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EXHIBIT 3.1(a)
SECOND AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
AMERIGAS PROPANE, L.P.
DATED AS OF DECEMBER 1, 2004
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TABLE OF CONTENTS
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ARTICLE I
ORGANIZATIONAL
MATTERS....................................................................
1
1.1
Formation.....................................................................................
1
1.2
Name..........................................................................................
1
1.3
Registered Office; Principal
Office...........................................................
1
1.4 Power
of
Attorney.............................................................................
2
1.5
Term..........................................................................................
3
1.6
Possible Restrictions on
Transfer.............................................................
3
ARTICLE II
DEFINITIONS...............................................................................
3
ARTICLE III
PURPOSE...................................................................................
8
3.1
Purpose and
Business..........................................................................
8
3.2
Powers........................................................................................
8
ARTICLE IV
CONTRIBUTIONS.............................................................................
8
4.1
Initial
Contributions.........................................................................
8
4.2
Contributions by AmeriGas and the
MLP.........................................................
8
4.3
Additional
Contributions......................................................................
9
4.4 No
Preemptive
Rights..........................................................................
9
4.5
Interest and
Withdrawal.......................................................................
9
ARTICLE V
DISTRIBUTIONS.............................................................................
9
5.1 Timing
and Amount of Regular
Distributions....................................................
9
5.2
Special
Distribution..........................................................................
10
5.3
Distribution
Ratio............................................................................
10
5.4
Payments Other Than
Distributions.............................................................
10
5.5
Entity-Level Tax
Payments.....................................................................
10
ARTICLE VI
MANAGEMENT AND OPERATION OF
BUSINESS......................................................
10
6.1
Management....................................................................................
10
6.2
Certificate of Limited
Partnership............................................................
12
6.3
Restrictions on General Partner's
Authority...................................................
12
6.4
Reimbursement of the General
Partner..........................................................
13
6.5
Outside
Activities............................................................................
13
6.6 Loans
to and from the General Partner; Contracts with
Affiliates.............................. 15
6.7
Indemnification...............................................................................
16
6.8 Liability of
Indemnitees......................................................................
18
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6.9
Resolution of Conflicts of
Interest...........................................................
18
6.10 Other
Matters Concerning the General
Partner..................................................
20
6.11 Title to
Partnership
Assets...................................................................
20
6.12 Reliance by
Third
Parties.....................................................................
21
ARTICLE VII
RIGHTS AND OBLIGATIONS OF THE LIMITED
PARTNER............................................. 21
7.1
Limitation of
Liability.......................................................................
21
7.2
Management of
Business........................................................................
21
7.3
Outside
Activities............................................................................
22
7.4 Return
of
Capital.............................................................................
22
7.5 Right
of the Limited Partner Relating to the
Partnership...................................... 22
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND
REPORTS....................................................
23
8.1
Records and
Accounting........................................................................
23
8.2 Fiscal
Year...................................................................................
23
ARTICLE IX TAX
MATTERS...............................................................................
23
9.1 Tax
Allocations...............................................................................
23
9.2
Preparation of Tax
Returns....................................................................
24
9.3 Tax
Elections.................................................................................
24
9.4 Tax
Controversies.............................................................................
24
ARTICLE X
TRANSFER OF
INTERESTS.....................................................................
24
10.1
Transfer......................................................................................
24
10.2 Transfer of
the General Partner's Partnership
Interest........................................ 25
10.3 Transfer of
the Limited Partner's Partnership
Interest........................................ 25
ARTICLE XI
ADMISSION OF
PARTNERS.....................................................................
25
11.1 Admission
of AmeriGas as a Limited
Partner....................................................
25
11.2
Admission of
Substituted Limited
Partners.....................................................
25
11.3 Admission
of Successor General
Partner........................................................
26
11.4 Amendment
of Agreement and Certificate of Limited
Partnership................................. 26
11.5 Admission
of Additional Limited
Partners......................................................
26
ARTICLE XII
WITHDRAWAL OR REMOVAL OF
PARTNERS.........................................................
26
12.1 Withdrawal
of the General
Partner.............................................................
27
12.2 Removal of
the General
Partner................................................................
28
12.3 Interest of
Departing Partner and Successor General
Partner................................... 28
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12.4
Reimbursement of Departing
Partner............................................................
28
12.5 Withdrawal
of the Limited
Partner.............................................................
28
ARTICLE XIII
DISSOLUTION AND
LIQUIDATION...............................................................
28
13.1
Dissolution...................................................................................
28
13.2
Continuation of the Business of the Partnership After
Dissolution............................. 29
13.3
Liquidator....................................................................................
30
13.4
Liquidation...................................................................................
30
13.5
Cancellation of Certificate of Limited
Partnership............................................
31
13.6 Return of
Contributions.......................................................................
31
13.7 Waiver of
Partition...........................................................................
31
ARTICLE XIV
AMENDMENT OF PARTNERSHIP
AGREEMENT........................................................
31
14.1 Amendment
to be Adopted Solely by General
Partner............................................. 31
14.2 Amendment
Procedures..........................................................................
32
ARTICLE XV
MERGER....................................................................................
32
15.1
Authority.....................................................................................
32
15.2 Procedure
for Merger or
Consolidation.........................................................
33
15.3 Approval by
Limited Partner of Merger or
Consolidation........................................ 34
15.4 Certificate
of
Merger.........................................................................
34
15.5 Effect of
Merger..............................................................................
34
ARTICLE XVI
GENERAL
PROVISIONS........................................................................
34
16.1 Addresses
and
Notices.........................................................................
34
16.2
References....................................................................................
35
16.3 Pronouns
and
Plurals..........................................................................
35
16.4 Further
Action................................................................................
35
16.5 Binding
Effect................................................................................
35
16.6
Integration...................................................................................
35
16.7
Creditors.....................................................................................
35
16.8
Waiver........................................................................................
35
16.9
Counterparts..................................................................................
35
16.10 Applicable
Law................................................................................
35
16.11 Invalidity of
Provisions......................................................................
35
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
AMERIGAS PROPANE, L.P.
THIS
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
AMERIGAS PROPANE, L. P., dated as of
December 1, 2004, is entered into by and
among AmeriGas Propane, Inc., a
Pennsylvania corporation, as the General
Partner, and AmeriGas Partners, L.P., a
Delaware limited partnership, as the
initial Limited Partner, together with any
other Persons who become Partners in
the Partnership as provided herein. In
consideration of the covenants,
conditions and agreements contained herein,
the parties hereto hereby agree as
follows:
ARTICLE I
ORGANIZATIONAL MATTERS
1.1
FORMATION. The General Partner and the MLP have previously formed
the
Partnership as a limited partnership
pursuant to the provisions of the Delaware
Act. The General Partner hereby amends and
restates the Amended and Restated
Agreement of Limited Partnership of
AmeriGas Propane, L.P., dated as of April
12, 1995, in its entirety. Except as
expressly provided to the contrary in this
Agreement, the rights and obligations of
the Partners and the administration,
dissolution and termination of the
Partnership shall be governed by the Delaware
Act. All Partnership Interests shall
constitute personal property of the owner
thereof for all purposes.
1.2 NAME.
The name of the Partnership shall be "AmeriGas Propane, L.P."
The Partnership's business may be conducted
under any other name or names deemed
necessary or appropriate by the General
Partner, including the name of the
General Partner. The words "Limited
Partnership," "L.P.," "Ltd." or similar
words or letters shall be included in the
Partnership's name where necessary for
the purposes of complying with the laws of
any jurisdiction that so requires.
The General Partner in its sole discretion
may change the name of the
Partnership at any time and from time to
time and shall notify the Limited
Partner of such change in the next regular
communication to the Limited Partner.
1.3
REGISTERED OFFICE; PRINCIPAL OFFICE. Unless and until changed by
the
General Partner, the registered office of
the Partnership in the State of
Delaware shall be located at 32 Loockerman
Square, Suite L-100, Dover, Delaware
19904, and the registered agent for service
of process on the Partnership in the
State of Delaware at such registered office
shall be The Prentice-Hall
Corporation System, Inc. The principal
office of the Partnership shall be
located at, and the address of the General
Partner shall be, 460 North Gulph
Road, King of Prussia, Pennsylvania 19406,
or such other place as the General
Partner may from time to time designate by
notice to the Limited Partner. The
Partnership may maintain offices at such
other place or places within or outside
the State of Delaware as the General
Partner deems necessary or appropriate.
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1.4 POWER
OF ATTORNEY. (a) The Limited Partner hereby constitutes and
appoints each of the General Partner and,
if a Liquidator shall have been
selected pursuant to Section 13.3, the
Liquidator severally (and any successor
to either thereof by merger, transfer,
assignment, election or otherwise) and
each of their authorized officers and
attorneys-in-fact, with full power of
substitution, as its true and lawful agent
and attorney-in-fact, with full power
and authority in its name, place and stead,
to:
(i) execute, swear to, acknowledge, deliver, file and record
in the appropriate public offices (A) all
certificates, documents and other
instruments (including this Agreement and
the Certificate of Limited Partnership
and all amendments or restatements thereof)
that the General Partner or the
Liquidator deems necessary or appropriate
to form, qualify or continue the
existence or qualification of the
Partnership as a limited partnership (or a
partnership in which the limited partners
have limited liability) in the State
of Delaware and in all other jurisdictions
in which the Partnership may conduct
business or own property; (B) all
certificates, documents and other instruments
that the General Partner or the Liquidator
deems necessary or appropriate to
reflect, in accordance with its terms, any
amendment, charge, modification or
restatement of this Agreement; (C) all
certificates, documents and other
instruments (including conveyances and a
certificate of cancellation) that the
General Partner or the Liquidator deems
necessary or appropriate to reflect the
dissolution and liquidation of the
Partnership pursuant to the terms of this
Agreement; (D) all certificates, documents
and other instruments relating to the
admission, withdrawal, removal or
substitution of any Partner pursuant to, or
other events described in, Article X, XI,
XII or XIII; (E) all certificates,
documents and other instruments relating to
the determination of the rights,
preferences and privileges of any class or
series of Partnership Interests; and
(F) all certificates, documents and other
instruments (including agreements and
a certificate of merger) relating to a
merger or consolidation of the
Partnership pursuant to Article XV; and
(ii) execute, swear to, acknowledge, deliver, file and record
all ballots, consents, approvals, waivers,
certificates, documents and other
instruments necessary or appropriate, in
the sole discretion of the General
Partner or the Liquidator, to make,
evidence, give, confirm or ratify any vote,
consent, approval, agreement or other
action that is made or given by the
Partners hereunder or is consistent with
the terms of this Agreement or is
necessary or appropriate, in the sole
discretion of the General Partner or the
Liquidator, to effectuate the terms or
intent of this Agreement; provided, that
when the approval of the Limited Partner is
required by any provision of this
Agreement, the General Partner or the
Liquidator may exercise the power of
attorney made in this Section 1.4(a)(ii)
only after the necessary approval of
the Limited Partner is obtained.
Nothing contained in this Section 1.4(a)
shall be construed as authorizing the
General Partner to amend this Agreement
except in accordance with Article XIV or
as may be otherwise expressly provided for
in this Agreement.
(b) The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an
interest, and it shall survive and not
be affected by the subsequent death,
incompetency, disability, incapacity,
dissolution, bankruptcy or termination of
the Limited Partner and the transfer
of all or any portion of the Limited
Partner's Partnership Interest and shall
extend to the Limited Partner's heirs,
successors, assigns and personal
representatives. The
2
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Limited Partner hereby agrees to be bound
by any representation made by the
General Partner or the Liquidator acting in
good faith pursuant to such power of
attorney; and the Limited Partner hereby
waives any and all defenses that may be
available to contest, negate or disaffirm
the action of the General Partner or
the Liquidator taken in good faith under
such power of attorney. The Limited
Partner shall execute and deliver to the
General Partner or the Liquidator,
within 15 days after receipt of the General
Partner's or the Liquidator's
request therefor, such further designation,
powers of attorney and other
instruments as the General Partner or the
Liquidator deems necessary to
effectuate this Agreement and the purposes
of the Partnership.
1.5 TERM.
The Partnership commenced upon the filing of the Certificate of
Limited Partnership in accordance with the
Delaware Act and shall continue in
existence until the close of Partnership
business on December 31, 2093, or until
the earlier termination of the Partnership
in accordance with the provisions of
Article XIII.
1.6
POSSIBLE RESTRICTIONS ON TRANSFER. The General Partner may
impose
restrictions on the transfer of Partnership
Interests if a subsequent Opinion of
Counsel determines that such restrictions
are necessary to avoid a substantial
risk of the Partnership's becoming taxable
as a corporation or otherwise as an
entity for federal income tax purposes. The
restrictions may be imposed by
making such amendments to this Agreement as
the General Partner in its sole
discretion may determine to be necessary or
appropriate to impose such
restrictions.
ARTICLE II
DEFINITIONS
The
following definitions shall be for all purposes, unless
otherwise
clearly indicated to the contrary, applied
to the terms used in this Agreement.
"ADDITIONAL LIMITED PARTNER" means a Person admitted to the
Partnership as
a Limited Partner pursuant to Section 11.5
and who is shown as such on the books
and records of the Partnership.
"AFFILIATE" means, with respect to any Person, any other Person
that
directly or indirectly through one or more
intermediaries controls, is
controlled by or is under common control
with, the Person in question. As used
herein, the term "control" means the
possession, direct or indirect, of the
power to direct or cause the direction of
the management and policies of a
Person, whether through ownership of voting
securities, by contract or
otherwise.
"AGREEMENT" means this Second Amended and Restated Agreement of
Limited
Partnership of AmeriGas Propane, L.P., as
it may be amended, supplemented or
restated from time to time.
"AMERIGAS"
means AmeriGas Propane, Inc, a Pennsylvania corporation and a
wholly owned subsidiary of AmeriGas, Inc.,
a Pennsylvania corporation.
"AUDIT
COMMITTEE" means a committee of the Board of Directors of the
General Partner composed entirely of two or
more directors who are neither
officers nor employees of the General
Partner or any of its Affiliates.
3
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"AVAILABLE
CASH" as to any Quarter ending before the Liquidation Date,
means:
(a) the sum of (i) all cash of the Partnership Group on hand at
the
end of such Quarter and (ii) all additional
cash of the Partnership Group on
hand on the date of determination of
Available Cash with respect to such Quarter
resulting from borrowings subsequent to the
end of such Quarter, less
(b) the amount of cash reserves that is necessary or appropriate
in
the reasonable discretion of the General
Partner to (i) provide for the proper
conduct of the business of the Partnership
Group (including reserves for future
capital expenditures) subsequent to such
Quarter, (ii) provide funds for
distributions under Sections 5.3(a), (b)
and (c) or 5.4(a) of the MLP Agreement
in respect of any one or more of the next
four Quarters, or (iii) comply with
applicable law or any debt instrument or
other agreement or obligation to which
any member of the Partnership Group is a
party or its assets are subject.
"BUSINESS DAY" means Monday
through Friday of each week, except that a
legal holiday recognized as such by the
government of the United States or the
states of New York or Pennsylvania shall
not be regarded as a Business Day.
"CERTIFICATE OF LIMITED PARTNERSHIP" means the Certificate of
Limited
Partnership filed with the Secretary of
State of the State of Delaware as
referenced in Section 6.2, as such
Certificate of Limited Partnership may be
amended, supplemented or restated from time
to time.
"CLOSING DATE"
means the first date on which Common Units are sold by the
MLP to the Underwriters pursuant to the
provisions of the Underwriting
Agreement.
"CODE"
means the Internal Revenue Code of 1986, as amended and in
effect
from time to time. Any reference herein to
a specific section or sections of the
Code shall be deemed to include a reference
to any corresponding provision of
future law.
"COMMON
UNIT" means a unit representing a fractional part of the
partnership interests of all limited
partners and assignees and having the
rights and obligations specified with
respect to Common Units in the MLP
Agreement.
"CONTRIBUTION" means any cash, cash equivalents or the Net Agreed
Value of
any property or asset that a Partner
contributes to the Partnership pursuant to
the Conveyance and Contribution Agreement,
the Merger and Contribution
Agreement, Article IV or Article XIII.
"CONVEYANCE AND CONTRIBUTION AGREEMENT" means that certain
Conveyance and
Contribution Agreement, dated as of the
Closing Date, between Petrolane, the
MLP, the Partnership and certain other
parties, together with the additional
conveyance documents and instruments
contemplated or referenced thereunder.
"DELAWARE
ACT" means the Delaware Revised Uniform Limited Partnership
Act,
6 Del C Section 11-101, et seq., as
amended, supplemented or restated from time
to time, and any successor to such
statute.
4
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"DEPARTING
PARTNER" means a former General Partner, from and after the
effective date of any withdrawal or removal
of such former General Partner
pursuant to Section 12.1 or Section
12.2.
"EVENT OF
WITHDRAWAL" has the meaning assigned to such term in Section
12.1(a).
"EXCHANGE
ACT" means the Securities Exchange Act of 1934, as amended,
supplemented or restated from time to time,
and any successor to such statute.
"GENERAL
PARTNER" means AmeriGas and its successors as general partner
of
the Partnership.
"GROUP
MEMBER" means a member of the Partnership Group.
"INCLUDES"
means includes, without limitation, and "including" means
including, without limitation.
"INDEMNITEE" means (a) the General Partner, any Departing Partner,
any
Person who is or was an Affiliate of the
General Partner or any Departing
Partner, (b) any Person who is or was an
officer, director, employee, partner,
agent or trustee of the General Partner or
any Departing Partner or any such
Affiliate, or (c) any Person who is or was
serving at the request of the General
Partner or any Departing Partner or any
such Affiliate as a director, officer,
employee, partner, agent, fiduciary or
trustee of another Person; provided, that
a Person shall not be an Indemnitee
pursuant to this clause (c) by reason of
providing, on a fee-for-services basis,
trustee, fiduciary or custodial
services.
"INITIAL
OFFERING" means the initial offering and sale of Common Units
to
the public, as described in the
Registration Statement.
"LIMITED
PARTNER" means the MLP, AmeriGas and Petrolane pursuant to
Section 4.2, each Substituted Limited
Partner, if any, each Additional Limited
Partner and any Departing Partner upon the
change of its status from General
Partner to Limited Partner pursuant to
Section 12.3, but excluding any such
Person from and after the time it withdraws
from the Partnership.
"LIQUIDATION DATE" means (a) in the case of an event giving rise to
the
dissolution of the Partnership of the type
described in clauses (a) and (b) of
the first sentence of Section 13.2, the
date on which the applicable time period
during which the Partners have the right to
elect to reconstitute the
Partnership and continue its business has
expired without such an election being
made, and (b) in the case of any other
event giving rise to the dissolution of
the Partnership, the date on which such
event occurs.
"LIQUIDATOR" means the General Partner or other Person approved
pursuant
to Section 13.3 who performs the functions
described therein.
"MERGER
AGREEMENT" has the meaning assigned to such term in Section
15.1.
"MERGER
AND CONTRIBUTION AGREEMENT" means that certain Merger and
Contribution Agreement, dated as of the
Closing Date, between AmeriGas, the MLP,
the Partnership and
5
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certain other parties, together with the
additional conveyance documents and
instruments contemplated or referenced
thereunder.
"MLP"
means AmeriGas Partners, L.P., a Delaware limited partnership.
"MLP
AGREEMENT" means the Agreement of Limited Partnership of
AmeriGas
Partners, L.P., as it may be amended,
supplemented or restated from time to
time.
"NATIONAL
SECURITIES EXCHANGE" means an exchange registered with the
Commission under Section 6(a) of the
Securities Exchange Act of 1934, as
amended, supplemented or restated from time
to time, and any successor to such
statute, or the NASDAQ Stock Market or any
successor thereto.
"NET
AGREED VALUE" means the fair market value any asset or property
contributed to the Partnership reduced by
any liabilities either assumed by the
Partnership upon such contribution or to
which the asset or to which the asset
or property is subject when contributed, in
each case as determined by the
General Partner using such reasonable
method of valuation as it may adopt.
"1989
CUSTOMER LIST" means a customer list established in 1989 on the
books of Petrolane Gas Services LP, a
partnership which was merged into
Petrolane on July 15, 1993.
"OPINION
OF COUNSEL" means a written opinion of counsel (who may be
regular counsel to AmeriGas, any Affiliate
of AmeriGas, the Partnership or the
General Partner) acceptable to the General
Partner in its reasonable discretion.
"PARTNERS"
means the General Partner and the Limited Partner.
"PARTNERSHIP" means AmeriGas Propane, L.P., a Delaware limited
partnership, and any successor thereto.
"PARTNERSHIP GROUP" means the Partnership and its partnership
Subsidiaries, treated as a single
consolidated partnership.
"PARTNERSHIP INTEREST" means the interest of a Partner in the
Partnership.
"PERCENTAGE INTEREST" means (a) as to the General Partner, in its
capacity
as such, 1.0101% and (b) as to the Limited
Partner, 98.9899%.
"PERSON"
means an individual or a corporation, partnership, trust,
unincorporated organization, association or
other entity.
"PETROLANE" means Petrolane Incorporated, a California
corporation.
"QUARTER"
means, unless the context requires otherwise, a three-month
period of time ending on March 31, June 30,
September 30, or December 31.
"REGISTRATION STATEMENT" means the Registration Statement on Form
S-1
(Registration No. 33-86028), as it has been
or as it may be amended or
supplemented from time to time, filed
6
<PAGE>
by the MLP with the Securities and Exchange
Commission under the Securities Act
to register the offering and sale of the
Common Units in the Initial Offering.
"RESTRICTED ACTIVITIES" means the retail sales of propane to end
users in
the continental United States in the manner
engaged in by AmeriGas and Petrolane
immediately prior to the Closing Date.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
supplemented or restated from time to time
and any successor to such statute.
"SPECIAL
APPROVAL" means approval by the Audit Committee.
"SPECIAL
PROPANE CORPORATION" means any corporation that is engaged in
Restricted Activities, is not an S
Corporation within the meaning of Section
1361 of the Code, and whose tax basis in
its assets is in the aggregate
substantially less than the fair market
value of such assets.
"SUBSIDIARY" means, with respect to any Person, (a) a corporation
of which
more than 50% of the voting power of shares
entitled (without regard to the
occurrence of any contingency) to vote in
the election of directors or other
governing body of such corporation is
owned, directly or indirectly, by such
Person, by one or more Subsidiaries of such
Person or a combination thereof, (b)
a partnership (whether general or limited)
in which such Person or a Subsidiary
of such Person is, at the date of
determination, a general or limited partner of
such partnership, but only if more than 50%
of the partnership interests of such
partnership (considering all of the
partnership interests of the partnership as
a single class) is owned or controlled,
directly or indirectly, by such Person,
by one or more Subsidiaries of such Person,
or a combination thereof, or (c) any
other Person (other than a corporation or a
partnership) in which such Person,
directly or indirectly, at the date of
determination, has (i) at least a
majority ownership interest or (ii) the
power to elect or direct the election of
a majority of the directors or other
governing body of such Person.
"SUBSTITUTED LIMITED PARTNER" means a Person who is admitted as a
Limited
Partner to the Partnership pursuant to
Section 11.3 in place of and with all the
rights of a Limited Partner and who is
shown as a Limited Partner on the books
and records of the Partnership.
"SURVIVING
BUSINESS ENTITY" has the meaning assigned to such term in
Section 15.2(b).
"UNDERWRITER" means each Person named as an underwriter in Schedule
1 to
the Underwriting Agreement who purchases
Common Units pursuant thereto.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated
April 12,
1995, among the Underwriters, the MLP and
other parties providing for the
purchase of Common Units by such
Underwriters.
"WITHDRAWAL OPINION OF COUNSEL" has the meaning assigned to such
term in
Section 12.1(b).
7
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ARTICLE III
PURPOSE
3.1
PURPOSE AND BUSINESS. The purpose and nature of the business to
be
conducted by the Partnership shall be to
(a) acquire, manage and operate the
assets transferred to the Partnership
pursuant to the Merger and Contribution
Agreement and the Conveyance and
Contribution Agreement, and any similar assets
or properties, and to engage directly in,
or to enter into or form any
corporation, partnership, joint venture,
limited liability company or other
arrangement to engage indirectly in, any
type of business or activity engaged in
by AmeriGas or Petrolane or their
Affiliates immediately prior to the Closing
Date and, in connection therewith, to
exercise all of the rights and powers
conferred upon the Partnership pursuant to
the agreements relating to such
business activity, (b) engage directly in,
or enter into or form any
corporation, partnership, joint venture,
limited liability company or other
arrangement to engage indirectly in, any
business activity that is approved by
the General Partner and which may lawfully
be conducted by a limited partnership
organized pursuant to the Delaware Act and,
in connection therewith, to exercise
all of the rights and powers conferred upon
the Partnership pursuant to the
agreements relating to such business
activity, and (c) do anything necessary or
appropriate to the foregoing, including the
making of capital contributions or
loans to the MLP or any Subsidiary of the
Partnership or the MLP. The General
Partner has no obligation or duty to the
Partnership or the Limited Partner to
propose or approve, and in its sole
discretion may decline to propose or
approve, the conduct by the Partnership of
any business.
3.2
POWERS. The Partnership shall be empowered to do any and all acts
and
things necessary, appropriate, proper,
advisable, incidental to or convenient
for the furtherance and accomplishment of
the purposes and business described in
Section 3.1 and for the protection and
benefit of the Partnership.
ARTICLE IV
CONTRIBUTIONS
4.1
INITIAL CONTRIBUTIONS. In connection with the formation of the
Partnership under the Delaware Act, the
General Partner made an initial
Contribution to the Partnership in the
amount of $10.10 for an interest in the
Partnership and has been admitted as the
general partner of the Partnership, and
the MLP made an initial Contribution to the
Partnership in the amount of $989.90
for an interest in the Partnership and has
been admitted as a limited partner of
the Partnership.
4.2
CONTRIBUTIONS BY AMERIGAS AND THE MLP. (a) On the Closing Date
and
pursuant to the Merger and Contribution
Agreement, various Subsidiaries of
AmeriGas shall merge with and into the
Partnership. Pursuant to the Merger and
Contribution Agreement, AmeriGas shall
receive merger consideration consisting
of, among other items, (i) the continuation
of its general partner interest in
the Partnership consisting of a Partnership
Interest representing a 1.0101%
Percentage Interest and (ii) a limited
partner interest in the Partnership,
which shall thereupon be contributed to the
MLP as set forth in the Merger and
Contribution Agreement.
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(b) On the Closing Date and pursuant to the Conveyance and
Contribution Agreement, Petrolane, or
Petrolane and one of its Subsidiaries,
will convey substantially all of its or
their assets to the Partnership in
exchange for, among other items, a limited
partner interest or interests in the
Partnership, which shall thereupon be
contributed to the MLP as set forth in the
Conveyance and Contribution Agreement.
(c) On the Closing Date, the MLP shall contribute in respect of
its
Partnership Interest the net proceeds to
the MLP from the issuance of the Common
Units pursuant to the Initial Offering.
(d) The Partnership Interests contributed to the Partnership
pursuant to the provisions of Sections
4.2(a) and (b), together with the
Partnership Interest previously held by the
MLP, will represent a 98.9899%
Percentage Interest in the Partnership.
4.3
ADDITIONAL CONTRIBUTIONS. With the consent of the General Partner,
the
Limited Partner may, but shall not be
obligated to, make additional
Contributions to the Partnership.
Contemporaneously with the making of any such
additional Contributions by the Limited
Partner, the General Partner shall be
obligated to make an additional
Contribution to the Partnership in an amount
equal to 1.0101 / 98.9899% of the Net
Agreed Value of the additional
Contribution then made by the Limited
Partner. Except as set forth in the
immediately preceding sentence and Article
XIII, the General Partner shall not
be obligated to make any additional
Contributions to the Partnership.
4.4 NO
PREEMPTIVE RIGHTS. No Person shall have any preemptive,
preferential or other similar right with
respect to issuance or sale of any
class or series of Partnership Interests,
any option, right, warrant or
appreciation rights relating thereto, or
any other type of equity interest that
the Partnership may lawfully issue, or any
unsecured or secured debt obligation
of the Partnership that is convertible into
any class or series of equity
interests of the Partnership.
4.5
INTEREST AND WITHDRAWAL. No interest shall be paid by the
Partnership
on Contributions, no Partner shall be
entitled to withdraw any part of its
Contributions or to receive any
distribution from the Partnership, except as
provided in Articles V, VII, XII and
XIII.
ARTICLE V
DISTRIBUTIONS
5.1 TIMING
AND AMOUNT OF REGULAR DISTRIBUTIONS. (a) Subject to Section
5.1(b), cash shall be distributed to the
Partners at such times and in such
amount as the General Partner shall from
time to time determine.
(b) The General Partner shall determine the amount of Available
Cash
with respect to each Quarter ending before
the Liquidation Date within 45 days
following the end of such Quarter. Such
determination shall be made by reference
to the books and records of the Partnership
Group and, if made in good faith,
shall be conclusive. Promptly following
such determination, an amount equal to
Available Cash with respect to such prior
Quarter shall be distributed to the
Partners.
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5.2
SPECIAL DISTRIBUTION. Immediately following the issuance and sale
by
the Partnership of its $110,000,000 of
Series C First Mortgage Notes, and in
anticipation of the contributions to be
made to the Partnership pursuant to
Section 4.2, the net proceeds to the
Partnership from the issuance of such notes
shall be distributed to the General
Partner.
5.3
DISTRIBUTION RATIO. Except as provided in Sections 5.2 and
13.4(c),
all distributions shall be made to the
Partners in the ratio of their respective
Percentage Interests.
5.4
PAYMENTS OTHER THAN DISTRIBUTIONS. Amounts payable as compensation
or
reimbursement to the General Partner, or
amounts payable to any person other
than in his capacity as a Partner, such as
for goods or services, shall not be
treated as distributions.
5.5
ENTITY-LEVEL TAX PAYMENTS. The General Partner is authorized to
take
any action it determines in its sole
discretion to be necessary or appropriate
to cause the Partnership to comply with any
withholding requirements established
under the Code or any other law. Whether or
not pursuant to any withholding
requirement, if the Partnership is required
or elects to pay any tax on behalf
of the General Partner or the Limited
Partner that is attributable to the
Partnership, the General Partner is
authorized to pay such taxes from
Partnership funds. To the extent feasible,
each such payment shall be treated as
a distribution pursuant to Article V in
respect of the Person on whose behalf
the payment was made. If the payment is
made on behalf of a Person whose
identity cannot be determined, the General
Partner is authorized to treat the
payment as a distribution to the Limited
Partner. Alternatively, the General
Partner may elect to treat an amount paid
on behalf of the General Partner and
the Limited Partner as an expenditure of
the Partnership if the amount paid on
behalf of the General Partner is not
substantially greater per Percentage
Interest than that paid on behalf of the
Limited Partner.
ARTICLE VI
MANAGEMENT AND OPERATION OF BUSINESS
6.1
MANAGEMENT. (a) The General Partner shall conduct, direct and
manage
all activities of the Partnership. Except
as otherwise expressly provided in
this Agreement, all management powers over
the business and affairs of the
Partnership shall be exclusively vested in
the General Partner, and the Limited
Partner shall have no right of control or
management power over the business and
affairs of the Partnership. In addition to
the powers now or hereafter granted a
general partner of a limited partnership
under applicable law or which are
granted to the General Partner under any
other provision of this Agreement, the
General Partner, subject to Section 6.3,
shall have full power and authority to
do all things and on such terms as it, in
its sole discretion, may deem
necessary or appropriate to conduct the
business of the Partnership, to exercise
all powers set forth in Section 3.2 and to
effectuate the purposes set forth in
Section 3.1, including the following:
(i) the making of any expenditures, the lending or borrowing
of money, the assumption or guarantee of,
or other contracting for, indebtedness
and other liabilities, the issuance of
evidences of indebtedness and the
incurring of any other obligations;
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(ii) the making of tax, regulatory and other filings, or
rendering of periodic or other reports to
governmental or other agencies having
jurisdiction over the business or assets of
the Partnership;
(iii) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of
any or all of the assets of the
Partnership or the merger or other
combination of the Partnership with or into
another Person;
(iv) the use of the assets of the Partnership (including cash
on hand) for any purpose consistent with
the terms of this Agreement, including
the financing of the conduct of the
operations of the Partnership, the lending
of funds to other Persons (including the
MLP, the General Partner and its
Affiliates), the repayment of obligations
of the Partnership and the making of
capital contributions to a Subsidiary;
(v) the negotiation, execution and performance of any
contracts, conveyances or other instruments
(including instruments that limit
the liability of the Partnership under
contractual arrangements to all or
particular assets of the Partnership, with
the other party to the contract to
have no recourse against the General
Partner or its assets other than its
interest in the Partnership, even if same
results in the terms of the
transaction being less favorable to the
Partnership than would otherwise be the
case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including
employees having titles such as
"president," "vice president," "secretary" and
"treasurer") and agents, outside attorneys,
accountants, consultants and
contractors and the determination of their
compensation and other terms of
employment or hiring;
(viii) the maintenance of such insurance for the benefit of
the Partnership Group and the Partners
(including the assets of the Partnership)
as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and
the contribution of property and the making
of loans to, any further limited or
general partnerships, joint ventures,
corporations, limited liability companies
or other relationships;
(x) the control of any matters affecting the rights and
obligations of the Partnership, including
the bringing and defending of actions
at law or in equity and otherwise engaging
in the conduct of litigation and the
incurring of legal expense and the
settlement of claims and litigation; and
(xi) the indemnification of any Person against liabilities and
contingencies to the extent permitted by
law.
(b) Notwithstanding any other provision of this Agreement, the
MLP
Agreement, the Delaware Act or any
applicable law, rule or regulation, each of
the Partners hereby (i) approves, ratifies
and confirms the execution, delivery
and performance by the parties thereto of
the Underwriting Agreement, the
Conveyance and Contribution Agreement,
the
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Merger and Contribution Agreement, the
agreements and other documents filed as
exhibits to the Registration Statement, and
the other agreements described in or
filed as a part of the Registration
Statement; (ii) agrees that the General
Partner (on its own or through any officer
of the Partnership) is authorized to
execute, deliver and perform the agreements
referred to in clause (i) of this
sentence and the other agreements, acts,
transactions and matters described in
or contemplated by the Registration
Statements on behalf of the Partnership
without any further act, approval or vote
of the Partners; and (iii) agrees that
the execution, delivery or performance by
the General Partner, the MLP, any
Group Member or any Affiliate of any of
them, of this Agreement or any agreement
authorized or permitted under this
Agreement, shall not constitute a breach by
the General Partner of any duty that the
General Partner may owe the Partnership
or the Limited Partner or any other Persons
under this Agreement (or any other
agreements) or of any duty stated or
implied by law or equity.
6.2
CERTIFICATE OF LIMITED PARTNERSHIP. The General Partner has caused
the
Certificate of Limited Partnership to be
filed with the Secretary of State of
the State of Delaware as required by the
Delaware Act and shall use all
reasonable efforts to cause to be filed
such other certificates or documents as
may be determined by the General Partner in
its sole discretion to be reasonable
and necessary or appropriate for the
formation, continuation, qualification and
operation of a limited partnership (or a
partnership in which the Limited
Partner has limited liability) in the State
of Delaware or any other state in
which the Partnership may elect to do
business or own property. To the extent
that such action is determined by the
General Partner in its sole discretion to
be reasonable and necessary or appropriate,
the General Partner shall file
amendments to and restatements of the
Certificate of Limited Partnership and do
all things to maintain the Partnership as a
limited partnership (or a
partnership in which the Limited Partner
has limited liability) under the laws
of the State of Delaware or of any other
state in which the Partnership may
elect to do business or own property.
Subject to the terms of Section 7.4(a),
the General Partner shall not be required,
before or after filing, to deliver or
mail a copy of the Certificate of Limited
Partnership, any qualification
document or any amendment thereto to the
Limited Partner.
6.3
RESTRICTIONS ON GENERAL PARTNER'S AUTHORITY. (a) The General
Partner
may not, without written approval of the
specific act by the Limited Partner or
by other written instrument executed and
delivered by the Limited Partner
subsequent to the date of this Agreement,
take any action in contravention of
this Agreement, including, except as
otherwise provided in this Agreement, (i)
committing any act that would make it
impossible to carry on the ordinary
business of the Partnership; (ii)
possessing Partnership property, or assigning
any rights in specific Partnership
property, for other than a Partnership
purpose; (iii) admitting a Person as a
Partner; (iv) amending this Agreement in
any manner; or (v) transferring its
interest as general partner of the
Partnership.
(b) Except as provided in Articles XIII and XV, the General
Partner
may not sell, exchange or otherwise dispose
of all or substantially all of the
Partnership's assets in a single
transaction or a series of related transactions
without the approval of the Limited
Partner; provided, however, that this
provision shall not preclude or limit the
General Partner's ability to mortgage,
pledge, hypothecate or grant a security
interest in all or substantially all of
the Partnership's assets and shall not
apply to any forced sale of any or all of
the Partnership's assets pursuant to the
foreclosure of, or other realization
upon, any such encumbrance.
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(c) At all times while serving as the general partner of the
Partnership, the General Partner shall not
make any dividend or distribution on,
or repurchase any shares of, its stock or
take any other action within its
control if the effect of such action would
be to reduce its net worth,
independent of its interest in the
Partnership Group and the MLP, to be less
than $10 million.
6.4
REIMBURSEMENT OF THE GENERAL PARTNER. (a) Except as provided in
this
Section 6.4 and elsewhere in this Agreement
or in the MLP Agreement, the General
Partner shall not be compensated for its
services as general partner of any
Group Member.
(b) The General Partner shall be reimbursed on a monthly basis,
or
such other basis as the General Partner may
determine in its sole discretion,
for (i) all direct and indirect expenses it
incurs or payments it makes on
behalf of the Partnership (including
salary, bonus, incentive compensation and
other amounts paid to any Person to perform
services for the Partnership or for
the General Partner in the discharge of its
duties to the Partnership) and (ii)
all other necessary or appropriate expenses
allocable to the Partnership or
otherwise reasonably incurred by the
General Partner in connection with
operating the Partnership's business
(including expenses allocated to the
General Partner by its Affiliates). The
General Partner shall determine the fees
and expenses that are allocable to the
Partnership in any reasonable manner
determined by the General Partner in its
sole discretion. Reimbursements
pursuant to this Section 6.4 shall be in
addition to any reimbursement to the
General Partner as a result of
indemnification pursuant to Section 6.7.
(c) The General Partner, in its sole discretion and without the
approval of the Limited Partner (who shall
have no right to vote in respect
thereof), may propose and adopt on behalf
of the Partnership employee benefit
plans, employee programs and employee
practices for the benefit of employees of
the General Partner, any Group Member, or
any Affiliate, or any of them, in
respect of services performed, directly or
indirectly, for the benefit of the
Partnership Group. Expenses incurred by the
General Partner in connection with
any such plans, programs and practices
shall be reimbursed in accordance with
Section 6.4(b). Any and all obligations of
the General Partner under any
employee benefit plans, employee programs
or employee practices adopted by the
General Partner as permitted by this
Section 6.4(c) shall constitute obligations
of the General Partne
