Exhibit 1.1
AmeriGas Partners,
L.P.
AP Eagle Finance
Corp.
7 1 / 8 % Notes Due 2016
Underwriting
Agreement
New York, New York
January 10, 2006
CITIGROUP GLOBAL MARKETS INC.
As Representative of the
Underwriters named in Schedule II
hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
AmeriGas Partners, L.P., a Delaware
limited partnership (the “Partnership”), and AP Eagle
Finance Corp., a Delaware corporation and wholly owned subsidiary
of the Partnership (“Finance Corp.” and, together with
the Partnership, the “Issuers”), propose to sell to the
several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representative”) are acting as representative, the
principal amount of the securities identified in Schedule I
hereto (the “Securities”), to be issued under an
indenture (the “Indenture”) to be dated as of
January 26, 2006 (or as soon as practicable thereafter as
determined by the Issuers), between the Issuers and U.S. Bank
National Association, as trustee (the “Trustee”).
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 Securities Act of 1933, as
amended, and the rules and regulations thereunder, are herein
referred to as the “Act.” To the extent there are no
additional Underwriters listed on Schedule I other than you,
the term Representative as used herein shall mean you, as
Underwriters, and the terms Representative and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before
the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to
the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 19 hereof.
1. Representations and
Warranties . The Issuers, Operating Partnerships and the
General Partners represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) The Issuers meet the
requirements for use of Form S-3 under the Act and have
prepared and filed with the Commission an “automatic shelf
registration statement,” as defined in Rule 405 (the file
number of
1
which is set forth in
Schedule I hereto), on Form S-3, including a related
Basic Prospectus, for registration under the Act of the offering
and sale of the Securities. Such Registration Statement, including
any amendments thereto filed prior to the Execution Time, became
effective upon filing in accordance with Rule 462(e). The Issuers
have filed with the Commission, pursuant to Rule 424(b), one or
more Preliminary Final Prospectuses, each of which has previously
been furnished to you. The Issuers will file with the Commission a
Final Prospectus relating to the Securities in accordance with Rule
424(b). As filed, such Final Prospectus shall contain all
information required by the Act and the rules thereunder, and,
except to the extent the Representative shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the Basic Prospectus and the Preliminary Final Prospectus) as the
Issuers have advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the
Registration Statement did, and when the Final Prospectus is filed
(if required) in accordance with Rule 424(b) and on the
Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, and as applicable, the Trust
Indenture Act of 1939, as amended, and the rules and regulations
thereunder (the “Trust Indenture Act”) and the
respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein not misleading, except for such omissions as
are permitted under Rule 430B of the Act; on the Effective Date and
on the Closing Date, the Indenture did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not
include 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; provided , however , that the Issuers
make no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
Trust Indenture Act or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Issuers by or on behalf of
any Underwriter through the Representative specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 8
hereof.
(c) As of the Execution Time, the
Disclosure Package, when taken together as a whole, does 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. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Issuers
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(d) At the time of filing the
Registration Statement, each of the Issuers was (as the case may
be) a “well-known seasoned issuer” as defined in Rule
405. The Issuers agree to pay the fees required by the Commission
relating to the Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(e) At each of the times of delivery
to offerees of the Term Sheet and any other Free Writing Prospectus
and as of the Execution Time, the Issuers were not and are not
Ineligible Issuers (as defined in Rule 405), without taking account
of any determination by the Commission pursuant to Rule 405 that it
is not necessary that the Issuers be considered Ineligible
Issuers.
2
(f) Any Issuer Free Writing
Prospectus and the Term Sheet do not include any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus
and the Term Sheet based upon and in conformity with written
information furnished to the Issuers by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(g) 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 Preliminary
Final Prospectus and the Final Prospectus, 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.
(h) 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 Preliminary Final Prospectus and the Final
Prospectus, 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.
(i) 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 Preliminary Final Prospectus and the
Final Prospectus, 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.
(j) 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 material
respects as described in the Preliminary Final Prospectus and the
Final Prospectus, 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.
(k) None of the General Partners,
the Partnership or 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).
(l) None of the Issuers, the
Operating Partnerships or the General Partners is in violation of
its partnership agreement, certificate or articles of
incorporation, by-laws or other organizational documents. None of
the Issuers, the Operating Partnerships or the General Partners is
in violation of any law, ordinance,
3
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 any of 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.
(m) None of the offering, issuance
and sale of the 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 by the Issuers or the consummation by the Issuers, the
Operating Partnerships or the General Partners of the transactions
contemplated hereby (i) 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 (ii) conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership,
certificate or articles of incorporation, 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 (iii) 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 Preliminary
Final Prospectus and the Final Prospectus, or (iv) 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
(v) 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
Preliminary Final Prospectus and the Final Prospectus) 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 under the Act, 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.
(n) Except as disclosed in the
Preliminary Final Prospectus and the Final Prospectus (or any
amendment or supplement thereto), subsequent to the respective
dates as of which such information is given in the Preliminary
Final Prospectus or the Final Prospectus (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.
(o) 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.
(p) None of the Partnership, the
Operating Partnerships or the General Partners has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Preliminary Final Prospectus and
the Final Prospectus 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
4
action, order or decree; and, except
as described in the Preliminary Final Prospectus and the Final
Prospectus, and, since the respective dates as of which information
is given in the Preliminary Final Prospectus and the Final
Prospectus, and except for changes in accumulated other
comprehensive income (loss) attributable to the Operating
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 November 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”).
(q) The accountants,
PricewaterhouseCoopers LLP, who have audited the consolidated
financial statements of the Partnership incorporated by reference
in the Preliminary Final Prospectus and the Final Prospectus (or
any amendment or supplement thereto) is an independent registered
public accounting firm as required by the Act.
(r) The audited consolidated balance
sheets of the Partnership and the General Partner incorporated by
reference in the Preliminary Final Prospectus, the Final Prospectus
and the Registration Statement present fairly in all material
respects the financial position of the Partnership and the General
Partner as of the dates indicated; the historical information of
the Partnership set forth in the Preliminary Final Prospectus, the
Final Prospectus and the Registration Statement under the caption
“Summary Historical Financial and Other Data” is fairly
stated in all material respects in relation to the audited
historical consolidated financial statements from which it has been
derived; and the audited consolidated financial statements of the
Partnership included in, or incorporated by reference into, the
Preliminary Final Prospectus, the Final Prospectus and the
Registration Statement 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.
(s) 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.
(t) 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”).
(u) 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).
(v) 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.
(w) 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 Restated Agreement of Limited Partnership of AmeriGas
Eagle Propane, L.P., dated as of July 19, 1999.
5
(x) 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, 2005, 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%.
(y) 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
Preliminary Final Prospectus and the Final Prospectus.
(z) 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 Preliminary Final
Prospectus and the Final Prospectus 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, 2005, 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.
(aa) 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 and the Securities (the Indenture and the
Securities are referred to as the “Operative
Documents”) to which it is or will be 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
Securities as provided herein and therein, and with respect to
Finance Corp., the corporate power and authority to issue, sell and
deliver the Securities as provided herein and therein.
(bb) This Agreement has been duly
and validly authorized, executed and delivered by each of the
Issuers, the Operating Partnerships and the General
Partners.
(cc) At or before the Closing Date,
(i) the Issuers shall issue $350.0 million of the Securities
pursuant to the terms of the Preliminary Final Prospectus and the
Final Prospectus, and (ii) the Partnership shall use such
proceeds as set forth in the Preliminary Final Prospectus and the
Final Prospectus.
(dd) 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
Preliminary Final Prospectus and the Final Prospectus, 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.
(ee) Except as described in the
Preliminary Final Prospectus and the Final Prospectus, 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 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 and (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 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
6
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 Securities or (z) in any manner draw into
question the validity of this Agreement and the Operative
Documents.
(ff) 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 their 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) lack 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 Preliminary Final
Prospectus and the Final Prospectus, or (iii) are 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.
(gg) 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.
(hh) 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 Disclosure Package and the Final
Prospectus.
(ii) The 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 Securities, when
executed and delivered, will conform in all material respects to
the description thereof in the Disclosure Package and the Final
Prospectus.
(jj) None of the Issuers, the
Operating Partnerships or the General Partners is and, after giving
effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Preliminary
Final Prospectus and the Final Prospectus, 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.
(kk) 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 Securities it commences doing such
business.
7
(ll) The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the Preliminary Final Prospectus and the Final
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act,
at the time they were filed with the Commission, complied in all
material respects with the requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder
(the “Exchange Act”).
Each of the Issuers, the Operating
Partnerships and the General Partners acknowledge that the
Underwriters and, for purposes of the opinions to be delivered to
the Underwriters pursuant to Section 6 hereof, counsel to the
Issuers, the Operating Partnerships and the General Partners and
counsel to the Underwriters will rely upon the accuracy and truth
of the foregoing representations and hereby consent to such
reliance.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Issuers agree
to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Issuers, at the purchase
price set forth in Schedule I hereto the principal amount of
the Securities set forth opposite such Underwriter’s name in
Schedule II hereto.
3. Delivery and Payment .
Delivery of and payment for the Securities shall be made on the
date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the
foregoing date as the Representative shall designate, which date
and time may be postponed by agreement between the Representative
and the Issuers or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the
Securities shall be made to the Representative for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representative of the purchase price
thereof to or upon the order of the Issuers by wire transfer
payable in same-day funds to an account specified by the Issuers.
Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representative shall
otherwise instruct.
4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements . The Issuers,
Operating Partnerships and the General Partners agree with the
several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Issuers will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Issuers have furnished you a copy for your
review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Issuers
will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the
Representative with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representative of such
timely filing. The Issuers will promptly advise the Representative,
prior to the termination of the offering of the Securities
(i) when the Final Prospectus, and any supplement
the
