Suburban
Propane Partners, L.P.
Suburban Energy Finance Corp.
240 Route 10 West
Whippany, NJ 07981
Attention:
Michael J. Dunn, Jr., President
This dealer
manager agreement (this “Agreement”) will confirm the
understanding among Suburban Propane Partners, L.P., a Delaware
limited partnership (the “Company”), Suburban Energy
Finance Corp., a Delaware Corporation (the
“Co-Issuer”), Banc of America Securities LLC
(“BAS”) and Wells Fargo Securities, LLC (“Wells
Fargo”) pursuant to which the Company has retained BAS to act
as lead dealer manager and Wells Fargo to act as co-dealer manager
(together, the “Dealer Managers”), on the terms and
subject to the conditions set forth herein, in connection with the
proposed tender offer (the “Tender Offer”) for certain
of the Company’s and the Co-Issuer’s outstanding 6.875%
Senior Notes due 2013 (the “Notes”). The holders of
Notes are hereinafter referred to as the
“Holders.”
Section 1. Engagement.
Subject to the terms and conditions set forth herein:
(a) The
Company and the Co-Issuer hereby retain the Dealer Managers, and
the Dealer Managers agree to act, as the exclusive dealer managers
in connection with the Tender Offer until the date on which the
Tender Offer expires or is earlier terminated in accordance with
its terms. The Dealer Managers will perform those services in
connection with the Tender Offer as are customarily performed by
investment banks in connection with tender offers of a like nature,
including, without limitation, to advise the Company and the
Co-Issuer with respect to the terms and timing of the Tender Offer
and assist the Company and the Co-Issuer in preparing any documents
to be delivered by the Company and/or the Co-Issuer to the Holders
or used in connection with the Tender Offer (collectively, the
“Tender Documents”). The Dealer Managers agree that
they will not furnish written information other than the Tender
Documents to the Holders in connection with the Tender Offer
without the prior consent of the Company. The Company and Co-Issuer
authorize and direct the Dealer Managers, in accordance with their
customary practices and consistent with industry practice, to
communicate generally regarding the Tender Offer with the Holders
and their authorized agents in connection with the Tender
Offer.
(b) The
Company and the Co-Issuer acknowledge that the Dealer Managers have
been retained solely to provide the services set forth in this
Agreement. The Company and the Co-Issuer also acknowledge and agree
that, in their respective capacities as Dealer Managers,
each
Dealer Manager
shall act as an independent contractor on an arm’s-length
basis under this Agreement with duties solely to the Company and
the Co-Issuer and that nothing contained herein or the nature of
each Dealer Manager’s services hereunder is intended to
create or shall be construed as creating an agency or fiduciary
relationship (except that in any jurisdiction in which the Tender
Offer is required to be made by a registered licensed broker or
dealer, and a Dealer Manager is a registered licensed broker or
dealer, it shall be deemed made by such Dealer Manager on behalf of
the Company) between the Dealer Managers (or any of their
respective affiliates), the Company and the Co-Issuer (or any of
their respective security holders, affiliates, directors, officers,
employees or creditors) or any other person. The Company and each
Dealer Manager also acknowledge that (i) no Dealer Manager
shall be deemed to act as a partner, joint venturer or agent of, or
a member of a syndicate with, the Company or any of its affiliates
(except that in any jurisdiction in which the Tender Offer is
required to be made by a registered licensed broker or dealer, and
a Dealer Manager is a registered licensed broker or dealer, it
shall be deemed made by such Dealer Manager on behalf of the
Company), and neither the Company nor any of its affiliates shall
be deemed to act as a partner, joint venturer or agent of, or a
member of a syndicate with, any Dealer Manager or any of their
affiliates and (ii) no securities broker, dealer, bank, trust
company or nominee shall be deemed to act as the agent of any
Dealer Manager or any of its affiliates or as the agent of the
Company or any of its affiliates, and no Dealer Manager shall be
deemed to act as the agent of any securities broker, dealer, bank,
trust company or nominee. In connection with each of the
transactions contemplated hereby and the process leading to such
transaction, each Dealer Manager is and has been acting solely as a
principal and is not the agent or fiduciary of the Company or
Co-Issuer or their respective security holders, affiliates,
directors, officers, employees or creditors or any other person
(except that in any jurisdiction in which the Tender Offer is
required to be made by a registered licensed broker or dealer, and
a Dealer Manager is a registered licensed broker or dealer, it
shall be deemed made by such Dealer Manager on behalf of the
Company). No Dealer Manager or any of their respective affiliates
shall have any liability in tort, contract or otherwise to the
Company or Co-Issuer or to any of the Company’s or
Co-Issuer’s security holders, affiliates, directors,
officers, employees or creditors for any act or omission on the
part of any securities broker, dealer, bank, trust company or
nominee or any other person except to the extent that such
liability is finally judicially determined by a court of competent
jurisdiction to have resulted from the gross negligence or the
willful misconduct of such Dealer Manager.
(c) Accordingly,
each of the Company and Co-Issuer expressly disclaims any agency or
fiduciary relationship with any Dealer Manager hereunder (except
that in any jurisdiction in which the Tender Offer is required to
be made by a registered licensed broker or dealer, and a Dealer
Manager is a registered licensed broker or dealer, it shall be
deemed made by such Dealer Manager on behalf of the Company). The
Company and Co-Issuer understand that the Dealer Managers and their
respective affiliates are not providing (nor are the Company and
Co-Issuer relying on the Dealer Managers or any of their affiliates
for) tax, regulatory, legal or accounting advice. The rights and
obligations the Company and Co-Issuer may have to the Dealer
Managers or any of their respective affiliates (or vice versa)
under any credit or other agreement are separate from any
party’s rights and obligations under this Agreement and will
not be affected in any way by this Agreement. Each of the Dealer
Managers may, to the extent it deems appropriate, retain the
services of any of its respective affiliates (including, without
limitation, Merrill Lynch, Pierce, Fenner & Smith Incorporated
(by BAS)) to assist such Dealer Manager in providing its services
hereunder and share with any such affiliates any information
made
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available by or
on behalf of the Company or Co-Issuer; provided, however, that each
such affiliate shall act in accordance with, and subject to, the
terms and conditions of this Agreement.
(d) Each of
the Company and Co-Issuer acknowledges that the Dealer Managers and
their respective affiliates are engaged in a broad range of
securities activities and financial services. In the ordinary
course of each Dealer Manager’s business, such Dealer Manager
and its affiliates (i) may at any time hold long or short
positions, and may trade or otherwise effect transactions, for its
own account or the accounts of customers, in debt or equity
securities of the Company, Co-Issuer, their respective affiliates
or any other company that may be involved in the transactions
contemplated hereby and (ii) may at any time be providing or
arranging financing and other financial services to companies that
may be involved in a competing transaction. The Company and
Co-Issuer acknowledge and agree that in connection with all aspects
of the transaction contemplated by this Agreement, the Company, the
Co-Issuer, and each Dealer Manager have an arm’s-length
business relationship that creates no fiduciary duty on the part of
such Dealer Manager, and each expressly disclaims any fiduciary
relationship.
(e) The
Dealer Managers agree, in accordance with its customary practice
and consistent with industry practice and in accordance with the
terms of the Tender Offer, to perform those services in connection
with the Tender Offer as are customarily performed by dealer
managers in connection with similar transactions of a like nature,
including, without limitation, using commercially reasonable
efforts to solicit tenders of Notes pursuant to the Tender Offer,
communicating generally regarding the Tender Offer with securities
brokers, dealers, banks, trust companies and nominees and other
Holders, and participating in meetings with, furnishing information
to, and assisting the Company in negotiating with
Holders.
(f) The
Company shall arrange for Global Bondholder Services Corporation to
act as information agent (the “Information Agent”) in
connection with the Tender Offer and shall request the Information
Agent, as such, to advise the Dealer Managers at least daily of
such matters relating to the Tender Offer as the Dealer Managers
may reasonably request. In addition, the Company and Co-Issuer
hereby authorize the Dealer Managers to communicate with the
Information Agent with respect to matters relating to the Tender
Offer.
(g) The
Company shall use commercially reasonable efforts to furnish the
Dealer Managers, or cause the trustee or registrar for the Notes to
furnish the Dealer Managers, as soon as practicable, with cards or
lists or copies thereof showing the names of persons who were the
Holders of record of Notes as of the date or dates specified by the
Dealer Managers and, to the extent reasonably available to the
Company, the beneficial Holders of the Notes as of such date or
dates, together with their addresses and the principal amount of
Notes held by them. In addition, the Company shall use commercially
reasonable efforts to update such information from time to time
during the term of this Agreement as reasonably requested by the
Dealer Managers and to the extent such information is reasonably
available to the Company within the time constraints
specified.
(h) The
Company agrees to advise the Dealer Managers promptly of the
occurrence of any event which, in the reasonable judgment of the
Company or its counsel, would cause or require the Company to
withdraw, rescind or modify the Tender Documents. In addition, if
any event occurs as a result of which, in the reasonable judgment
of the Company, it shall be
3
necessary to
amend or supplement any Tender Documents in order to correct any
untrue statement of a material fact contained therein or omission
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, the Company shall, promptly upon becoming
aware of any such event, advise the Dealer Managers of such event
and, as promptly as practicable under the circumstances, prepare
and furnish copies of such amendments or supplements of any such
Tender Documents to the Dealer Managers, so that the statements in
such Tender Documents, as so amended or supplemented, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(i) Neither
the Company nor the Co-Issuer will use or publish any material in
connection with the Tender Offer, or refer to any Dealer Managers
in any such material, without the prior approval of such Dealer
Manager (which shall not be unreasonably withheld or delayed),
except to the extent such reference is required by law or
regulation. The Company or Co-Issuer, as applicable, upon receiving
such approval, will promptly furnish the Dealer Managers with as
many copies of such approved materials as the Dealer Managers may
reasonably request. Except to the extent prohibited by applicable
law or regulation, the Company, or Co-Issuer, as applicable, will
promptly inform the Dealer Managers of any litigation or
administrative or similar proceeding (of which it becomes aware)
which is initiated or threatened with respect to the Tender Offer.
Each Dealer Manager agrees that it will not make any statements in
connection with the Tender Offer other than the statements that are
set forth in, or derived from, the Tender Documents without the
prior consent of the Company.
(j) The
Company agrees to pay promptly, in accordance with the terms and
subject to the conditions of the Tender Documents, the applicable
purchase price for the Notes to the Holders entitled thereto. The
Company agrees not to purchase any Notes during the term of this
Agreement except pursuant to and in accordance with the Tender
Offer or as otherwise agreed in writing by the parties hereto and
permitted under applicable laws and regulations.
Section 2. Compensation
and Expenses.
(a) In
consideration of services provided hereunder as the Dealer
Managers, the Company shall pay the Dealer Managers a fee equal to
$2.50 per $1,000 of the aggregate principal amount of Notes
repurchased in the Tender Offer (payable 90% to BAS and 10% to
Wells Fargo) payable on the Settlement Date (as such term is
defined in the Tender Documents) or such other date as may be
agreed by the Company and the Dealer Managers.
(b) Whether
or not any Notes are tendered pursuant to the Tender Offer, the
Company and Co-Issuer jointly and severally agree to pay promptly
all reasonable expenses incurred in connection with the
preparation, printing, mailing and publishing of the Tender
Documents, and all amounts payable to securities dealers (including
the Dealer Managers), brokers, banks, trust companies and nominees
as reimbursements of their customary mailing and handling expenses
incurred in forwarding the Tender Documents to their customers, and
of any forwarding agent, and all other expenses of the Company and
the Co-Issuer in connection with the Tender Offer and shall
reimburse the Dealer Managers for all reasonable out-of-pocket
expenses incurred by
4
the Dealer
Managers in connection with their services as Dealer Managers under
this Agreement, including the reasonable fees and disbursements of
counsel to the Dealer Managers.
Section 3.
Termination. Subject to Section 8 hereof, this
Agreement may be terminated by the Company or any Dealer Manager
with respect to itself upon 10 days’ prior written
notice; provided, however, that each Dealer Managers will be
entitled to the full fees described above in the event that, at any
time prior to 6 months from any such termination by the
Company, the Company or the Co-Issuer (or any of their affiliates)
consummates an offer, or offers in respect of the Notes in a form
similar to the Tender Offer in a transaction or series of
transactions in which such Dealer Manager did not act as dealer
manager to the Company or its affiliate, as applicable; provided,
further, that no fees shall be payable pursuant to the preceding
proviso if any Dealer Manager was in material breach of this
Agreement on the date of the notice of such termination was given
by the Company.
Section 4. Representations
and Warranties by the Company. The Company and Co-Issuer,
jointly and severally, represent and warrant to the Dealer
Managers, as of the date hereof, as of each date that any Tender
Documents are published, sent, given or otherwise distributed (each
a “Mailing Date”), and as of the closing date of the
Tender Offer on which the Notes are purchased by the Company
pursuant to the Tender Offer (the “Closing Date”)
that:
(a) Each of
the Company and Co-Issuer has been duly formed or incorporated and
is validly existing as a limited partnership or corporation and in
good standing under the laws of the jurisdiction of its formation
or incorporation.
(b) Each of
the Company and Co-Issuer has all necessary corporate or limited
partnership power and authority to execute and deliver this
Agreement, and to perform all its obligations hereunder and to make
and consummate the Tender Offer in accordance with its
terms.
(c) Each of
the Company and the Co-Issuer has taken all necessary action to
authorize the making and consummation of the Tender Offer and the
execution, delivery and performance by the Company of this
Agreement; and this Agreement has been duly executed and delivered
by the Company and Co-Issuer, and, assuming due authorization,
execution and delivery by the Dealer Managers, this Agreement
constitutes a valid and legally binding agreement of the Company
and Co-Issuer, enforceable against the Company and Co-Issuer in
accordance with its terms, except to the extent such enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles.
(d) Each of
the Tender Documents complies and (as amended or supplemented, if
amended or supplemented) will comply in all material respects with
all applicable requirements of the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”) and the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange
Act”); and the documents incorporated or deemed to be
incorporated by reference into each of the Tender Documents
(collectively, the “Incorporated Documents”) complied,
as of the date of filing with the Securities and Exchange
Commission (the “SEC”), in all material respects with
all applicable
5
requirements of
the Securities Act and the Exchange Act; and each of the Tender
Documents (including the Incorporated Documents) do not and (as
amended or supplemented, if amended or supplemented) will not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(e) The
financial statements, together with the related schedules and
notes, contained in the Tender Documents and the Incorporated
Documents present fairly in all material respects, in accordance
with generally accepted accounting principles (“GAAP”),
the consolidated financial position, results of operations,
stockholder’s equity and cash flows of the Company and its
subsidiaries on the basis stated therein at the respective dates or
for the respective periods to which they relate; and such
statements and related schedules and notes have been prepared in
accordance with GAAP consistently applied throughout the periods
involved, except as disclosed therein.
(f) Except as
disclosed in the Tender Documents, the Company and its subsidiaries
are not in breach or violation of or in default under, (i) any
of the provisions of the indenture, dated as of December 23,
2003, governing the Notes (the “Indenture”),
(ii) any of the provisions of the charter or bylaws (or
similar organizational documents) of the Company or any of its
subsidiaries, (iii) any other note, indenture, loan agreement,
mortgage or other agreement, instrument or undertaking to which the
Company or any of its subsidiaries is a party or by which any of
them is bound or to which any of their properties or assets is
subject, or (iv) any law, rule o
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