<PAGE>
EXHIBIT 10.2
EXECUTION VERSION
$415,000,000
AMERIGAS PARTNERS, L.P.
AMERIGAS FINANCE CORP.
7.25% SENIOR NOTES DUE 2015
PURCHASE AGREEMENT
April 13, 2005
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several
Purchasers,
Eleven Madison
Avenue,
New York,
N.Y. 10010-3629
Ladies and Gentlemen:
AmeriGas
Partners, L.P., a Delaware limited partnership (the
"PARTNERSHIP"), and AmeriGas Finance Corp.,
a Delaware corporation and a
wholly-owned subsidiary of the Partnership
("FINANCE CORP." and, together with
the Partnership, the "ISSUERS"), propose,
subject to the terms and conditions
stated herein, to issue and sell to the
several initial purchasers named in
Schedule A hereto (the "PURCHASERS") U.S.
$415,000,000 principal amount of their
7.25% Senior Notes due 2015 (the "OFFERED
SECURITIES") to be issued under an
indenture (the "INDENTURE"), among the
Issuers and Wachovia Bank, National
Association, as trustee (the "TRUSTEE"), to
be dated as of the Closing Date, as
defined below. Finance Corp., the
Partnership, along with its operating
partnership, AmeriGas Propane, L.P., a
Delaware limited partnership ("AMERIGAS
PROPANE"), AmeriGas Eagle Propane, L.P. a
Delaware limited partnership
("AMERIGAS EAGLE," and together with
AmeriGas Propane, the "OPERATING
PARTNERSHIPS"), AmeriGas Propane, Inc., a
Pennsylvania corporation and general
partner of both the Partnership and
AmeriGas Propane (the "GENERAL PARTNER") and
AmeriGas Eagle Holdings, Inc., a Delaware
corporation and general partner of
AmeriGas Eagle (the "EAGLE GENERAL
PARTNER," and together with the General
Partner, the "GENERAL PARTNERS") are
collectively referred to herein as the
"PARTNERSHIP ENTITIES." The United States
Securities Act of 1933, as amended, is
herein referred to as the "SECURITIES
ACT."
The
holders of the Offered Securities will be entitled to the benefits
of
a Registration Rights Agreement to be dated
as of the Closing Date among the
Issuers and the Purchasers (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Issuers agree to file one or more
registration statements with the
Securities and Exchange Commission (the
"COMMISSION") providing for the
registration of the Offered Securities
under the Securities Act.
The
Issuers, Operating Partnerships and the General Partners hereby
agree
with the several Purchasers as follows:
1.
Issuance of the Offered Securities. The Offered Securities will
be
offered and sold to the Purchasers pursuant
to an exemption from the
registration requirements under the
Securities Act. The Issuers have prepared a
preliminary offering circular, dated April
12, 2005 (the "PRELIMINARY OFFERING
CIRCULAR"),
1
<PAGE>
and a final offering circular, dated April
14, 2005 (the "OFFERING CIRCULAR")
relating to the Offered Securities. The
Preliminary Offering Circular, Offering
Circular and all documents incorporated by
reference therein are hereinafter
referred to as the "OFFERING DOCUMENT."
2.
Representations and Warranties of the Issuers, the Operating
Partnerships and the General Partners. The
Issuers, the Operating Partnerships
and the General Partners jointly and
severally represent and warrant to, and
agree with, the several Purchasers
that:
(a) On the date of this Agreement, the Offering Document does
not
include
any untrue statement of a material fact or omit to state any
material
fact necessary in order to make the statements therein, in
light
of the
circumstances under which they were made, misleading. The
preceding
sentence
does not apply to statements in or omissions from the Offering
Document
based upon written information furnished to the Issuers or the
General
Partners by any Purchaser through Credit Suisse First Boston
LLC
("CSFB")
specifically for use therein, it being understood and agreed
that
the only
such information is that described as such in Section 7(c)
hereof.
Such documents, when they were filed with the Commission,
conformed
in all material respects to the requirements of the Securities
Exchange
Act of 1934 (the "EXCHANGE ACT") and the rules and regulations
of
the
Commission thereunder.
(b) Each of the Partnership and the Operating Partnerships have
been
duly
formed and is validly existing as a limited partnership under
the
Delaware
Revised Uniform Limited Partnership Act (the "DELAWARE ACT")
with
full partnership power and
authority to own, lease and operate their
respective
properties and to conduct their respective businesses in all
material
respects as described in the Offering Circular, and each of the
Partnership and the Operating Partnerships is duly registered or
qualified
to conduct
its business and is in good standing in each jurisdiction or
place
where the nature of its properties or the conduct of its
business
requires
such registration or qualification, except where the failure to
so
register or qualify does not have a material adverse effect on
the
financial
condition, business, properties, results of operations, or
prospects
("MATERIAL ADVERSE EFFECT") of the Issuers and the Operating
Partnerships taken as a whole.
(c) Finance Corp. is a corporation duly incorporated, validly
existing
and in good standing under the Delaware General Corporation Law
(the
"DGCL"), with full corporate power and authority to own, lease
and
operate
its properties and to conduct its business in all material
respects
as described in the Offering Circular, and Finance Corp. is
duly
registered
or qualified to conduct its business and is in good standing in
each jurisdiction or place where
the nature of its properties or the
conduct of
its business requires such registration or qualification,
except
where the failure to so register or qualify does not have a
Material
Adverse Effect on the Issuers and the Operating Partnerships,
taken as a
whole.
(d) The General Partner is a corporation duly incorporated and
presently
subsisting under the laws of the Commonwealth of Pennsylvania,
with full
corporate power and authority to own, lease and operate its
properties
and to conduct its business and to act as general partner of
the
Partnership and of AmeriGas Propane, in each case in all
material
respects
as described in the Offering Circular, and the General Partner
is
duly
registered or qualified to conduct its business and is in good
standing
in each jurisdiction or place where the nature of its
properties
or the
conduct of its business requires such registration or
qualification, except where the failure to so register or qualify
(i) does
not have a
Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole, or (ii) would not subject the
limited
partners
that are unitholders of the Partnership to any material
liability
or
disability.
(e) The Eagle General Partner is a corporation duly
incorporated,
validly
existing and in good standing under the DGCL, with full
corporate
power and
authority to own, lease and operate its properties and to
conduct
its business and to act as general partner of AmeriGas Eagle,
in
all
2
<PAGE>
material
respects as described in the Offering Circular, and the Eagle
General Partner is duly
registered or qualified to conduct its business
and is in
good standing in each jurisdiction or place where the nature of
its
properties or the conduct of its business requires such
registration
or
qualification, except where the failure to so register or qualify
does
not have a
Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole, or the Eagle General Partner.
(f) None of the General Partners, the Partnership nor the
Operating
Partnerships has any subsidiaries, other than the Partnership and
the
Operating
Partnerships themselves and Petrolane Incorporated, a
Pennsylvania corporation ("PETROLANE"), which would be deemed to be
a
significant subsidiary (as such term is defined in Section 1-02
of
Regulation
S-X).
(g) None of the Issuers, the Operating Partnerships or the
General
Partners
is in violation of its partnership agreement, certificate or
articles
of incorporation or by-laws, or other organizational documents.
None of
the Issuers, the Operating Partnerships or the General Partners
is
in
violation of any law, ordinance, administrative or governmental
rule or
regulation
applicable to the Issuers, the Operating Partnerships, or the
General
Partners, as applicable, or of any decree or any court or
governmental agency or body having jurisdiction over the Issuers,
the
Operating
Partnerships and the General Partners, which violation would,
if
continued,
have a Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole. None of the Issuers, the
Operating
Partnerships or the General Partners is in breach, default or
violation in
the
performance of any obligation, agreement or condition contained in
any
bond,
debenture, note or any other evidence of indebtedness or in any
material
agreement, indenture, lease or other instrument to which the
Issuers,
the Operating Partnerships or the General Partners is a party
or
by which
any of them or any of their respective properties may be bound
which
breach, default or violation would, if continued, have a
Material
Adverse
Effect on the Issuers and the Operating Partnerships, taken as
a
whole.
(h) None of the offering, issuance and sale of the Offered
Securities, the execution, delivery or performance of this
Agreement by
the
Issuers, the Operating Partnerships or the General Partners,
the
execution,
delivery and performance of the Indenture and the Registration
Rights
Agreement by the Issuers or the consummation by the Issuers,
the
Operating
Partnerships or the General Partners of the transactions
contemplated hereby (A) requires
any permit, consent, approval,
authorization or other order of or registration or filing with, any
court,
regulatory
body, administrative agency or other governmental body, agency
or
official which has not been obtained or (B) conflicts or will
conflict
with or
constitutes or will constitute a violation of the agreement of
limited
partnership, certificate or articles of incorporation or
by-laws
or other
organizational documents of either of the Issuers or any of
their
respective
subsidiaries, the Operating Partnerships or the General
Partners
or (C) conflicts or will conflict with or constitutes or will
constitute
a breach or violation of, or a default under, any agreement,
indenture,
lease or other instrument to which either of the Issuers or any
of their
respective subsidiaries, the Operating Partnerships or the
General
Partners is a party or by which any of them or any of their
respective
properties may be bound other than as described in the Offering
Circular,
or (D) violates or will violate any statute, law, regulation or
filing or
judgment, injunction, order or decree applicable to either of
the
Issuers or any of their respective subsidiaries, the Operating
Partnerships or the General Partners or any of their respective
properties, or (E) will result in the creation or imposition of any
lien,
charge or
encumbrance upon any property or assets of either of the
Issuers
or any of
their respective subsidiaries, the Operating Partnerships or
the
General
Partners pursuant to the terms of any agreement or instrument
to
which any
of them 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 (other than
as
described in the Offering Circular) which conflict, breach,
violation
or default
would, if continued, have a Material Adverse Effect on the
Issuers
and the Operating Partnerships, taken as a whole, or the
General
Partners
except for such as have been obtained and made (or, in the case
of
3
<PAGE>
the
Registration Rights Agreement, will be obtained and made) under
the
Securities
Act, the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE
ACT"), and state securities or Blue Sky laws and regulations or
such as
may be required by the National Association of Securities
Dealers
("NASD"),
or which, if not obtained, would not, individually or in the
aggregate,
have a Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole.
(i) No registration under the Securities Act of the Offered
Securities
is required for the sale of the Offered Securities to the
Purchasers
as contemplated hereby or for the offer of the Offered
Securities
(the "EXEMPT RESALES") assuming (i) that the purchasers who buy
the
Offered Securities in the Exempt Resales are either "qualified
institutional buyers" ("QIBS"), as defined in Rule 144A of the
Securities
Act ("RULE
144A"), or persons permitted under Regulation S of the
Securities
Act ("REGULATION S") to purchase the Offered Securities in
offshore
transactions ("REGULATION S PURCHASERS") and (ii) the accuracy
of
the
Purchasers' representations regarding the absence of a general
solicitation in connection with the sale of the Offered Securities
to the
Purchasers and the
Exempt Resales contained herein. No form of general
solicitation or general advertising was used by either of the
Issuers or
the
General Partners or their affiliates in connection with the offer
and
sale of
any of the Offered Securities or in connection with Exempt
Resales,
including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar
medium or
broadcast
over television or radio, or any seminar or meeting whose
attendees
have been invited by any general solicitation or general
advertising. No securities of the same class as the Offered
Securities
have been
issued and sold by the Issuers within the six-month period
immediately prior to the date hereof. None of the Issuers, the
Operating
Partnerships or the General Partners has distributed or, prior to
the
later to
occur of (i) the Closing Date and (ii) completion of the
distribution of the Offered Securities, will distribute, any
prospectus in
connection
with the sale of the Offered Securities other than the
Preliminary Offering Circular and the Offering Circular, or
other
material,
if any, permitted by the Securities Act, including Rule 134(c)
of the
general rules and regulations promulgated thereunder. The
Issuers,
the
Operating Partnerships or the General Partners and their
affiliates
have
complied and will comply with the offering restrictions
requirement
of
Regulation S. The Issuers, Operating Partnerships or the
General
Partners
have not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities
except for
this Agreement.
(j) Except
as disclosed in the Preliminary Offering Circular or the
Offering
Circular (or any amendment or supplement thereto), subsequent
to
the
respective dates as of which such information is given in the
Preliminary Offering Circular or the Offering Circular (or any
amendment
or
supplement thereto), none of the Issuers, the Operating
Partnerships or
the
General Partners has incurred any liability or obligation, direct
or
contingent, or entered into any transaction, not in the ordinary
course of
business,
that is material to the Issuers and the Operating Partnerships,
taken as a
whole.
(k) Each of the Issuers, the Operating Partnerships and the
General
Partners
has filed all material tax returns required to be filed, and
has
timely
paid all taxes shown to be due pursuant to said returns, other
than
those (i)
which, if not paid, would not have a Material Adverse Effect on
the
Partnership and the Operating Partnerships, taken as a whole or
(ii)
which are
being contested in good faith.
(l) None of the Partnership, the Operating Partnerships nor the
General
Partners has sustained since the date of the latest audited
financial
statements included or incorporated by reference in the
Offering
Circular
any material loss or interference with its business from fire,
explosion,
flood or other calamity, not covered by insurance, or from any
labor
dispute or court or governmental action, order or decree; and,
except as
described in the Offering Circular, and, since the respective
dates as
of which information is given in the Offering Circular, and
except for
changes in accumulated other comprehensive income (loss)
attributable to the Operating
4
<PAGE>
Partnerships' derivative instruments, there has not been any
material
adverse
change in the partners' equity or capital stock or long-term
debt
of the
Partnership, the Operating Partnerships or the General Partners
other than
the partnership distribution on February 18, 2005 and there has
not been
any material adverse change in or affecting the financial
condition,
business, properties, results of operations or prospects of the
Partnership and the Operating Partnerships, taken as a whole (any
such
event in
this paragraph being termed a "MATERIAL ADVERSE CHANGE").
(m) The accountants, PricewaterhouseCoopers LLP, who have
certified
the
consolidated financial statements of the Partnership incorporated
by
reference
in the Preliminary Offering Circular and the Offering Circular
(or any
amendment or supplement thereto) are independent public
accountants as required by the Securities Act.
(n) The audited and unaudited consolidated balance sheets of
the
Partnership incorporated by reference in the Offering Circular
present
fairly in
all material respects the financial position of the Partnership
as of the
dates indicated; the historical information of the Partnership
set forth
in the Offering Circular under the captions "Summary Historical
Financial
and Other Data" and "Selected Historical Financial and Other
Data" is fairly stated
in all material respects in relation to the audited
and
unaudited historical consolidated financial statements from which
it
has been
derived; and the audited and unaudited consolidated financial
statements
of the Partnership included in, or incorporated by reference
into, the
Offering Circular have been prepared in all material respects
in
conformity
with generally accepted accounting principles applied on a
substantially consistent basis, except to the extent disclosed
therein.
(o) The Partnership maintains a system of internal accounting
controls
sufficient to provide reasonable assurances that (i)
transactions
are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary: (x) to
permit
preparation of financial statements in conformity with generally
accepted
accounting
principles or any other criteria applicable to such statements
as
contemplated by Section 13(b)(2)(B) of the Exchange Act, and (y)
to
maintain
accountability for assets; (iii) access to assets is permitted
only in
accordance with management's general or specific authorization;
and (iv)
the recorded accountability for assets is compared with the
existing
assets at reasonable intervals and appropriate action is taken
with
respect to any differences.
(p) The General Partner is the sole general partner of the
Partnership and AmeriGas Propane with a general partner interest in
the
Partnership of 1.0% pursuant to the Third Amended and Restated
Agreement
of Limited
Partnership of the Partnership (as it may be amended or
restated
at or prior to the Closing Date, the "PARTNERSHIP AGREEMENT")
and
a general
partner interest in AmeriGas Propane of 1.0101% pursuant to the
Second
Amended and Restated Agreement of Limited Partnership of
AmeriGas
Propane
(as it may be amended or restated at or prior to the Closing
Date,
the
"AMERIGAS PROPANE PARTNERSHIP AGREEMENT").
(q) As of the Closing Date, the General Partner and its
consolidated
subsidiaries will continue to own limited partner interests in
the
Partnership represented by 24,525,004 Units (as defined in the
Partnership
Agreement).
(r) As of the Closing Date, the Partnership will continue to be
the
sole
limited partner of AmeriGas Propane, with a limited partner
interest
of
98.9899%, and will own such limited partner interest in
AmeriGas
Propane
free and clear of all liens, encumbrances, charges or claims
other
than those
arising pursuant to the AmeriGas Propane Partnership Agreement.
(s) The Eagle General Partner is the sole general partner of
AmeriGas
Eagle with a general partner interest in AmeriGas Eagle of less
than 1.0%
pursuant to the Amended and
5
<PAGE>
Restated
Agreement of Limited Partnership of AmeriGas Eagle Propane,
L.P.,
dated as
of July 19, 1999.
(t) AmeriGas Propane is a limited partner of AmeriGas Eagle with
a
limited
partner interest of more than 98% in AmeriGas Eagle, and,
except
for
security interests on the interests in AmeriGas Eagle as described
in
Exhibits
10.7, 10.8, 10.9, 10.10, 10.10(a), 10.11, 10.12 and 10.12(a) to
the Annual
Report on Form 10-K filed by the Partnership for the fiscal
year ended
September 30, 2004, AmeriGas Propane owns such limited partner
interest
in AmeriGas Eagle free and clear of all liens, encumbrances,
charges or
claims. An unaffiliated third party is a special limited
partner of
AmeriGas Eagle with a special limited partner interest of less
than
1.0%.
(u) All of the issued shares of capital stock of the General
Partner
have been
duly authorized and validly issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of
the
General
Partner are held directly or indirectly by UGI Corporation,
free
and clear
of all liens, encumbrances, equities or claims, except as set
forth in
the Offering Circular.
(v) All of the issued shares of capital stock of the Eagle
General
Partner
have been duly authorized and validly issued and are fully paid
and
non-assessable; except as set forth in the Offering Circular
and
except for
security interests on the stock of the Eagle General Partner as
described
in Exhibits 10.7, 10.8, 10.9, 10.10, 10.10(a), 10.11, 10.12 and
10.12(a)
to the Annual Report on Form 10-K filed by the Partnership for
the fiscal
year ended September 30, 2004, all of the issued shares of
capital
stock of the Eagle General Partner are held directly or
indirectly
by
AmeriGas Propane, free and clear of all liens, encumbrances,
equities
or
claims.
(w) Each of the Issuers, the Operating Partnerships and the
General
Partners
have all requisite corporate or partnership power and authority
to
execute, deliver and perform its obligations under this Agreement
and,
to the
extent applicable, the Indenture, the Registration Rights
Agreement
and the
Offered Securities (the Indenture, the Registration Rights
Agreement
and the Offered Securities are referred to as the "OPERATIVE
DOCUMENTS") to which it is a party and to consummate the
transactions
contemplated hereby and thereby, including, without limitation,
with
respect to
the Partnership, the partnership power and authority to issue,
sell and
deliver the Offered Securities as provided herein and therein,
and with
respect to Finance Corp., the corporate power and authority to
issue,
sell and deliver the Offered Securities as provided herein and
therein.
(x) This Agreement has been duly and validly authorized,
executed
and
delivered by each of the Issuers, the Operating Partnerships and
the
General
Partners.
(y) At or before the Closing Date, (i) the Issuers shall issue
$415.0
million of the Offered Securities pursuant to the terms of the
Offering
Circular, and (ii) the Partnership shall use such proceeds as
set
forth in
the Offering Circular.
(z) Each of the Partnership and the Operating Partnerships have
all
necessary
consents, approvals, authorizations, orders, registrations and
qualifications of or with any court or governmental agency or body
having
jurisdiction over it or any of its properties or of or with any
other
person to
conduct its business as set forth or contemplated in the
Offering
Circular, except such consents, approvals, authorizations,
orders,
registrations or qualifications which, if not obtained, would
not,
individually or in the aggregate, have a Material Adverse Effect
upon the
Issuers
and the Operating Partnerships, taken as a whole.
(aa) Except as described in the Offering Circular, there is (i)
no
action,
suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now
pending
or, to the
knowledge of any of the Issuers, the Operating Partnerships or
the
General
6
<PAGE>
Partners,
threatened, to which any of the Issuers, the Operating
Partnerships or the General Partners, or any of their
respective
subsidiaries is or may be a party or to which the business or
property of
any of the
Issuers, the Operating Partnerships or the General Partners, or
any of
their respective subsidiaries is or may be subject, (ii) no
statute,
rule, regulation or order that has been enacted, adopted or
issued by
any governmental agency or that has been proposed by any
governmental body and (iii) no injunction, restraining order or
order of
any nature
by a federal or state court or foreign court of competent
jurisdiction to which any of the Issuers, the Operating
Partnerships or
the
General Partners, or any of their respective subsidiaries is or may
be
subject
that is reasonably expected to (x) individually or in the
aggregate,
have a Material Adverse Effect on the Issuers and the Operating
Partnerships, taken as a whole, or the General Partners, (y)
prevent or
result in
the suspension of the issuance of the Offered Securities or (z)
in any
manner draw into question the validity of this Agreement and
the
Operative
Documents.
(bb) None of the Issuers, the Operating Partnerships or the
General
Partners
(i) have violated any environmental, safety, health or similar
law or
regulation applicable to its business relating to the protection
of
human
health and safety, the environment or hazardous or toxic
substances
or wastes,
pollutants or contaminants ("ENVIRONMENTAL LAWS"), which
violation
would have a Material Adverse Effect on the Issuers and the
Operating
Partnerships, taken as a whole, (ii) lacks any permits,
licenses
or other
approvals required of them under applicable Environmental Laws
to
own, lease
or operate their properties and conduct their business as
described
in the Offering Circular, or (iii) is violating any terms and
conditions
of any such permit, license or approval, which, in the case of
clause
(ii) or (iii), would have a Material Adverse Effect on the
Issuers
and the
Operating Partnerships, taken as a whole.
(cc)
The Issuers, the Operating Partnerships and the General
Partners
maintain insurance covering their respective properties,
operations, personnel and businesses. In the General Partners'
reasonable
judgment,
such insurance insures against such losses and risks as are
adequate
to protect the Issuers, the Operating Partnerships and the
General
Partners and their businesses. None of the Issuers, the
Operating
Partnerships or the General Partners has received notice from
any
respective
insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order
to
continue
such insurance. All such insurance is outstanding and duly in
force on
the date hereof and will be outstanding and duly in force on
the
Closing
Date.
(dd) The Indenture has been duly and validly authorized by each
of
the
Issuers and, when duly executed and delivered by each Issuer and
the
Trustee,
will be the legally valid and binding obligation of each
Issuer,
enforceable against each Issuer in accordance with its terms,
except as
the
enforceability thereof may be limited by bankruptcy,
insolvency,
fraudulent
conveyance, reorganization, moratorium and similar laws of
general
applicability relating to or affecting creditors' rights and to
general
equity principles and except that rights to indemnification
thereunder
may be limited by federal or state securities laws or policy
relating
thereto. The Indenture, when executed and delivered, will
conform
in all
material respects to the description thereof in the Offering
Circular.
(ee) The Offered Securities have been duly and validly
authorized
for
issuance and sale to you by each of the Issuers pursuant to
this
Agreement
and, when issued and authenticated in accordance with the terms
of the
Indenture and delivered against payment therefor in accordance
with
the terms
hereof, will be the legally valid and binding obligations of
the
Issuers,
enforceable against the Issuers in accordance with their terms
and
entitled to the benefits of the Indenture, except as the
enforceability thereof may be limited by bankruptcy,
insolvency,
fraudulent
transfer, reorganization, moratorium and similar laws of
general
applicability relating to or affecting creditors' rights and to
general
equity principles. The Offered Securities, when executed and
delivered, will conform in all
material respects to the description
thereof in
the Offering Circular.
7
<PAGE>
(ff) The Registration Rights Agreement has been duly and
validly
authorized
by each of the Issuers and, when duly executed and delivered by
each
Issuer, will be the legal, valid and binding obligation of each
such
person,
enforceable against each such person in accordance with its
terms,
except as
the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar
laws of
general applicability relating to or affecting creditors'
rights
and by
general equity principles and except that rights to
indemnification
and
contribution thereunder may be limited by federal or state
securities
laws or
public policy relating thereto. The Registration Rights
Agreement,
when
executed and delivered, will conform in all material respects to
the
description thereof in the Offering Circular.
(gg) The Offered Securities have been duly and validly
authorized
for
issuance by each of the Issuers, and when issued and authenticated
in
accordance
with the terms of the Indenture and the Registration Rights
Agreement,
will be the legally valid and binding obligations of each of
the
Issuers, enforceable against each of the Issuers in accordance
with
their
terms and entitled to the benefits of the Indenture, except as
the
enforceability thereof may be limited by bankruptcy,
insolvency,
fraudulent
transfer, reorganization, moratorium and similar laws of
general
applicability relating to or affecting creditors' rights and to
general
equity principles.
(hh) None of the Issuers, the Operating Partnerships or the
General
Partners
is and, after giving effect to the offering and sale of the
Offered
Securities and the application of the proceeds thereof as
described
in the Offering Circular, will be an "investment company" or be
"controlled by" an "investment company" as those terms are defined
in the
Investment
Company Act of 1940, as amended.
(ii) None of the Issuers, the Operating Partnerships, the
General
Partners
or any of their affiliates does business with the government of
Cuba or
with any person or affiliate located in Cuba within the meaning
of
Section
517.075, Florida Statutes, and each of the Issuers, the
Operating
Partnerships and the General Partners agrees to comply with such
Section
if prior
to the completion of the distribution of the Notes it commences
doing such
business.
(jj) When the Offered Securities are issued and delivered
pursuant
to this
Agreement, none of the Offered Securities will be of the same
class
(within the meaning of Rule 144A) as securities of the Issuers
that
are listed
on a national securities exchange registered under Section 6 of
the Exchange Act or that are
quoted in a United States automated
interdealer quotation system.
(kk) No form of general solicitation or general advertising (as
defined in
Regulation D under the Securities Act) was used by the Issuers,
the
General Partners or the Operating Partnerships or their affiliates
in
connection
with the offer and sale of the Offered Securities contemplated
hereby.
(ll) None of the Issuers, the General Partners, the Operating
Partnerships or
any of their respective affiliates or any person acting on
its or
their behalf (other than the Purchasers, as to whom the
Issuers,
the
General Partners and the Operating Partnerships make no
representation) has engaged or will engage in any directed selling
efforts
within the
meaning of Regulation S with respect to the Offered Securities.
(mm) The Issuers will furnish the Purchasers, without charge,
as
many
copies of the Preliminary Offering Circular and the Offering
Circular,
and any amendments or supplements thereto, as the Purchasers
may
reasonably
request. The Issuers consent to the use of the Preliminary
Offering
Circular and the Offering Circular, and any amendments and
supplements
thereto, by the Purchasers in connection with Exempt Resales.
8
<PAGE>
Each of
the Issuers, the Operating Partnerships and the General
Partners
acknowledge that the Purchasers and, for
purposes of the opinions to be
delivered to the Purchasers pursuant to
Section 6 hereof, counsel to the
Issuers, the Operating Partnerships and the
General Partners and counsel to the
Purchasers will rely upon the accuracy and
truth of the foregoing
representations and hereby consent to such
reliance.
3.
Purchase, Sale and Delivery of Offered Securities. On the basis of
the
representations, warranties and agreements
herein contained, but subject to the
terms and conditions herein set forth, the
Issuers agree to sell to the
Purchasers, and the Purchasers agree,
severally and not jointly, to purchase
from the Issuers, at a purchase price of
99.04% of the principal amount thereof
in the respective principal amounts of the
Offered Securities as set forth
opposite the names of the several
Purchasers in Schedule A hereto.
The
Issuers will deliver against payment of the purchase price the
Offered
Securities in the form of one or more
permanent global securities in definitive
form (the "GLOBAL SECURITIES") deposited
with the Trustee as custodian for The
Depository Trust Issuers ("DTC") and
registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent
global Securities will be held only
in book-entry form through DTC, except in
the limited circumstances described in
the Offering Document. Payment for the
Offered Securities shall be made by the
Purchasers by wire transfer of immediately
available funds to an account
designated by the General Partner at 9:00
A.M. (New York City time), on May 3,
2005, at the offices of Shearman &
Sterling LLP, 599 Lexington Avenue, New York,
New York 10022, or at such other time or
place as CSFB and the Issuers may
determine, such time being herein referred
to as the "CLOSING DATE", against
delivery to the Trustee as custodian for
DTC of the Global Securities
representing all of the Offered Securities.
The Global Securities will be made
available for inspection by the Purchasers
and their counsel at the above
offices at least 24 hours prior to the
Closing Date.
4.
Representations by Purchasers; Resale by Purchasers. Each
Purchaser
severally represents and warrants to the
Issuers, the Operating Partnerships and
the General Partners and agrees that:
(a) Each Purchaser is an "accredited investor" within the meaning
of
Regulation
D of the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities
have not been registered under the Securities Act and may not
be offered
or sold within the United States or to, or for the account or
benefit
of, U.S. persons except in accordance with Regulation S or
pursuant
to an exemption from the registration requirements of the
Securities
Act. Each Purchaser severally represents and agrees that it has
offered
and sold the Offered Securities, and will only offer and sell
the
Offered
Securities (i) as part of its distribution at any time and (ii)
otherwise
until 40 days after the later of the commencement of the
offering
and the Closing Date, in accordance with Rule 903 or Rule 144A
under the
Securities Act. Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have
engaged or
will
engage in any directed selling efforts with respect to the
Offered
Securities, and such Purchaser, its affiliates and all persons
acting on
its or
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser severally
agrees
that, at
or prior to confirmation of sale of the Offered Securities,
other
than a
sale pursuant to Rule 144A, such Purchaser will have sent to
each
distributor, dealer or person receiving a selling concession, fee
or other
remuneration that purchases the Offered Securities from it during
the
restricted
period a confirmation or notice to substantially the following
effect:
"THE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE
U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT
BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT
OR BENEFIT OF, U.S. PERSONS (I) AS PART OF THEIR DISTRIBUTION AT
ANY
TIME OR (II) OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF THE DATE
OF
THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE,
9
<PAGE>
EXCEPT IN EITHER CASE IN ACCORDANCE WITH REGULATION S (OR RULE
144A
IF AVAILABLE) UNDER THE SECURITIES ACT. TERMS USED ABOVE HAVE
THE
MEANINGS GIVEN TO THEM BY REGULATION S."
Terms used
in this subsection (b) have the meanings given to them by
Regulation
S.
(c) Each Purchaser severally agrees that it and each of its
affiliates
has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities
except for
any such arrangements with the other Purchasers or affiliates
of the
other Purchasers or with the prior written consent of the
Issuers.
(d) Each Purchaser severally agrees that it and each of its
affiliates
has not, and will not, offer or sell the Offered Securities in
the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities
Act,
including,
but not limited to (i) any advertisement, article, notice or
other
communication published on the internet or in any newspaper,
magazine
or similar media or broadcast over television or radio, or (ii)
any
seminar or meeting whose attendees have been invited by any
general
solicitation or general advertising. Each Purchaser severally
agrees, with
respect to
resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale
or
otherwise
prior to settlement of such resale a notice to the effect that
the resale
of such Offered Securities has been made in reliance upon the
exemption
from the registration requirements of the Securities Act
provided
by Rule 144A.
(e) Each Purchaser severally represents and agrees that (i) it
has
not
offered or sold and prior to the expiry of a period of six months
from
the
closing date, will not offer or sell any Offered Securities to
persons
in th
