UBS WARBURG LLC
UNDERWRITING AGREEMENT
4,500,000 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
June 5, 2001
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
June 5, 2001
UBS WARBURG LLC
Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Brothers Inc.,
as Managing Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Ferrellgas Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the underwriters named in Schedule
A annexed hereto (the "Underwriters") an aggregate of 4,500,000 common units
("Common Units") representing limited partner interests in the Partnership (the
"Firm Units"). In addition, solely for the purpose of covering over-allotments,
the Partnership proposes to grant to the Underwriters the option (the "Option")
to purchase from the Partnership up to an additional 675,000 Common Units (the
"Additional Units"). The Firm Units and the Additional Units are hereinafter
collectively sometimes referred to as the "Units." The Units are described in
the Final Prospectus which is referred to below.
The Partnership has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the "Act"), with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-71111), including a prospectus subject to completion relating to
the Units. Such registration statement (including all financial schedules and
exhibits), as amended when it became effective, or, if such registration
statement became effective prior to the execution of this Agreement, as
supplemented or amended prior to the execution of this Agreement is herein
called the "Registration Statement." If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to such registration
statement will be filed and must be declared effective before the offering of
the Units may commence, the term "Registration Statement" as used in this
Agreement means such registration statement as amended by said post-effective
amendment. If it is contemplated, at the time the Agreement is executed, that a
registration statement will be filed pursuant to Rule 462(b) under the Act
before the offering of the Units may commence, the term "Registration Statement"
as used in this Agreement includes such registration statement. The term "Basic
Prospectus" as used in this Agreement shall mean the prospectus contained in the
Registration Statement at the time that the Registration Statement was declared
effective or in the form in which it has been most recently filed with the
Commission on or prior to the date of this Agreement. "Preliminary Prospectus"
shall mean any preliminary prospectus supplement to the Basic Prospectus,
together with the Basic Prospectus, which describes the Units and the offering
thereof, is filed pursuant to Rule 424(b) under the Act ("Rule 424(b)") and is
used prior to the filing of the Final Prospectus. "Final Prospectus" shall mean
the prospectus supplement relating to the Units and the offering thereof that is
first filed pursuant to Rule 424(b) after the date and time this Agreement is
executed and delivered by the parties hereto, together with the Basic
Prospectus.
All references in this Agreement to financial statements and
schedules and other information which is "contained," " included " or "stated"
in the Registration Statement, the Basic Prospectus, the Preliminary Prospectus
or the Final Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement,
the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus, as the
case may be; any reference in this Agreement to the Registration Statement, the
Basic Prospectus, the Preliminary 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 under the Act, as of the dates of the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference to any amendment or
supplement to the Registration Statement, the Basic Prospectus, the Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which at the time
are incorporated by reference in the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus or the Final Prospectus or any amendment
or supplement thereto.
Ferrellgas, Inc., a Delaware corporation (the "General
Partner"), is the sole general partner of the Partnership and the sole general
partner of Ferrellgas, L.P. (the "Operating Partnership"). The Partnership, the
Operating Partnership and the General Partner are collectively referred to
herein as the "Ferrellgas Parties." The Ferrellgas Parties confirm as follows
their agreements with the Underwriters:
1. Sale and Purchase. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Partnership agrees
to sell to the respective Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase from the Partnership, at a purchase price of
$18.97 per Unit, the number of Firm Units set forth opposite the name of such
Underwriter in Schedule A annexed hereto, plus such additional number of Firm
Units which such Underwriter may become obligated to purchase pursuant to
Section 8 hereof. The Partnership is advised by you that the Underwriters intend
initially to offer the Firm Units upon the terms set forth in the Final
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, the Partnership hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Partnership,
ratably in accordance with the number of Firm Units to be purchased by each of
them (subject to such adjustment as you shall determine to avoid fractional
units), all or a portion of the Additional Units as may be necessary to cover
over-allotments made in connection with the offering of the Firm Units, at the
same purchase price per unit to be paid by the Underwriters to the Partnership
for the Firm Units. This option may be exercised by you on behalf of the several
Underwriters at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Partnership. Such notice
shall set forth the aggregate number of Additional Units as to which the option
is being exercised, and the date and time when the Additional Units are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day1 after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Units to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Units being purchased as the number of Firm Units set forth opposite
the name of such Underwriter on Schedule A hereto bears to the total number of
Firm Units (subject, in each case, to such adjustment as you may determine to
eliminate fractional units).
2. Payment and Delivery. Payment of the purchase price for the Firm Units
shall be made to the Partnership by Federal Funds wire transfer, against
delivery of the Firm Units to you through the facilities of The Depository Trust
Company for the respective accounts of the Underwriters. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on June 8, 2001
(unless another time shall be agreed to in writing by you and the Partnership or
unless postponed in accordance with the provisions of Section 8 hereof). The
time at which such payment and delivery of the Firm Units are actually made is
hereinafter sometimes called the time of purchase. Payment of the purchase price
for the Additional Units shall be made at the additional time of purchase in the
same manner and at the same office as the payment for the Firm Units.
Certificates for the Units shall be registered in the name of Cede & Co.
3. Representations and Warranties of the Partnership. Each of the
Ferrellgas Parties, jointly and severally, represents and warrants to each of
the Underwriters that:
(a) No order preventing or suspending the use of the Basic Prospectus or
the Preliminary Prospectus has been issued by the Commission, and the Basic
Prospectus included as part of the Registration Statement as originally
filed or as part of any amendment or supplement thereto, and the
Preliminary Prospectus filed pursuant to Rule 424(b), conformed when so
filed in all material respects with the requirements of the Act, and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Partnership by an Underwriter through you expressly for use therein;
(b) The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective, and the Final Prospectus and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) and at the time of purchase and, if applicable, at the additional
time of purchase, conformed or will conform in all material respects with
the requirements of the Act, and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the statements made or to be made by the
Partnership in such documents within the coverage of Rule 175(b) under the
Act, including any statements with respect to the anticipated ratio of
taxable income to distributions, were made or will be made with a
reasonable basis and in good faith; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Partnership by an Underwriter through you expressly for use
therein;
(c) The Incorporated Documents heretofore filed, when they were filed (or,
if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the
requirements of the Exchange Act; any further Incorporated Documents so
filed will, when they are filed, conform in all material respects with the
requirements of the Exchange Act; no such document when it was filed (or,
if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and no such further document, when it
is filed will contain an untrue statement of a material fact or will omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(d) Each of the Partnership and the Operating Partnership has been duly
formed and is validly existing as a limited partnership under the Delaware
Revised Uniform Limited Partnership Act (the "Delaware Act"), with power
and authority (partnership and other) to own or lease its properties and to
conduct its business, in each case as described in the Final Prospectus,
and has been duly qualified or registered as a foreign limited partnership
for the transaction of business and is in good standing under the laws of
each jurisdiction in which it owns or leases property, or conducts any
business, so as to require such qualification or registration (except where
the failure to be so qualified or registered would not have a material
adverse effect upon the business, prospects, financial condition or results
of operations of the Ferrellgas Parties, taken as a whole, or subject the
Partnership or the holders of Common Units to any material liability or
disability);
(e) The General Partner has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of Delaware,
with power and authority (corporate and other) to own or lease its
properties, to conduct its business and to act as general partner of the
Partnership and of the Operating Partnership, in each case as described in
the Final Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification (except where the failure
to so qualified would not have a material adverse effect upon the business,
prospects, financial condition or results of operations of the Ferrellgas
Parties, taken as a whole, or subject the Partnership or the holders of
Common Units to any material liability or disability);
(f) The General Partner is the sole general partner of the Partnership with
a general partner interest in the Partnership of 1.0%; such general partner
interest has been duly authorized and validly issued and is fully paid (to
the extent required); and the General Partner owns such general partner
interest free and clear of all liens, encumbrances, charges or claims
(except for such liens, encumbrances, charges or claims as are not,
individually or in the aggregate, material to the ownership, use or value
thereof or as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto));
(g) The General Partner is the sole general partner of the Operating
Partnership with a general partner interest in the Operating Partnership of
1.0101%; such general partner interest has been duly authorized and validly
issued and is fully paid (to the extent required); and the General Partner
owns such general partner interest free and clear of all liens,
encumbrances, charges or claims (except for such liens, encumbrances,
charges or claims as are not, individually or in the aggregate, material to
the ownership, use or value thereof or as disclosed in the Registration
Statement and the Final Prospectus (or any amendment or supplement
thereto));
(h) The Partnership is the sole limited partner of the Operating
Partnership, with a limited partner interest of 98.9899%; such limited
partner interest has been duly authorized by the Operating Partnership
Agreement (as defined below), and was validly issued and is fully paid and
non-assessable (except as non-assessability may be affected by certain
provisions of the Delaware Act); and the Partnership owns such limited
partner interest in the Operating Partnership free and clear of all liens,
encumbrances, charges or claims (except for such liens, encumbrances,
charges or claims as are not, individually or in the aggregate, material
to the ownership, use or value thereof or as disclosed in the Registration
Statement and the Final Prospectus (or any amendment or supplement
thereto));
(i) All outstanding Common Units and the limited partner interests
represented thereby have been duly authorized and validly issued and are
fully paid and non-assessable (except as non-assessability may be affected
by certain provisions of the Delaware Act);
(j) The Units to be issued to the Underwriters and the limited partner
interests represented thereby are duly authorized and, when issued and
delivered against payment therefor as provided herein, will be validly
issued, fully paid and non-assessable (except as non-assessability may be
affected by certain provisions of the Delaware Act);
(k) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), there are no
preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any limited partner interests
in the Partnership or the Operating Partnership pursuant to the Third
Amended and Restated Agreement of Limited Partnership of the Partnership(as
it may be amended and restated at or prior to the time of purchase, the
"Partnership Agreement") or the Second Amended and Restated Agreement of
Limited Partnership of the Operating Partnership (as it may be amended and
restated at or prior to the time of purchase, the "Operating Partnership
Agreement," and together with the Partnership Agreement, the "Partnership
Agreements") or other governing documents or any agreement or other
instrument to which the Partnership or the Operating Partnership is a party
or by which either of them may be bound (except, in the case of
restrictions upon voting or transfer, where such restrictions would not
subject the Partnership or the holders of Common Units to any material
liability or disability); the capitalization of the Partnership is in all
material respects as described in the Final Prospectus under the caption
"Capitalization," and the Common Units, the Senior Units (as defined in the
Partnership Agreement) and the Partnership Agreements conform in all
material respects to the descriptions thereof contained in the Final
Prospectus;
(l) All of the outstanding 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 such shares are owned by ▇▇▇▇▇▇▇ Companies, Inc.
("▇▇▇▇▇▇▇"), free and clear of all liens, encumbrances, equities or claims
(except for such liens, encumbrances, equities or claims as are not,
individually or in the aggregate, material to the ownership, use or value
thereof or as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto));
(m) The execution and delivery of, and the performance by each of the
Ferrellgas Parties of their respective obligations under, this Agreement
have been duly authorized by each of the Ferrellgas Parties, and this
Agreement has been duly executed and delivered by each of the Ferrellgas
Parties and constitutes the valid and legally binding agreement of each of
the Ferrellgas Parties, enforceable against each of them in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and limitations under federal or state securities laws with
respect to the rights to indemnification or contribution hereunder; the
Partnership Agreement has been duly authorized, executed and delivered by
the General Partner for itself and as attorney-in-fact for each of the
limited partners of the Partnership pursuant to the powers of attorney
granted by the Partnership Agreement, and is a valid and legally binding
agreement of the General Partner and each of the limited partners of the
Partnership, enforceable against the General Partner and each of the
limited partners of the Partnership in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Operating
Partnership Agreement has been duly authorized, executed and delivered by
the General Partner and the Partnership and is a valid and legally binding
agreement of the General Partner and the Partnership, enforceable against
the General Partner and the Partnership in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(n) The issuance and sale of the Units by the Partnership, and the
execution, delivery and performance by the Ferrellgas Parties of this
Agreement and the consummation by each of the Ferrellgas Parties of the
transactions contemplated hereby will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which any of the Ferrellgas Parties is a
party or by which any of the Ferrellgas Parties is bound or to which any of
their properties or assets is subject, (ii) result in any violation of the
provisions of the certificate or agreement of limited partnership or of the
charter or bylaws or other organizational documents of any of the
Ferrellgas Parties or (iii) result in a violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over any of them or any of their properties, except in
the case of clause (i) or (iii) where such conflict, breach, violation or
default will not prevent the consummation of the transactions contemplated
herein and would not have a material adverse effect upon the business,
prospects, financial condition or results of operations of the Ferrellgas
Parties, taken as a whole, or subject the Partnership or the holders of
Common Units to any material liability or disability; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issuance
and sale of the Units by the Partnership or the consummation by the
Ferrellgas Parties of the transactions contemplated hereby, except (i) the
registration under the Act of the Units or (ii) such consents, approvals,
authorizations, orders, registrations or qualifications (A) as have been,
or prior to the time of purchase will be, obtained or (B) as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Units by the Underwriters;
(o) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), there are no legal or
governmental proceedings pending to which any of the Ferrellgas Parties is
a party or of which any of their respective properties is the subject,
which, if determined adversely to such person, would, individually or in
the aggregate, have material adverse effect upon the business, prospects,
financial condition or results of operations of the Ferrellgas Parties,
taken as a whole; and to the knowledge of the Ferrellgas Parties, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) The statements made in the Final Prospectus under the caption
"Description of Units," insofar as they purport to constitute summaries of
the terms of the Common Units, under the caption "Tax Considerations" and
under the caption "Recent Modifications to our Equity Structure" insofar as
they describe the provisions of the documents therein described, are
accurate, complete and fair summaries in all material respects;
(q) Each of the Ferrellgas Parties carries, or is covered by, insurance in
such amounts and covering such risks as is customarily obtained by
businesses similarly situated, taking into account self-insurance;
(r) None of the Ferrellgas Parties is in, nor will consummation of the
transactions contemplated hereby result in: (i) violation of its agreement
of limited partnership or charter, as the case may be; or (ii) default (and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default) in the due performance or observance of any
term, covenant or condition contained in any agreement, indenture or
instrument to which it or its property may be subject, or violation of any
law, ordinance, governmental rule, regulation or court decree to which it
or its property may be subject, which default or violation, individually or
in the aggregate, would have a material adverse effect upon the business,
prospects, financial condition or results of operations of the Ferrellgas
Parties, taken as a whole, or subject the Partnership or the holders of
Common Units to any material liability or disability;
(s) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), each of the Ferrellgas
Parties possess, and are operating in compliance in all material respects
with, all certificates, authorities or permits issued by the appropriate
local, state, federal or foreign regulatory agencies or bodies necessary to
conduct the business currently (or, as described or contemplated in the
Final Prospectus, to be) operated by them, except for such certificates,
authorizations or permits which, if not obtained, would not have,
individually or in the aggregate, a material adverse effect upon the
ability of the Ferrellgas Parties to conduct their businesses in all
material respects as currently conducted and as contemplated by the Final
Prospectus to be conducted; and, except as disclosed in the Registration
Statement and the Final Prospectus (or any amendment or supplement
thereto), none of the Ferrellgas Parties has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or filing,
would have a material adverse effect upon the ability of the Ferrellgas
Parties to conduct their businesses in all material respects as currently
conducted and as contemplated by the Final Prospectus to be conducted;
(t) None of the Ferrellgas Parties has any subsidiaries (other than the
Partnership and the Operating Partnership themselves) which, individually
or considered as a whole, would be deemed to be a significant subsidiary
(as defined in Rule 405 under the Act);
(u) The financial statements (including the related notes and supporting
schedules) included in the Registration Statement and the Final Prospectus
(and any amendment or supplement thereto) present fairly in all material
respects the financial position, results of operations and cash flows of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated, except to the extent disclosed therein. The selected
historical information set forth in the Partnership's Annual Report on Form
10-K for the fiscal year ended July 31, 2000 under the caption "Selected
Historical Financial Data" is accurately presented in all material respects
and prepared on a basis consistent with the audited and unaudited
historical consolidated financial statements from which it has been
derived, except as disclosed therein. The pro forma financial statements
and other pro forma financial information included or incorporated by
reference in the Registration Statement or the Final Prospectus (i) present
fairly in all material respects the information shown therein, (ii) have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and (iii) have been properly
computed on the bases described therein. The assumptions used in the
preparation of the pro forma financial statements and other pro forma
financial information included or incorporated by reference in the
Registration Statement or the Final Prospectus are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein. No other financial statements or
schedules of the Partnership are required by the Act or the Exchange Act to
be included in the Registration Statement or the Final Prospectus;
(v) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Final Prospectus (or any amendment or supplement
thereto), (i) none of the Ferrellgas Parties has incurred any liability or
obligation, indirect, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that, singly or in
the aggregate, is material to the Ferrellgas Parties, taken as a whole,
(ii) there has not been any material change in the capitalization, or
material increase in the short-term debt or long-term debt, of the
Partnership and the Operating Partnership, taken as a whole, and (iii)
there has not been any material adverse change, or any development
involving or which may reasonably be expected to involve, singly or in the
aggregate, a prospective material adverse change in the business,
prospects, financial condition or results of operations of the Ferrellgas
Parties, taken as a whole;
(w) There are no legal or governmental proceedings pending or, to the
knowledge of the Ferrellgas Parties, threatened, against any of the
Ferrellgas Parties or any of their subsidiaries, or to which any of the
Ferrellgas Parties or any of their subsidiaries is a party, or to which any
of their respective properties is subject, that are required to be
described in the Registration Statement or the Final Prospectus but are not
described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Final Prospectus or to be filed as an exhibit
to the Registration Statement that are not described or filed as required
by the Act;
(x) The Ferrellgas Parties and their subsidiaries have good and marketable
title to all real property and good title to all personal property
described in the Final Prospectus as being owned by them, free and clear of
all liens, claims, security interests or other encumbrances except (i) as
described in the Final Prospectus and (ii) such as do not materially
interfere with the use of such properties, taken as a whole, as described
in the Final Prospectus, including liens, claims, security interests and
other encumbrances pursuant to mortgage and/or security agreements given as
security for certain non-compete agreements with the prior owners of
certain businesses previously acquired by the Ferrellgas Parties and their
subsidiaries; and all real property and buildings held under lease by any
of the Ferrellgas Parties or any of their subsidiaries are held under valid
and subsisting and enforceable leases with such exceptions as do not
materially interfere with the use of such properties, taken as a whole, as
described in the Final Prospectus;
(y) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto) and except as would not
have a material adverse effect upon the business, prospects, financial
condition or results of operations of the Ferrellgas Parties, taken as a
whole, (i) none of the Ferrellgas Parties or their subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code or rule of common law, including any judicial
or administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (ii) the Ferrellgas Parties and their subsidiaries
have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the knowledge of the
Ferrellgas Parties, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Ferrellgas Parties or any of their
subsidiaries or any of their respective properties, and (iv) there are no
events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against the Ferrellgas
Parties or any of their subsidiaries or any of their respective properties
relating to Hazardous Materials or any Environmental Laws;
(z) None of the Ferrellgas Parties has taken, and none of such entities
shall take any action that would result in a violation of Section 242.102
of Regulation M promulgated under the Exchange Act in connection with the
sale of the Common Units;
(aa) Deloitte & Touche LLP, who have certified certain financial statements
of the Partnership and the General Partner included in the Registration
Statement and the Final Prospectus, are independent public accountants with
respect to the Partnership and the General Partner as required by the Act;
(bb) Each of the Ferrellgas Parties is, and after giving effect to the
offering and the sale of the Units, will be, exempt from regulation as an
"investment company," a person "controlled by "an "investment company" or
an "affiliated person" of or "promoter" or "principal underwriter" for an
"investment company," as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act"); and
(cc) Each of the Ferrellgas Parties is, and after giving effect to the
offering and the sale of the Units, will be, exempt from regulation as a
"holding company" or a "subsidiary company" of a "holding company" thereof
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
4. Certain Covenants of the Partnership. Each of the Partnership and the
General Partner hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Units for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Units; provided that the Partnership shall not be
required to qualify as a foreign partnership or to consent to the service
of process under the laws of any such state (except service of process with
respect to the offering and sale of the Units); and to promptly advise you
of the receipt by the Partnership of any notification with respect to the
suspension of the qualification of the Units for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) during the period of time referred to in the second sentence in
paragraph (e) below, to advise you and counsel for the Underwriters
promptly and, if requested by you, to confirm such advice in writing: (i)
of any request by the Commission for amendment of or a supplement to the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or
the Final Prospectus or for additional information; (ii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Units
for offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) of any change in the business,
prospects, financial condition or results of operations of any of the
Ferrellgas Parties, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus (as then amended or
supplemented) untrue or that requires the making of any additions to or
changes in the Registration Statement, the Preliminary Prospectus or the
Final Prospectus (as then amended or supplemented) in order to state a
material fact required by the Act to be stated therein or necessary in
order to make the statements therein not misleading, or of the necessity to
amend or supplement the Preliminary Prospectus or the Final Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If
at any time within the period of time referred to in the second sentence in
paragraph (e) below, the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Partnership and the
General Partner will make every reasonable effort to obtain the withdrawal
of such order at the earliest possible time;
(c) to furnish to you, at your request and without charge, (i) one signed
copy of the Registration Statement as originally filed with the Commission
and of each amendment thereto, including financial statements and all
exhibits to the Registration Statement, (ii) such number of conformed
copies of the Registration Statement as originally filed and of each
amendment thereto, but without exhibits, as you may request, (iii) such
number of copies of the Incorporated Documents, without exhibits, as you
may request, and (iv) such number of copies of the exhibits to the
Incorporated Documents as you may request;
(d) prior to the end of the period of time referred to in the second
sentence in paragraph (e) below, not to file any amendment to the
Registration Statement or make any amendment or supplement to the
Preliminary Prospectus or the Final Prospectus, or file any document that,
upon filing, becomes an Incorporated Document, of which you and counsel for
the Underwriters shall not previously have been advised or to which, after
you and counsel for the Underwriters shall have received a copy of the
document proposed to be filed, you shall reasonably object; provided that
your consent shall not be unreasonably withheld or delayed;
(e) to cause the Final Prospectus to be filed pursuant to, and in
compliance with, Rule 424(b). As soon after the execution and delivery of
this Agreement as possible and thereafter from time to time for such period
as in the opinion of counsel for the Underwriters a prospectus is required
by the Act to be delivered in connection with sales of the Units by any
Underwriter or dealer, the Partnership and the General Partner will
expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Final Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Partnership and the General
Partner consent to the use of the Preliminary Prospectus or the Final
Prospectus (and of any amendment or supplement thereto) in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Units are offered by the several Underwriters
and by all dealers to whom Units may be sold, both in connection with the
offering and sale of the Units and for such period of time thereafter as
the Final Prospectus is required by the Act to be delivered in connection
with sales of the Units by any Underwriter or dealer. If during such period
of time any event shall occur that in the judgment of the Partnership or
the General Partner or in the opinion of counsel for the Underwriters is
required to be set forth in the Final Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Final Prospectus (or to file under the Exchange Act any document that, upon
filing, becomes an Incorporated Document) in order to comply with the Act
or any other law, the Partnership and the General Partner will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with
the Commission an appropriate supplement or amendment thereto (or to such
document), and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof. In the event that the Partnership or
the General Partner and the several Underwriters agree that the Final
Prospectus should be amended or supplemented, the Partnership and the
General Partner, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed
amendment or supplement;
(f) to make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule 158(c)
of the Act), an earnings statement of the Partnership (which need not be
audited) complying with Section 11(a) of the Act;
(g) to apply the net proceeds from the sale of the Units in the manner set
forth under the caption "Use of Proceeds" in the Final Prospectus;
(h) not to issue, sell, offer or agree to sell, contract to sell, grant any
option to sell or otherwise dispose of, directly or indirectly, any Common
Units or securities convertible into or exchangeable or exercisable for
Common Units (including, but not limited to, any Senior Units) or warrants
or other rights to purchase Common Units or any other securities of the
Partnership that are substantially similar to Common Units or permit the
registration under the Act of any Common Units or Senior Units, except for
the registration of the Units and the sales to the Underwriters pursuant to
this Agreement and except for (i) issuances of Common Units upon the
exercise of outstanding options, (ii) the issuance of Common Units upon
conversion of Senior Units as required by lenders to whom the Senior Units
are pledged, or (iii) the registration of Senior Units or Common Units
issued upon conversion of Senior Units as required by lenders to whom the
Senior Units are pledged, for a period of ninety days after the date
hereof, without the prior written consent of UBS Warburg LLC ("UBSW") and
Banc of America Securities LLC ("BAS");
(i) to use its best efforts to cause the Common Units to be listed on the
NYSE; and
(j) to pay all expenses, fees and taxes (other than any transfer taxes and
fees and disbursements of counsel for the Underwriters except as set forth
under Section 5 hereof or (iii) below) in connection with (i) the
preparation and filing of the Registration Statement, the Preliminary
Prospectus, the Final Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii)
the issuance, sale and delivery of the Units by the Partnership, (iii) the
qualification of the Units for offering and sale under state laws and the
determination of their eligibility for investment under state law as
aforesaid (including the legal fees and filing fees and other disbursements
of counsel to the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters and
to dealers, (iv) any listing of the Units on any securities exchange and
any registration thereof under the Exchange Act, (v) the filing for review
of the public offering of the Units by the National Association of
Securities Dealers, Inc., and (vi) the performance of the Partnership's
other obligations hereunder.
5. Reimbursement of Underwriters' Expenses. If the Units are not delivered
for any reason other than the termination of this Agreement pursuant to the
first two paragraphs of Section 7 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Partnership
shall, in addition to paying the amounts described in Section 4(j) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties set forth in this Agreement on the part of the Partnership on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at the additional time of purchase are subject to the accuracy of
the representations and warranties set forth in this Agreement on the part of
the Partnership on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Partnership of its obligations hereunder and to the
following additional conditions precedent:
(a) The Partnership shall furnish to you at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇, counsel for the Partnership, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may be, with reproduced copies for each of the other Underwriters and in
form satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters,
stating that:
(i) Each of the Partnership and the Operating Partnership has
been duly formed and is validly existing as a limited partnership
under the Delaware Act, with power and authority to own or lease its
properties and to conduct its business as described in the Final
Prospectus;
(ii) The General Partner has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own or
lease its properties, to conduct its businesses and to act as general
partner of the Partnership and of the Operating Partnership, in each
case as described in the Final Prospectus;
(iii) The Partnership is duly qualified or registered as a
foreign limited partnership for the transaction of business and is in
good standing under the laws of the State of Missouri;
(iv) The Operating Partnership is duly qualified or registered as
a foreign limited partnership to transact business and is in good
standing under the laws of the State of Missouri;
(v) The General Partner is duly qualified or registered as a
foreign corporation and is in good standing under the laws of the
State of Missouri;
(vi) The General Partner is the sole general partner of the
Partnership and the Operating Partnership with a general partner
interest in the Partnership of 1.0% and a general partner interest in
the Operating Partnership of 1.0101%; such general partner interests
have been duly authorized and validly issued and are fully paid, and
are owned by the General Partner free and clear of all liens,
encumbrances, charges or claims of record (A) in respect of which a
financing statement under the Uniform Commercial Code of the State of
Delaware naming the General Partner as debtor is on file in the office
of the Secretary of State of the State of Delaware or (B) otherwise
known to such counsel, other than those created by or arising under
the Delaware Act;
(vii) The Partnership is the sole limited partner of the
Operating Partnership, with a limited partner interest of 98.9899%;
such limited partner interest has been duly authorized and validly
issued and is fully paid and non-assessable (except as
non-assessability may be affected by certain provisions of the
Delaware Act); and, the Partnership owns such limited partner interest
in the Operating Partnership free and clear of all liens,
encumbrances, charges or claims of record (A) in respect of which a
financing statement under the Uniform Commercial Code of the State of
Delaware naming the Partnership as debtor is on file in the office of
the Secretary of State of the State of Delaware or (B) otherwise known
to such counsel, other than those created by or arising under the
Delaware Act or disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto);
(viii) The Units issued to the Underwriters, including any
Additional Units that may be issued at the time of purchase or the
additional time of purchase, as the case may be, and the limited
partner interests represented thereby have been duly authorized and,
when issued and delivered against payment therefor as provided herein,
will be validly issued, fully paid and non-assessable (except as
non-assessability may be affected by certain provisions of the
Delaware Act);
(ix) Except as disclosed in the Registration Statement and the
Final Prospectus (or any amendment or supplement thereto), there are
no preemptive rights or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any limited
partner interests in the Partnership or the Operating Partnership
pursuant to either of the Partnership Agreements or other governing
documents or any agreement or other instrument identified in any
exhibit list to the Incorporated Documents to which the Partnership or
the Operating Partnership is a party or by which either of them is
bound (except, in the case of restrictions upon voting or transfer,
where such restrictions would not subject the Partnership or the
holders of Common Units to any material liability or disability);
(x) The Partnership Agreement, the Operating Partnership
Agreement and this Agreement have been duly authorized, executed and
delivered by each of the Ferrellgas Parties, as the case may be, and
each of the Partnership Agreement and the Operating Partnership
Agreement constitutes a valid and legally binding agreement of each of
the Ferrellgas Parties, as the case may be, enforceable against such
person, as the case may be, in accordance with their respective terms,
in each case, subject to (A) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, (B) limitations imposed by public policy,
applicable law relating to fiduciary duties and the judicial
imposition of an implied covenant of good faith and fair dealing and
(C) limitations under federal or state securities laws with respect to
the rights to indemnification or contribution hereunder;
(xi) The statements set forth in the Final Prospectus under the
caption "Description of Units," insofar as they purport to constitute
summaries of the terms of the Common Units, under the caption "Tax
Considerations" and under the caption "Recent Modifications to our
Equity Structure" insofar as they describe the provisions of the
documents therein described, are accurate, complete and fair summaries
in all material respects;
(xii) The issuance and sale of the Units by the Partnership and
the execution, delivery and performance by the Ferrellgas Parties of
this Agreement and the consummation by each of the Ferrellgas Parties
of the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument identified in any
exhibit list to the Incorporated Documents, nor will such action
result in any breach of the provisions of the Partnership Agreement or
the Operating Partnership Agreement or of the charter or bylaws of any
of the Ferrellgas Parties or, to the knowledge of such counsel,
violate any federal law of the United States or any rules or
regulations adopted by a governmental agency thereof applicable to the
Ferrellgas Parties, excluding in each case any violations which,
individually or in the aggregate, would not have a material adverse
effect upon the holders of Common Units or on the business, prospects,
financial condition or results of operations of any of the Ferrellgas
Parties, taken as a whole; provided, however, that, for the purposes
of this paragraph (xii), no opinion is expressed with respect to
federal or state securities laws, other antifraud laws and fraudulent
transfer laws;
(xiii) No consent, approval, authorization, order, registration
or qualification of or with any United States federal court or
governmental agency or body having jurisdiction over any of the
Ferrellgas Parties or any of their properties is required for the
issuance and sale of the Units by the Partnership or for the
consummation by the Ferrellgas Parties of the transactions
contemplated by this Agreement, except in each case for such consents,
approvals, authorizations, orders, registrations or qualifications (A)
as have been obtained, (B) as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of
the Units by the Underwriters or (C) as the failure to obtain would
not, individually or in the aggregate, have a material adverse effect
on the business, prospects, financial condition or results of
operations of the Ferrellgas Parties, taken as a whole;
(xiv) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against any of the
Ferrellgas Parties or to which any property of any of them is subject
that would be required to be disclosed in the Final Prospectus and are
not so disclosed;
(xv) Each of the Ferrellgas Parties is exempt from regulation as
an "investment company," a person "controlled by" an "investment
company" or an "affiliated person" of or "promoter" or "principal
underwriter" for an "investment company," as such terms are defined in
the Investment Company Act;
(xvi) Each of the Ferrellgas Parties is exempt from regulation as
a "holding company" or a "subsidiary company" of a "holding company"
thereof within the meaning of the Public Utility Holding Company Act
of 1935, as amended;
(xvii) The Registration Statement was declared effective by the
Commission under the Act; and to the knowledge of such counsel no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission; and
(xviii) The Registration Statement and the Final Prospectus and
any further amendments and supplements thereto made by the Partnership
prior to the time of purchase or the additional time of purchase, as
the case may be, (other than the financial statements and related
schedules and other financial data contained therein, as to which such
counsel need express no opinion) appear on their face to comply as to
form in all material respects with the requirements of the Act.
Such counsel shall also deliver a letter to the effect that they have
participated in conferences with officers and other representatives of the
Partnership, representatives of the independent public accountants of the
Partnership and representatives and counsel of the Underwriters at which
the contents of the Registration Statement and the Final Prospectus and
related matters were discussed and based on such participation and review,
although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus and such
counsel has made no independent check or verification thereof (except as
and to the extent stated in subparagraph (xi) above), on the basis of the
foregoing no facts have come to such counsel's attention that have caused
them to believe that (A) the Registration Statement at the time the
Registration Statement became effective and as of the time of purchase or
the additional time of purchase, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Final Prospectus, as of its date and as of the time of
purchase or the additional time of purchase, as the case may be, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (C) any amendment or supplement to the Final Prospectus, as
of its respective date, and as of the time of purchase or the additional
time of purchase, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial data included in the
Registration Statement or Final Prospectus).
In addition, such counsel shall have furnished to you their written
opinion, dated as of the time of purchase or the additional time of
purchase, as the case may be, in form and substance satisfactory to you in
your reasonable judgment, with respect to the legal conclusions described
in the Final Prospectus under the caption "Tax Considerations."
In rendering such opinion, such counsel may (A) rely in respect of matters
of fact upon certificates of the Partnership and the Operating Partnership
and of officers and employees of the General Partner and ▇▇▇▇▇▇▇ and upon
information obtained from public officials, and may assume that the
signatures on all documents examined by such counsel are genuine, (B) state
that their opinion is limited to federal laws, the Delaware Act and the
Delaware General Corporation Law and (C) state that they express no opinion
with respect to state or local tax statutes to which any of the limited
partners of the Partnership or any of the Ferrellgas Parties may be
subject.
(b) You shall have received from Deloitte & Touche LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by UBSW.
(c) You shall have received at the time of purchase and at the additional
time of purchase, as the case may be, the favorable opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, dated the time of purchase or
the additional time of purchase, as the case may be, with respect to such
matters as may be reasonably requested by the Underwriters.
(d) All filings, if any, required by Rule 424(b) shall have been timely
made; and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(e) (i) None of the Ferrellgas Parties shall have sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Final Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Final Prospectus, and (ii) since the respective dates as of which
information is given in the Final Prospectus there shall not have been any
change in the capitalization or long-term debt of the Ferrellgas Parties,
taken as a whole, or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, security holders' equity or results of operations of the
Ferrellgas Parties, taken as a whole, otherwise than as set forth or
contemplated in the Final Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Common Units being delivered at such
time of purchase on the terms and in the manner contemplated in the Final
Prospectus;
(f) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Partnership's or the Operating Partnership's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)-(2)
under the Act and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Partnership's or the Operating
Partnership's debt securities;
(g) There shall have been furnished to you at such time of purchase
certificates satisfactory to you, signed on behalf of the General Partner
by a President or Vice President thereof and on behalf of the Partnership
by the General Partner by an authorized officer thereof to the effect that:
(i) In the case of the Partnership (A) the representations and
warranties of the Partnership contained in this Agreement are true and
correct at and as of such time of purchase as though made at and as of
such time of purchase; (B) the Partnership has duly performed all
obligations required to be performed by it pursuant to the terms of
this Agreement at or prior to such time of purchase; (C) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or, to
the knowledge of the Ferrellgas Parties, threatened by the Commission,
and all requests for additional information on the part of the
Commission have been complied with or otherwise satisfied; (D) the
Units have been duly listed, subject only to official notice of
issuance, on the NYSE; and (E) no event contemplated by subsection (f)
of this Section 6 in respect of the Partnership or the Operating
Partnership shall have occurred; and
(ii) In the case of the General Partner (A) the representations and
warranties of the General Partner contained in this Agreement are true
and correct at and as of such time of purchase as though made at and
as of such time of purchase; and (B) the General Partner has duly
performed all obligations required to be performed by it pursuant to
the terms of this Agreement at or prior to such time of purchase.
(h) You shall have received signed letters from each of the directors and
officers of the General Partner and certain of its affiliates, including
▇▇▇▇▇▇▇ and JEF Capital Management, Inc., to the effect that such persons
shall not sell, offer or agree to sell, contract to sell, grant any option
to sell or otherwise dispose of, directly or indirectly, any Common Units
or securities convertible into or exchangeable or exercisable for Common
Units (including, but not limited to, any Senior Units) or warrants or
other rights to purchase Common Units or any other securities of the
Partnership that are substantially similar to the Common Units for a period
of 90 days after the date of the Final Prospectus without UBSW's and BAS's
prior written consent or as otherwise set forth therein.
(i) The Units shall have been approved for listing on the NYSE, subject
only to official notice of issuance at or prior to the time of purchase or
the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Units, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and the Final Prospectus, (y) there has been any material adverse and
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and the Final Prospectus), in the operations, business,
condition or prospects of the Partnership and the Operating Partnership taken as
a whole, which would, in your judgment or in the judgment of such group of
Underwriters, make it impracticable to market the Units, or (z) there shall have
occurred any downgrading, or any notice shall have been given of (i) any
intended or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities of or
guaranteed by the Partnership or the Operating Partnership by any "nationally
recognized statistical rating organization," as that term is defined in Rule
436(g)(2) under the Act or, if, at any time prior to the time of purchase or,
with respect to the purchase of any Additional Units, the additional time of
purchase, as the case may be, trading in securities on the NYSE, the American
Stock Exchange or the NASDAQ National Market shall have been suspended or
limitations or minimum prices shall have been established on the NYSE, the
American Stock Exchange or the NASDAQ National Market or if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets of the United
States as, in your judgment or in the judgment of such group of Underwriters, to
make it impracticable to market the Units.
If you or any group of Underwriters elects to terminate this Agreement as
provided in this Section 7, the Partnership and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Units, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Partnership shall
be unable to comply with any of the terms of this Agreement, the Partnership
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(j), 5 and 9 hereof), and the Underwriters
shall be under no obligation or liability to the Partnership under this
Agreement (except to the extent provided in Section 9 hereof).
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7, if
any Underwriter shall default in its obligation to take up and pay for the Firm
Units to be purchased by it hereunder (otherwise than for reasons sufficient to
justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Units which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Units, the non-defaulting Underwriters shall take up and
pay for (in addition to the number of Firm Units they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Units agreed to be purchased by
all such defaulting Underwriters, as hereinafter provided. Such Units shall be
taken up and paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Units shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Units set opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Partnership agrees with the non-defaulting Underwriters that it
will not sell any Firm Units hereunder unless all of the Firm Units are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Partnership or selected by the Partnership with your
approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or
by the Partnership for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Partnership or you shall have the right to
postpone the time of purchase for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and the Final
Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and include
any Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Units which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Units which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Partnership shall make arrangements within the five
business day period stated above for the purchase of all the Units which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall be terminated without further act or deed and without any
liability on the part of the Partnership to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Partnership. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Ferrellgas Parties agree, jointly and severally, to indemnify,
defend and hold harmless each Underwriter, its partners, directors and
officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any
such person may incur under the Act, the Exchange Act, common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in the Preliminary Prospectus or the Final
Prospectus or in the Registration Statement or in any amendment or
supplement thereto, or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading, except
insofar as any such loss, damage, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter through you to the Partnership
expressly for use with reference to such Underwriter in such Registration
Statement, such Preliminary Prospectus or such Final Prospectus or arises
out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
such Registration Statement, such Preliminary Prospectus or such Final
Prospectus or necessary to make such information not misleading; provided,
however, that the indemnity agreement contained in this subsection (a) with
respect to the Preliminary Prospectus (or any amendment or supplement
thereto) shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such loss, damage, expense, liability or claim purchased the
Units that are the subject thereof if the Final Prospectus corrected any
such alleged untrue statement or omission and if such Underwriter failed to
send or give a copy of the Final Prospectus to such person at or prior to
the written confirmation of the sale of such Units to such person, unless
the failure is the result of non-compliance by the Partnership and the
General Partner with paragraph (b) of Section 4 hereof.
If any action, suit or proceeding (together, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may
be sought against the Ferrellgas Parties pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the
Ferrellgas Parties in writing of the institution of such Proceeding and the
Ferrellgas Parties shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the omission
to so notify the Ferrellgas Parties shall not relieve the Ferrellgas
Parties from any liability which the Ferrellgas Parties may have to any
Underwriter or any such person or otherwise. Such Underwriter or such
controlling person shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Ferrellgas Parties in
connection with the defense of such Proceeding or the Ferrellgas Parties
shall not have, within a reasonable period of time in light of the
circumstances employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from, additional to or in conflict with those available to the
Ferrellgas Parties (in which case the Ferrellgas Parties shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties but the Ferrellgas Parties may employ counsel and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of the Ferrellgas Parties), in any of which
events the reasonable fees and expenses shall be borne by the Ferrellgas
Parties and paid as incurred (it being understood, however, that the
Ferrellgas Parties shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding
or series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Ferrellgas
Parties shall not be liable for any settlement of any such Proceeding
effected without its written consent but if settled with the written
consent of the Ferrellgas Parties, the Ferrellgas Parties agree to
indemnify and hold harmless any Underwriter and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for
any settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii)
such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or
on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Ferrellgas Parties, their partners, directors and officers and
any person who controls the Ferrellgas Parties within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against
any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Ferrellgas Parties
or any such person may incur under the Act, the Exchange Act, common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in and in conformity with information furnished
in writing by or on behalf of such Underwriter through you to the
Partnership expressly for use with reference to such Underwriter in the
Registration Statement, the Preliminary Prospectus, the Final Prospectus or
any amendment or supplement thereto, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement,
Preliminary Prospectus, Final Prospectus or any amendment or supplement
thereto or necessary to make such information not misleading. The
Ferrellgas Parties acknowledge that the statements set forth in the last
paragraph of the cover page of the Final Prospectus regarding delivery of
the Units and, under the heading "Underwriting," (i) the list of
Underwriters and their respective participation in the sale of the Units,
(ii) the sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions and
penalty bids in the Preliminary Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Preliminary Prospectus or the
Final Prospectus.
If any Proceeding is brought against the Ferrellgas Parties or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Ferrellgas Parties or such person
shall promptly notify such Underwriter in writing of the institution of
such Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses, provided,
however, that the omission to so notify such Underwriter shall not relieve
such Underwriter, from any liability which such Underwriter may have to the
Ferrellgas Parties or any such person or otherwise. The Ferrellgas Parties
or such person shall have the right to employ its own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of
the Ferrellgas Parties or such person unless the employment of such counsel
shall have been authorized in writing by such Underwriter in connection
with the defense of such Proceeding or such Underwriter shall not have
employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case
such Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events the reasonable fees and expenses shall
be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding).
No Underwriter shall be liable for any settlement of any such Proceeding
effected without the written consent of such Underwriter but if settled
with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Ferrellgas Parties and any such person from
and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it
shall be liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability
or a failure to act, by or on behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is unavailable to
an indemnified party under subsections (a) and (b) of this Section 9 in
respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect
the relative benefits received by the Ferrellgas Parties on the one hand
and the Underwriters on the other hand from the offering of the Units or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice
specified in clause (a) or (b) above, as applicable, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Ferrellgas Parties on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Ferrellgas Parties on
the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Ferrellgas Parties and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price of the Units. The relative fault of the Ferrellgas Parties
on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates
to information supplied by the Ferrellgas Parties or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, preparing to defend or defending
any claim or Proceeding.
(d) The Ferrellgas Parties and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in subsection
(c) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Units underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of
any damage which such Underwriter has otherwise been required to pay by
reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and not
joint.
(e) The indemnity and contribution agreements contained in this Section 9
and the covenants, warranties and representations of the Ferrellgas Parties
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter,
its directors and officers or any person (including each partner, officer
or director of such person) who controls any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Ferrellgas Parties, their directors or officers or any person
who controls the Ferrellgas Parties within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and shall survive any termination of
this Agreement or the issuance and delivery of the Units. The Ferrellgas
Parties and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the
Ferrellgas Parties, against any of the Ferrellgas Parties' officers or
directors in connection with the issuance and sale of the Units, or in
connection with the Registration Statement, the Preliminary Prospectus or
the Final Prospectus.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to UBS
Warburg LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Syndicate Department and to Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Equity Capital Markets, and,
if to the Ferrellgas Parties, shall be sufficient in all respects if delivered
or sent to the Partnership at the offices of the Partnership at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer.
11. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
12. Entire Agreement; Amendments and Waivers. This Agreement constitutes
the entire agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as set forth specifically
herein or contemplated hereby. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall not be
deemed or constitute a waiver of such right or remedy in the future. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided. Each party to this Agreement agrees that (i) no other party to this
Agreement (including its agents and representatives) had made any
representation, warranty, covenant or agreement to or with such party relating
to the transactions contemplated hereby, other than those expressly set forth
herein, and (ii) such party has no relied upon any representation, warranty,
covenant or agreement relating to the transactions contemplated hereby, other
than those referred to in clause (i) above.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Underwriters
and the Ferrellgas Parties consent to the jurisdiction of such courts and
personal service with respect thereto. The Underwriters and the Ferrellgas
Parties hereby consent to personal jurisdiction, service and venue in any court
in which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against UBSW, BAS or any indemnified party. Each of
UBSW, BAS, the Underwriters and the Ferrellgas Parties (on their behalf and, to
the extent permitted by applicable law, on behalf of their affiliates) waive all
right to trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Underwriters and the Ferrellgas Parties agree that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Underwriters and the Ferrellgas
Parties and may be enforced in any other courts in the jurisdiction of which
they are or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and, the Ferrellgas Parties and
to the extent provided in Section 9 hereof the controlling persons, directors
and officers referred to in such Section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Ferrellgas Parties and their successors and assigns and any
successor or assign of any substantial portion of the Partnership's and any of
the Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS Warburg LLC, an indirect, wholly-owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC is a
separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS Warburg
LLC are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
FERRELLGAS PARTNERS, L.P.
UNDERWRITING AGREEMENT
If the foregoing correctly sets forth the understanding among the
Ferrellgas Parties and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Ferrellgas Parties and the
Underwriters, severally.
Very truly yours,
FERRELLGAS PARTNERS, L.P.
By: FERRELLGAS, INC.,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
FERRELLGAS, L.P.
By: FERRELLGAS, INC.,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
FERRELLGAS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
Accepted and agreed to as of the date first above written, on behalf of itself
and the other several Underwriters named in Schedule A.
UBS WARBURG LLC
Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇ Brothers Inc.,
By: UBS WARBURG LLC
By: /s/K.S. ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director
By: BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
Number of
Underwriter Firm Units
UBS WARBURG LLC 1,125,000
Banc of America Securities LLC 1,125,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 1,125,000
▇▇▇▇▇▇ Brothers Inc. 1,125,000
----------
Total.......... 4,500,000
==========
1 As used herein "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
