
-------------------------------
Name:
Title: Senior Vice President
NATIONAL PROPANE PARTNERS, L.P.
By: National Propane Corporation,
its Managing General Partner
By: /s/ Ronald R. Rominiecki
-------------------------------
Name:
Title: Senior Vice President
NATIONAL PROPANE, L.P.
By: National Propane Corporation,
its Managing General Partner
By: /s/ Ronald R. Rominiecki
------------------------------
Name:
Title: Senior Vice President
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CONFIRMED AND ACCEPTED
as of the date first above written
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Theodore D. Sands
-----------------------------------
Name:
Title: Managing Director
26
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- --------------------------------------------------------------------------------
REGISTRATION AGREEMENT
dated as of November 7, 1996
between
NATIONAL PROPANE PARTNERS, L.P.
and
MERRILL LYNCH & CO.
- --------------------------------------------------------------------------------
<PAGE>
<PAGE>
REGISTRATION AGREEMENT
AGREEMENT dated as of November 7, 1996 between Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (collectively, the
"BUYER"), and National Propane Partners, L.P., a Delaware limited partnership
(the "COMPANY").
WHEREAS, pursuant to a Purchase Agreement dated as of the date
hereof between the Buyer and the Company (the "PURCHASE AGREEMENT"), the Buyer
has agreed to purchase from the Company an aggregate of 400,000 Common Units
representing limited partnership interests in the Company (the "Common Units";
such 400,000 Common Units being referred to herein as the "Units); and
WHEREAS, it is a condition of such purchase of the Units by the
Buyer that the Company enter into this Registration Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1.1 DEFINITIONS. The following terms, as used
herein, have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which the New York Stock Exchange is closed.
"CLOSING" means the closing of the sale and purchase
of the Units pursuant to the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission or any
federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"HOLDER" means the Buyer and any of its Affiliates
that is the holder of any Registrable Security.
"MAJORITY HOLDERS" means Holders of at least a majority of the
Registrable Securities from time to time.
"MAJORITY REGISTERING HOLDERS" means Holders of at least a
majority of the Registrable Securities included in a registration statement
under this Agreement.
"NASDAQ" means the National Association of Securities
Dealers Automated Quotation System.
<PAGE>
<PAGE>
"PERSON" shall mean a corporation, an association, a partnership,
a business, an individual, a governmental or political subdivision thereof or a
governmental agency.
"REGISTERING HOLDERS" means Holders whose Registrable Securities
are included in a registration statement under this Agreement.
"REGISTRABLE SECURITIES" means the Units and any securities (i)
issued on registration of transfer of the Units or (ii) issued or issuable with
respect to any such Units by way of dividend or unit split or in connection with
a combination, recapitalization, merger, consolidation or other reorganization
or otherwise. Registrable Securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of pursuant to such registration statement, (b) they shall
have been distributed to the public pursuant to Rule 144 or, in the opinion of
counsel to the Company, may be sold pursuant to Rule 144(k), (c) they shall have
been otherwise transferred and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force, or (d)
they shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, the reasonable fees and disbursements of one counsel to represent
all Holders but who shall be selected by the Majority Registering Holders
(provided, that the amount of all such fees and disbursements to be paid by the
Company pursuant to this Agreement, together with the amount payable by the
Company in respect of the out-of-pocket fees and expenses incurred by the Buyer
in connection with the Purchase Agreement dated the date hereof among the
Company, certain of its affiliates and the Buyer, shall not exceed $125,000),
premiums and other costs of policies of insurance obtained by the Company
against liabilities arising out of the public offering of the Registrable
Securities being registered (if the Company elects to obtain such insurance) and
any reasonable fees and disbursements of underwriters customarily paid by
issuers or holders of securities (including fees paid to a qualified independent
underwriter), but excluding underwriting discounts and commissions and transfer
taxes, if any.
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"RULE 144" has the meaning set forth in Section 3
hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute thereto.
2. Registration under Securities Act.
2.1 Shelf Registration. (a) The Company shall use its
reasonable best efforts to have declared effective a shelf registration
statement pursuant to Rule 415 under the Securities Act in order to effect the
registration with the Commission under the Securities Act of all Registrable
Securities as soon as practicable after the filing thereof. If the Majority
Holders so elect, the offering of the Registrable Securities pursuant to this
Section 2.1 (a) shall be in the form of an underwritten offering. Neither the
Company nor any other Person (other than the Holders) shall be allowed to
include any securities in such registration without the prior written consent of
the Buyer (which consent will not be unreasonably withheld). The Company shall
not be obligated to effect more than one registration pursuant to this Section
2.1.
(b) Registration Statement Form. Registration
under this Section 2.1 shall be on such appropriate registration form of the
Commission (i) as shall be selected by the Company and (ii) as shall permit, to
the extent practicable, the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition intended on the
part of the Holders.
(c) Expenses. The Company will pay when due all
Registration Expenses in connection with the registration made pursuant to this
Section 2.1.
(d) Underwriters. The managing underwriter of
any underwritten offering effected pursuant to this Section 2.1 shall be Merrill
Lynch.
2.2. Registration on Request. (a) Request. At any time after the
conclusion of six months following the date on which the Company is no longer
required to keep the shelf registration statement contemplated by Section 2.1
effective in accordance with the terms hereof, the Majority Holders shall have
the right to request, in a writing to the Company, that the Company effect a
registration with the Commission under the Securities Act of no less than fifty
(50%) percent of such requesting Holders' Registrable Securities then owned by
such Holders; provided, however, that the Company shall not be obligated to
effect more than one registration pursuant to this Section 2.2. The Company will
promptly give written notice of any such requested registration to all Holders
and thereupon, the Company will use its best efforts to effect the registration
under the Securities Act of:
3
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<PAGE>
(i) subject to the provisions of Section 2.2(b), the Registrable
Securities which the Company has been so requested to register by the
Holders requesting registration pursuant to the first sentence of
Section 2.2(a) (the "Requesting Holders"); and
(ii) Subject to Section 2.2(b), all other Registrable Securities
which the Company has been requested to register by the Holders by
written request given to the Company within 30 days after the giving of
such written notice by the Company, all to the extent requisite to
permit the disposition of the Registrable Securities so to be
registered. If the Requesting Holders so elect, the offering of the
Registrable Securities pursuant to this Section 2.2(a) shall be in the
form of an underwritten offering. If the Requesting Holders request that
the registration be in the form of a non-underwritten offering, then
neither the Company nor any other Person (other than the Holders) shall
be allowed to include any securities in such registration without the
prior written consent of the Buyer.
(b) In the case of an underwritten offering, the Company may give
notice to Persons having registration rights other than the Holders of its
intention to file a registration statement. If the managing underwriter of any
underwritten offering shall advise the Company and the Holders requesting
registration under Sections 2.2(a)(i) and (ii) in writing that, in it's opinion,
the number of securities proposed to be included in such registration exceeds
the number which can be sold in such offering within a price range acceptable to
a majority of the Requesting Holders (by number of Units sought to be
registered), the Company will include in such registration the number of
Registrable Securities which in the opinion of such managing underwriter can be
sold, and such securities shall be allocated first to Registrable Securities
requested to be included in such registration pursuant to Sections 2.2(a)(i) and
(ii) of this Agreement pro rata among the Holders requesting registration under
Sections 2.2(a)(i) and (ii) on the basis of the relative number of Registrable
Securities requested by each such Holder to be included in such registration,
second to any securities required to be registered by the Company pursuant to
agreements providing registration rights to other Persons, in such order and
with such priorities as may be required by such agreements and third to any
securities proposed to be included by the Company.
In the event the Registrable Securities proposed to be included
by the Holders requesting registration under Sections 2.2(a)(i) and (ii) in such
underwritten offering are excluded from the underwritten offering pursuant to
the provisions of this Section 2.2(b), such Registrable Securities shall upon
the Holders' request nevertheless be registered for sale on a non-underwritten
basis by Holders requesting registration under Sections 2.2(a)(i) and (ii), and
the Company shall prepare and
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file an appropriate alternate prospectus or supplement to the prospectus to
reflect the use of the prospectus for delivery to purchasers of Registrable
Securities from such Holders and not through the underwriters.
(c) Registration Statement Form. Registrations under this Section
2.2 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and (ii) as shall, to the extent practicable,
permit the disposition of such Registrable Securities in accordance with the
intended method or methods of disposition intended on the part of such Holders.
(d) Expenses. The Company will pay when due all Registration
Expenses in connection with the registration request made pursuant to this
Section 2.2.
(e) Underwriters. The managing underwriter of any underwritten
offering effected pursuant to this Section 2.2 shall be Merrill Lynch.
2.3. Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register any of its securities under the Securities Act
(other than by a registration on Form S-4, Form S-8 or any successor or similar
form and other than pursuant to a registration statement pursuant to Section 2.1
or 2.2 hereof), whether or not for sale for its own account or as a result of a
demand from a security holder, and if the registration form proposed to be used
may be used for the registration of the Registrable Securities, it will each
such time give prompt written notice to all Holders of its intention to do so
and of such Holders' rights under this Section 2.3. Upon the written request of
any Holder made within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such Holder), the Company will use its best efforts to effect the registration
with the Commission under the Securities Act of all Registrable Securities which
the Company has been so requested to register, to the extent required to permit
the disposition of the Registrable Securities so to be registered, provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company shall give written notice of such determination to each
Holder and, thereupon, (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith), without prejudice, however, to
the rights of any Holder entitled to do so, to request that such
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registration be effected as a registration under Section 2.2, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section
2.3 shall relieve the Company of its obligation to effect any registration under
Section 2.1 or 2.2. The Company will pay when due all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.3.
(b) Apportionment in Incidental Registrations. If (i) a
registration pursuant to this Section 2.3 involves an underwritten offering of
the securities being registered, whether or not for sale for the account of the
Company, to be distributed (on a firm commitment basis) by or through one or
more underwriters, and (ii) the managing underwriter of such underwritten
offering shall inform the Company in writing of its good faith belief that the
number of securities requested to be included in such underwritten offering
exceeds the number which can be sold in (or during the time of) such offering or
that the inclusion of such number of securities would adversely affect the
marketing of the securities to be sold by the Company or the securityholder or
securityholders who have requested such registration pursuant to demand
registration rights, then the Company shall include, to the extent of the number
and type which the Company is so advised can be sold in (or during the time of)
such offering, first, in the case of a registration proposed by the Company for
its own account, all securities proposed by the Company to be sold for its own
account, or in the case of any securities initially proposed to be registered by
the Company for the accounts of other Persons pursuant to the exercise of demand
registration rights granted pursuant to an applicable registration rights
agreement between the Company and such other Person, the securities requested to
be registered by such Person but only in such amount and to the extent required
by such agreement, and second, such Registrable Securities requested to be
included in such registration pursuant to this Agreement and any securities
required to be included in such registration by other Persons who have
incidental registration rights, on a pro rata basis (as determined by the
Company).
2.4. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1, 2.2 and 2.3,
the Company will, as promptly as possible:
(i) select counsel and independent accountants for the
Company in connection with such registration;
(ii) subject to Section 2.7, prepare and (as promptly thereafter
as practicable and in any event (A) prior to December 15, 1996 in the
case of registration pursuant to Section 2.1 hereof and (B) within 60
days after the end of
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the 30-day period within which requests for registration may be given to
the Company) file with the Commission the requisite registration
statement to effect such registration and thereafter use its best
efforts to cause such registration statement to become effective and to
remain effective for the period specified in Section 2.4 (iii),
provided, however, that the Company may discontinue any registration of
its securities which are not Registrable Securities (and, under the
circumstances specified in Section 2.3(a), its securities which are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(iii) subject to Section 2.7, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of
not more than six months (or such shorter period which will terminate
when all Registrable Securities covered by such registration statement
have been sold (but not before the expiration of the period referred to
in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable)) after the date the original filing was declared effective
and to comply with the provisions of the Securities Act during such
period with respect to the disposition of all securities covered by such
registration statement until such time during such period as all of such
securities have been disposed of in accordance with the intended methods
of disposition by the Registering Holders thereof set forth in such
registration statement; provided, however, that a reasonable time before
filing any registration statement or prospectus or supplement or
amendment thereto, the Company shall furnish drafts of such documents to
counsel for the Registering Holders, which documents shall be subject to
reasonable review by such counsel; and further provided, that there
shall not be counted as part of the six months any period during which
the prospectus may not be used pursuant to subsection (viii) of this
Section 2.4;
(iv) furnish to each Registering Holder and to any underwriter
such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 or Rule 430A under the
Securities Act, in conformity with the requirements of the Securities
Act, documents incorporated by reference in such registration statement,
amendment, supplement or prospectus and such other documents (in each
case including all exhibits), as a Registering Holder or underwriter may
reasonably request;
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(v) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as
the Majority Registering Holders or the underwriter shall reasonably
request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable
the Registering Holders to consummate the disposition in such
jurisdictions of the securities owned by such Registering Holders,
except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
subdivision 2.4(v) be obligated to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(vi) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary
to enable the Registering Holders to consummate the disposition of such
Registrable Securities;
(vii) furnish to each Registering Holder and the underwriters a
signed counterpart of: (x) an opinion of counsel for the Company, dated
the effective date of such registration statement (or, if such
registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement) covering such matters as
are customarily covered by opinions of issuer's counsel delivered to
underwriters in underwritten public offerings of securities; and (y) a
"comfort" letter, dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have
certified the Company's financial statements included in such
registration statement, covering matters which are customarily covered
in accountants letters delivered to the underwriters in underwritten
public offerings of securities, and such other financial matters as the
underwriters may reasonably request or, in the case of a
non-underwritten offering, covering matters which are customarily
covered in accountants letters delivered to the selling security-
holders in non-underwritten secondary public offerings of securities;
(viii) notify each Registering Holder at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event
as a result of which, the prospectus
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included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and, subject to Section 2.7, at the request of any such
Registering Holder promptly prepare and furnish to such Registering
Holder a reasonable number of copies of any supplement to or amendment
of such prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make statements therein
not misleading in the light of the circumstances under which they were
made;
(ix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar month after
the effective date of such registration statement (as the term
"effective date" is defined in Rule 158 under the Securities Act), which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder, and will furnish to each
Registering Holder, underwriter and Registering Holders, or
underwriter's counsel, at least two business days prior to the filing
thereof, a draft copy of any amendment or supplement to such
registration statement or prospectus and shall not file any such
amendment or supplement which does not comply in all material respects
with the requirements of the Securities Act or of the rules or
regulations thereunder;
(x) provide and cause to be maintained a transfer agent for all
Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration
statement;
(xi) use its best efforts (A) to list all Registrable Securities
covered by such registration statement on any securities exchange on
which any of the same class of securities as the Registrable Securities
is then listed or (B) in the event such securities are not so listed, to
have such Registrable Securities qualified for inclusion on the NASDAQ
National Market System, if the Registrable Securities are then so
qualified or (C) in the event such securities are not so listed or
qualified, to have such Registrable Securities qualified for inclusion
on the NASDAQ System; and
(xii) furnish unlegended certificates representing ownership of
the Registrable Securities then being sold in
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such denominations as shall be requested by Registering Holders or
underwriters.
The Company may require each Registering Holder to promptly
furnish the Company, as a condition precedent to including such Registering
Holder's Registrable Securities in any registration, such information regarding
such Registering Holder and the distribution of such securities as the Company
may from time to time reasonably request in writing.
Each Holder agrees, by acquisition of such Registrable
Securities, that upon receipt of any notice from the Company of the happening of
any event of the kind described in subdivision (viii) of this Section 2.4, such
Holder will forthwith discontinue such Holder's disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (viii) of this Section 2.4 and,
if so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession, of the prospectus and any amendments or supplements thereto relating
to such Registrable Securities current at the time of receipt of such notice.
2.5. Underwritten Offerings.
(a) Requested Underwritten Offering. If requested by the
underwriters for any offering by Holders pursuant to a registration under
Section 2.1 or 2.2, the Company will enter into an underwriting agreement with
such underwriters for such offering, such agreement to be satisfactory in
substance and form to the Company, the Registering Holders and the underwriters
and to contain such representations and warranties by the Company and such other
terms as are then generally prevailing in agreements of such type, including,
without limitation, indemnities to the effect and to the extent provided in
Section 2.8 hereof. The Registering Holders will cooperate with the Company in
the negotiation of the underwriting agreement, provided that nothing herein
contained shall diminish the foregoing obligations of the Company. The
Registering Holders shall be parties to such underwriting agreement. No
Registering Holder shall be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties or agreements to or for the benefit of the Company
and such underwriters regarding such Registering Holder, such Registering
Holder's Registrable Securities, any other information supplied in writing by
such Registering Holder to the Company specifically for use in the Registration
Statement and any other representation required by law and will agree therein to
an indemnity to the underwriters that is customary for transactions of that
type.
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(b) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.3 and its securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any Holder
as provided in Section 2.3 and subject to the provisions of Section 2.3(b), use
its best efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such Holder among the securities to be
distributed by such underwriters. The Registering Holders shall be parties to
the underwriting agreement between the Company and such underwriters. No
Registering Holder shall be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties, or agreements to or for the benefit of the Company
and such underwriter regarding such Registering Holder, such Registering
Holder's Registrable Securities and any other information supplied in writing by
such Registering Holder to the Company specifically for use in the registration
statement and any other representation required by law and will agree therein to
an indemnity to the underwriters that is customary for transactions of that
type.
(c) Participation in Underwritten Registration. No Person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the person entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(d) Holdback Agreement. In any underwritten public offering in
which such Holder is participating as a seller, each Holder agrees not to effect
any sale or distribution of any Registrable Securities or any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144, during the 14 days prior to and the
180-day period beginning on the effective date of a registration statement, if
and to the extent requested by the managing underwriter.
2.6. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Registering Holders,
the underwriters and their respective counsel and accountants, the timely
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants
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who have certified its financial statements as shall be necessary, in the
opinion of each of such Registering Holders, and such underwriters, and their
respective counsel, to conduct appropriate due diligence within the meaning of
the Securities Act.
2.7 Postponement of Registration. If at any time prior to or
during the effectiveness of a registration statement contemplated by Section
2.1, 2.2 or 2.3 hereof, the Company is engaged in or in good faith plans to
engage in any financing, acquisition, reorganization or other material
transactions involving the Company which the Board of Directors of the general
partner of the Company determines in its good faith reasonable judgment would
require suspension of sales of Registrable Securities pursuant to such
registration statement or would be adversely affected by the filing of any
registration statement otherwise required to be prepared and filed pursuant to
Section 2.1, 2.2 or 2.3, the Company shall be entitled to suspend the
effectiveness of the registration statement or postpone the filing of a
registration statement pursuant to Section 2.1, 2.2 or 2.3 for a reasonable
period of time (but not exceeding 120 days from the date of the determination or
request), and shall promptly give the Holders written notice of such
determination, containing a general statement of the reasons therefor and an
approximation of the anticipated delay (which shall be kept confidential by such
Holders). If the Company shall so postpone the filing of the registration
statement pursuant to Section 2.2, a majority of the Requesting Holders shall
have the right to withdraw the request for registration by giving written notice
to the Company within 30 days after receipt of the notice of postponement and,
in the event of such withdrawal, such withdrawn request shall not be counted for
purposes of the requests for registration to which Holders are entitled pursuant
to Section 2.2 hereof. Such right to suspend the sale of Registrable Securities
pursuant to a registration statement or to delay pursuant to this Section 2.7 a
registration pursuant to Section 2.1, 2.2 or 2.3 may not be exercised more than
once in any twelve-month period.
2.8. Indemnification. (a) Indemnification by the Company. In the
event of any registration of any Registrable Securities under the Securities
Act, the Company will, and hereby does, indemnify and hold harmless, each of the
Registering Holders, directors, officers, employees, attorneys, agents and
affiliates of such Registering Holders and such other Person, if any, who
controls such Registering Holder within the meaning of the Securities Act,
against any settlement, losses, claims, damages or liabilities, joint or
several, to which such Registering Holder or any such director, officer,
employee, attorney, agent, affiliate, or controlling Person may become subject
under the Securities Act or otherwise , insofar as such settlement, losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue
statement or
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alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein or used in association therewith, or any amendment
or supplement thereto or any document incorporated by reference therein, or (ii)
any 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
the Company will reimburse each such Registering Holder, and each such director,
officer, employee, agent, attorney, affiliate, and controlling Person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such settlement, loss, claim, liability, action
or proceeding; provided, that the Company shall not be liable in any such case
to any particular Registering Holder or its director, officer, employee, agent,
attorney, affiliate or controlling Person to the extent that any such
settlement, loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense (i) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Registering Holder
specifically stating that it is for use in the preparation thereof or (ii)
results from any Requesting Holder's failure to send or to give a copy of the
final prospectus to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such final
prospectus was required by law to be delivered and such statement or omission
was corrected in such final prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Registering Holder or any such director, officer, agent, affiliate or
controlling Person of such Registering Holder and shall survive the transfer of
such Registrable Securities by such Registering Holder. If the offering pursuant
to any registration statement provided for under this Agreement is made through
an underwriter, the Company agrees to indemnify the underwriter, its officers
and directors and each Person who controls the underwriter within the meaning of
the Securities Act to the same extent as hereinbefore provided; provided, that
the Company shall not be required to indemnify any such underwriter, or any
officer or director of such underwriter, or any Person who controls such
underwriter, to the extent the settlement, loss, claim, damage or liability
results from (i) such underwriter's failure to send or to give a copy of the
final prospectus to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus or (ii) any
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information furnished in writing to the Company by any underwriter specifically
stating that it is for use therein.
(b) Indemnification by the Registering Holders. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Sections 2.1, 2.2 or 2.3 that the
Company shall have received an undertaking satisfactory to it from the
Registering Holders to indemnify and hold harmless (in the same manner and to
the same extent as set forth in sub-division (a) of this Section 2.8) the
Company, its directors, officers, employees, agents, attorney and affiliates,
each Person, if any, who participates as an underwriter in the offering or sale
of such securities and each other Person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Registering Holder specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer, employee, agent, attorney,
affiliate or controlling person and shall survive the transfer of such
Registrable Securities by such Registering Holder. Notwithstanding the
provisions of this paragraph (b), no Registering Holder shall be required to
indemnify any Person pursuant to this Section 2.8 for any amount in excess of
the amount by which the aggregate net proceeds received by such Registering
Holder in such offering exceeds the amount of any damages that such Registering
Holder has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of a claim, demand or the commencement of any action
or proceeding involving a claim referred to in the preceding subdivisions of
this Section 2.8, such indemnified party will, if a claim in respect thereof is
to be made by an indemnified party against an indemnifying party, give prompt
written notice to the latter of such claim, demand or the commencement of such
action, provided, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 2.8, except to the extent that
the indemnifying party is actually materially prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof
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(unless in the opinion of counsel to such indemnified party a conflict of
interest between such indemnified party and indemnifying party may exist in
respect of such claim), jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified 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 for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party is not entitled to (because of the parenthetical in the
previous sentence), or elects not to, assume the defense of a claim, it will not
be obligated to pay the reasonable fees and expenses of more than one counsel
with respect to such claim, unless in the opinion of counsel to an indemnified
party a conflict of interest between such indemnified party and other
indemnified parties may exist in respect of such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and expenses of
one additional counsel for all indemnified parties as to which such conflict
exists. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement with
respect to any pending or threatened claim, demand, action or proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. If the indemnifying party has agreed to indemnify
the indemnified party for any action or proceeding, then whether or not such
defense is assumed by the indemnifying party, the indemnifying party shall not
be liable for any settlement made without its consent, which shall not be
unreasonably withheld.
(d) Other indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.8 (with appropriate
modifications) shall be given by the Company and each Registering Holder covered
by a registration statement with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) Indemnification and Reimbursement Payments. The
indemnification and reimbursement required by this Section 2.8 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred; provided, however, that if an indemnified party is reimbursed
hereunder for any expenses, the amount so paid shall be refunded to the
indemnifying party if it is finally judicially determined that the indemnifying
party was not obligated to indemnify the
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indemnified party regarding the claim, demand, action or proceeding with respect
to which such expense was incurred.
(f) Contribution. If the indemnification provided for in this
Agreement shall for any reason be unavailable or insufficient to an indemnified
party under Section 2.8(a), 2.8(b) or 2.8(d) hereof in respect to any
settlement, loss, claim, damage or liability, or any action in respect thereof,
or referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such settlement, loss, claim, damage or
liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect (i) as between the Company and the Registering Holders on
the one hand and the Underwriters on the other hand, the relative benefits
received by the Company and the Registering Holders on one hand and the
Underwriters on the other hand, from the offering of the securities, and the
relative fault of the Company and the Registering Holders on the one hand and
the Underwriters on the other, with respect to the statements or omissions which
resulted in such settlement, loss, claim, damage or liability, or action in
respect thereof, as well as any relevant equitable considerations and (ii) as
between the Company on the one hand and the Registering Holders on the other
hand, the relative fault of the Company on the one hand and the Registering
Holders on the other with respect to such statements or omissions, as well as
any relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Registering Holders, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Registering Holders agree that it would not be just and equitable if
contribution pursuant to this Section 2.8 were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the settlement, loss, claim, damage or
liability, or action in respect thereof, referred to in this Section 2.8 shall
be deemed to include, for purposes of this Section 2.8, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person.
Notwithstanding the provisions of this paragraph (f), no Registering Holder
shall be required to contribute an amount in excess of the amount by which the
aggregate net proceeds received by such Registering Holder exceeds the amount of
any damages that such Registering Holder has otherwise been required or agreed
to pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission.
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2.9. Listing of Common Units. The Company covenants and agrees
for the benefit of the Holders, that it will, at its expense, as soon as is
reasonably practicable, cause the Registrable Securities registered from time to
time upon exercise of the rights granted hereby to be approved for listing upon
the effectiveness of a registration under this Agreement, and use its best
efforts to maintain such listing, on the New York Stock Exchange or such other
national securities exchange on which the Company's traded securities are listed
or authorized for trading, or NASDAQ if at such time the Company's traded
securities are authorized for trading on NASDAQ, subject to notice of issuance,
if any, and the requirements of such exchange or NASDAQ, and will provide prompt
notice to such exchange or NASDAQ of the issuance thereof from time to time.
3. Rule 144. So long as the Company's Common Units shall be
registered pursuant to the requirements of Section 12 of the Exchange Act, the
Company will file the reports required to be filed by it under the Exchange Act
and will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time or (b) any similar rule or regulation
hereafter adopted by the Commission ("Rule 144"). Upon the request of any Holder
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
4. Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented
unless in a writing signed by the Company and the Majority Holders. Except as
otherwise provided herein, no waivers or consents to departures from the
provisions hereof may be given unless the Company has obtained the written
consent of the Majority Holders. Each Holder shall be bound by any consent
obtained in the manner authorized by this Section 4, whether or not such
Registrable Securities shall have been marked to indicate such consent.
5. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election by written notice to the
Company effective upon receipt by the Company, be treated as a Holder for
purposes of any request or other action by any Holder pursuant to this Agreement
or any determination of any number or percentage of Registrable Securities held
by any Holder contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. Prior to receipt by the Company of written notice contemplated
hereby, any action taken by any nominee shall be binding upon any such
beneficial owner.
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6. Notices. All communications provided for hereunder shall be
sent by first-class mail, overnight courier or telecopy and (a) if addressed to
the Buyer, addressed to the Buyer in the manner set forth in the Purchase
Agreement, or at such other address or telecopy number as the Buyer shall have
furnished to the Company in writing, or (b) if addressed to any other Holder,
the address or telecopy number that such Holder shall have furnished to the
Company in writing, or, until any such other Holder so furnishes to the Company
an address or telecopy number, then to and at the address or telecopy number of
the last Holder who has furnished an address or telecopy number to the Company,
or (c) if addressed to the Company, to National Propane Partners, L.P., Suite
1700, IES Tower, 200 1st Street, S.E., P.O. Box 2067, Cedar Rapids, Iowa
52401-2067, Attention: Secretary or if by telecopy to 319-365-3672 (with a copy
to Triarc Companies, Inc., 900 Third Avenue, New York, New York 10022 (and after
November 30, 1996, 280 Park Avenue, New York, New York 10017), Attention:
Secretary, or, if by telecopy to 212-230-3216 (and after November 30, 1996,
212-451-3216) or at such other address or telecopy number, or to the attention
of such other officer, as the Company shall have furnished to each holder of
Registrable Securities at the time outstanding.
7. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns. The Buyer may not assign any of its rights hereunder to any
person or persons other than Affiliates of the Buyer. In addition, and whether
or not any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of the parties hereto other than the Company
shall also be for the benefit of and enforceable by any subsequent Holder,
subject to the provisions respecting the minimum numbers or percentages of
Registrable Securities required in order to be entitled to certain rights, or
take certain actions, contained herein.
8. Descriptive Heading. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
9. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York.
10. Jurisdiction. Each of the parties hereto hereby irrevocably
and unconditionally:
(i) Submits itself in any legal action or proceeding
relating to this Agreement, or for recognition and enforcement of any
judgment in respect hereof, to the exclusive jurisdiction of any state
or federal court in the Borough of Manhattan, New York, New York, and
appellate courts therefrom, and consents and agrees to such action or
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proceeding being brought in such court; provided, however, that if for
any reason such courts shall not have or decline to exercise
jurisdiction in any legal action or proceeding, such legal action or
proceeding may be brought in any other court or jurisdiction in
accordance with applicable laws; and
(ii) Waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any state or
federal court in the Borough of Manhattan, New York, New York or that
any such action or proceeding brought in any such court was brought in
an inconvenient court and agrees not to plead or claim the same.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same agreement and shall
become effective only when one or more of the counterparts shall have been
signed by each party and delivered to the other party, it being understood that
all the parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
NATIONAL PROPANE PARTNERS, L.P.
By National Propane Corporation,
its managing general partner
By: /s/ Ronald R. Rominiecki
________________________________
Name:
Title: Senior Vice President
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By:
________________________________
Name:
Title:
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
NATIONAL PROPANE PARTNERS, L.P.
By National Propane Corporation,
its managing general partner
By:
________________________________
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: /s/ Theodore D. Sands
________________________________
Name:
Title:
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[NATIONAL PROPANE LETTERHEAD]
National Propane Partners, L.P. WILLIAM R. HUBER
200 1st St. SE DIRECTOR OF MARKETING
Suite 1700, IES Tower
Cedar Rapids, IA 52401
Tel 319 365 1550
FAX 319 365 5152
CONTACT: William R. Huber
National Propane Corporation
319-365-1550
Ron Rominiecki
National Propane Corporation
319-365-1550
NATIONAL PROPANE PARTNERS, L.P.
ANNOUNCES QUARTERLY DISTRIBUTION
Cedar Rapids, IA, October 22, 1996 - National Propane Corporation, the Managing
General Partner of National Propane Partners, L.P. (NYSE:NPL), a partnership
headquartered in Cedar Rapids, IA, announced today that it has declared a
quarterly distribution of $.525 per unit payable on November 14, 1996 to the
holders of record at the close of business on November 1, 1996.
This is the initial distribution paid by the partnership which completed its
initial public offering on July 2, 1996.
<PAGE>
<PAGE>
[NATIONAL PROPANE LETTERHEAD]
National Propane Partners, L.P. WILLIAM R. HUBER
200 1st St. SE DIRECTOR OF MARKETING
Suite 1700, IES Tower
Cedar Rapids, IA 52401
Tel 319 365 1550
FAX 319 365 5152
CONTACT: William R. Huber
National Propane Corporation
319-365-1550
Ron Rominiecki
National Propane Corporation
319-365-1550
NATIONAL PROPANE PARTNERS, L.P.
COMPLETES SALE OF 400,000 COMMON UNITS
Cedar Rapids, IA, November 7, 1996 - National Propane Partners, L.P. (NYSE:NPL),
announced today that it has sold 400,000 of its common units (representing
approximately 6% of the partnership's common units) through a private placement.
The units were sold at a price of $21.00 each, before deducting fees, resulting
in net proceeds to the partnership of $7,812,000, which will be used by the
partnership for general partnership purposes.
National Propane Partners, L.P. was formed to acquire, own and operate the
propane business and substantially all of the assets of National Propane
Corporation, the partnership's managing general partner. The initial public
offering of the partnership was completed on July 2, 1996. As a result of the
initial public offering and after taking into account the shares issued in the
private placement, Triarc Companies, Inc. (NYSE:TRY), through its subsidiary
National Propane Corporation, holds approximately 43% of the partnership.
National Propane Partners, L.P. has operations concentrated in the Midwest,
Northeast, Southeast and the Southwest regions of the United States and serves
approximately 250,000 customers through its 166 service centers.
