Exhibit 10.12
OMNIBUS AMENDMENT AGREEMENT
Dated as of February 4, 2000
in respect of
THERMOGAS TRUST NO. 1999-A
PARTICIPATION AGREEMENT
LOAN AGREEMENT
TRUST AGREEMENT
Each dated as of December 15, 1999
-----------------------------------
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AMENDMENT OF ORIGINAL AGREEMENTS..........................2
Section 1.1. Amendments to Participation Agreement.....................2
Section 1.2. Amendments to Loan Agreement..............................4
Section 1.3. Amendments to Trust Agreement.............................5
SECTION 2. REPRESENTATIONS OF THE LESSEE.............................6
SECTION 3. AUTHORIZATION AND DIRECTION...............................6
SECTION 4. EFFECTIVENESS.............................................6
SECTION 5. FEES AND EXPENSES.........................................6
SECTION 6. MISCELLANEOUS.............................................6
Section 6.1. Construction..............................................6
Section 6.2. References................................................7
Section 6.3. Headings and Table of Contents............................7
Section 6.4. Counterparts..............................................7
Section 6.5. Governing Law.............................................7
-1-
OMNIBUS AMENDMENT AGREEMENT
THIS OMNIBUS AMENDMENT AGREEMENT dated as of February 4, 2000 (this
"Amendment") is among FERRELLGAS, LP, a Delaware limited partnership (as
successor in interest to Thermogas L.L.C., a Delaware limited liability company
("Thermogas"), pursuant to the hereinafter defined Assumption Agreement) (the
"Lessee"), FERRELLGAS, INC., a Delaware corporation (the "General Partner"),
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, in
its individual capacity and in its capacity as certificate trustee under the
Trust Agreement referred to below (the "Certificate Trustee"), FIRST SECURITY
TRUST COMPANY OF NEVADA, a Nevada banking corporation (the "Agent"), and BANC OF
AMERICA LEASING & CAPITAL, LCC, as Certificate Purchaser under the Participation
Agreement referred to below (the "Certificate Purchaser") and as Lender under
the Participation Agreement referred to below (the "Lender").
RECITALS:
A. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Participation Agreement (as
hereinafter defined and as amended hereby).
B. Thermogas, The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation, the
Certificate Trustee, the Agent, the Certificate Purchaser and the Lender have
heretofore entered into that certain Participation Agreement dated as of
December 15, 1999 (the "Participation Agreement").
C. The Certificate Trustee, the Agent and the Lender have heretofore
entered into that certain Loan Agreement dated as of December 15, 1999 (the
"Loan Agreement").
D. The Certificate Purchaser and First Security Bank, National Association,
in its individual capacity and as Certificate Trustee, have heretofore entered
into that certain Trust Agreement dated as of December 15, 1999 (the "Trust
Agreement").
E. Pursuant to that certain Assumption Agreement dated as of December 15,
1999 (the "Assumption Agreement"), the Lessee has assumed all of the obligations
of Thermogas under the Operative Documents.
F. The Lessee, the General Partner, the Certificate Trustee, the Agent, the
Certificate Purchaser and the Lender now desire to amend the Participation
Agreement, the Loan Agreement and the Trust Agreement (collectively, the
"Original Agreements") in the respects, but only in the respects, hereinafter
set forth.
NOW, THEREFORE, the Lessee, the General Partner, the Certificate Trustee,
the Agent, the Certificate Purchaser and the Lender, in consideration of good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENT OF ORIGINAL AGREEMENTS.
Section 1.1. Amendments to Participation Agreement. (a) Section 8.3 of the
Participation Agreement shall be and is hereby amended and restated in its
entirety to read as follows:
"Section 8.3. Action upon Instructions Generally. Subject to Sections
8.4 and 8.6, upon written instructions of the Required Participants, Agent
shall, on behalf of the Participants, give such notice or direction,
exercise such right, remedy or power hereunder or in respect of the Units,
and give such consent or enter into such amendment to any document to which
it is a party as Agent as may be specified in such instructions. Agent
shall deliver to each Participant a copy of each notice, report and
certificate received by Agent pursuant to the Operative Documents. Agent
shall have no obligation to investigate or determine whether there has been
a Lease Event of Default or a Lease Default. Agent shall not be deemed to
have notice or knowledge of a Lease Event of Default or Lease Default
unless a Responsible Officer of Agent is notified in writing of such Lease
Event of Default or Lease Default; provided that Agent shall be deemed to
have been notified in writing of any failure of Lessee to pay Rent in the
amounts and at the times set forth in Article IV of the Lease. If Agent
receives notice of a Lease Event of Default, Agent shall give prompt notice
thereof, at Lessee's expense, to each Participant. Subject to Sections 8.4,
8.6 and 9.5, Agent shall take action or refrain from taking action with
respect to such Lease Event of Default as directed by the Required
Participants; provided that, unless and until Agent receives such
directions, Agent may refrain from taking any action with respect to such
Lease Event of Default. Prior to the date the Lease Balance shall have
become due and payable by acceleration pursuant to Section 8.2 of the
Lease, the Required Participants may deliver written instructions to Agent
to waive, and Agent shall waive pursuant thereto, any Lease Event of
Default and its consequences; provided that in the absence of written
instructions from all Participants, Agent shall not waive any: (i) Payment
Default, or (ii) covenant or provision which, under Section 9.5, cannot be
modified or amended without the consent of all Participants. As to any
matters not expressly provided for by this Participation Agreement, Agent
shall in all cases be fully protected in acting, or in refraining from
acting, hereunder in accordance with instructions signed by the Required
Participants and such instructions of the Required Participants and any
action taken or failure to act pursuant thereto shall be binding on each
Participant."
(b) The following definitions set forth in Appendix I to the
Participation Agreement shall be and are hereby amended and restated to
read as follows:
"Eligible Assignee" means (i) a commercial bank or finance
company organized under the laws of the United States, or any
state thereof, and having a combined capital and surplus of at
least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization
for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the United
States; and (iii) a Person that is primarily engaged in the
business of commercial banking or is a finance company and that
is (A) a Subsidiary of a Participant, (B) a Subsidiary of a
Person of which a Participant is a Subsidiary, (C) a Person of
which a Participant is a Subsidiary, or (D) a Subsidiary of a
Person described in clauses (i) or (ii) above the obligations of
which are guaranteed by a Person described in clauses (i) or (ii)
above.
"Interest Rate" for any Class of Notes shall mean for any
Payment Period, the sum of the LIBO Rate plus the Applicable
Margin for such Class of Notes or at any time that the provisions
of Section 7.6 of the Participation Agreement shall apply, the
Alternate Base Rate for such Class of Notes plus a margin
selected by the holders of such class of Notes (subject to the
Lessee's consent which shall not be unreasonably withheld) which
margin when added to the Alternate Base Rate would most closely
approximate the LIBO Rate most recently in effect plus the
Applicable Margin.
"Operative Documents" shall mean the Participation
Agreement, the Lease, the ▇▇▇▇ of Sale, the Loan Agreement, the
Assignment of Lease and Rent, the Trust Agreement, the Lessee
Guaranty, the Assumption Agreement, the Agent Fee Letter, the
Trustee Fee Letter, the Notes and the Certificates.
"Payment Period" shall mean Quarterly Payment Period during
the Lease Term; provided that any Payment Period that would
otherwise extend beyond the Final Maturity Date shall end on the
Final Maturity Date.
"Required Participants" shall mean, as of the date of the
determination, (i) for purposes of any amendment, modification or
waiver of Article IV, Article V (to the extent such amendment,
modification or waiver reduces or adversely effects the rights,
duties or interests of Participants of one or more classes of
Notes or Certificates without equally affecting the rights,
duties or interests of the Participants holding Notes or
Certificates of the other class or classes), Article VI (to the
extent such amendment, modification or waiver reduces or
adversely effects the rights, duties or interests of Participants
of one or more classes of Notes or Certificates without equally
affecting the rights, duties or interests of the Participants
holding Notes or Certificates of the other class or classes),
Article VIII (to the extent such amendment, modification or
waiver relates to the articles described in this clause (i)) and
Article IX of the Lease, (A) Lenders holding at least a majority
in aggregate principal amount of the Class A Notes and (B)
Lenders holding at least a majority in aggregate principal amount
of the Class B Notes and (C) Certificate Purchasers holding at
least a majority in aggregate principal amount of Certificates,
(ii) for purposes of the Trust Agreement, Certificate Purchasers
holding at least a majority in aggregate principal amount of the
Certificates and (iii) for all other purposes, subject to Section
9.5 of the Participation Agreement, Participants holding at least
a majority in aggregate principal amount of Notes and
Certificates.
"Yield Rate" shall mean, with respect to each Payment
Period, the applicable rate at which Yield shall accrue and be
payable from time to time on the Certificates, which rate shall
be the rate per annum equal to the sum of (i) the LIBO Rate for
such Payment Period plus (ii) 4.00% or, at any time the
Certificates bear interest at the Alternate Base Rate, the
Alternate Base Rate for such Payment Period plus a margin
selected by the holders of the Certificates (subject to the
Lessee's consent which shall not be unreasonably withheld) which
margin when added to the Alternate Base Rate would most closely
approximate the LIBO Rate most recently in effect plus 4.00%.
Section 1.2. Amendments to Loan Agreement. (a) Section 3.1 of the Loan
Agreement shall be and is hereby amended and restated in its entirety to read as
follows:
"Section 3.1. Rent Distribution. Except as otherwise provided in Section
3.3, each payment of Basic Rent under the Lease as well as any payment of
interest on overdue installments of Basic Rent under the Lease, and any other
monies paid over by Lessee or Borrower to Agent for such purpose, shall be
distributed as promptly as possible (it being understood that any payments of
Basic Rent received by Agent under the Lease on a timely basis and in accordance
with the provisions of the Lease shall be distributed on the date received in
the funds so received) in the following order of priority:
first, (a) an amount equal to the aggregate amount of the payment of
interest (as well as any interest on (to the extent permitted by Applicable
Laws and Regulations) overdue interest) then due on the Loans evidenced by
the Class A Notes shall be distributed and paid to the Lenders holding
Class A Notes pro rata, in proportion that the unpaid principal amount of
Loans evidenced by the Class A Notes held by each such Lender bears to the
aggregate unpaid balance of the Loans evidenced by the Class A Notes and
(b) an amount equal to the aggregate amount of the payment of interest (as
well as any interest on (to the extent permitted by Applicable Laws and
Regulations) overdue interest) then due on the Loans evidenced by the Class
B Notes shall be distributed and paid to the Lenders holding Class B Notes
pro rata, in proportion that the unpaid principal amount of Loans evidenced
by the Class B Notes held by each such Lender bears to the aggregate unpaid
balance of the Loans evidenced by the Class B Notes, in each case, without
priority of one Lender or one class over another;
second, an amount equal to the aggregate amount of principal then due
on the Loans evidenced by the Class A Notes shall be paid and distributed
to the Lenders holding Class A Notes pro rata among the Lenders holding
Class A Notes, without priority of one such Lender over another, in the
proportion that the unpaid principal amount of the Loans evidenced by the
Class A Notes held by each such Lender bears to the aggregate unpaid
principal amount of the Loans evidenced by the Class A Notes; and
third, the balance, if any, of such payment remaining thereafter shall
be distributed in accordance with Section 3.2(b) of the Trust Agreement."
(b) Section 3.5 of the Loan Agreement shall be and is hereby amended
by deleting the reference therein to "clause fourth of Section 3.2(b)(i)"
and substituting "clause second of Section 3.2(b)(i)" in place thereof.
Section 1.3. Amendments to Trust Agreement. Section 3.2(c) of the Trust
Agreement shall be and is hereby amended and restated in its entirety to read as
follows:
"(c) Mandatory Prepayments and Other Payments. Except as otherwise
provided in Section 3.3, all amounts received by Certificate Trustee from
Agent (other than Excluded Amounts) pursuant to clause "second" of Section
3.2(a), clause "second" of Section 3.2(b)(i), or clause "second" of Section
3.2(c)(ii), in each case, of the Loan Agreement shall be distributed
forthwith upon receipt by Certificate Trustee in the following order of
priority: first, so much of such payment as shall be required to reimburse
Certificate Trustee for any expenses not otherwise reimbursed as to which
Certificate Trustee is entitled to be so reimbursed pursuant to the
provisions hereof shall be retained by Certificate Trustee; second, so much
of such payment as shall be required to pay in full (or in part in the case
of amounts received pursuant to clause "second" of such Section 3.2(b)(i))
the aggregate Certificate Amounts and all accrued but unpaid Yield thereon
to the date of distribution shall be paid to the Certificate Purchasers
(pro rata among the Certificate Purchasers, without priority of one
Certificate Purchaser over the other, in the proportion that the
outstanding Certificate Amounts of each Certificate Purchaser bears to the
aggregate outstanding Certificate Amounts); and third, the balance, if any,
shall be paid to Lessee."
SECTION 2. REPRESENTATIONS OF THE LESSEE.
The Lessee represents and warrants that (i) all representations and
warranties set forth in the Lease, as amended, are true and correct as of the
date hereof and are incorporated herein by reference with the same force and
effect as though herein set forth in full and (ii) no Lease Default or Lease
Event of Default exists.
SECTION 3. AUTHORIZATION AND DIRECTION.
The Certificate Purchaser, by its execution hereof, authorizes the
Certificate Trustee to execute and deliver this Amendment.
SECTION 4. EFFECTIVENESS.
Upon the execution and delivery of this Amendment by the Lessee, the
General Partner, the Certificate Trustee, the Agent, the Certificate Purchaser
and the Lender, this Amendment shall be effective as of the date set forth
above.
SECTION 5. FEES AND EXPENSES.
Lessee agrees to pay all the reasonable fees and expenses of the
Certificate Purchaser in connection with the negotiation, preparation, approval,
execution and delivery of this Amendment (including the fees and expenses of
their special counsel).
SECTION 6. MISCELLANEOUS.
Section 6.1. Construction. This Amendment shall be construed in connection
with and as part of the Original Agreements, and except as modified and
expressly amended by this Amendment, all terms, conditions and covenants
contained in the Original Agreements are hereby ratified and shall be and remain
in full force and effect.
Section 6.2. References. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of
this Amendment may refer to the Original Agreements without making specific
reference to this Amendment but nevertheless all such references shall be deemed
to include this Amendment unless the context otherwise requires.
Section 6.3. Headings and Table of Contents. The headings of the Sections
of this Amendment and the Table of Contents are inserted for purposes of
convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof and any reference to numbered
Sections, unless otherwise indicated, are to Sections of this Amendment.
Section 6.4. Counterparts. This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Amendment.
SECTION 6.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE).
IN WITNESS WHEREOF, the Lessee, the General Partner, the Certificate
Trustee, the Agent, the Certificate Purchaser and the Lender have caused this
instrument to be executed, all as of the day and year first above written.
Lessee: FERRELLGAS, LP, as Lessee
By Ferrellgas, Inc., its General Partner
By:
Name:
Title:
General Partner: FERRELLGAS, INC.
By:
Name:
Title:
Certificate Trustee: FIRST SECURITY BANK, NATIONAL ASSOCIATION,
in its individual capacity and as
Certificate Trustee
By:
Name:
Title:
Agent: FIRST SECURITY TRUST COMPANY OF NEVADA,
not in its individual capacity
except as expressly stated herein,
but solely as Agent
By:
Name:
Title:
Certificate Purchaser: BANC OF AMERICA LEASING & CAPITAL, LLC,
as Certificate Purchaser
By:
Name:
Title:
Lender: BANC OF AMERICA LEASING & CAPITAL, LLC,
as Lender
By:
Name:
Title: