CREDIT AGREEMENT
Dated as of December 17, 1999
among
THERMOGAS L.L.C.,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
Arranged By
BANC OF AMERICA SECURITIES LLC
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 17, 1999, among
THERMOGAS L.L.C., a Delaware limited liability company ("Thermogas"), together
with any successor and assign of Thermogas hereafter becoming the Borrower
under, and in accordance with, the provisions of this Agreement (collectively,
the "Borrower"), the several financial institutions from time to time party to
this Agreement (collectively, the "Banks" and, individually, a "Bank") and BANK
OF AMERICA, N.A. ("BofA"), as agent for the Banks (in such capacity, the
"Administrative Agent").
R E C I T A L S
WHEREAS, the Borrower has requested that the Banks agree to make loans
to the Borrower in an aggregate amount of up to $183,000,000, a portion of which
proceeds in an amount equal to $123,669,372.50 may be distributed by Thermogas
to ▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc. in connection with the acquisition by
Ferrellgas Partners, L.P. of all of the limited liability company interests of
Thermogas from ▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc., and the remainder of which
proceeds may be used for the general purposes of the Borrower, in each case on
the terms and subject to the conditions set forth below in this Agreement;
WHEREAS, it is further contemplated in connection with such acquisition
that (i) Ferrellgas Partners, L.P. will contribute all of the member interests
of Thermogas acquired by it to its affiliate, Ferrellgas, L.P., (ii) Ferrellgas,
L.P. will then assume the obligations of Thermogas and become liable as the
Borrower under this Agreement and (iii) contemporaneously with or promptly
following such assumption Thermogas will be merged with and into Ferrellgas,
L.P.; and
WHEREAS, the Banks are willing, on and subject to the terms and
conditions set forth in this Agreement, to extend credit under this Agreement as
more particularly hereinafter set forth.
ACCORDINGLY, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. The following terms have the
following meanings:
"1996 Indenture" means the Indenture dated as of April 26,
1996, among the MLP, Ferrellgas Partners Finance Corp., Ferrellgas and
American Bank National Association, pursuant to which the MLP Senior
Notes were issued, as it may be amended, modified or supplemented from
time to time.
"1998 Fixed Rate Senior Notes" means, collectively, (a) the
$109,000,000 6.99% Senior Notes, Series A, due August 1, 2005, (b) the
$37,000,000 7.08% Senior Notes, Series B, due August 1, 2006, (c) the
$52,000,000 7.12% Senior Notes, Series C, due 2008, (d) the $82,000,000
7.24% Senior Notes, Series D, due August 1, 2010 and (e) the
$70,000,000 7.42% Senior Notes, Series E, due August 1, 2013, in each
case issued by Ferrellgas pursuant to the 1998 Note Purchase Agreement.
"1998 Note Purchase Agreement" means the Note Purchase
Agreement, dated as of July 1, 1998, among Ferrellgas and the
Purchasers named therein, pursuant to which the 1998 Fixed Rate Senior
Notes will be issued, as it may be amended, modified or supplemented
from time to time.
"Accounts Receivable Securitization" shall mean a financing
arrangement involving the transfer or sale of accounts receivable of
the Borrower in the ordinary course of business through one or more
SPEs, the terms of which arrangement do not impose (a) any recourse or
repurchase obligations upon the Borrower or any Affiliate of the
Borrower (other than any such SPE) except to the extent of the breach
of a representation or warranty by the Borrower in connection therewith
or (b) any negative pledge or Lien on any accounts receivable not
actually transferred to any such SPE in connection with such
arrangement.
"Acquired Debt" means, with respect to any specified Person,
(a) Indebtedness of any other Person existing at the time such other
Person merged with or into or became a Subsidiary of such specified
Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person and (b) Indebtedness encumbering
any asset acquired by such specified Person.
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests or
equity of any Person or otherwise causing any Person, to become a
Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is a Subsidiary) provided
that the Borrower or the Subsidiary is the surviving entity.
"Administrative Agent" has the meaning specified in the
introductory clause hereto. References to the "Administrative Agent"
shall include BofA in its capacity as agent for the Banks hereunder,
and any successor agent arising under Section 10.09.
"Administrative Agent's Payment Office" means the address for
payments set forth on Schedule 11.02 in relation to the Administrative
Agent, or such other address as the Administrative Agent may from time
to time specify.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, by contract, or otherwise.
"Agent-Related Persons" means BofA and any successor
Administrative Agent arising under Section 10.09, together with their
respective Affiliates (including, in the case of BofA, the Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, for each Type of Loan, the
percentage per annum set forth below opposite the applicable period as
set forth below:
Period Base Rate Loans Eurodollar Rate Loans
From Effective Date 1.25% 2.25%
through March 31, 2000
April 1, 2000 and 1.75% 2.75%
thereafter
"Arranger" means Banc of America Securities LLC, a
Wholly-Owned Subsidiary of BankAmerica Corporation. The Arranger is a
registered broker-dealer and permitted to underwrite and deal in
certain Ineligible Securities.
"Asset Sale" has the meaning specified in Section 8.02.
"Assignee" has the meaning specified in subsection 11.08(a).
"Assumption Agreement" means an Assumption Agreement
substantially in the form of Exhibit H, executed and delivered by
Ferrellgas and the General Partner.
"Attorney Costs" means and includes all reasonable and
itemized fees and disbursements of any law firm or other external
counsel, the allocated cost of internal legal services and all
disbursements of internal counsel.
"Attributable Debt" means, in respect of a sale and leaseback
arrangement of any property, as at the time of determination, the
present value (calculated using a discount rate equal to 7.16%) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement (including any
period for which such lease has been extended).
"Available Cash" has the meaning given to such term in the
Partnership Agreement, as amended to July 5, 1994; provided, that (a)
Available Cash shall not include any amount of Net Proceeds of Asset
Sales until the 270-day period following the consummation of the
applicable Asset Sale, (b) investments, loans and other contributions
to a Non-Recourse Subsidiary are to be treated as "cash disbursements"
when made for purposes of determining the amount of Available Cash and
(c) cash receipts of a Non-Recourse Subsidiary shall not constitute
cash receipts of the Borrower for purposes of determining the amount of
Available Cash until cash is actually distributed by such Non-Recourse
Subsidiary to the Borrower.
"Bank" has the meaning specified in the introductory clause hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978, as
amended (11 U.S.C. ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the Federal Funds Rate in effect on such day; and (b) the
rate of interest in effect for such day as publicly announced from time
to time by BofA in San Francisco, California, as its "reference rate."
(The "reference rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take effect at
the opening of business on the day specified in the public announcement
of such change or if no day is so specified, on the day of the
announcement.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"BofA" has the meaning specified in the introductory clause hereto.
"Borrower" means Thermogas and, from and after the Ferrellgas
Joinder Event, Ferrellgas.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Borrower on the same day by the Banks and,
for Eurodollar Rate Loans, having the same Interest Period, in either
case under Article II.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York or San Francisco are
authorized or required by law to close and, if the applicable Business
Day relates to any Eurodollar Rate Loan, means such a day on which
dealings are carried on in the London interbank dollar market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Interests" means, (a) with respect to any
corporation, any and all shares, participations, rights or other
equivalent interests in the capital of the corporation, (b) with
respect to any partnership or limited liability company, any and all
partnership interests (whether general or limited) or limited liability
company interests, respectively, and other interests or participations
that confer on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, such partnership or limited
liability company, and (c) with respect to any other Person, ownership
interests of any type in such Person.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be so required to be
capitalized on the balance sheet in accordance with GAAP.
"Cash Equivalents" means (a) United States dollars, (b)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
having maturities of not more than eighteen months from the date of
acquisition, (c) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any Bank or with any other
domestic commercial bank having capital and surplus in excess of $500
million and a ▇▇▇▇▇ Bank Watch Rating of "B" or better, (d) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) entered into
with any financial institution meeting the qualifications specified in
clause (c) above, (e) commercial paper or direct obligations of a
Person, provided such Person has publicly outstanding debt having the
highest short-term rating obtainable from ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard & Poor's Ratings Services and provided further that
such commercial paper or direct obligation matures within 270 days
after the date of acquisition, and (f) investments in money market
funds all of whose assets consist of securities of the types described
in the foregoing clauses (a) through (e).
"Change of Control" means (a) the sale, lease, conveyance or
other disposition of all or substantially all of the Borrower's assets
to any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Related Parties and any
Person of which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Related Parties beneficially
own in the aggregate 51% or more of the voting Capital Interests (or if
such Person is a partnership, 51% or more of the general partner
interests), (b) the liquidation or dissolution of the Borrower or the
General Partner, (c) the occurrence of any transaction, the result of
which is that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Related Parties beneficially own
in the aggregate, directly or indirectly, less than 51% of the total
voting power entitled to vote for the election of directors of the
General Partner and (d) the occurrence of any transaction, the result
of which is that the General Partner is no longer the sole general
partner of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder.
"Commitment" means, as to each Bank, the amount set forth
opposite such Bank's name on Schedule 2.01 hereof under the caption
"Commitment," as the same may be reduced under subsection 2.06(b) or
reduced or increased as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Commitment of all
Banks shall not exceed $183,000,000 at any time.
"Compliance Certificate" means a certificate signed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit C, demonstrating compliance with the covenants contained
herein, including Sections 7.12, 7.13, 7.15 and 8.12.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period,
plus (a) an amount equal to any extraordinary loss plus any net loss
realized in connection with an asset sale, to the extent such losses
were deducted in computing Consolidated Net Income, plus (b) provision
for taxes based on income or profits of such Person for such period, to
the extent such provision for taxes was deducted in computing
Consolidated Net Income, plus (c) Consolidated Interest Expense of such
Person for such period, whether paid or accrued (including amortization
of original issue discount, non-cash interest payments and the interest
component of any payments associated with Capital Lease Obligations and
net payments (if any) pursuant to Hedging Obligations), to the extent
such expense was deducted in computing Consolidated Net Income, plus
(d) depreciation and amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) of such Person for such
period, to the extent such depreciation and amortization were deducted
in computing Consolidated Net Income, plus (e) non-cash employee
compensation expenses of such Person for such period, plus (f) the
Synthetic Lease Principal Component of such Person for such period; in
each case, for such period without duplication on a consolidated basis
and determined in accordance with GAAP.
"Consolidated Interest Expense" means, as of the last day of
any fiscal period, on a consolidated basis, the sum of (a) all
interest, fees, charges and related expenses paid or payable (without
duplication) for that fiscal period to the Banks hereunder or to any
other lender in connection with borrowed money or the deferred purchase
price of assets that are considered "interest expense" under GAAP, plus
(b) the portion of rent paid or payable (without duplication) for that
fiscal period under Capital Lease Obligations that should be treated as
interest in accordance with Financial Accounting Standards Board
Statement No. 13, on a consolidated basis, plus (c) the Synthetic Lease
Interest Component for that fiscal period.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided, that (a) the Net Income of any Person
that is not a Subsidiary or that is accounted for by the equity method
of accounting shall be included only to the extent of the amount of
dividends or distributions paid to such Person or a Wholly-Owned
Subsidiary thereof, (b) the Net Income of any Person that is a
Subsidiary (other than a Wholly-Owned Subsidiary) shall be included
only to the extent of the amount of dividends or distributions paid to
such Person or a Wholly-Owned Subsidiary thereof, (c) the Net Income of
any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded except
to the extent otherwise includable under clause (a) above, and (d) the
cumulative effect of a change in accounting principles shall be
excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (a) the consolidated equity of the common
stockholders or partners of such Person and its consolidated
Subsidiaries as of such date, plus (b) the respective amounts reported
on such Person's balance sheet as of such date with respect to any
series of preferred stock (other than Disqualified Interests) that by
its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of
any cash received by such Person upon issuance of such preferred stock,
less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such
business) subsequent to the Effective Date in the book value of any
asset owned by such Person or a consolidated Subsidiary of such Person,
(y) all investments as of such date in unconsolidated Subsidiaries and
in Persons that are not Subsidiaries (except, in each case, Permitted
Investments), and (z) all unamortized debt discount and expense and
unamortized deferred charges as of such date, all of the foregoing
determined in accordance with GAAP.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease,
dividend, distribution, letter of credit or other obligation (the
"primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor,
(ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof (each, a "Guaranty Obligation"); (b) with respect to
any Surety Instrument issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings or
payments; (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services
are ever performed or tendered; or (d) in respect of any Hedging
Obligation. The amount of any Contingent Obligation shall, in the case
of Guaranty Obligations, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and in the case of
other Contingent Obligations, shall be equal to the maximum reasonably
anticipated liability in respect thereof.
"Contingent Payment Agreement" means the Contingent Payment
Agreement dated as of November 7, 1999 between Ferrellgas and the
Seller.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Borrower (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
"Credit Extension" means and includes the making of any Loans
and conversions and continuations of such Loans hereunder.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Disqualified Interests" means any Capital Interests which, by
their terms (or by the terms of any security into which they are
convertible or for which they are exchangeable), or upon the happening
of any event, mature or are mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of
the holder thereof, in whole or in part, on or prior to December 31,
2001.
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"Effective Amount" means as of any date the aggregate
outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments of Loans occurring on such
date.
"Effective Date" means the first date on which all conditions
precedent set forth in Section 4.01 and Section 4.02 are satisfied or
waived by all Banks (or, in the case of subsection 4.01(l), waived by
the Persons entitled to receive such payments).
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $500,000,000; (b) 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 $500,000,000, provided that such bank
is acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a Person of which a
Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"Equity Interests" means Capital Interests and all warrants,
options or other rights to acquire Capital Interests (but excluding any
debt security that is convertible into, or exchangeable for, Capital
Interests).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Borrower or the General Partner
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) the filing of a
notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Pension Plan subject to Title IV
of ERISA; (d) a failure by the Borrower or the General Partner to make
required contributions to a Pension Plan or other Plan subject to
Section 412 of the Code; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (f) the imposition of any liability under
Title IV of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or the General Partner;
or (g) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to
any Pension Plan.
"Eurodollar Rate" shall mean, for each Interest Period in
respect of Eurodollar Rate Loans comprising part of the same Borrowing,
an interest rate per annum (rounded to the nearest 1/16th of 1% or, if
there is no nearest 1/16th of 1%, rounded upward) determined pursuant
to the following formula:
Eurodollar Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan that bears interest based
on the Eurodollar Rate.
"Eurodollar Reserve Percentage" shall mean the maximum reserve
percentage (expressed as a decimal, rounded to the nearest 1/100th of
1% or, if there is no nearest 1/100th of 1%, rounded upward) in effect
on the date LIBOR for such Interest Period is determined (whether or
not applicable to any Bank) under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities") having a term comparable to
such Interest Period. Without limiting the effect of the foregoing, the
Eurodollar Reserve shall include any other reserves required to be
maintained by any Bank with respect to (a) any category of liabilities
that includes deposits by reference to which the Eurodollar Rate is to
be determined as provided in the definition of "Eurodollar Rate" in
this Section 1.01 or (b) any category of extensions of credit or other
assets that includes Eurodollar Rate Loans.
"Event of Default" means any of the events or circumstances specified in
Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Indebtedness" means Indebtedness of Ferrellgas and
its Subsidiaries (other than the Obligations) and certain Indebtedness
of the General Partner with respect to which Ferrellgas has assumed the
General Partner's repayment obligations, in each case in existence on
the Effective Date and as more fully set forth on Schedule 8.05.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective);" or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent.
"Fee Letters" has the meaning specified in subsection 2.09.
"FCI ESOT" means the employee stock ownership trust of ▇▇▇▇▇▇▇ Companies,
Inc. organized under section 4975(e)(7) of the Code.
"Ferrellgas" means Ferrellgas, L.P., a Delaware limited partnership.
"Ferrellgas Joinder Event" shall have occurred upon the
satisfaction of each of the conditions set forth in Section 4.03.
"Ferrellgas Partners Finance Corp." means Ferrellgas Partners
Finance Corp., a Delaware corporation and a Wholly-Owned Subsidiary of
the MLP.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of Consolidated Cash Flow of such Person for
such period to the Fixed Charges of such Person for such period. In the
event that such Person or any of its Subsidiaries incurs, assumes,
guarantees, redeems or repays any Indebtedness (other than revolving
credit borrowings including, with respect to the Borrower, the Loans)
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date of the event
for which the calculation of the Fixed Charge Coverage Ratio is made
(the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption,
guarantee, redemption or repayment of Indebtedness, as if the same had
occurred at the beginning of the applicable reference period. The
foregoing calculation of the Fixed Charge Coverage Ratio shall also
give pro forma effect to Acquisitions (including all mergers and
consolidations), dispositions and discontinuances of businesses or
assets that have been made by such Person or any of its Subsidiaries
during the reference period or subsequent to such reference period and
on or prior to the Calculation Date assuming that all such
Acquisitions, dispositions and discontinuances of businesses or assets
had occurred on the first day of the reference period; provided,
however, that with respect to the Borrower, (a) Fixed Charges shall be
reduced by amounts attributable to businesses or assets that are so
disposed of or discontinued only to the extent that the obligations
giving rise to such Fixed Charges would no longer be obligations
contributing to the Fixed Charges of the Borrower subsequent to the
Calculation Date and (b) Consolidated Cash Flow generated by an
acquired business or asset shall be determined by the actual gross
profit (revenues minus costs of goods sold) of such acquired business
or asset during the immediately preceding number of full fiscal
quarters as are in the reference period minus the pro forma expenses
that would have been incurred by the Borrower in the operation of such
acquired business or asset during such period computed on the basis of
(i) personnel expenses for employees retained by the Borrower in the
operation of the acquired business or asset and (ii) non-personnel
costs and expenses incurred by the Borrower on a per gallon basis in
the operation of the Borrower's business at similarly situated Borrower
facilities.
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (a) consolidated interest
expense of such Person for such period, whether paid or accrued, to the
extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discounts, non-cash interest
payments, the interest component of all payments associated with
Capital Lease Obligations and net payments (if any) pursuant to Hedging
Obligations permitted hereunder), (b) commissions, discounts and other
fees and charges incurred with respect to letters of credit, (c) any
interest expense on Indebtedness of another Person that is guaranteed
by such Person or secured by a Lien on assets of such Person, and (d)
the product of (i) all cash dividend payments (and non-cash dividend
payments in the case of a Person that is a Subsidiary) on any series of
preferred stock of such Person, times (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, determined, in each case, on a consolidated
basis and in accordance with GAAP.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Funded Debt" means all Indebtedness of the Borrower and its Subsidiaries.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
"General Partner" means Ferrellgas, Inc., the general partner of
Ferrellgas.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Growth-Related Capital Expenditures" means, with respect to
any Person, all capital expenditures by such Person made to improve or
enhance the existing capital assets or to increase the customer base of
such Person or to acquire or construct new capital assets (but
excluding capital expenditures made to maintain, up to the level
thereof that existed at the time of such expenditure, the operating
capacity of the capital assets of such Person as such assets existed at
the time of such expenditure).
"Guarantor" means TWCI and each other Person that executes a
Guaranty and its successors and assigns.
"Guaranty" means a continuing guaranty of the Obligations in
favor of the Administrative Agent on behalf of the Banks, in form and
substance satisfactory to the Administrative Agent.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and
(b) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
Capital Lease Obligations; (g) all Hedging Obligations; (h) all
obligations in respect of Accounts Receivable Securitizations; (i) all
indebtedness referred to in clauses (a) through (h) above secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Indebtedness; and (j) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (i) above; provided, however, that "Indebtedness"
shall not include Synthetic Lease Obligations.
"Indemnified Liabilities" has the meaning specified in Section 11.05.
"Indemnified Person" has the meaning specified in Section 11.05.
"Independent Auditor" has the meaning specified in subsection 7.01(a).
"Ineligible Securities" means securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C. ss. 24, Seventh), as amended.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other similar arrangement in respect of a
Person's creditors generally or any substantial portion of a Person's
creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means with respect to any Person for
any period, the ratio of Consolidated Cash Flow of such Person for such
period to Consolidated Interest Expense of such Person for such period.
The foregoing calculation of the Interest Coverage Ratio shall give pro
forma effect to Acquisitions (including all mergers and
consolidations), Asset Sales and other dispositions and discontinuances
of businesses or assets that have been made by such Person or any of
its Subsidiaries during the reference period or subsequent to such
reference period and on or prior to the date of calculation of the
Interest Coverage Ratio assuming that all such Acquisitions, Asset
Sales and other dispositions and discontinuances of businesses or
assets had occurred on the first day of the reference period; provided,
however, that with respect to the Borrower and its Subsidiaries,
Consolidated Cash Flow generated by an acquired business or asset shall
be determined by the actual gross profit (revenues minus costs of goods
sold) of such acquired business or asset during the immediately
preceding number of full fiscal quarters as in the reference period
minus the pro forma expenses that would have been incurred by the
Borrower and its Subsidiaries in the operation of such acquired
business or asset during such period computed on the basis of (i)
personnel expenses for employees retained by the Borrower and its
Subsidiaries in the operation of the acquired business or asset and
(ii) non-personnel costs and expenses incurred by the Borrower and its
Subsidiaries on a per gallon basis in the operation of the Borrower's
business at similarly situated facilities of the Borrower.
"Interest Payment Date" means, as to any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to
any Base Rate Loan, the first Business Day of each fiscal quarter of
the Borrower.
"Interest Period" means, as to any Eurodollar Rate Loan, the
period commencing on the Effective Date or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as a Eurodollar Rate Loan, and ending on the date one or two
months thereafter as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be extended
to the following Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(b) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(c) no Interest Period for any Loan shall extend
beyond the Maturity Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions.
"Joint Venture" means a single-purpose corporation,
partnership, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now
or hereafter formed by the Borrower or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with
such Person.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Eurodollar Lending Office", as the case may be, on Schedule
11.02, or such other office or offices as such Bank may from time to
time notify the Borrower and the Administrative Agent.
"Leverage Ratio" means, with respect to any Person for any
period, the ratio of Funded Debt plus Synthetic Lease Obligations, in
each case of such Person as of the last day of such period, to
Consolidated Cash Flow of such Person for such period. In the event
that such Person or any of its Subsidiaries incurs, assumes,
guarantees, redeems or repays any Indebtedness (other than revolving
credit borrowings) subsequent to the commencement of the period for
which the Leverage Ratio is being calculated but prior to the date on
which the calculation of the Leverage Ratio is made (the "Leverage
Ratio Calculation Date"), then the Leverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee,
redemption or repayment of Indebtedness, as if the same had occurred at
the beginning of the applicable reference period. The foregoing
calculation of the Leverage Ratio shall also give pro forma effect to
Acquisitions (including all mergers and consolidations), Asset Sales
and other dispositions and discontinuances of businesses or assets that
have been made by such Person or any of its Subsidiaries during the
reference period or subsequent to such reference period and on or prior
to the Leverage Ratio Calculation Date assuming that all such
Acquisitions, Asset Sales and other dispositions and discontinuances of
businesses or assets had occurred on the first day of the reference
period; provided, however, that with respect to the Borrower and its
Subsidiaries, (a) Funded Debt shall be reduced by amounts attributable
to businesses or assets that are so disposed of or discontinued only to
the extent that the Indebtedness included within such Funded Debt would
no longer be an obligation of the Borrower or its Subsidiaries
subsequent to the Leverage Ratio Calculation Date and (b) Consolidated
Cash Flow generated by an acquired business or asset shall be
determined by the actual gross profit (revenues minus costs of goods
sold) of such acquired business or asset during the immediately
preceding number of full fiscal quarters as in the reference period
minus the pro forma expenses that would have been incurred by the
Borrower and its Subsidiaries in the operation of such acquired
business or asset during such period computed on the basis of (i)
personnel expenses for employees retained by the Borrower and its
Subsidiaries in the operation of the acquired business or asset and
(ii) non-personnel costs and expenses incurred by the Borrower and its
Subsidiaries on a per gallon basis in the operation of the Borrower's
business at similarly situated facilities of the Borrower.
"LIBOR" means the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to the
next 1/16th of 1%) of the rates of interest per annum notified to the
Administrative Agent by BofA as the rates of interest at which dollar
deposits in the approximate amount of the amount of the Loan to be made
or continued as, or converted into, a Eurodollar Rate Loan by BofA and
having a maturity comparable to such Interest Period would be offered
to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease.
"LLC Agreement" means the Operating Agreement of Thermogas L.L.C. dated as
of December 15, 1999 made by the Sellerwith respect to Thermogas.
"Loan" shall have the meaning assigned in subsection 2.01(a),
and may be a Base Rate Loan or a Eurodollar Rate Loan.
"Loan Documents" means this Agreement, any Notes, the Fee
Letters, the Guaranties, and all other documents delivered to the
Administrative Agent or any Bank in connection herewith.
"Majority Banks" means at any time Banks then holding more
than 50% of the then aggregate unpaid principal amount of the Loans,
or, if no such principal amount is then outstanding, Banks then having
more than 50% of the aggregate Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Borrower or any of its
Subsidiaries or (after the Ferrellgas Joinder Event) the General
Partner or any of its Subsidiaries to perform under any Loan Document
or otherwise to avoid any Event of Default; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability
against the Borrower or any Subsidiary of any Loan Document.
"Maturity Date" means June 30, 2000.
"MLP" means Ferrellgas Partners, L.P., a Delaware limited
partnership and the sole limited partner of Ferrellgas.
"MLP Senior Notes" means the $160,000,000 9-3/8% Senior Secured Notes
issued by the MLP and Ferrellgas Partners Finance Corp. pursuant to the 1996
Indenture.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding,
however, (a) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with (i) any asset sale (including dispositions pursuant to sale and
leaseback transactions), or (ii) the disposition of any securities or
the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries, and (b) any extraordinary gain (but not loss), together
with any related provision for taxes on such extraordinary gain (but
not loss).
"Net Proceeds of Asset Sale" means the aggregate cash proceeds
received by the Borrower or any of its Subsidiaries in respect of any
Asset Sale, net of the direct costs relating to such Asset Sale
(including legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements), and amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets the subject of
such Asset Sale.
"Non-Recourse Subsidiary" means any Person that would
otherwise be a Subsidiary of the Borrower but is designated as a
Non-Recourse Subsidiary in a resolution of the Board of Directors of
the General Partner, so long as each of the following remains true: (a)
no portion of the Indebtedness or any other obligation (contingent or
otherwise) of such Person (i) is a Contingent Obligation of the
Borrower or any of its Subsidiaries, (ii) is recourse or obligates the
Borrower or any of its Subsidiaries in any way or (iii) subjects any
property or asset of the Borrower or any of its Subsidiaries, directly
or indirectly, contingently or otherwise, to satisfaction thereof, (b)
neither the Borrower nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding or is subject to an obligation
of any kind, written or oral, with such Person other than on terms no
less favorable to the Borrower and its Subsidiaries than those that
might be obtained at the time from persons who are not Affiliates of
the Borrower, (c) neither the Borrower nor any of its Subsidiaries has
any obligation with respect to such Person (i) to subscribe for
additional shares of capital stock, Capital Interests or other Equity
Interests therein or (ii) maintain or preserve such Person's financial
condition or to cause such Person to achieve certain levels of
operating or other financial results, (d) such Person has no more than
$1,000 of assets at the time of such designation, (e) such Person is in
compliance with the restrictions applicable to Affiliates of the MLP
under Section 8.21 hereof and (f) such Person takes steps designed to
assure that neither the Borrower nor any of its Subsidiaries will be
liable for any portion of the Indebtedness or other obligations of such
Person, including maintenance of a corporate or limited partnership
structure and observance of applicable formalities such as regular
meetings and maintenance of minutes, a substantial and meaningful
capitalization and the use of a corporate or partnership name, trade
name or trademark not misleadingly similar to those of the Borrower.
"Note" means a promissory note executed by the Borrower in
favor of a Bank pursuant to subsection 2.02(b), in substantially the
form of Exhibit F.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
"Obligations" means all Loans, advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document,
owing by the Borrower to any Bank, the Administrative Agent, or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising including all Indebtedness of the
Borrower to the Banks for the payment of principal of and interest on
all outstanding Loans.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation and, for any general or limited
partnership, the partnership agreement of such partnership and all
amendments thereto and any agreements otherwise relating to the rights
of the partners thereof, and, for any limited liability company, the
limited liability company, operating or similar agreement and all
amendments thereto and any agreements otherwise relating to the rights
of the members thereof.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 11.08(d).
"Partners' Equity" means the partners' equity as shown on a
balance sheet prepared in accordance with GAAP for any partnership.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of Ferrellgas dated July 5, 1994, as amended from time to
time in accordance with the terms of this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Borrower or the
General Partner sponsors, maintains, or to which it makes, is making,
or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5)
plan years.
"Permitted Acquisitions" means Acquisitions by the Borrower
and its Subsidiaries which comply with the provisions of Section 8.04.
"Permitted Investments" means (a) any investments in Cash
Equivalents; (b) any investments in the Borrower or in a Wholly-Owned
Subsidiary of the Borrower that is a Guarantor; (c) investments by the
Borrower or any Subsidiary of the Borrower in a Person, if as a result
of such investment (i) such Person becomes a Wholly-Owned Subsidiary of
the Borrower and a Guarantor or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Borrower
or a Wholly-Owned Subsidiary of the Borrower that is a Guarantor; and
(d) other investments in Non-Recourse Subsidiaries of the Borrower that
do not exceed $30 million in the aggregate.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Borrower or any Subsidiary of the Borrower issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Borrower or any of
its Subsidiaries; provided that (a) the principal amount of such
Indebtedness does not exceed the principal amount of the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (the
"Prior Indebtedness") (plus the amount of reasonable expenses incurred
in connection therewith), and the effective interest rate per annum on
such Indebtedness does not or is not likely to exceed the effective
interest rate per annum of the Prior Indebtedness, as determined by the
Administrative Agent in its sole discretion; (b) such Indebtedness has
a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Prior Indebtedness; (c) if the
Prior Indebtedness is subordinated to the Obligations, such
Indebtedness is subordinated to the Obligations on the terms and
conditions set forth on part II of Schedule 8.05; and (d) such
Indebtedness is incurred by the Borrower or the Subsidiary who is the
obligor on the Prior Indebtedness.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, Joint Venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Borrower sponsors or maintains or to which the
Borrower or the General Partner makes, is making, or is obligated to
make contributions and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the
percentage set forth on Schedule 2.01 hereto as its "Pro Rata Share,"
as such amount may be adjusted by assignments under Section 11.08.
"Purchase Agreement" means the Purchase Agreement dated as of
November 7, 1999 among the Seller, the MLP and Ferrellgas.
"Related Party" means (a) the spouse or any lineal descendant
of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (b) any trust for his benefit or for the benefit
of his spouse or any such lineal descendants, (c) any corporation,
partnership or other entity in which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and/or such other
Persons referred to in the foregoing clauses (a) and (b) are the direct
record and beneficial owners of all of the voting and nonvoting Equity
Interests, (d) the FCI ESOT or (e) any participant in the FCI ESOT
whose ESOT account has been allocated shares of ▇▇▇▇▇▇▇ Companies, Inc.
"Release of Guaranty" means a Release of Guaranty
substantially in the form of Exhibit J to this Agreement, executed and
delivered by the Administrative Agent, on behalf of the Banks, in
accordance with Section 4.03 relating to the obligations of TWCI as a
Guarantor.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means the chief executive officer or the
president of the General Partner or any other officer having
substantially the same authority and responsibility to act for the
General Partner on behalf of the Borrower; or, with respect to actions
taken or to be taken under Article II and compliance with financial
covenants, the chief financial officer or the treasurer of the General
Partner or any other officer having substantially the same authority
and responsibility to act for the General Partner on behalf of the
Borrower or any other employee of the General Partner designated in a
certificate of a Responsible Officer to have authority in such matters.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Seller" means ▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc., a Delaware corporation.
"Significant Subsidiary" means any Subsidiary of the Borrower
that would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as such Regulation is in effect on the date hereof.
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the property of such Person is
greater than the fair value of the liabilities (including contingent
liabilities) of such Person, (b) such Person does not intend to, and
does not believe that it will, incur debts and liabilities beyond such
Person's ability to pay as such debts and liabilities mature and (c)
such Person is not engaged in business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's
property would constitute an unreasonably small capital.
"SPE" shall mean any special purpose Non-Recourse Subsidiary
of the Borrower established in connection with Accounts Receivable
Securitizations permitted by Section 8.05.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Interests entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof (or, in the case of
a limited partnership, more than 50% of either the general partners'
Capital Interests or the limited partners' Capital Interests) is at the
time owned or controlled, directly or indirectly, by such Person or one
or more of the other Subsidiaries of that Person or a combination
thereof. Unless otherwise indicated herein, "Subsidiary" shall mean a
Subsidiary of the Borrower. Notwithstanding the foregoing, any
Subsidiary of the Borrower that is designated a Non-Recourse Subsidiary
pursuant to the definition thereof shall, for so long as all of the
statements in the definition thereof remain true, not be deemed a
Subsidiary of the Borrower.
"Surety Instruments" means all letters of credit (including
standby and commercial), bankers' acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Synthetic Lease" means each arrangement, however described,
under which the obligor accounts for its interest in the property
covered thereby under GAAP as lessee of a lease which is not a capital
lease and accounts for its interest in the property covered thereby for
Federal income tax purposes as the owner.
"Synthetic Lease Interest Component" means, with respect to
any Person for any period, the portion of rent paid or payable (without
duplication) for such period under Synthetic Leases of such Person that
would be treated as interest in accordance with Financial Accounting
Standards Board Statement No. 13 if such Synthetic Leases were treated
as capital leases under GAAP.
"Synthetic Lease Obligation" means, as to any Person with
respect to any Synthetic Lease at any time of determination, the amount
of the liability of such Person in respect of such Synthetic Lease that
would (if such lease was required to be classified and accounted for as
a capital lease on a balance sheet of such Person in accordance with
GAAP) be required to be capitalized on the balance sheet of such Person
at such time.
"Synthetic Lease Principal Component" means, with respect to
any Person for any period, the portion of rent (exclusive of the
Synthetic Lease Interest Component) paid or payable (without
duplication) for such period under Synthetic Leases of such Person that
was deducted in calculating Consolidated Net Income of such Person for
such period.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the
Administrative Agent, such taxes (including income taxes or franchise
taxes) as are imposed on or measured by each Bank's net income by the
jurisdiction (or any political subdivision thereof) under the laws of
which such Bank or the Administrative Agent, as the case may be, is
organized or maintains a lending office.
"Thermogas" has the meaning specified in the introductory clause hereto.
"Thermogas Merger" means the merger of Thermogas with and into
Ferrellgas (or, alternatively, the dissolution of Thermogas and the
substantially contemporaneous transfer of all of the assets of
Thermogas to Ferrellgas) in accordance with all applicable Requirements
of Law.
"TWCI" means The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation.
"TWCI Guaranty" means a Guaranty of TWCI substantially in the form
of Exhibit I.
"Type" means, with respect to any Loan, whether such Loan is a
Base Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of America.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a)
the sum of the products obtained by multiplying (x) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (b) the then outstanding principal amount of such
Indebtedness; provided, however, that with respect to any revolving
Indebtedness, the foregoing calculation of Weighted Average Life to
Maturity shall be determined based upon the total available commitments
and the required reductions of commitments in lieu of the outstanding
principal amount and the required payments of principal, respectively.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding Capital Interests or other ownership interests (other
than directors' qualifying shares) or, in the case of a limited
partnership, all of the partners' Capital Interests (other than up to a
1% general partner interest), is owned, beneficially and of record, by
the Borrower, a Wholly-Owned Subsidiary of the Borrower or both.
"Year 2000 Problem" has the meaning specified in Section 5.12.
Section 1.02 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings, however
evidenced.
(ii) The term "including" is not limiting and means "including without
limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(iii) One "basis point" equals 0.01%, and "b.p."
means "basis point(s)."
(d) Unless otherwise expressly provided herein, (i) references to agreements
(including this Agreement) and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or regulation are
to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of reference
only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g) Unless otherwise expressly provided herein, financial calculations
applicable to the Borrower shall be made on a consolidated basis.
(h) This Agreement and the other Loan Documents are the result of negotiations
among and have been reviewed by counsel to the Administrative Agent, the
Borrower and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Administrative
Agent merely because of the Administrative Agent's or Banks' involvement in
their preparation.
Section 1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting terms not
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied. In the event that GAAP changes during the term of this
Agreement such that the covenants contained in Section 7.12 would then be
calculated in a different manner or with different components, (i) the Borrower
and the Banks agree to amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating Borrower's financial
condition to substantially the same criteria as were effective prior to such
change in GAAP and (ii) the Borrower shall be deemed to be in compliance with
the covenants contained in Section 7.12 during the 90-day period following any
such change in GAAP if and to the extent that the Borrower would have been in
compliance therewith under GAAP as in effect immediately prior to such change.
(b) Except as otherwise specified, references herein to "fiscal year" and
"fiscal quarter" refer to such fiscal periods of the Borrower.
ARTICLE II
THE LOANS
Section 2.01 Amounts and Terms of Commitments.
--------------------------------
(a) Each Bank severally agrees, on the terms and subject to the conditions set
forth herein, to make loans to the Borrower (each such loan, a "Loan") in
Dollars on the Effective Date in an aggregate principal amount not to exceed
such Bank's Commitment as in effect on such day.
(b) The Loans may be comprised of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request. Subject to the terms and
conditions of this Agreement, the Borrower may convert Loans of one Type into
Loans of another Type or continue Loans of one Type as Loans of the same Type.
Amounts repaid in respect of the Loans may not be reborrowed.
Section 2.02 Loan Accounts. (a) The Loans made by each Bank shall be evidenced
by one or more accounts or records maintained by such Bank in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Bank shall be conclusive absent manifest error of the amount of
the Loans made by the Banks to the Borrower, and the interest and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Loans.
(b) Upon the request of any Bank made through the
Administrative Agent, the Loans made by such Bank may be evidenced by one or
more Notes, instead of loan accounts. Each such Bank shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Borrower with
respect thereto. Each such Bank is irrevocably authorized by the Borrower to
endorse its Note(s) and each Bank's record shall be conclusive absent manifest
error; provided, however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any such Note to such
Bank.
Section 2.03 Procedure for Borrowing. (a) Each Borrowing shall be made only on
the Effective Date upon the Borrower's irrevocable written notice delivered to
the Administrative Agent in the form of a Notice of Borrowing (which notice must
be received by the Administrative Agent prior to 9:00 a.m. San Francisco time
(i) three Business Days prior to the Effective Date, in the case of Eurodollar
Rate Loans, and (ii) one Business Day prior to the Effective Date, in the case
of Base Rate Loans), specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $3,000,000 or any
multiple of $1,000,000 in excess thereof for
Eurodollar Loans, or $1,000,000 or any multiple of
$100,000 in excess thereof for Base Rate Loans;
(B) the Type of Loans comprising the Borrowing; and
(C) the duration of the Interest Period applicable to any
Eurodollar Rate Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of
the Interest Period for any Borrowing comprised of
Eurodollar Rate Loans, such Interest Period shall be
one month.
(b) The Administrative Agent will promptly notify each Bank of
the Administrative Agent's receipt of any Notice of Borrowing and of the amount
of such Bank's Pro Rata Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Borrowing available to the Administrative Agent for the account of the
Borrower at the Administrative Agent's Payment Office by 11:00 a.m. San
Francisco time on the Effective Date in funds immediately available to the
Administrative Agent. The proceeds of all such Loans will then be made available
to the Borrower by the Administrative Agent at such office by crediting the
account of the Borrower on the books of BofA with the aggregate of the amounts
made available to the Administrative Agent by the Banks and in like funds as
received by the Administrative Agent.
(d) After giving effect to any Borrowing, there may not be
more than three (3) different Interest Periods in effect with respect to
Eurodollar Rate Loans.
Section 2.04 Conversion and Continuation Elections. (a) The Borrower may,
upon irrevocable written notice to the Administrative Agent in accordance with
subsection 2.04(b):
(i) elect, as of any Business Day, in the case
of Base Rate Loans, or as of the last day of
the applicable Interest Period, in the case
of Eurodollar Rate Loans, to convert any
such Loans (or any part thereof in an amount
not less than $3,000,000, or that is in an
integral multiple of $1,000,000 in excess
thereof) into Loans of the other Type; or
(ii) elect as of the last day of the applicable
Interest Period, to continue as Eurodollar
Rate Loans any Loans having Interest Periods
expiring on such day (or any part thereof in
an amount not less than $3,000,000, or that
is in an integral multiple of $1,000,000 in
excess thereof);
provided, that if at any time the aggregate amount of Eurodollar Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $3,000,000, such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Borrower to continue such Loans as, and convert such Loans into,
Eurodollar Rate Loans shall terminate.
(b) The Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than 9:00 a.m. San Francisco time at least (i) three Business Days in advance of
the Conversion/Continuation Date, if the Loans are to be converted into or
continued as Eurodollar Rate Loans; and (ii) one Business Day in advance of the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or renewed;
(C) the Type of Loans resulting from the proposed conversion or continuation;
and
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Eurodollar Rate Loans, the Borrower has failed to select a new Interest
Period within the time period specified in subsection 2.04(b) to be applicable
to such Eurodollar Rate Loans, or if any Default or Event of Default then
exists, the Borrower shall be deemed to have elected to convert such Eurodollar
Rate Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Administrative Agent will promptly notify each Bank of
its receipt of a Notice of Conversion/Continuation, or, if no notice is provided
by the Borrower within the time period specified in subsection 2.04(b), the
Administrative Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise agree, during the
existence of a Default or Event of Default, the Borrower may not elect to have a
Loan converted into or continued as a Eurodollar Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than three (3) different Interest Periods in
effect.
Section 2.05 Optional Prepayments. (a) Subject to Section 3.04, the Borrower
may, at any time or from time to time, not later than 9:00 a.m. San Francisco
time at least three (3) Business Days prior to its effective date by irrevocable
notice to the Administrative Agent, in the case of Eurodollar Rate Loans, and
not later than 9:00 a.m. San Francisco time at least one (1) Business Day prior
to its effective date by irrevocable notice to the Administrative Agent, in the
case of Base Rate Loans, ratably prepay the Loans in whole or in part, in
minimum amounts of $3,000,000 or any multiple of $1,000,000 in excess thereof,
for Eurodollar Rate Loans, and in minimum amounts of $1,000,000 or any multiple
of $100,000 in excess thereof, for Base Rate Loans.
(b) Any such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) of the Loans to be prepaid.
Prepayments of Base Rate Loans may be made hereunder on any Business Day.
Prepayments of Eurodollar Rate Loans may be made hereunder only on the last day
of any applicable Interest Period; provided, that prepayments of Eurodollar Rate
Loans may be made on a day other than the last day of the applicable Interest
Period only with payment by the Borrower of the aggregate amount of any
associated funding losses of any affected Banks pursuant to Section 3.04. The
Administrative Agent will promptly notify each Bank of its receipt of any such
notice, and of such Bank's Pro Rata Share of such prepayment.
(c) If any such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together, in the case of a
Eurodollar Rate Loan, with accrued interest to each such date on the amount
prepaid and any amounts required pursuant to Section 3.04.
Section 2.06 Mandatory Prepayments of Loans; Mandatory Commitment Reductions.
(a) If a Change of Control occurs following the Ferrellgas Joinder Event, the
Borrower shall immediately, and without notice or demand, prepay the Obligations
in full, including the aggregate principal amount of all outstanding Loans, all
accrued and unpaid interest thereon and all amounts payable under Section 3.04
hereof, in each case on the 30th day after such Change of Control shall have
occurred and be continuing.
(b) The Commitments shall be automatically reduced to zero at 5:00 p.m. San
Francisco time on the Effective Date.
Section 2.07 Repayment. The Borrower shall repay to the Banks in full on the
Maturity Date the aggregate principal amount of the Loans outstanding on such
date together with all accrued and unpaid interest thereon.
Section 2.08 Interest. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the Effective Date (subject to the Borrower's
right to convert to other Types of Loans under Section 2.04) at a rate per annum
equal to:
(i) during such periods as such Loan is a Base
Rate Loan, the Base Rate (as in effect from
time to time) plus the Applicable Margin (if
any); and
(ii) during such periods as such Loan is a
Eurodollar Loan, the Eurodollar Rate for
such Loan for its Interest Period plus the
Applicable Margin (if any).
(b) Interest on each Loan shall be paid in arrears on each
applicable Interest Payment Date and on the Maturity Date. Interest in all cases
shall also be paid on the date of any prepayment of Loans under subsection
2.06(a) and interest on Eurodollar Rate Loans shall also be paid on the date of
prepayment of Loans in all other circumstances under Section 2.05 or 2.06, in
each case for the portion of the Loans so prepaid and upon payment (including
prepayment) in full thereof and, during the existence of any Event of Default,
interest shall be paid on demand of the Administrative Agent at the request or
with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, while any
Event of Default exists or after acceleration, the Borrower shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Obligations, at a rate per annum
which is determined by adding 2% per annum to the interest rate then in effect
for the Loans included in such Obligations as set forth in subsection (a) above
and, in the case of Obligations other than Base Rate Loans or Eurodollar Loans,
including all fees provided herein, at a rate per annum which is determined by
adding 2% per annum to the interest rate then in effect for the Loans as set
forth in subsection (a) above (calculated using the Base Rate); provided,
however, that, on and after the expiration of any Interest Period applicable to
any Eurodollar Rate Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate plus the Applicable Margin for Base Rate
Loans plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Borrower to any Bank hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Borrower shall pay such Bank interest at the highest rate
permitted by applicable law.
Section 2.09 Fees. The Borrower shall pay all fees referred to in (a) the letter
agreement dated November 16, 1999 among the MLP, the Borrower, the Arranger and
Administrative Agent and (b) the letter agreement dated the date of this
Agreement among Thermogas, Ferrellgas and the Administrative Agent (such
letters, the "Fee Letters"), in each case at the times and in the amounts set
forth in the Fee Letters.
Section 2.10 Computation of Fees and Interest. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by BofA's "reference rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest and fees shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
interest being paid than if computed on the basis of a 365-day year). Interest
and fees shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Borrower and the
Banks in the absence of manifest error.
Section 2.11 Payments by the Borrower. (a) All payments to be made by the
Borrower under any Loan Document shall be made without set-off, recoupment,
counterclaim or other defense. Except as otherwise expressly provided herein,
all payments by the Borrower shall be made to the Administrative Agent for the
account of the Banks at the Administrative Agent's Payment Office, and shall be
made in dollars and in immediately available funds, no later than 10:00 a.m.
(San Francisco time) on the date specified herein. The Administrative Agent will
promptly distribute to each Bank its Pro Rata Share (or other applicable share
as expressly provided herein) of such payment in like funds as received. Any
payment received by the Administrative Agent later than 10:00 a.m. (San
Francisco time) shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Borrower prior to the date on which any payment is due to the Banks that the
Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Bank until the date repaid.
(d) Unless a due date is otherwise specified herein, the due
date for any Obligation shall be 30 days after demand therefor by the Person to
whom the Obligation is owed.
Section 2.12 Payments by the Banks to the Administrative Agent. (a) Unless the
Administrative Agent receives notice from a Bank on or prior to the Effective
Date that such Bank will not make available as and when required hereunder to
the Administrative Agent for the account of the Borrower the amount of that
Bank's Pro Rata Share of the Borrowing, the Administrative Agent may assume that
each Bank has made such amount available to the Administrative Agent in
immediately available funds on the Effective Date and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative Agent
in such circumstances has made available to the Borrower such amount, that Bank
shall on the Business Day following the Effective Date make such amount
available to the Administrative Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the Administrative Agent
submitted to any Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is so made available,
such payment to the Administrative Agent shall constitute such Bank's Loan on
the Effective Date for all purposes of this Agreement. If such amount is not
made available to the Administrative Agent on the Business Day following the
Effective Date, the Administrative Agent will notify the Borrower of such
failure to fund and, upon demand by the Administrative Agent, the Borrower shall
pay such amount to the Administrative Agent for the Administrative Agent's
account, together with interest thereon for each day elapsed since the Effective
Date, at a rate per annum equal to the interest rate applicable at the time to
the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on Effective Date
shall not relieve any other Bank of any obligation hereunder to make a Loan on
such date, but no Bank shall be responsible for the failure of any other Bank to
make the Loan to be made by such other Bank on the Effective Date.
Section 2.13 Sharing of Payments, Etc. If (other than (x) as expressly provided
elsewhere in this Agreement (including Section 2.14) and (y) with respect to
fees that are not expressly provided for in this Agreement) any Bank shall
obtain on account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its Pro Rata Share, such Bank shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Banks following
any such purchases or repayments.
Section 2.14 Extension of Maturity Date; Amendment and Restatement of Agreement.
(a) The Borrower may from time to time at its option request all of the Banks by
notice to the Administrative Agent to amend and restate this Agreement in order
to extend the current Maturity Date for a period of up to but not exceeding
fifteen (15) years and otherwise to incorporate terms and conditions that are
substantially similar to those set forth in the 1998 Note Purchase Agreement,
together with such other or additional terms and conditions (including with
respect to fees, interest rates and amortization of principal) as shall be set
forth in such request (an "Extension Request"); provided, that the Borrower may
not request any Borrowings that would increase the outstanding principal amount
of the Loans above the principal amount of the Loans outstanding immediately
prior to giving effect to any amendment and restatement of this Agreement
contemplated by this Section 2.14; and provided, further, that the Borrower may
not submit any Extension Request prior to January 31, 2000 or later than April
30, 2000. The Administrative Agent shall notify each Bank of an Extension
Request within five (5) days after the Administrative Agent's receipt of such
Extension Request from the Borrower. Within fifteen (15) days after the receipt
of the Extension Request from the Administrative Agent, each Bank in its sole
and absolute discretion may, by written notice to the Borrower and the
Administrative Agent (an "Extension Commitment"), agree to participate in the
extension of the Maturity Date on the terms and conditions set forth in the
Extension Request and this Section 2.14, in which event such Bank (or, at the
option of such Bank, a financial institution that is an Affiliate of such Bank)
shall continue to make such Loans available to the Borrower pursuant to this
Agreement as amended and restated to incorporate such terms and conditions (and
such Bank or Affiliate of such Bank shall execute any documentation necessary to
implement the foregoing). Any Bank electing not to submit an Extension
Commitment shall, promptly after requested to do so by the Borrower, assign its
Loans to another financial institution or other Person selected by the Borrower
(which financial institution or other Person shall be satisfactory to the
Administrative Agent and the Arranger in their sole discretion), and the
Borrower shall compensate such Bank for its funding losses, if any, in
connection with such assignment pursuant to Section 3.04 as if the Borrower had
prepaid the Loans of such Bank on the date of assignment.
(b) Within five (5) days after expiration of the period for
submission of an Extension Commitment from the Banks, the Administrative Agent
shall promptly send to each Bank submitting an Extension Commitment a notice (an
"Available Loan Notice") identifying (i) each of the Bank's electing not to
submit an Extension Commitment, (ii) the amount of each such Bank's Pro Rata
Share of the Effective Amount of the Loans then outstanding and (iii) the total
Effective Amount of the Loans for which no Extension Commitments have been
submitted (the "Available Loan Interest"). Within five (5) days after receipt of
an Available Loan Notice from the Administrative Agent, each Bank that
previously submitted an Extension Commitment may in its sole and absolute
discretion deliver a notice to the Administrative Agent (a "Confirmation
Notice") specifying the percentage of the Available Loan Interest that such Bank
(or a financial institution that is an Affiliate of such Bank) wishes to assume
(the "Loan Acceptance Percentage"). Failure by any such Bank to timely deliver a
Confirmation Notice shall be deemed notice that such Bank has declined to assume
any of the Available Loan Interest. In the event that the sum of the Loan
Acceptance Percentages is equal to or less than 100% of the Available Loan
Interest, the Administrative Agent shall allocate the Loan Acceptance
Percentages as specified in the corresponding Confirmation Notices and, with
respect to any remaining Available Loan Interest, follow the procedures
described in subsection (c) below. In the event that the sum of the Loan
Acceptance Percentages is greater than 100% of the Available Loan Interest, the
Administrative Agent shall apportion the Available Loan Interest among the Banks
which submitted Extension Commitments pro rata according to the respective Loan
Acceptance Percentage for each such Bank.
(c) If, upon completion of the procedures described in
subsection (b) above, there remains all or some portion of the Available Loan
Interest that has not been assumed by the Banks submitting Confirmation Notices,
the Administrative Agent shall, upon the request of the Borrower and subject to
an agreement having been made with respect to fees as set forth in subsection
(e) below, make a request (by sending an Available Loan Notice) to other
financial institutions or Persons (including insurance companies) selected by
the Administrative Agent and the Arranger (and reasonably acceptable to the
Borrower) to assume such Available Loan Interest. Such Available Loan Interest
or part thereof, as the case may be, shall be apportioned in the sole and
absolute discretion of the Administrative Agent and the Arranger among those
financial institutions, if any, that deliver Confirmation Notices in a timely
manner. All matters relating the timing of the transmittal of the Available Loan
Notices, the delivery of Confirmation Notices, the apportionment of the
Available Loan Interest and all other matters relating to the timing of the
assumption of the Available Loan Interest shall be as determined by the
Administrative Agent and the Arranger in their sole and absolute discretion.
(d) If, upon completion of the procedures described in
subsections (b) and (c) above, there remains any portion of the Available Loan
Interest that has not been assumed by (and the related Loans assigned to) the
remaining Banks and/or any other financial institutions or Persons and the
Borrower nonetheless wishes to proceed with the amendment and restatement of
this Agreement as set forth in this Section 2.14 (and so long as no Event of
Default has occurred), the Borrower shall (subject to giving notice of
prepayment as required by this Agreement) on any Business Day prior to the
current Maturity Date (i) prepay the aggregate unpaid principal amount of each
Bank's Loans which have not been assigned to such remaining Banks and/or other
financial institutions, together with accrued interest on such amount to the
date of such prepayment, and (ii) compensate each such Bank for its funding
losses, if any, in connection with such prepayment in accordance with Section
3.04. Notwithstanding any other provision of this Section 2.14, if the Effective
Amount of the Loans that would be outstanding after giving effect to any
prepayment required by the immediately preceding sentence is less than
$100,000,000, the current Maturity Date shall in no event be extended unless
each of the Banks and other financial institutions or Persons that would be a
party to this Agreement after its amendment and restatement consents in writing
to such extension (and failing such consent the Extension Request prompting the
operation of this Section 2.14 shall be deemed withdrawn).
(e) Notwithstanding any other provision of this Agreement, any extension of the
Maturity Date and amendment and restatement of this Agreement as provided in
this Section 2.14 shall be subject to the payment by the Borrower of such fees
to such Persons (including the Administrative Agent and the Arranger) as shall
be agreed upon by the Administrative Agent, the Arranger and the Borrower.
(f) Any assignment of a Bank's Loans that may be required as a
result of the operation of this Section 2.14 shall be made in accordance with
Section 11.08.
(g) The Borrower may withdraw an Extension Request at any time
prior to the receipt by the Administrative Agent of Confirmation Notices
covering all of the Available Loan Interest. No Extension Request may be made,
and any Extension Request that has been made shall be immediately and
automatically withdrawn, upon and after the occurrence of any Event of Default.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes. (a) Any and all payments by the Borrower to each Bank or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for any Taxes. In
addition, the Borrower shall pay all Other Taxes.
(b) The Borrower agrees to indemnify and hold harmless each
Bank and the Administrative Agent for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section) paid by the Bank or the Administrative Agent and any
liability (including interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Payment under this indemnification shall be made within 30
days after the date the Bank or the Administrative Agent makes written demand
therefor.
(c) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Administrative Agent, then:
(i) the sum payable shall be increased as
necessary so that after making all required
deductions and withholdings (including
deductions and withholdings applicable to
additional sums payable under this Section)
such Bank or the Administrative Agent, as
the case may be, receives an amount equal to
the sum it would have received had no such
deductions or withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings;
(iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing
authority or other authority in accordance
with applicable law; and
(iv) the Borrower shall also pay to each Bank or
the Administrative Agent for the account of
such Bank, at the time interest is paid, all
additional amounts which the respective Bank
specifies as necessary to preserve the
after-tax yield the Bank would have received
if such Taxes or Other Taxes had not been
imposed.
(d) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish the Administrative
Agent with the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to the Administrative Agent.
(e) If the Borrower is required to pay additional amounts to
any Bank or the Administrative Agent pursuant to subsection (c) of this Section,
then such Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office so as
to eliminate any such additional payment by the Borrower which may thereafter
accrue, if such change in the judgment of such Bank is not otherwise
disadvantageous to such Bank.
Section 3.02 Illegality. (a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Eurodollar Rate Loans, then, on notice thereof by the Bank to the Borrower
through the Administrative Agent, any obligation of that Bank to make Eurodollar
Rate Loans shall be suspended until the Bank notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no
longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Eurodollar Rate Loan, the Borrower shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Administrative Agent), prepay
in full such Eurodollar Rate Loans of that Bank then outstanding, together with
interest accrued thereon and amounts required under Section 3.04, either on the
last day of the Interest Period thereof, if the Bank may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Eurodollar Rate Loan. If the Borrower is
required to so prepay any Eurodollar Rate Loan, then concurrently with such
prepayment, the Borrower shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain
Eurodollar Rate Loans has been so terminated or suspended, the Borrower may
elect, by giving notice to the Bank through the Administrative Agent that all
Loans which would otherwise be made by the Bank as Eurodollar Rate Loans shall
be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under
this Section, the affected Bank shall designate a different Lending Office with
respect to its Eurodollar Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Bank, be illegal or otherwise disadvantageous to the Bank.
Section 3.03 Increased Costs and Reduction of Return. (a) If any Bank determines
that, due to either (i) the introduction of or any change (other than any change
by way of imposition of or increase in reserve requirements included in the
calculation of the Eurodollar Rate or in respect of the assessment rate payable
by any Bank to the FDIC for insuring U.S. deposits) in or in the interpretation
of any law or regulation or (ii) the compliance by that Bank with any guideline
or request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any Eurodollar Rate Loans,
then the Borrower shall be liable for, and shall from time to time, upon demand
(with a copy of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitments, Loans, credits or obligations
under this Agreement, then, upon demand of such Bank to the Borrower through the
Administrative Agent, the Borrower shall pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the Bank for
such increase.
Section 3.04 Funding Losses. The Borrower shall reimburse each Bank and hold
each Bank harmless from any loss or expense which each Bank may sustain or incur
as a consequence of:
(a) the failure of the Borrower to make on a timely basis any
payment of principal of any
Eurodollar Rate Loan;
(b) the failure of the Borrower to borrow, continue or convert a Loan after the
Borrower has given (or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/ Continuation;
(c) the failure of the Borrower to make any prepayment in accordance with any
notice delivered under Section 2.05;
(d) the prepayment (including pursuant to Section 2.06 or 2.14) or other payment
(including after acceleration thereof) of a Eurodollar Rate Loan on a day that
is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any Eurodollar Rate Loan to a
Base Rate Loan on a day that is not the last day of the relevant Interest
Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained. Such
reimbursement of funding losses or expenses shall be paid by the Borrower to the
Administrative Agent within 15 days after demand therefor. For purposes of
calculating amounts payable by the Borrower to the Banks under this Section and
under subsection 3.03(a), each Eurodollar Rate Loan made by a Bank (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the Eurodollar Rate
for such Eurodollar Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Eurodollar Rate Loan is in fact so funded.
Section 3.05 Inability to Determine Rates. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan or that the Eurodollar Rate applicable
pursuant to subsection 2.09(a) for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Banks of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Bank. Thereafter, the obligation of the Banks to
make or maintain Eurodollar Rate Loans, hereunder shall be suspended until the
Administrative Agent upon the instruction of the Majority Banks revokes such
notice in writing. Upon receipt of such notice, the Borrower may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Borrower does not revoke such Notice, the Banks shall make, convert or
continue the Loans, as proposed by the Borrower, in the amount specified in the
applicable notice submitted by the Borrower, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Eurodollar Rate Loans.
Section 3.06 Survival. The agreements and obligations of the
Borrower in this Article III shall
survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions to Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction of the following conditions precedent, including the
condition that the Administrative Agent shall have received on or before January
31, 2000 all of the following, in form and substance satisfactory to the
Administrative Agent and, where provided below, each Bank, and in sufficient
copies for each Bank:
(a) Loan Documents. This Agreement, the TWCI Guaranty, the Fee
Letters and any Notes requested by
the Banks, executed by each party thereto.
(b) Acquisition Documents. The Purchase Agreement (including all schedules and
exhibits thereto), certified by a Responsible Officer as true, complete and in
full force and effect, together with copies of all other documents, instruments,
notices (including any notice required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976), certificates, opinions and other material writings
executed and delivered in connection with the transactions contemplated by the
Purchase Agreement. The Purchase Agreement and all such other documents shall be
in form and substance satisfactory to the Administrative Agent and, in the case
of opinions, shall be accompanied by a letter from the Person delivering the
same authorizing reliance thereon by the Administrative Agent and the Banks. The
Purchase Agreement shall not have been altered, amended or otherwise changed or
supplemented or any condition therein waived without the prior written consent
of the Administrative Agent.
The transactions contemplated by the Purchase Agreement shall have been
consummated on the Effective Date in accordance with the terms thereof and in
compliance with applicable Requirements of Law.
(c) Certain Information. The Administrative Agent shall have received and
reviewed, with results satisfactory to the Administrative Agent and its counsel,
information regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, environmental matters,
material contracts, debt agreements, property ownership, contingent liabilities
and management of Thermogas and Ferrellgas and their respective Subsidiaries.
(d) Resolutions; Incumbency.
(i) Copies of the resolutions of each of TWCI
and Thermogas (or, if applicable, of the
managing member of Thermogas) authorizing
the transactions contemplated by the Loan
Documents, certified as of the Effective
Date by the Secretary or an Assistant
Secretary of TWCI and Thermogas,
respectively; and
(ii) A certificate of the Secretary or Assistant
Secretary of each of TWCI and Thermogas
certifying the names and true signatures of
the officers of TWCI and Thermogas
authorized to execute, deliver and perform,
as applicable, on behalf of TWCI and
Thermogas, this Agreement and all other Loan
Documents to be delivered by TWCI and
Thermogas hereunder.
(e)
Organization Documents; Good Standing. Each of the
following documents:
(i) The LLC Agreement as in effect on the
Effective Date, certified by the Secretary
or Assistant Secretary of Thermogas as of
the Effective Date;
(ii) A copy of the articles or certificate of
incorporation or other charter documents of
TWCI and the certificate of formation of
Thermogas, certified by the Secretary of
State (or other applicable Governmental
Authority) of its state of incorporation as
of a recent date;
(iii) A copy of the bylaws of TWCI as in effect on
the Effective Date, certified by the
Secretary or Assistant Secretary of TWCI as
of the Effective Date; and
(iv) A good standing and tax good standing
certificate for each of TWCI and Thermogas
from the Secretary of State (or other,
applicable Governmental Authority) of its
state of incorporation or organization, as
applicable, and (with respect to Thermogas
only) each other state designated by
Administrative Agent where Thermogas
conducts significant business, in each case
as of a recent date.
(f) Financial Statements. The Administrative Agent shall have received and
reviewed, with results satisfactory to the Administrative Agent, the
consolidated financial statements of TWCI and its Subsidiaries, Thermogas and
its Subsidiaries and Ferrellgas and its Subsidiaries, in each case for the
immediately preceding two fiscal years for which such financial statements are
available (or, in the case of Thermogas and its Subsidiaries, for the fiscal
year ending December 31, 1998 and the nine-month period ending September 30,
1999) including balance sheets and income and cash flow statements, which
financial statements (x) have been prepared in conformity with GAAP (subject to
ordinary, good faith year-end audit adjustments) and (y) in the case of TWCI and
its Subsidiaries and Ferrellgas and its Subsidiaries, have been audited by
independent public accountants of recognized national standing.
(g) [Intentionally omitted.]
(h) Funds for Acquisition; No other Obligations. Evidence satisfactory to the
Administrative Agent that (i) Thermogas shall receive as of the Effective Date
net proceeds of $133,830,627.50 in connection with the sale by it of propane
tanks that will be leased back to it pursuant to a Synthetic Lease, (ii) the MLP
shall receive as of the Effective Date net proceeds of at least $175 million
from the issuance of its senior common units, and (iii) Thermogas shall have no
Synthetic Lease Obligations or Indebtedness outstanding as of the Effective Date
other than Synthetic Lease Obligations in respect of the Synthetic Lease
referred to above in this paragraph and Indebtedness under this Agreement.
(i) Consents. Evidence that all governmental, shareholder and third party
consents (including ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ clearance) and approvals necessary or
desirable in connection with the transactions contemplated hereby and by the
Purchase Agreement shall have been obtained; all such consents and approvals
shall be in force and effect; and all applicable waiting periods shall have
expired without any action being taken by any authority that could restrain,
prevent or impose any material adverse conditions on the transactions or that
could seek or threaten any of the foregoing, and no law or regulation shall be
applicable which in the judgment of the Banks could have such effect.
(j) Litigation. There shall not exist (i) any order, decree, judgment, ruling or
injunction which restrains the consummation of the transactions contemplated
hereby or by the Purchase Agreement, or (ii) any pending or threatened action,
suit, investigation or proceeding, which, if adversely determined, could
materially and adversely affect TWCI, Thermogas, the General Partner, the MLP,
Ferrellgas or their respective Subsidiaries, any transaction contemplated hereby
or by the Purchase Agreement, or the ability of TWCI, Thermogas, Ferrellgas or
the General Partner to perform their respective obligations under the Loan
Documents or the ability of the Administrative Agent or any of the Banks to
exercise its rights thereunder.
(k) Legal Opinion. The opinion of the Senior Vice President and General Counsel
of TWCI and Thermogas or of such other counsel as are acceptable to the
Administrative Agent and the Banks, addressed to the Administrative Agent and
the Banks, substantially in the form of Exhibit D-1.
(l) Payment of Fees. Evidence of payment by the Borrower of all accrued and
unpaid fees, costs and expenses to the extent due and payable as of the
Effective Date, together with Attorney Costs of the Administrative Agent to the
extent invoiced prior to or on the Effective Date, plus such additional amounts
of Attorney Costs as shall constitute the Administrative Agent's reasonable
estimate of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude final
settling of accounts between the Borrower and the Administrative Agent);
including any such costs, fees and expenses arising under or referenced in the
Fee Letters or otherwise in Sections 2.10 and 11.04.
(m) Certificate. A certificate signed by an authorized officer of Thermogas,
dated as of the Effective Date, stating that:
(i) the representations and warranties contained
in Article V are true and correct on and as
of such date, as though made on and as of
such date; and
(ii) no Default or Event of Default exists or
would result from the Credit Extensions to
be made on such date.
(n) No Material Change. There shall have been no material adverse change since
the end of the most recent fiscal year for which audited financial statements
are available, respectively, for TWCI, Thermogas and Ferrellgas, in the
business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of TWCI, Thermogas or Ferrellgas, as the
case may be, in each case together with their respective Subsidiaries taken as a
whole, or in the facts and information regarding such Persons as represented to
date.
(o) Contingent Payment Agreement. The Seller shall have confirmed in writing to
Ferrellgas and BofA that the obligations of (i) Ferrellgas under the Contingent
Payment Agreement and (ii) BofA under the related Assignment Agreement dated as
of November 7, 1999 between the Seller and BofA, have in each case been
terminated as of the Effective Date.
(p) Year 2000 Readiness. The Administrative Agent shall have received and
reviewed, with results satisfactory to the Administrative Agent, information
confirming that (i) Thermogas, the General Partner, the MLP, Ferrellgas and
their respective Subsidiaries are taking all necessary and appropriate steps to
ascertain the extent of, and to quantify and successfully address, business and
financial risks facing Thermogas, the General Partner, the MLP, Ferrellgas and
their respective Subsidiaries as a result of the Year 2000 Problem, including
risks resulting from the failure of key vendors and customers of Thermogas, the
General Partner, the MLP, Ferrellgas and their respective Subsidiaries to
successfully address the Year 2000 Problem, and (ii) the material computer
applications of Thermogas, the General Partner, the MLP, Ferrellgas and their
respective Subsidiaries, and those of the key vendors and customers of such
Persons will, on a timely basis, adequately address the Year 2000 Problem in all
material respects.
(q) Trading Policies. The trading position policy and the supply inventory
position policy of Ferrellgas as in effect on the Effective Date, as evidenced
by the written policies delivered to the Administrative Agent, shall be
satisfactory to the Administrative Agent and the Majority Banks.
(r) No Material Disruption. There shall have been no material disruption or
material adverse change in the financial, banking or capital markets.
(s) Clear Market. There shall have been no competing offering, placement or
arrangement of any debt securities, bank financings or other Indebtedness by or
on behalf of Thermogas or Ferrellgas (other than the financing arrangements
referred to in subsection (h) above).
(t) Ferrellgas Representations. Evidence satisfactory to the Administrative
Agent that Ferrellgas and the General Partner will be able to make the
representations set forth in Article VI on the Effective Date at the time of the
Ferrellgas Joinder Event.
(u) Other Documents. Such other approvals, opinions, documents or materials as
the Administrative Agent or any Bank may request.
Section 4.02 Conditions to All Credit Extensions. The obligation of each Bank to
make any Loan to be made by it on the Effective Date or to thereafter continue
or convert any Loan under Section 2.04 is subject to the satisfaction of the
following conditions precedent on the Effective Date or the relevant
Conversion/Continuation Date, as applicable:
(a) Notice, Application. The Administrative Agent shall have received
(with, in the case of the Loans to be made on the Effective Date, a copy for
each Bank) a Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable;
(b) Representations and Warranties. The representations and warranties of the
Borrower in this Agreement (other than, after the Ferrellgas Joinder Event, the
representations and warranties made in Article V) and by the Guarantors (if any)
and the General Partner in any Loan Document shall be true and correct in all
material respects on and as of the Effective Date or such
Conversion/Continuation Date with the same effect as if made on and as of the
Effective Date or such Conversion/Continuation Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier
date); and
(c) No Existing Default. No Default or Event of Default shall exist or shall
result from such Borrowing, continuation or conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation
submitted by the Borrower hereunder shall constitute a representation and
warranty by the Borrower hereunder, as of the date of each such notice and as of
the Effective Date and each Conversion/Continuation Date, as applicable, that
the conditions in this Section 4.02 have been satisfied.
Section 4.03 Conditions to Release of Guaranty. Upon the satisfaction of each of
the following conditions (in form and substance acceptable to the Majority
Banks) at or before 5:00 p.m. San Francisco time on the Effective Date, the
Administrative Agent, on behalf of itself and each of the Banks, shall execute
and deliver (and each of the Banks hereby authorize the Administrative Agent to
execute and deliver) to TWCI on the Effective Date a Release of Guaranty in
favor of TWCI:
(a) MLP Contribution to Ferrellgas and Merger. Evidence that all of the Capital
Interests in Thermogas acquired by the MLP from the Seller pursuant to the
Purchase Agreement shall have been transferred to Ferrellgas as a contribution
of capital and that the Thermogas Merger will occur as of the Effective Date
(including a copy of any and all documents and instruments effecting such
tansfer and merger).
(b) Ferrellgas Joinder Documents. Receipt by the Administrative Agent of (i) an
Assumption Agreement duly executed by Ferrellgas and the General Partner, and
(ii) replacement Notes duly executed by Ferrellgas for any Bank requesting the
same.
(c) Resolutions; Incumbency.
(i) Copies of partnership authorizations for
Ferrellgas and resolutions of the board of
directors of the General Partner authorizing
the transactions contemplated hereby,
certified as of the Effective Date by the
Secretary or an Assistant Secretary of the
General Partner; and
(ii) A certificate of the Secretary or Assistant
Secretary of the General Partner certifying
the names and true signatures of the
officers of the General Partner authorized
to execute, deliver and perform, as
applicable, on behalf of Ferrellgas and the
General Partner, this Agreement and all
other Loan Documents to be delivered by
Ferrellgas and the General Partner
hereunder.
(d) Organization Documents; Good Standing. Each of the following documents:
(i) The articles or certificate of incorporation
and the bylaws of the General Partner and
the Certificate of Limited Partnership and
the Partnership Agreement of Ferrellgas, in
each case as in effect on the Effective
Date, certified by the Secretary or
Assistant Secretary of the General Partner
as of the Effective Date;
(ii) A good standing and tax good standing
certificate for the General Partner and the
Borrower from the Secretary of State (or
similar, applicable Governmental Authority)
of its state of incorporation or
organization, as applicable, and each other
state designated by Administrative Agent
where the General Partner or the Borrower
conducts significant business, in each case
as of a recent date.
(e) Legal Opinion. The opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to
Ferrellgas and the General Partner or of such other counsel as are acceptable to
the Administrative Agent and the Banks, addressed to the Administrative Agent
and the Banks, substantially in the form of Exhibit D-2.
(f) Certificate. A certificate signed by a Responsible Officer, dated as of the
Effective Date, stating that:
(i) the representations and warranties contained
in Article VI are true and correct on and as
of such date, as though made on and as of
such date;
(ii) no Default or Event of Default exists or
would result from the Credit Extensions to
be made on such date; and
(iii) there has not occurred since July 31, 1999
any event or circumstance that has resulted
or could reasonably be expected to result in
a Material Adverse Effect.
(g) Solvency Certificate. A certificate executed by a Responsible Officer in
form and substance satisfactory to the Administrative Agent as to the financial
condition, solvency and related matters with respect to Ferrellgas, in each case
after giving effect to the Ferrellgas Joinder Event, this Agreement, the
Borrowings to be made under this Agreement on the Effective Date and the other
transactions contemplated by this Agreement (including the distribution to the
Seller of certain of the proceeds of Loans as contemplated by Section 7.11).
(h) Existing Indebtedness. Evidence that the commitments of the lenders under
the Short-Term Revolving Credit Agreement dated as April 30, 1999 among
Ferrellgas, the General Partner, the financial institutions party thereto (as
lenders), BofA (as administrative agent for such Lenders) and the Arranger,
shall have been irrevocably terminated and the loans and all other obligations
thereunder paid in full as of the Effective Date.
(i) 1996 Indenture; 1998 Note Purchase Agreement. The incurrence and maintenance
of the Indebtedness of the Borrower under this Agreement and of the Synthetic
Lease Obligations referred to in subsection 4.01(h) shall be permitted under the
1996 Indenture and the 1998 Note Purchase Agreement, and Ferrellgas shall have
delivered to the Administrative Agent a certificate of a Responsible Officer
demonstrating compliance with the applicable provisions of the 1996 Indenture
and the 1998 Note Purchase Agreement.
(j) Other Conditions Satisfied. Each of the conditions set forth in
Sections 4.01 and 4.02 shall --------------------------
have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THERMOGAS
Thermogas hereby represents and warrants to the Administrative
Agent and each Bank that:
Section 5.01 Corporate or Partnership Existence and Power. Thermogas and
each of its Subsidiaries: --------------------------------------------
(a) is a corporation, limited liability company or partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation;
(b) has the power and authority and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business as now being or
as proposed to be conducted and to execute, deliver, and perform its obligations
under the Loan Documents;
(c) is duly qualified as a foreign corporation, limited liability company or
partnership and is licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license or where the failure so
to qualify would have a Material Adverse Effect; and
(d) is in compliance with all material Requirements of Law.
Section 5.02 Authorization; No Contravention. The execution, delivery and
performance by Thermogas of this Agreement and each other Loan Document to which
Thermogas or any Subsidiary is a party, have been duly authorized by all
necessary action on behalf of Thermogas, and do not and will not:
(a) contravene the terms of any of Thermogas' or any Subsidiary's
Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, any document evidencing any Contractual Obligation to which
Thermogas or any Subsidiary is a party or any order, injunction, writ or decree
of any Governmental Authority to which such Person or its property is subject,
where such conflict, breach, contravention or Lien could reasonably be expected
to have a Material Adverse Effect; or
(c) violate any material Requirement of Law.
Section 5.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, Thermogas or any
Subsidiary of this Agreement or any other Loan Document.
Section 5.04 Binding Effect. This Agreement and each other Loan Document to
which Thermogas or any Subsidiary is a party constitute the legal, valid and
binding obligations of such Person, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
(a) Litigation. There are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of Thermogas, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental Authority, against
Thermogas or any of its Subsidiaries or any of their respective properties which
purport to affect or pertain to this Agreement or any other Loan Document or any
of the transactions contemplated hereby or thereby. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan Document,
or directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
Section 5.05 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by Thermogas.
Section 5.06 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 7.11.
Neither Thermogas nor any Subsidiary of Thermogas is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
Section 5.07 Title to Properties. Thermogas and each Subsidiary have good record
and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect.
Section 5.08 Taxes. Thermogas has filed all Federal and other material tax
returns and reports required to be filed, and has paid all Federal and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon it or its properties, income or assets otherwise due and payable,
except those which are being contested in good faith by appropriate proceedings
and for which adequate reserves have been provided in accordance with GAAP.
There is no proposed tax assessment against Thermogas that would, if made, have
a Material Adverse Effect.
Section 5.09 Financial Condition. (a) The unaudited consolidated financial
statements of Thermogas and its Subsidiaries dated December 31, 1998 and
September 30, 1999, in each case together with the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal year and nine-month period ended on those respective dates:
(i) were prepared in accordance with GAAP
consistently applied throughout the period
covered thereby, except as otherwise
expressly noted therein, subject to
ordinary, good faith year end audit
adjustments;
(ii) fairly present the financial condition of
Thermogas and its Subsidiaries as of the
date thereof and results of operations for
the period covered thereby; and
(iii) show all material indebtedness and other
liabilities, direct or contingent, of
Thermogas and its consolidated Subsidiaries
as of the date thereof, including
liabilities for taxes, material commitments
and Contingent Obligations.
(b) Since December 31, 1998, there has been no Material
Adverse Effect.
(c) Thermogas and each of the Subsidiaries of Thermogas are
each Solvent, both before and after giving effect to the consummation of each of
the transactions contemplated by the Loan Documents.
Section 5.10 Regulated Entities. None of Thermogas or any Affiliate of the
Borrower, is an "Investment Company" within the meaning of the Investment
Company Act of 1940. Thermogas is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal or state
statute or regulation limiting its ability to incur Indebtedness.
Section 5.11 Full Disclosure. None of the representations or warranties made by
Thermogas or any Affiliate of Thermogas in the Loan Documents as of the date
such representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of Thermogas or any Affiliate of Thermogas in connection with
the Loan Documents contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
Section 5.12 Year 2000. Thermogas and its Subsidiaries have reviewed the areas
within their business and operations which could be adversely affected by, and
have developed or are developing a program to address on a timely basis, the
"Year 2000 Problem" (that is, the risk that computer applications used by any
relevant Person may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date on or after December 31,
1999), and have made related appropriate inquiry of material suppliers and
vendors. Based on such review and program, Thermogas believes that the Year 2000
Problem will not have a Material Adverse Effect.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF FERRELLGAS
Ferrellgas (upon its becoming the Borrower under this
Agreement by execution and delivery of the Assumption Agreement) and the General
Partner (by execution and delivery of the Assumption Agreement), from and after
the Ferrellgas Joinder Event, hereby represent and warrant to the Administrative
Agent and each Bank that:
Section 6.01 Corporate or Partnership Existence and Power. The General
Partner, the MLP, the Borrower and each of its Subsidiaries:
(a) is a corporation or partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation;
(b) has the power and authority and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business as now being or
as proposed to be conducted and to execute, deliver, and perform its obligations
under the Loan Documents;
(c) is duly qualified as a foreign corporation or partnership and is licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license or where the failure so to qualify would have a
Material Adverse Effect; and
(d) is in compliance with all material Requirements of Law.
Section 6.02 Corporate or Partnership Authorization; No Contravention. The
execution, delivery and performance by the Borrower and the General Partner of
this Agreement and each other Loan Document to which the General Partner, the
Borrower or any Subsidiary is party, have been duly authorized by all necessary
partnership action on behalf of the Borrower and all necessary corporate action
on behalf of the General Partner and any Subsidiary, and do not and will not:
(a) contravene the terms of any of the General Partner's, the MLP's, the
Borrower's or any Subsidiary's Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, any document evidencing any Contractual Obligation to which
the General Partner, the MLP, the Borrower or any Subsidiary is a party or any
order, injunction, writ or decree of any Governmental Authority to which such
Person or its property is subject, where such conflict, breach, contravention or
Lien could reasonably be expected to have a Material Adverse Effect; or
(c) violate any material Requirement of Law.
Section 6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with (a) the
execution, delivery or performance by, or enforcement against, the General
Partner, the Borrower or any Subsidiary of this Agreement or any other Loan
Document, or (b) the continued operation of Borrower's business as contemplated
to be conducted after the date hereof by the Loan Documents, except in each case
such approvals, consents, exemptions, authorizations or other actions, notices
or filings (i) as have been obtained, (ii) as may be required under state
securities or Blue Sky laws, (iii) as are of a routine or administrative nature
and are either (A) not customarily obtained or made prior to the consummation of
transactions such as the transactions described in clauses (a) or (b) or (B)
expected in the judgment of the Borrower to be obtained in the ordinary course
of business subsequent to the consummation of the transactions described in
clauses (a) or (b), or (iv) that, if not obtained, could not reasonably be
expected to have a Material Adverse Effect.
Section 6.04 Binding Effect. This Agreement and each other Loan Document to
which the General Partner, the Borrower or any Subsidiary is a party constitute
the legal, valid and binding obligations of such Person, enforceable against
such Person in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
Section 6.05 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of the Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the General Partner, the MLP, the Borrower or any of its
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Borrower or its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan Document,
or directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
Section 6.06 No Default. No Default or Event of Default exists or would result
from the incurring, continuing or converting of any Obligations by the Borrower.
As of the Effective Date, neither the Borrower nor any Affiliate of the Borrower
is in default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect, or that would, if such default had
occurred after the Effective Date, create an Event of Default under subsection
8.01(e).
Section 6.07 ERISA Compliance. (a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS and to the best
knowledge of the Borrower and the General Partner, nothing has occurred which
would cause the loss of such qualification.
(b) There are no pending, or to the best knowledge of Borrower
and the General Partner, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or other violation of the fiduciary responsibility rule
with respect to any Plan which could reasonably result in a Material Adverse
Effect.
(c) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Pension Plan.
(d) No Pension Plan has any Unfunded Pension Liability, except
that the Ferrellgas, Inc. Retirement Income Plan has an Unfunded Pension
Liability not in excess of $448,221; however, the Ferrellgas, Inc.
Retirement Income Plan is not underfunded.
(e) The Borrower has not incurred, nor does it reasonably
expect to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA).
(f) The Borrower has not transferred any Unfunded Pension
Liability to any Person or otherwise engaged in a transaction that could be
subject to Section 4069 of ERISA.
(g) Except as specifically disclosed in Schedule 6.07, no
trade or business (whether or not incorporated under common control with the
Borrower within the meaning of Section 414(b), (c), (m) or (o) of the Code)
maintains or contributes to any Pension Plan or other Plan subject to Section
412 of the Code. Except as specifically disclosed in Schedule 6.07, neither the
Borrower nor any Person under common control with the Borrower (as defined in
the preceding sentence) has ever contributed to any multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA.
Section 6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 7.11.
Neither the Borrower nor any Affiliate of the Borrower is generally engaged in
the business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
Section 6.09 Title to Properties. The Borrower and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Effective Date and
subject to the preceding sentence, the property of the Borrower and its
Subsidiaries is subject to no Liens other than Permitted Liens.
Section 6.10 Taxes. The General Partner has filed all Federal and other material
tax returns and reports required to be filed, for itself and for the Borrower,
and has paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon it or its properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower that would, if made, have a Material Adverse Effect.
Section 6.11 Financial Condition. (a) The audited consolidated financial
statements of the General Partner, the Borrower, the MLP and their respective
Subsidiaries dated July 31, 1999 and the unaudited consolidated financial
statements of the General Partner, the Borrower, the MLP and their respective
Subsidiaries dated October 31, 1999, in each case together with the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal periods ended on those respective dates:
(i) were prepared in accordance with GAAP
consistently applied throughout the period
covered thereby, except as otherwise
expressly noted therein, subject to
ordinary, good faith year end audit
adjustments;
(ii) fairly present the financial condition of
the Borrower and its Subsidiaries as of the
date thereof and results of operations for
the period covered thereby; and
(iii) show all material indebtedness and other
liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries
as of the date thereof, including
liabilities for taxes, material commitments
and Contingent Obligations.
(b) Since July 31, 1999, there has been no Material Adverse
Effect.
(c) The General Partner, the MLP, the Borrower and each of the
other Subsidiaries of the Borrower are each Solvent, both before and after
giving effect to the Ferrellgas Joinder Event and consummation of each of the
transactions contemplated by the Loan Documents.
Section 6.12 Environmental Matters. The Borrower conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Borrower has reasonably concluded that such Environmental Laws and
Environmental Claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 6.13 Regulated Entities. None of the Borrower or any Affiliate of the
Borrower, is an "Investment Company" within the meaning of the Investment
Company Act of 1940. The Borrower is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal or state
statute or regulation limiting its ability to incur Indebtedness.
Section 6.14 No Burdensome Restrictions. Neither the Borrower nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
Section 6.15 Copyrights, Patents, Trademarks and Licenses, etc. The Borrower and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Borrower or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of the Borrower, threatened, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code is pending or,
to the knowledge of the Borrower, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
Section 6.16 Subsidiaries and Affiliates. The Borrower (a) has no Subsidiaries
or other Affiliates except (i) those specifically disclosed in part (a) of
Schedule 6.16 hereto, (ii) one or more SPEs established in connection with
Accounts Receivable Securitizations permitted by Section 8.05, (iii)
Subsidiaries established in compliance with Section 8.20 and (iv) Thermogas (but
only for so long as Thermogas shall be permitted to be operated as a
Wholly-Owned Subsidiary of the Borrower as set forth in the proviso to Section
8.20) and (b) has no equity investments in any corporation or entity other than
Subsidiaries and Affiliates disclosed in subsection (a) above and those
Permitted Investments specifically disclosed in part (b) of Schedule 6.16.
Section 6.17 Insurance. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or such Subsidiary operates.
Section 6.18 Tax Status. The Borrower is subject to taxation under the Code
only as a partnership and not as a corporation.
Section 6.19 Full Disclosure. None of the representations or warranties made by
the Borrower or any Affiliate of the Borrower in the Loan Documents as of the
date such representations and warranties are made or deemed made, and none of
the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Borrower or any Affiliate of the Borrower in
connection with the Loan Documents contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
are made, not misleading as of the time when made or delivered.
Section 6.20 Fixed Price Supply Contracts. None of the Borrower and its
Subsidiaries is a party to any contract for the supply of propane or other
product except where (a) the purchase price is set with reference to a spot
index or indices substantially contemporaneously with the delivery of such
product or (b) delivery of such propane or other product is to be made no more
than two years after the purchase price is agreed to.
Section 6.21 Trading Policies. The Borrower has provided to the Administrative
Agent an accurate and complete summary of its trading position policy and supply
inventory position policy as currently in effect and the Borrower has complied
in all material respects with such policies.
Section 6.22 Year 2000. The Borrower, the MLP, the General Partner and their
Subsidiaries have reviewed the areas within their business and operations which
could be adversely affected by, and have developed or are developing a program
to address on a timely basis, the Year 2000 Problem, and have made related
appropriate inquiry of material suppliers and vendors. Based on such review and
program, the Borrower, the MLP, the General Partner and their Subsidiaries
believe that the Year 2000 Problem will not have a Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Ferrellgas (upon its becoming the Borrower under this
Agreement by execution and delivery of the Assumption Agreement) and the General
Partner (by execution and delivery of the Assumption Agreement) hereby covenant
and agree that, from and after the Ferrellgas Joinder Event, so long as any Bank
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Banks waive compliance in
writing:
Section 7.01 Financial Statements. The Borrower shall deliver, or cause to be
delivered to the Administrative Agent, in form and detail satisfactory to the
Administrative Agent and the Majority Banks and consistent with the form and
detail of financial statements and projections provided to the Administrative
Agent by the Borrower and its Affiliates prior to the Effective Date, with
sufficient copies for each Bank:
(a) as soon as available, but not later than 100 days after the end of each
fiscal year (commencing with the first such fiscal year ending after the date of
this Agreement), a copy of the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, partners' or shareholders'
equity and cash flows for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, and accompanied by the opinion of
a nationally-recognized independent public accounting firm (the "Independent
Auditor") which report shall state that such consolidated financial statements
present fairly the financial position for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years. Such opinion shall not
be qualified or limited in any manner, including on account of any limitation on
it because of a restricted or limited examination by the Independent Auditor of
any material portion of the Borrower's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the end of each of
the first three fiscal quarters of each fiscal year (commencing with the first
such fiscal quarter ending after the date of this Agreement), a copy of the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such quarter and the related consolidated statements of income,
partners' or shareholders' equity and cash flows for the period commencing on
the first day and ending on the last day of such quarter, and certified by a
Responsible Officer as fairly presenting, in accordance with GAAP (subject to
ordinary, good faith year-end audit adjustments), the financial position and the
results of operations of the Borrower and the Subsidiaries; (c) as soon as
available, but not later than 100 days after the end of each fiscal year
(commencing with the first fiscal year during all or any part of which the
Borrower had one or more Significant Subsidiaries), a copy of an unaudited
consolidating balance sheet of the Borrower and its Subsidiaries as at the end
of such year and the related consolidating statement of income, partners' or
shareholders' equity and cash flows for such year, certified by a Responsible
Officer as having been developed and used in connection with the preparation of
the financial statements referred to in subsection 7.01(a);
(d) as soon as available, but not later than 45 days after the end of each of
the first three fiscal quarters of each fiscal year (commencing with the first
fiscal quarter during all or any part of which the Borrower had one or more
Significant Subsidiaries), a copy of the unaudited consolidating balance sheets
of the Borrower and its Subsidiaries, and the related consolidating statements
of income, partners' or shareholders' equity and cash flows for such quarter,
all certified by a Responsible Officer as having been developed and used in
connection with the preparation of the financial statements referred to in
subsection 7.01(b);
(e) as soon as available, but not later than 60 days after the end of each
fiscal year (commencing with the first such fiscal year ending after the date of
this Agreement), projected consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of each of the current and following two fiscal years
and related projected consolidated statements of income, partners' or
shareholders' equity and cash flows for each such fiscal year, including therein
a budget for the current fiscal year, certified by a Responsible Officer as
having been developed and prepared by the Borrower in good faith and based upon
the Borrower's best estimates and best available information;
(f) as soon as available, but not later than 100 days after the end of each
fiscal year of the General Partner (commencing with the first such fiscal year
ending after the date of this Agreement), a copy of the unaudited (or audited,
if available) consolidated balance sheets of the General Partner as of the end
of such fiscal year and the related consolidated statements of income,
shareholders' equity and cash flows for such fiscal year, certified by a
Responsible Officer as fairly presenting, in accordance with GAAP, the financial
position and the results of operations of the General Partner and its
Subsidiaries (or, if available, accompanied by an opinion of an Independent
Auditor as described in subsection 7.01(a));
(g) as soon as available, but not later than 45 days after the end of each of
the first three fiscal quarters of each fiscal year and, with respect to the
final fiscal quarter, concurrently with the financial statements referred to in
subsection 7.01(a), a trading position report as of the last day of each fiscal
quarter, certified by a Responsible Officer; and
(h) as soon as available, but not later than 75 days after the Effective Date, a
copy of the MLP's Current Report on Form 8-K filed with the SEC in connection
with the Ferrellgas Acquisition of Thermogas (including all pro forma financial
statements required to be filed with the SEC in connection therewith).
Section 7.02 Certificates; Other Information. The Borrower shall furnish,
or cause to be furnished to the Administrative Agent, with sufficient copies for
each Bank:
(a) concurrently with the delivery of the financial statements referred to in
subsection 7.01(a), a certificate of the Independent Auditor stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred to in
subsections 7.01(a) and (b), a Compliance Certificate executed by a Responsible
Officer with respect to the periods covered by such financial statements
together with supporting calculations and such other supporting detail as the
Administrative Agent and Majority Banks shall require;
(c) promptly, copies of all financial statements and reports that the Borrower,
the General Partner, the MLP or any Subsidiary sends to its partners or
shareholders, and copies of all financial statements and regular, periodic or
special reports (including Forms 10-K, 10-Q and 8-K) that the Borrower or any
Affiliate of the Borrower, the General Partner, the MLP or any Subsidiary may
make to, or file with, the SEC; and
(d) promptly, such additional information regarding the business, financial or
corporate affairs of the Borrower, the General Partner, the MLP or any
Subsidiary as the Administrative Agent, at the request of any Bank, may from
time to time request.
Section 7.03 Notices. The Borrower shall promptly notify the Administrative
Agent and each Bank: -------
(a) of the occurrence of any Default or Event of Default, and of the occurrence
or existence of any event or circumstance that foreseeably will become a Default
or Event of Default;
(b) of any matter that has resulted or may reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower, the General Partner,
the MLP or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower, the General Partner, the MLP or
any Subsidiary and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting the
Borrower, the General Partner, the MLP or any Subsidiary, including pursuant to
any applicable Environmental Laws;
(c) of any of the following events affecting the Borrower, the General Partner,
the MLP or any Subsidiary, together with a copy of any notice with respect to
such event that may be required to be filed with a Governmental Authority and
any notice delivered by a Governmental Authority to such Person with respect to
such event:
(i) an ERISA Event;
(ii) if any of the representations and warranties in Section 6.07 ceases to
be true
and correct;
(iii) the adoption of any new Pension Plan or other Plan subject to Section
412 of the Code;
(iv) the adoption of any amendment to a Pension
Plan or other Plan subject to Section 412 of
the Code, if such amendment results in a
material increase in contributions or
Unfunded Pension Liability; or
(v) the commencement of contributions to any
Pension Plan or other Plan subject to
Section 412 of the Code;
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any of its consolidated Subsidiaries; and
(e) not later than five Business Days after the effective date of a change in
the Borrower's trading position policy or inventory supply position policy, of
any change in either policy.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Borrower or any
affected Affiliate proposes to take with respect thereto and at what time. Each
notice under subsection 7.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have been
(or foreseeably will be) breached or violated.
Section 7.04 Preservation of Corporate or Partnership Existence, Etc. The
General Partner and the Borrower shall, and the Borrower shall cause each
Subsidiary to:
(a) preserve and maintain in full force and effect its partnership or corporate
existence and good standing under the laws of its state or jurisdiction of
organization or incorporation except in connection with transactions permitted
by Section 8.03;
(b) preserve and maintain in full force and effect all governmental rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business except in connection with
transactions permitted by Section 8.03 and sales of assets permitted by Section
8.02;
(c) use reasonable efforts, in the ordinary course of business, to preserve its
business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
Section 7.05 Maintenance of Property. The Borrower shall maintain, and shall
cause each Subsidiary to maintain, and preserve all its property which is used
or useful in its business in good working order and condition, ordinary wear and
tear excepted. The Borrower and each Subsidiary shall use the standard of care
typical in the industry in the operation and maintenance of its facilities.
Section 7.06 Insurance. The Borrower shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.
Section 7.07 Payment of Obligations. The Borrower and the General Partner shall,
and shall cause each Subsidiary to, pay and discharge as the same shall become
due and payable (except to the extent the failure to so pay and discharge could
not reasonably be expected to have a Material Adverse Effect), all their
respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings and adequate reserves in accordance with GAAP are
being maintained by the Borrower, the General Partner or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien upon its
property, unless such claims are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by the Borrower, the General Partner or such Subsidiary; and
(c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
Section 7.08 Compliance with Laws. The Borrower shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
Section 7.09 Inspection of Property and Books and Records. The Borrower shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower and such Subsidiary. The
Borrower shall permit, and shall cause each Subsidiary to permit,
representatives and independent contractors of the Administrative Agent or any
Bank to visit and inspect any of their respective properties, to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, when an Event of
Default exists the Administrative Agent or any Bank may do any of the foregoing
at the expense of the Borrower at any time during normal business hours and
without advance notice.
Section 7.10 Environmental Laws. The Borrower shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all Environmental Laws.
Section 7.11 Use of Proceeds. The proceeds of the Loans in an amount equal to
$123,669,372.50 may be distributed by Thermogas to the Seller on the Effective
Date, and any and all remaining proceeds of the Loans shall be used solely for
the general partnership purposes of the Borrower following the Ferrellgas
Joinder Event, in each case not in contravention of any Requirement of Law or of
any Loan Document.
Section 7.12 Financial Covenants.
(a) Leverage Ratio. The Borrower shall maintain as of the last day of each
fiscal quarter a Leverage Ratio equal to or less than 5.25 to 1.00 as of the
last day of each fiscal quarter ending on or prior to January 31, 2000 and (ii)
5.10 to 1.00 as of the last day of each fiscal quarter ending after January 31,
2000. For purposes of this Section 7.12(a), (x) Funded Debt and Synthetic Lease
Obligations shall be calculated as of the last day of such fiscal quarter and
(y) Consolidated Cash Flow shall be calculated for the most recently ended four
consecutive fiscal quarters; provided, however, that prior to or concurrently
with each delivery of a Compliance Certificate pursuant to Section 7.02(b), the
Borrower may elect to calculate Consolidated Cash Flow for the most recently
ended eight consecutive fiscal quarters (in which case Consolidated Cash Flow
shall be divided by two).
(b) Interest Coverage Ratio. The Borrower shall maintain, as of the last day of
each fiscal quarter of the Borrower, an Interest Coverage Ratio for the fiscal
period consisting of such fiscal quarter and the three immediately preceding
fiscal quarters of at least 2.25 to 1.00.
Section 7.13 Trading Policies. The Borrower and its Affiliates shall comply with
the Borrower's trading position policy and supply inventory position policy as
in effect on March 31, 1999, copies of which have been provided to the
Administrative Agent on or prior to the Effective Date; provided, however, that
the Borrower and its Affiliates may, during any period of four consecutive
fiscal quarters, (a) increase the stop loss limit specified in either the
trading position or supply inventory position policy by up to 100% of the amount
of such limit as in effect on July 5, 1994 and (b) increase the volume limit
specified in either of such policies on the number of barrels of a single
product or of all products in the aggregate by up to 100% of each such number as
in effect on July 5, 1994.
Section 7.14 Other General Partner Obligations.
(a) The General Partner shall cause the Borrower to pay and perform each of its
Obligations when due. The General Partner acknowledges and agrees that it is
executing this Agreement as a principal as well as the general partner on behalf
of the Borrower, and that its obligations hereunder as general partner are full
recourse obligations to the same extent as those of the Borrower.
(b) The General Partner represents, warrants and covenants that it is Solvent,
both before and after giving effect to the consummation of the transactions
contemplated by the Loan Documents, and that it will remain Solvent until all
Obligations hereunder shall have been repaid in full and all commitments shall
have terminated.
(c) The General Partner, for so long as it is the general partner of the
Borrower, (i) agrees that its sole business will be to act as the general
partner of the Borrower, the MLP and any further limited partnership of which
the Borrower or the MLP is, directly or indirectly, a limited partner and to
undertake activities that are ancillary or related thereto (including being a
limited partner in the Borrower), (ii) shall not enter into or conduct any
business or incur any debts or liabilities except in connection with or
incidental to (A) its performance of the activities required or authorized by
the partnership agreement of the MLP or the Partnership Agreement or described
in or contemplated by the MLP Registration Statement, and (B) the acquisition,
ownership or disposition of partnership interests in the Borrower or partnership
interests in the MLP or any further limited partnership of which the Borrower or
the MLP is, directly or indirectly, a limited partner, except that,
notwithstanding the foregoing, employees of the General Partner may perform
services for ▇▇▇▇▇▇▇ Companies, Inc. and its Affiliates.
(d) The General Partner agrees that, until all Obligations hereunder shall have
been repaid in full and all commitments shall have terminated, it will not
exercise any rights it may have (at law, in equity, by contract or otherwise) to
terminate, limit or otherwise restrict (whether through repurchase or otherwise
and whether or not the General Partner shall remain a general partner in the
Borrower) the ability of the Borrower to use the name "Ferrellgas".
(e) The General Partner shall not take any action or refuse to take any
reasonable action the effect of which, if taken or not taken, as the case may
be, would be to cause the Borrower to be treated as an association taxable as a
corporation or otherwise to be taxed as an entity other than a partnership for
federal income tax purposes.
Section 7.15 Monetary Judgments. If one or more judgments, orders, decrees or
arbitration awards is entered against the Borrower or any Subsidiary involving
in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage other
than through a standard reservation of rights letter) as to any single or
related series of transactions, incidents or conditions, of more than $10
million, then the Borrower shall reserve for such amount in excess of $10
million, on a quarterly basis, with each quarterly reserve being at least equal
to one-twelfth of such amount in excess of $10 million. Such amount so reserved
shall be treated as establishment of a reserve for purposes of calculating
Available Cash hereunder.
Section 7.16
Year 2000 Compliance. The Borrower shall ensure that all of
the computer software, computer firmware, computer hardware (whether general or
special purpose), and other similar or related items of automated, computerized,
and/or software system(s) that are used or relied on by the Borrower, the MLP,
the General Partner or any Subsidiary in the conduct of its business will not
malfunction, will not cease to function, will not generate incorrect data, and
will not produce material incorrect results when processing, providing and/or
receiving date-related data in connection with any valid date in the twentieth
and twenty-first centuries. From time to time, at the request of any Bank, the
Borrower, the MLP, the General Partner and their Subsidiaries shall provide to
such Bank such updated information or documentation as is requested regarding
the status of their efforts to address the Year 2000 Problem (as defined in
Section 6.22).
Section 7.17 Thermogas Merger. The Borrower shall cause the Thermogas
Merger to occur within 30 days after the Effective Date.
ARTICLE VIII
NEGATIVE COVENANTS
Ferrellgas (upon its becoming the Borrower under this
Agreement by execution and delivery of the Assumption Agreement) and the General
Partner (by execution and delivery of the Assumption Agreement) hereby covenant
and agree that, from and after the Ferrellgas Joinder Event, so long as any Bank
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Banks waive compliance in
writing:
Section 8.01 Limitation on Liens. The Borrower shall not, and shall not suffer
or permit any Subsidiary to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property or
sell any of its accounts receivable, whether now owned or hereafter acquired,
other than the following ("Permitted Liens"):
(a) Liens existing on the Effective Date set forth in the schedule referred to
in subsection 8.01(a) of that certain Second Amended and Restated Credit
Agreement, dated as of July 2, 1998, among the Borrower, the General Partner,
the Administrative Agent and the other financial institutions a party thereto ;
(b) Liens in favor of the Borrower or Liens to secure Indebtedness of a
Subsidiary to the Borrower or a Wholly-Owned Subsidiary;
(c) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Borrower or any Subsidiary, provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Borrower;
(d) Liens on property existing at the time acquired by the Borrower or any
Subsidiary, provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any assets other than
those of the Person acquired;
(e) Liens on any property or asset acquired by the Borrower or any Subsidiary in
favor of the seller of such property or asset and construction mortgages on
property, in each case, created within six months after the date of acquisition,
construction or improvement of such property or asset by the Borrower or such
Subsidiary to secure the purchase price or other obligation of the Borrower or
such Subsidiary to the seller of such property or asset or the construction or
improvement cost of such property in an amount up to 80% of the total cost of
the acquisition, construction or improvement of such property or asset; provided
that in each case such Lien does not extend to any other property or asset of
the Borrower and its Subsidiaries;
(f) Liens incurred or pledges and deposits made in connection with worker's
compensation, unemployment insurance and other social security benefits and
Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature, in each case,
incurred in the ordinary course of business;
(g) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor;
(h) Liens imposed by law, such as mechanics', carriers', warehousemen's,
materialmen's, and vendors' Liens, incurred in good faith in the ordinary course
of business with respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings if a reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefor;
(i) zoning restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property or minor irregularities of title
incident thereto that do not, in the aggregate, materially detract from the
value of the property or the assets of the Borrower or any of its Subsidiaries
or impair the use of such property in the operation of the business of the
Borrower or any of its Subsidiaries;
(j) Liens of landlords or mortgages of landlords, arising solely by operation of
law, on fixtures and movable property located on premises leased by the Borrower
or any of its Subsidiaries in the ordinary course of business;
(k) Liens incurred and financing statements filed or recorded, in each case with
respect to personal property leased by the Borrower and its Subsidiaries to the
owners of such personal property which are either (i) operating leases
(including Synthetic Leases) or (ii) capital leases to the extent (but only to
the extent) permitted by Section 7.05; provided, that in each case such Lien
does not extend to any other property or asset of the Borrower and its
Subsidiaries;
(l) judgment Liens to the extent that such judgments do not cause or constitute
a Default or an Event of Default;
(m) Liens incurred in the ordinary course of business of the Borrower or any
Subsidiary with respect to obligations that do not exceed $5,000,000 in the
aggregate at any one time outstanding and that (i) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (ii) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Borrower or such
Subsidiary;
(n) Liens securing Indebtedness incurred to refinance Indebtedness that has been
secured by a Lien otherwise permitted under this Agreement, provided that (i)
any such Lien shall not extend to or cover any assets or property not securing
the Indebtedness so refinanced and (ii) the refinancing Indebtedness secured by
such Lien shall have been permitted to be incurred under Section 8.05 hereof and
shall not have a principal amount in excess of the Indebtedness so refinanced;
(o) any extension or renewal, or successive extensions or renewals, in whole or
in part, of Liens permitted pursuant to the foregoing clauses (a) through (n);
provided that no such extension or renewal Lien shall (i) secure more than the
amount of Indebtedness or other obligations secured by the Lien being so
extended or renewed or (ii) extend to any property or assets not subject to the
Lien being so extended or renewed;
(p) Liens in favor of the Administrative Agent and the Banks relating to the
Cash Collateralization of the Borrower's Obligations; and
(q) Liens securing Indebtedness of an SPE in connection with an Accounts
Receivable Securitization permitted by Section 8.05 (including the filing of any
related financing statements naming the Borrower as the debtor thereunder in
connection with the sale of accounts receivable by the Borrower to such SPE in
connection with any such permitted Accounts Receivable Securitization); provided
that the aggregate amount of accounts receivable subject to all such Liens shall
at no time exceed 133% of the amount of Accounts Receivable Securitizations
permitted to be outstanding under such Section 8.05.
Section 8.02 Asset Sales. The Borrower shall not, and shall not permit any of
its Subsidiaries to, (i) sell, lease, convey or otherwise dispose of any assets
(including by way of a sale-and-leaseback) other than sales of inventory in the
ordinary course of business consistent with past practice (provided that the
sale, lease, conveyance or other disposition of all or substantially all of the
assets of the Borrower shall be governed by the provisions of Section 8.03
hereof and not by the provisions of this Section 8.02), or (ii) issue or sell
Equity Interests of any of its Subsidiaries, in the case of either clause (i) or
(ii) above, whether in a single transaction or a series of related transactions,
(A) that have a fair market value in excess of $5,000,000, or (B) for net
proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale"),
unless (X) the Borrower (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the board of directors of the General
Partner (and, if applicable, the audit committee of such board of directors) set
forth in a certificate signed by a Responsible Officer and delivered to the
Administrative Agent) of the assets sold or otherwise disposed of and (Y) at
least 80% of the consideration therefor received by the Borrower or such
Subsidiary is in the form of cash; provided, however, that the amount of (1) any
liabilities (as shown on the Borrower's or such Subsidiary's most recent balance
sheet or in the notes thereto), of the Borrower or any Subsidiary (other than
liabilities that are by their terms subordinated in right of payment to the
Obligations hereunder) that are assumed by the transferee of any such assets and
(2) any notes or other obligations received by the Borrower or any such
Subsidiary from such transferee that are immediately converted by the Borrower
or such Subsidiary into cash (to the extent of the cash received), shall be
deemed to be cash for purposes of this provision; and provided, further, that
the 80% limitation referred to in this clause (Y) shall not apply to any Asset
Sale in which the cash portion of the consideration received therefrom,
determined in accordance with the foregoing proviso, is equal to or greater than
what the after-tax proceeds would have been had such Asset Sale complied with
the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales
shall not be deemed to include (w) sales or transfers of accounts receivable by
the Borrower to an SPE and by an SPE to any other Person in connection with any
Accounts Receivable Securitization permitted by Section 8.05 (provided that the
aggregate amount of such accounts receivable that shall have been transferred to
and held by all SPEs at any time shall not exceed 133% of the amount of Accounts
Receivable Securitizations permitted to be outstanding under Section 8.05), (x)
any transfer of assets by the Borrower or any of its Subsidiaries to a
Subsidiary of the Borrower that is a Guarantor, (y) any transfer of assets by
the Borrower or any of its Subsidiaries to any Person in exchange for other
assets used in a line of business permitted under Section 8.15 and having a fair
market value not less than that of the assets so transferred and (z) any
transfer of assets pursuant to a Permitted Investment or any sale-leaseback
(including sale-leasebacks involving Synthetic Leases) permitted by Section
8.17.
Section 8.03 Consolidations and Mergers.
(a) The Borrower shall not consolidate or merge with or into (whether or not the
Borrower is the surviving Person), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another Person unless (i) the Borrower is the
surviving Person, or the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation or
partnership organized or existing under the laws of the United States, any state
thereof or the District of Columbia; and (ii) the Person formed by or surviving
any such consolidation or merger (if other than the Borrower) or Person to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes all the Obligations of the Borrower pursuant to an
assumption agreement in a form reasonably satisfactory to the Administrative
Agent, under this Agreement; (iii) immediately after such transaction no Default
or Event of Default exists; and (iv) the Borrower or any Person formed by or
surviving any such consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made (A) shall
have Consolidated Net Worth (immediately after the transaction but prior to any
purchase accounting adjustments resulting from the transaction) equal to or
greater than the Consolidated Net Worth of the Borrower immediately preceding
the transaction and (B) shall, at the time of such transaction and after giving
effect thereto, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Leverage Ratio test set forth in Section 7.12(a).
(b) The Borrower shall deliver to the Administrative Agent prior to the
consummation of the proposed transaction pursuant to the foregoing paragraphs
(a) an officers' certificate to the foregoing effect signed by a Responsible
Officer and an opinion of counsel satisfactory to the Administrative Agent
stating that the proposed transaction complies with this Agreement. The
Administrative Agent and the Banks shall be entitled to conclusively rely upon
such officer's certificate and opinion of counsel.
(c) Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Borrower in accordance with this Section 8.03, the successor Person formed by
such consolidation or into or with which the Borrower is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Agreement referring to the "Borrower" shall refer to or
include instead the successor Person and not the Borrower), and may exercise
every right and power of the Borrower under this Agreement with the same effect
as if such successor Person had been named as the Borrower herein; provided,
however, that the predecessor Borrower shall not be relieved from the obligation
to pay the principal of, premium, if any, and interest on the Obligations except
in the case of a sale of all of such Borrower's assets that meets the
requirements of Section 8.02 hereof.
Section 8.04 Acquisitions. Without limiting the generality of any other
provision of this Agreement, neither the Borrower nor any Subsidiary shall
consummate any Acquisition unless (i) the acquiree is primarily a retail propane
distribution business; (ii) such Acquisition is undertaken in accordance with
all applicable Requirements of Law; (iii) the prior, effective written consent
or approval to such Acquisition of the board of directors or equivalent
governing body of the acquiree is obtained; and (iv) immediately after giving
effect thereto, no Default or Event of Default will occur or be continuing and
each of the representations and warranties of the Borrower herein is true on and
as of the date of such Acquisition, both before and after giving effect thereto.
Nothing in Section 8.21 shall prohibit (x) the making by the Borrower of a
Permitted Acquisition indirectly through the General Partner, the MLP or any of
its or their Affiliates in a series of substantially contemporaneous
transactions in which the Borrower shall ultimately own the assets that are the
subject of such Permitted Acquisition or (y) the assumption of Acquired Debt in
connection therewith to the extent such Acquired Debt is provided by a Bank and,
upon such assumption, is (to the extent such Acquired Debt is not otherwise
permitted to be incurred by the Borrower pursuant to this Agreement) immediately
repaid (with the proceeds of the Loans or otherwise).
Section 8.05 Limitation on Indebtedness. The Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur, issue,
assume, suffer to exist, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness (including Acquired Debt) or any
Synthetic Leases and the Borrower shall not issue any Disqualified Interests and
shall not permit any of its Subsidiaries to issue any shares of preferred stock;
provided, however, that the Borrower and any Subsidiary of the Borrower may
create, incur, issue, assume, suffer to exist, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness or any Synthetic
Lease to the extent that the Leverage Ratio is maintained in accordance with
Section 7.12(a), both before and after giving effect to the incurrence of such
Indebtedness or such Synthetic Lease, as the case may be, and, provided,
further, that (x) the aggregate principal amount of (1) all Capitalized Lease
Obligations and all Synthetic Lease Obligations (other than Capitalized Lease
Obligations and Synthetic Lease Obligations in respect of Growth-Related Capital
Expenditures) of the Borrower and its Subsidiaries and (2) all Indebtedness for
which the Borrower and any Subsidiary of the Borrower become liable in
connection with Acquisitions of retail propane businesses in favor of the
sellers of such businesses and secured by any Lien on any property of the
Borrower or any of its Subsidiaries, shall not exceed $65,000,000 at any one
time outstanding, and (y) the principal amount of any Indebtedness for which the
Borrower or any Subsidiary of the Borrower becomes liable in connection with
Acquisitions of retail propane businesses in favor of the sellers of such
businesses shall not exceed the fair market value of the assets so acquired, and
(z) the aggregate amount of Indebtedness of the Borrower and its Subsidiaries
through one or more SPEs in connection with Accounts Receivable Securitizations
shall not exceed $60,000,000 at any one time outstanding.
Section 8.06 Transactions with Affiliates. The Borrower shall not, and shall not
permit any of its Subsidiaries to, sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or purchase any property or assets from, or
enter into any contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate, including any Non-Recourse
Subsidiary (each of the foregoing, an "Affiliate Transaction"), unless (a) such
Affiliate Transaction is on terms that are no less favorable to the Borrower or
the relevant Subsidiary than those that would have been obtained in a comparable
transaction by the Borrower or such Subsidiary with an unrelated Person and (b)
with respect to (i) any Affiliate Transaction with an aggregate value in excess
of $500,000, a majority of the directors of the General Partner having no direct
or indirect economic interest in such Affiliate Transaction determines by
resolution that such Affiliate Transaction complies with clause (a) above and
approves such Affiliate Transaction and (ii) any Affiliate Transaction involving
the purchase or other acquisition or sale, lease, transfer or other disposition
of properties or assets other than in the ordinary course of business, in each
case, having a fair market value or for net proceeds in excess of $15,000,000,
the Borrower delivers to the Administrative Agent an opinion as to the fairness
to the Borrower or such Subsidiary from a financial point of view issued by an
investment banking firm of national standing; provided, however, that (i) any
employment agreement or stock option agreement entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business and consistent with
the past practice of the Borrower (or the General Partner) or such Subsidiary,
Restricted Payments permitted by the provisions of Section 8.12, and
transactions entered into by the Borrower in the ordinary course of business in
connection with reinsuring the self-insurance programs or other similar forms of
retained insurable risks of the retail propane businesses operated by the
Borrower, its Subsidiaries and its Affiliates, in each case, shall not be deemed
Affiliate Transactions, and (ii) nothing herein shall authorize the payments by
the Borrower to the General Partner or any other Affiliate of the Borrower for
administrative expenses incurred by such Person other than such out-of-pocket
administrative expenses as such Person shall incur and the Borrower shall pay in
the ordinary course of business; and provided, further, that the foregoing
provisions of this Section 8.06 shall not apply to transfers of accounts
receivable of the Borrower to an SPE in connection with any Accounts Receivable
Securitization permitted by Section 8.05.
Section 8.07 Use of Proceeds. The Borrower shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Borrower or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
Section 8.08 Use of Proceeds - Ineligible Securities. The Borrower shall not,
directly or indirectly, use any portion of the Loan proceeds (i) knowingly to
purchase Ineligible Securities from the Arranger or the Documentation Agent
during any period in which the Arranger or the Documentation Agent makes a
market in such Ineligible Securities, (ii) knowingly to purchase during the
underwriting or placement period Ineligible Securities being underwritten or
privately placed by the Arranger or the Documentation Agent, or (iii) to make
payments of principal or interest on Ineligible Securities underwritten or
privately placed by the Arranger or the Documentation Agent and issued by or for
the benefit of the Borrower or any Affiliate of the Borrower.
Section 8.09 Contingent Obligations. The Borrower shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) subject to compliance with the trading policies in effect from time to time
as submitted to the Administrative Agent, Hedging Obligations entered into in
the ordinary course of business as bona fide hedging transactions;
(c) the Guaranties hereunder; and
(d) Guaranty Obligations to the extent not prohibited by Section 8.05.
Section 8.10 Joint Ventures. The Borrower shall not, and shall not suffer
or permit any Subsidiary to enter into any Joint Venture.
Section 8.11 Lease Obligations. The aggregate obligations of the Borrower and
its Subsidiaries for the payment of rent for any property under lease or
agreement to lease (excluding obligations of the Borrower and its Subsidiaries
under or with respect to Synthetic Leases) for any fiscal year shall not exceed
the greater of (a) $25,000,000 or (b) 20% of (i) Consolidated Cash Flow of the
Borrower for the most recently ended eight consecutive fiscal quarters divided
by (ii) two; provided, however, that any payment of rent for any property under
lease or agreement to lease for a term of less than one year (after giving
effect to all automatic renewals) shall not be subject to this Section 8.11. For
purposes of this Section 8.11, the calculation of Consolidated Cash Flow shall
give pro forma effect to Acquisitions (including all mergers and
consolidations), Asset Sales and other dispositions and discontinuances of
businesses or assets that have been made by the Borrower or any of its
Subsidiaries during the reference period or subsequent to such reference period
and on or prior to the date of calculation of Consolidated Cash Flow assuming
that all such Acquisitions, Asset Sales and other dispositions and
discontinuances of businesses or assets had occurred on the first day of the
reference period.
Section 8.12 Restricted Payments. The Borrower shall not and shall not permit
any of its Subsidiaries to, directly or indirectly (i) declare or pay any
dividend or make any distribution on account of the Borrower's or any
Subsidiary's Equity Interests (other than (x) dividends or distributions payable
in Equity Interests (other than Disqualified Interests) of the Borrower, (y)
dividends or distributions payable to the Borrower or a Wholly-Owned Subsidiary
of the Borrower that is a Guarantor or (z) distributions or dividends payable
pro rata to all holders of Capital Interests of any such Subsidiary); (ii)
purchase, redeem, call or otherwise acquire or retire for value any Equity
Interests of the Borrower or any Subsidiary or other Affiliate of the Borrower
(other than, subject to compliance with Section 8.20, any such Equity Interests
owned by a Wholly-Owned Subsidiary of the Borrower that is a Guarantor); (iii)
make any investment other than a Permitted Investment; or (iv) prepay, purchase,
redeem, retire, defease or refinance the 1998 Fixed Rate Senior Notes (all
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), except to the extent that,
at the time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof and each of the representations and
warranties of the Borrower set forth herein is true on and as of the date of
such Restricted Payment both before and after giving effect thereto; and
(b) the Fixed Charge Coverage Ratio of the Borrower for the Borrower's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such Restricted Payment is
made, calculated on a pro forma basis as if such Restricted Payment had been
made at the beginning of such four-quarter period, would have been more than
2.25 to 1; and
(c) such Restricted Payment (the amount of any such payment, if other than cash,
to be determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a resolution in an officer's certificate signed by a
Responsible Officer and delivered to the Administrative Agent), together with
the aggregate of all other Restricted Payments (other than any Restricted
Payments permitted by the provisions of clause (ii) of the penultimate paragraph
of this Section 8.12) made by the Borrower and its Subsidiaries in the fiscal
quarter during which such Restricted Payment is made shall not exceed an amount
equal to (x) Available Cash of the Borrower for the immediately preceding fiscal
quarter plus (y) the lesser of (i) the amount of any Available Cash of the
Borrower during the first 45 days of such fiscal quarter and (ii) the excess of
the aggregate amount of Loans that the Borrower could have borrowed over the
actual amount of Loans outstanding, in each case as of the last day of the
immediately preceding fiscal quarter; and
(d) such Restricted Payment (other than (x) Restricted Payments described in
clause (i) of the first paragraph of this Section 8.12 made during the fiscal
quarter ending January 31, 1997 that do not exceed $26,000,000 in the aggregate
or (y) any Restricted Payments described in clauses (iii) or (iv) of the first
paragraph of this Section 8.12) the amount of which, if made other than with
cash, to be determined in accordance with clause (c) of this Section 8.12, shall
not exceed an amount equal to (1) Consolidated Cash Flow of the Borrower and its
Subsidiaries for the period from and after October 31, 1996 through and
including the last day of the fiscal quarter ending immediately preceding the
date of the proposed Restricted Payment (the "Determination Period"), minus (2)
the sum of Consolidated Interest Expense of the Borrower and its Subsidiaries
for the Determination Period plus all capital expenditures (other than
Growth-Related Capital Expenditures and net of capital asset sales in the
ordinary course of business) made by the Borrower and its Subsidiaries during
the Determination Period plus the aggregate of all other Restricted Payments
(other than (x) Restricted Payments described in clause (i) of the first
paragraph of this Section 8.12 made during the fiscal quarter ending January 31,
1997 that do not exceed $26,000,000 in the aggregate or (y) any Restricted
Payments described in clauses (iii) or (iv) of the first paragraph of this
Section 8.12) made by the Borrower and its Subsidiaries during the period from
and after October 31, 1996 through and including the date of the proposed
Restricted Payment, plus (3) $30,000,000, plus (4) the excess, if any, of
consolidated working capital of the Borrower and its Subsidiaries at July 31,
1996 over consolidated working capital of the Borrower and its Subsidiaries at
the end of the fiscal year immediately preceding the date of the proposed
Restricted Payment, minus (5) the excess, if any, of consolidated working
capital of the Borrower and its Subsidiaries at the end of the fiscal year
immediately preceding the date of the proposed Restricted Payment over
consolidated working capital of the Borrower and its Subsidiaries at July 31,
1996. For purposes of this subsection 8.12(d), the calculation of Consolidated
Cash Flow shall give pro forma effect to Acquisitions (including all mergers and
consolidations), Asset Sales and other dispositions and discontinuances of
businesses or assets that have been made by such Person or any of its
Subsidiaries during the reference period or subsequent to such reference period
and on or prior to the date of calculation of Consolidated Cash Flow assuming
that all such Acquisitions, Asset Sales and other dispositions and
discontinuances of businesses or assets had occurred on the first day of the
reference period.
The foregoing provisions will not prohibit (i) the payment of
any distribution within 60 days after the date on which the Borrower becomes
committed to make such distribution, if at said date of commitment such payment
would have complied with the provisions of this Agreement; and (ii) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
of the Borrower in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Borrower) of other Equity
Interests of the Borrower (other than any Disqualified Interests).
Not later than the date of making any Restricted Payment, the
General Partner shall deliver to the Administrative Agent an officer's
certificate signed by a Responsible Officer stating that such Restricted Payment
is permitted and setting forth the basis upon which the calculations required by
this Section 7.12 were computed, which calculations may be based upon the
Borrower's latest available financial statements.
Section 8.13 Prepayments of Subordinated Indebtedness. The Borrower shall not,
and shall not permit any of its Subsidiaries to, (a) purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking, defeasance or
other analogous fund for, the purchase, redemption, retirement or other
acquisition of, or make any payment or prepayment of the principal of or
interest on, or any other amount owing in respect of, any Indebtedness that is
subordinated to the Obligations, except for regularly scheduled payments of
interest in respect of such Indebtedness required pursuant to the instruments
evidencing such Indebtedness that are not made in contravention of the terms and
conditions of subordination set forth on part II of Schedule 8.05 or (b)
directly or indirectly, make any payment in respect of, or set apart any money
for a sinking, defeasance or other analogous fund on account of, Guaranty
Obligations subordinated to the Obligations. The foregoing provisions will not
prohibit the defeasance, redemption or repurchase of subordinated Indebtedness
with the proceeds of Permitted Refinancing Indebtedness.
Section 8.14 Dividend and Other Payment Restrictions Affecting Subsidiaries. The
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends
or make any other distributions to the Borrower or any of its Subsidiaries (1)
on its Capital Interests or (2) with respect to any other interest or
participation in, or interest measured by, its profits, (b) pay any Indebtedness
owed to the Borrower or any of its Subsidiaries, (c) make loans or advances to
the Borrower or any of its Subsidiaries or (d) transfer any of its properties or
assets to the Borrower or any of its Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (i) Existing Indebtedness, (ii)
this Agreement, the 1998 Note Purchase Agreement and the 1998 Fixed Rate Senior
Notes, (iii) applicable law, (iv) any instrument governing Indebtedness or
Capital Interests of a Person acquired by the Borrower or any of its
Subsidiaries as in effect at the time of such Acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
Acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that the Consolidated
Cash Flow of such Person to the extent that dividends, distributions, loans,
advances or transfers thereof is limited by such encumbrance or restriction on
the date of acquisition is not taken into account in determining whether such
acquisition was permitted by the terms of this Agreement, (v) customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, (vi) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (d) above on the property so acquired, (vii)
Permitted Refinancing Indebtedness of any Existing Indebtedness, provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced or (viii) other
Indebtedness permitted to be incurred subsequent to the Effective Date pursuant
to the provisions of Section 8.05 hereof, provided that such restrictions are no
more restrictive than those contained in this Agreement.
Section 8.15 Change in Business. The Borrower shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Borrower and its
Subsidiaries on the date hereof.
Section 8.16 Accounting Changes. The Borrower shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Borrower or of any Subsidiary except as required by the Code.
Section 8.17 Limitation on Sale and Leaseback Transactions. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any arrangement
with any Person providing for the leasing by the Borrower or such Subsidiary of
any property that has been or is to be sold or transferred by the Borrower or
such Subsidiary to such Person in contemplation of such leasing; provided,
however, that the Borrower or such Subsidiary may enter into such sale and
leaseback transaction if: (i) the Borrower could have (A) incurred Indebtedness
in an amount equal to the Attributable Debt relating to such sale and leaseback
transaction pursuant to the Leverage Ratio test set forth in Section 7.12(a) and
(B) secured a Lien on such Indebtedness pursuant to Section 8.01; (ii) the lease
in such sale and leaseback transaction is for a term not in excess of the lesser
of (A) three years and (B) 60% of the remaining useful life of such property; or
(iii) such sale and leaseback transaction is otherwise permitted by the last
sentence of Section 4.17 of the 1996 Indenture as in effect as of the date
hereof.
Section 8.18 Amendments of Organization Documents or 1996 Indenture or 1998 Note
Purchase Agreement. The Borrower shall not modify, amend, supplement or replace,
nor permit any modification, amendment, supplement or replacement of the
Organization Documents of the General Partner, the Borrower or any Subsidiary of
the Borrower, the MLP Senior Notes, the 1996 Indenture, the 1998 Fixed Rate
Senior Notes or the 1998 Note Purchase Agreement or any document executed and
delivered in connection with any of the foregoing, in any respect that would
adversely affect the Banks, the Borrower's ability to perform the Obligations,
or any Guarantor's ability to perform its obligations under its Guaranty, in
each such case without the prior written consent of the Administrative Agent and
the Majority Banks. Furthermore, the Borrower shall not permit any modification,
amendment, supplement or replacement of the Organization Documents of the MLP
that would have a material effect on the Borrower without the prior written
consent of the Administrative Agent and the Majority Banks.
Section 8.19 Fixed Price Supply Contracts. None of the Borrower and its
Subsidiaries shall at any time be a party or subject to any contract for the
supply of propane or other product except where (a) the purchase price is set
with reference to a spot index or indices substantially contemporaneously with
the delivery of such product or (b) delivery of such propane or other product is
to be made no more than two years after the purchase price is agreed to.
Section 8.20 Operations through Subsidiaries. The Borrower shall not conduct any
of its operations through Subsidiaries unless: (a) such Subsidiary executes a
Guaranty substantially in the form of Exhibit G guaranteeing payment of the
Obligations, accompanied by an opinion of counsel to the Subsidiary addressed to
the Administrative Agent and the Banks as to the due authorization, execution,
delivery and enforceability of the Guaranty; (b) such Subsidiary agrees not to
incur any Indebtedness other than (i) trade debt and (ii) Acquired Debt
permitted by Section 7.05; (c) the Consolidated Cash Flow of such Subsidiary,
when added to Consolidated Cash Flow of all other Subsidiaries for any fiscal
year, shall not exceed 10% of the Consolidated Cash Flow of the Borrower and its
Subsidiaries for such fiscal year; and (d) the value of the assets of such
Subsidiary, when added to the value of the assets of all other Subsidiaries for
any fiscal year, shall not exceed 10% of the consolidated value of the assets of
the Borrower and its Subsidiaries for such fiscal year, as determined in
accordance with GAAP; provided, however, that the Borrower may, without regard
to the foregoing provisions of this Section 8.20, (x) establish and operate SPEs
solely in connection with Accounts Receivable Securitizations permitted by
Section 8.05 and (y) operate Thermogas as a Wholly-Owned Subsidiary for a period
of up to (but not exceeding) 30 days following the Effective Date pending the
merger of Thermogas with and into the Ferrellgas.
Section 8.21 Operations of MLP. Except in connection with an indirect
Acquisition permitted by Section 8.04, the General Partner and the Borrower
shall not permit the MLP or any of its Affiliates (including any Non-Recourse
Subsidiary) to operate or conduct any business substantially similar to that
conducted by the Borrower and its Subsidiaries within a 25 mile radius of any
business conducted by the Borrower and its Subsidiaries. In order to comply with
this Section 8.21, the Borrower may enter into one or more transactions by which
its assets and properties are "swapped" or "exchanged" for assets and properties
of another Person prior to or concurrently with another transaction which, but
for such swap or exchange would violate this Section; provided, that (i) if the
value of the MLP's assets or units to be so swapped or exchanged exceeds $15
million, as determined by the audit committee of the Board of Directors of the
General Partner, the Borrower shall have first obtained at its expense an
opinion from a nationally recognized investment banking firm, addressed to it,
the Administrative Agent and the Banks and opining without material
qualification and based on assumptions that are realistic at the time, that the
exchange or swap transactions are fair to the Borrower and its Subsidiaries, and
(ii) if the value of the MLP's assets or units to be so swapped or exchanged
exceeds $50 million, as determined by the audit committee of the Board of
Directors of the General Partner, at the option of the Majority Banks, the
Administrative Agent shall have first retained, at the Borrower's expense, an
investment banking firm on behalf of the Banks who shall also have rendered an
opinion containing the statements and content referred to in clause (i).
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01 Event of Default. Any of the following shall constitute an
"Event of Default": ----------------
(a) Non-Payment. The Borrower or the General Partner fails to pay, (i) when and
as required to be paid herein, any amount of principal of any Loan, or (ii)
within 5 days after the same becomes due, any interest, fee or any other amount
payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the Borrower,
the General Partner or any Subsidiary made or deemed made herein, in any other
Loan Document, or which is contained in any certificate, document or financial
or other statement by the Borrower, the General Partner, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or under
any other Loan Document, is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Sections 7.01, 7.02, 7.03, 7.04, 7.06,
7.09, 7.12, 7.13, 7.15, 7.16 or in any Section in Article VIII; or
(d) Other Defaults. The Borrower, the General Partner or any Subsidiary fails to
perform or observe any other term or covenant contained in this Agreement or any
other Loan Document, and such default shall continue unremedied for a period of
20 days after the earlier of (i) the date upon which a Responsible Officer knew
or reasonably should have known of such failure or (ii) the date upon which
written notice thereof is given to the Borrower by the Administrative Agent or
any Bank; or
(e) Cross-Default. The Borrower, the General Partner or any Subsidiary (i) fails
to make any payment in respect of any Indebtedness or Contingent Obligation
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $10,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure; or (ii) fails to
perform or observe any other condition or covenant, or any other event
(including any termination or similar event in respect of any Accounts
Receivable Securitization) shall occur or condition exist, under any agreement
or instrument relating to any such Indebtedness or Contingent Obligation, and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity or to cause such Indebtedness or Contingent
Obligation to be prepaid, purchased or redeemed by the Borrower, the MLP, the
General Partner or any Subsidiary, or such Contingent Obligation to become
payable or cash collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The General Partner, the MLP, the
Borrower or any Subsidiary (i) ceases or fails to be solvent, or generally fails
to pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the General Partner, the MLP, the Borrower or any
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of any such Person's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
levy; (ii) the General Partner, the MLP, the Borrower or any Subsidiary admits
the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the General Partner, the MLP, the Borrower or
any Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan which has
resulted or could reasonably be expected to result in liability of the Borrower
or the General Partner under Title IV of ERISA to the Pension Plan or the PBGC
in an aggregate amount in excess of $5 million; or (ii) the commencement or
increase of contributions to, or the adoption of or the amendment of a Pension
Plan by the Borrower, the General Partner or any of their Affiliates which has
resulted or could reasonably be expected to result in an increase in Unfunded
Pension Liability among all Pension Plans in an aggregate amount in excess of $5
million; or
(i) Monetary Judgments. One or more judgments, orders, decrees or arbitration
awards is entered against the Borrower, the General Partner or any Subsidiary
involving in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) as to
any single or related series of transactions, incidents or conditions, of more
than $40,000,000; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree is
entered against the Borrower, the General Partner or any Subsidiary which does
or would reasonably be expected to have a Material Adverse Effect, and there
shall be any period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(k) Loss of Licenses. Any Governmental Authority revokes or fails to renew any
material license, permit or franchise of the Borrower or any Subsidiary, or the
Borrower or any Subsidiary for any reason loses any material license, permit or
franchise, or the Borrower or any Subsidiary suffers the imposition of any
restraining order, escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any material license,
permit or franchise; or
(l) Adverse Change. There occurs a Material Adverse Effect; or
(m) Certain Indenture Defaults, Etc. (i) To the extent not otherwise within the
scope of subsection 9.01(e) above, any "Event of Default" shall occur and be
continuing under and as defined in the 1998 Note Purchase Agreement or (ii) any
of the following shall occur under or with respect to the 1996 Indenture or any
other Indebtedness guaranteed by the Borrower or its Subsidiaries (collectively,
the "Guaranteed Indebtedness"): (A) any demand for payment shall be made under
any such Guaranty Obligation with respect to the Guaranteed Indebtedness or (B)
so long as any such Guaranty Obligation shall be in effect (x) the Borrower or
any such Subsidiary shall fail to pay principal of or premium, if any, or
interest on such Guaranteed Indebtedness after the expiration of any applicable
notice or cure periods or (y) any "Event of Default" (however defined) shall
occur and be continuing under such Guaranteed Indebtedness which results in the
acceleration of such Guaranteed Indebtedness; or
(n) Guarantor Defaults. Any Guarantor fails in any material respect to perform
or observe any term, covenant or agreement in its Guaranty; or any Guaranty is
for any reason partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force and effect
(except to the extent released pursuant to the express terms of this Agreement),
or any Guarantor or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or obligation
thereunder; or any event described at subsections (f) or (g) of this Section
occurs with respect to the Guarantor; or
(o) Ferrellgas Joinder Event. The Ferrellgas Joinder Event shall not have
occurred on or before the Effective Date.
Section 9.02 Remedies. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable (including
amounts due under Section 3.04), without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
and
(c) exercise on behalf of itself and the Banks all rights and remedies available
to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans shall automatically terminate and the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent or any Bank.
Section 9.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
Section 9.04 Certain Financial Covenant Defaults. In the event that, after
taking into account any extraordinary charge to earnings taken or to be taken as
of the end of any fiscal period of the Borrower (a "Charge"), and if solely by
virtue of such Charge, there would exist an Event of Default due to the breach
of any of subsections 7.12(a) or 7.12(b) as of such fiscal period end date, such
Event of Default shall be deemed to arise upon the earlier of (a) the date after
such fiscal period end date on which the Borrower announces publicly it will
take, is taking or has taken such Charge (including an announcement in the form
of a statement in a report filed with the SEC) or, if such announcement is made
prior to such fiscal period end date, the date that is such fiscal period end
date, and (b) the date the Borrower delivers to the Administrative Agent its
audited annual or unaudited quarterly financial statements in respect of such
fiscal period reflecting such Charge as taken.
ARTICLE X
THE ADMINISTRATIVE AGENT
Section 10.01 Appointment and Authorization. Each of the Banks hereby
irrevocably appoints, designates and authorizes the Administrative Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
Section 10.02 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
Section 10.03 Liability of Administrative Agent. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the Borrower or
any Subsidiary or Affiliate of the Borrower, or any officer thereof, contained
in this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Borrower or any of the Borrower's Subsidiaries or Affiliates.
Section 10.04 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Banks as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Majority Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
Section 10.05 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Banks,
unless the Administrative Agent shall have received written notice from a Bank
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Banks of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
Section 10.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents to be furnished to the Banks by the Administrative Agent as specified
on Schedule 10.06, the Administrative Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower which may come into the possession
of any of the Agent-Related Persons. The Administrative Agent shall promptly
deliver to the Banks the items specified on Schedule 10.06 that are required to
be provided by the Borrower only to the extent such items are actually provided
by the Borrower.
Section 10.07 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), pro rata in
accordance with its Pro Rata Share on the date the Borrower's reimbursement
obligation arises, from and against any and all Indemnified Liabilities;
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the Administrative Agent
upon demand for their ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by them in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrower. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
Section 10.08 Administrative Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Borrower and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent hereunder and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such activities, BofA or its Affiliates
may receive information regarding the Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Borrower or such Subsidiary) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information to them. With respect to its
Loans, BofA shall have the same rights and powers under this Agreement as any
other Bank and may exercise the same as though it were not the Administrative
Agent.
Section 10.09 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Majority Banks shall, resign as Administrative Agent upon
30 days' notice to the Banks. If the Administrative Agent resigns under this
Agreement, the Majority Banks shall appoint from among the Banks a successor
agent for the Banks. If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Banks and the Borrower, a successor agent
from among the Banks. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X and Sections 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Banks shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Majority Banks appoint a
successor agent as provided for above.
Section 10.10 Withholding Tax. (a) If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees with and in favor of the Administrative
Agent, to deliver to the Administrative Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United
States tax treaty, properly completed IRS
Forms 1001 and W-8 (or any successor forms)
before the payment of any interest in the
first calendar year and before the payment
of any interest in each third succeeding
calendar year during which interest may be
paid under this Agreement;
(ii) if such Bank claims that interest paid under this Agreement is exempt
from United States withholding tax because it is effectively connected with a
United States trade or business of such Bank, two properly completed and
executed copies of IRS Form 4224 (or any successor form) before the payment of
any interest is due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may be paid under
this Agreement, and IRS Form W-9 (or any successor form); and
(iii) such other form or forms as may be required
under the Code or other laws of the United
States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Borrower to such Bank, such Bank agrees to
notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Borrower to such Bank. To the
extent of such percentage amount, the Administrative Agent will treat such
Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Borrower to such Bank, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount equivalent to the
applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not delivered, was not properly
executed, or because such Bank failed to notify the Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall indemnify
the Administrative Agent fully for all amounts paid, directly or indirectly, by
the Administrative Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Administrative Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower or the General Partner therefrom, shall be effective
unless the same shall be in writing and signed by the Majority Banks (or by the
Administrative Agent at the written request of the Majority Banks) and the
Borrower and acknowledged by the Administrative Agent, and then any such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the Banks, the Borrower and
the General Partner and acknowledged by the Administrative Agent, do any of the
following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 9.02);
(b) postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein on any
Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Banks or any of them to
take any action hereunder;
(e) amend this Section, or Section 2.13, or any provision herein providing for
consent or other action by all Banks; or
(f) release any Guaranty (other than the TWCI Guaranty, which TWCI Guaranty
shall be released as provided in Section 4.03);
and, provided, further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Majority
Banks or all the Banks, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document, and (ii)
the Fee Letters may be amended, or rights or privileges thereunder waived, in a
writing executed solely by the parties thereto.
Section 11.02 Notices. (a) Except as otherwise specifically provided in Section
3.02, all notices, requests and other communications shall be in writing
(including, unless the context expressly otherwise provides, by facsimile
transmission; provided, that any matter transmitted by the Borrower by facsimile
(i) shall be immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 11.02, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered, to the
address or facsimile number specified for notices on Schedule 11.02; or, as
directed to the Borrower or the Administrative Agent, to such other address as
shall be designated by such party in a written notice to the other parties, and
as directed to any other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or X shall not be effective until actually
received by the Administrative Agent.
(c) Any agreement of the Administrative Agent and the Banks
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Banks shall be entitled to rely on the authority of any Person purporting to be
a Person authorized by the Borrower to give such notice and the Administrative
Agent and the Banks shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative Agent or the
Banks in reliance upon such telephonic or facsimile notice. The obligation of
the Borrower to repay the Loans shall not be affected in any way or to any
extent by any failure by the Administrative Agent and the Banks to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Banks of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Banks to be contained
in the telephonic or facsimile notice.
Section 11.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
Section 11.04 Costs and Expenses. The Borrower shall:
(a) whether or not the transactions contemplated hereby are consummated, pay or
reimburse BofA (including in its capacity as Administrative Agent) and the
Arranger within five Business Days after demand (subject to subsection 4.01(e))
for all costs and expenses incurred by BofA (including in its capacity as
Administrative Agent) and the Arranger in connection with the development
(including due diligence), preparation, delivery, administration, syndication
and execution of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Loan Document and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable (giving due regard to the prevailing circumstances) Attorney Costs
incurred by BofA (including in its capacity as Administrative Agent) and the
Arranger with respect thereto (other than, with respect to the preparation,
delivery, syndication and execution of such documents, the allocated cost of
internal legal services); and
(b) pay or reimburse the Administrative Agent, the Arranger and each Bank within
five Business Days after demand for all costs and expenses (including Attorney
Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding).
Section 11.05 Indemnity. Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold the Agent-Related Persons,
the Arranger and each Bank and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits and reasonable (giving due regard to the
prevailing circumstances) costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans and the termination,
resignation or replacement of the Administrative Agent or replacement of any
Bank) be imposed on, incurred by or asserted against any such Person in any way
relating to or arising out of the transactions contemplated by the Purchase
Agreement, the Merger, the Loans, the Borrower's use of loan proceeds or the
commitments pursuant to this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or the actual or proposed use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations.
Section 11.06 Payments Set Aside. To the extent that the Borrower makes a
payment to the Administrative Agent or the Banks, or the Administrative Agent or
the Banks exercise their right of set-off, and such payment or the proceeds of
such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
Section 11.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, that the Borrower may not assign or transfer
any of its rights or obligations under this Agreement to any other Person (other
than on the Effective Date to Ferrellgas and the General Partner pursuant to the
Assumption Agreement) without the prior written consent of the Administrative
Agent and each Bank. Any attempted or purported assignment in contravention of
the preceding sentence shall be null and void.
Section 11.08 Assignments, Participations, Etc. (a) Any Bank may, with the
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Administrative Agent shall be
required in connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank) (each an "Assignee") all,
or any ratable part of all, of the Loans, the Commitments and the other rights
and obligations of such Bank hereunder in an aggregate minimum amount of
$3,000,000 or a lesser amount to be agreed upon by the Administrative Agent and
the Borrower (unless to an existing Bank, in which case no minimum assignment
shall apply); provided that such Bank shall retain an aggregate amount of not
less than $3,000,000 in respect thereof, unless such Bank assigns and delegates
all of its rights and obligations hereunder to one or more Eligible Assignees at
the time and subject to the conditions set forth herein; and provided, further,
however, that the Borrower and the Administrative Agent may continue to deal
solely and directly with such Bank in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Administrative Agent by
such Bank and the Assignee; (ii) such Bank and its Assignee shall have delivered
to the Borrower and the Administrative Agent an Assignment and Acceptance in the
form of Exhibit E ("Assignment and Acceptance"), together with any Note or Notes
subject to such assignment; and (iii) the assignor Bank has paid to the
Administrative Agent a processing fee in the amount of $3,500.
(b) From and after the date that the Administrative Agent
notifies the assignor Bank that it has received (and provided its consent with
respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Administrative Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee (and provided that it consents to
such assignment in accordance with subsection 11.08(a)), if the Assignee so
requests, the Borrower shall execute and deliver to the Administrative Agent,
new Notes evidencing such Assignee's assigned Loans and Commitments and, if the
assignor Bank has retained a portion of its Loans and its Commitments and so
requests, replacement Notes in the principal amount or amounts of the Loans
retained by the assignor Bank (such Notes to be in exchange for, but not in
payment of, the Notes held by such Bank). Immediately upon each Assignee's
making its processing fee payment under the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the resulting adjustment
of the Commitments arising therefrom. The Commitments allocated to each Assignee
shall reduce such Commitments of the assigning Bank pro tanto and the
Administrative Agent shall promptly prepare and distribute a new Schedule 2.01
reflecting the new commitments.
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Borrower (a "Participant")
participating interests in any Loans, the Commitments of that Bank and the other
interests of that Bank (the "originating Bank") hereunder and under the other
Loan Documents; provided, however, that (i) the originating Bank's obligations
under this Agreement shall remain unchanged, (ii) the originating Bank shall
remain solely responsible for the performance of such obligations, (iii) the
Borrower and the Administrative Agent shall continue to deal solely and directly
with the originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no Bank
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Banks as
described in the first proviso to Section 11.01. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections
3.01, 3.03 and 11.05 as though it were also a Bank hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by the Borrower and provided to it by
the Borrower or any Subsidiary, or by the Administrative Agent on such
Borrower's or Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents; except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Borrower, provided that such source is not bound by a
confidentiality agreement with the Borrower known to the Bank; provided,
however, that any Bank may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such authority;
(B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which the Administrative Agent, any Bank or their respective Affiliates may be
party; (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to such Bank's
independent auditors and other professional advisors; (G) to any Affiliate of
such Bank, or to any Participant or Assignee, actual or potential, provided that
such Affiliate, Participant or Assignee agrees to keep such information
confidential to the same extent required of the Banks hereunder, and (H) as to
any Bank, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Borrower is party or is deemed
party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
Section 11.09 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Borrower against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Bank shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or unmatured. Each Bank
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section 11.10 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Administrative Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
Section 11.11 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument. Transmission by telecopier of an
executed counterpart of this Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart. The parties hereto shall deliver to
each other an original counterpart of this Agreement promptly after the delivery
by telecopier; provided, however, that the failure by any party to so deliver an
original counterpart shall not affect the sufficiency of a telecopy of such
counterpart (and the fact that such telecopy constitutes the due and sufficient
delivery of such counterpart), as provided above.
Section 11.12 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
Section 11.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrower, the Banks, the
Administrative Agent and the Agent-Related Persons, the Arranger and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents.
Section 11.14 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND ALL
NOTES ISSUED HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE
BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE GENERAL
PARTNER, THE ADMINISTRATIVE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
OF THE BORROWER, THE GENERAL PARTNER, THE ADMINISTRATIVE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE GENERAL
PARTNER, THE ADMINISTRATIVE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
Section 11.15 Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE BANKS
AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE BORROWER, THE GENERAL PARTNER, THE BANKS AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 11.16 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding between and among the
Borrower, the General Partner (from and after the Ferrellgas Joinder Event), the
Banks and the Administrative Agent, and supersedes all other understandings of
such Persons, verbal or written, relating to the subject matter hereof and
thereof including all term sheets and commitment letters relating to the credit
facilities provided herein.
A:\326542..DOC
DOCSLA1:326542.4 84
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
THERMOGAS L.L.C.
By:
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices for the Borrower:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A., as Administrative Agent
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A., as a Bank
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
TABLE OF CONTENTS
(continued)
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................1
Section 1.01 Certain Defined Terms......................................................................1
Section 1.02 Other Interpretive Provisions.............................................................22
Section 1.03 Accounting Principles.....................................................................23
ARTICLE II THE LOANS.................................................................................23
Section 2.01 Amounts and Terms of Commitments..........................................................23
Section 2.02 Loan Accounts.............................................................................23
Section 2.03 Procedure for Borrowing...................................................................24
Section 2.04 Conversion and Continuation Elections.....................................................24
Section 2.05 Optional Prepayments......................................................................26
Section 2.06 Mandatory Prepayments of Loans; Mandatory Commitment Reductions...........................26
Section 2.07 Repayment.................................................................................26
Section 2.08 Interest..................................................................................27
Section 2.09 Fees 28
Section 2.10 Computation of Fees and Interest..........................................................28
Section 2.11 Payments by the Borrower..................................................................28
Section 2.12 Payments by the Banks to the Administrative Agent.........................................29
Section 2.13 Sharing of Payments, Etc..................................................................29
Section 2.14 Extension of Maturity Date; Amendment and Restatement of Agreement........................30
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY....................................................32
Section 3.01 Taxes.....................................................................................32
Section 3.02 Illegality................................................................................33
Section 3.03 Increased Costs and Reduction of Return...................................................33
Section 3.04 Funding Losses............................................................................34
Section 3.05 Inability to Determine Rates..............................................................35
Section 3.06 Survival..................................................................................35
ARTICLE IV CONDITIONS PRECEDENT......................................................................35
Section 4.01 Conditions to Effectiveness...............................................................35
Section 4.02 Conditions to All Credit Extensions.......................................................39
Section 4.03 Conditions to Release of Guaranty.........................................................40
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THERMOGAS...............................................42
Section 5.01 Corporate or Partnership Existence and Power..............................................42
Section 5.02 Authorization; No Contravention...........................................................42
Section 5.03 Governmental Authorization................................................................43
Section 5.04 Binding Effect............................................................................43
Section 5.05 No Default................................................................................43
Section 5.06 Use of Proceeds; Margin Regulations.......................................................43
Section 5.07 Title to Properties.......................................................................43
Section 5.08 Taxes.....................................................................................43
Section 5.09 Financial Condition.......................................................................44
Section 5.10 Regulated Entities........................................................................44
Section 5.11 Full Disclosure...........................................................................44
Section 5.12 Year 2000.................................................................................44
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF FERRELLGAS..............................................45
Section 6.01 Corporate or Partnership Existence and Power..............................................45
Section 6.02 Corporate or Partnership Authorization; No Contravention..................................45
Section 6.03 Governmental Authorization................................................................46
Section 6.04 Binding Effect............................................................................46
Section 6.05 Litigation................................................................................46
Section 6.06 No Default................................................................................46
Section 6.07 ERISA Compliance..........................................................................46
Section 6.08 Use of Proceeds; Margin Regulations.......................................................47
Section 6.09 Title to Properties.......................................................................47
Section 6.10 Taxes.....................................................................................47
Section 6.11 Financial Condition.......................................................................48
Section 6.12 Environmental Matters.....................................................................48
Section 6.13 Regulated Entities........................................................................48
Section 6.14 No Burdensome Restrictions................................................................48
Section 6.15 Copyrights, Patents, Trademarks and Licenses, etc.........................................49
Section 6.16 Subsidiaries and Affiliates...............................................................49
Section 6.17 Insurance.................................................................................49
Section 6.18 Tax Status................................................................................49
Section 6.19 Full Disclosure...........................................................................49
Section 6.20 Fixed Price Supply Contracts..............................................................49
Section 6.21 Trading Policies..........................................................................50
Section 6.22 Year 2000.................................................................................50
ARTICLE VII AFFIRMATIVE COVENANTS.....................................................................50
Section 7.01 Financial Statements......................................................................50
Section 7.02 Certificates; Other Information...........................................................52
Section 7.03 Notices...................................................................................52
Section 7.04 Preservation of Corporate or Partnership Existence, Etc...................................53
Section 7.05 Maintenance of Property...................................................................54
Section 7.06 Insurance.................................................................................54
Section 7.07 Payment of Obligations....................................................................54
Section 7.08 Compliance with Laws......................................................................54
Section 7.09 Inspection of Property and Books and Records..............................................54
Section 7.10 Environmental Laws........................................................................55
Section 7.11 Use of Proceeds...........................................................................55
Section 7.12 Financial Covenants.......................................................................55
Section 7.13 Trading Policies..........................................................................55
Section 7.14 Other General Partner Obligations.........................................................55
Section 7.15 Monetary Judgments........................................................................56
Section 7.16 Year 2000 Compliance......................................................................57
Section 7.17 Thermogas Merger..........................................................................57
ARTICLE VIII NEGATIVE COVENANTS........................................................................57
Section 8.01 Limitation on Liens.......................................................................57
Section 8.02 Asset Sales...............................................................................59
Section 8.03 Consolidations and Mergers................................................................60
Section 8.04 Acquisitions..............................................................................61
Section 8.05 Limitation on Indebtedness................................................................61
Section 8.06 Transactions with Affiliates..............................................................62
Section 8.07 Use of Proceeds...........................................................................62
Section 8.08 Use of Proceeds - Ineligible Securities...................................................63
Section 8.09 Contingent Obligations....................................................................63
Section 8.10 Joint Ventures............................................................................63
Section 8.11 Lease Obligations.........................................................................63
Section 8.12 Restricted Payments.......................................................................63
Section 8.13 Prepayments of Subordinated Indebtedness..................................................65
Section 8.14 Dividend and Other Payment Restrictions Affecting Subsidiaries............................66
Section 8.15 Change in Business........................................................................66
Section 8.16 Accounting Changes........................................................................66
Section 8.17 Limitation on Sale and Leaseback Transactions.............................................66
Section 8.18 Amendments of Organization Documents or 1996 Indenture or 1998 Note Purchase
Agreement............................................................................67
Section 8.19 Fixed Price Supply Contracts..............................................................67
Section 8.20 Operations through Subsidiaries...........................................................67
Section 8.21 Operations of MLP.........................................................................67
ARTICLE IX EVENTS OF DEFAULT.........................................................................69
Section 9.01 Event of Default..........................................................................69
Section 9.02 Remedies..................................................................................71
Section 9.03 Rights Not Exclusive......................................................................72
Section 9.04 Certain Financial Covenant Defaults.......................................................72
ARTICLE X THE ADMINISTRATIVE AGENT..................................................................72
Section 10.01 Appointment and Authorization........................................................72
Section 10.02 Delegation of Duties.................................................................72
Section 10.03 Liability of Administrative Agent....................................................72
Section 10.04 Reliance by Administrative Agent.....................................................73
Section 10.05 Notice of Default....................................................................73
Section 10.06 Credit Decision......................................................................74
Section 10.07 Indemnification......................................................................74
Section 10.08 Administrative Agent in Individual Capacity..........................................74
Section 10.09 Successor Administrative Agent.......................................................75
Section 10.10 Withholding Tax......................................................................75
ARTICLE XI MISCELLANEOUS.............................................................................77
Section 11.01 Amendments and Waivers...............................................................77
Section 11.02 Notices..............................................................................77
Section 11.03 No Waiver; Cumulative Remedies.......................................................78
Section 11.04 Costs and Expenses...................................................................78
Section 11.05 Indemnity............................................................................79
Section 11.06 Payments Set Aside...................................................................79
Section 11.07 Successors and Assigns...............................................................79
Section 11.08 Assignments, Participations, Etc.....................................................80
Section 11.09 Set-off..............................................................................82
Section 11.10 Notification of Addresses, Lending Offices, Etc......................................82
Section 11.11 Counterparts.........................................................................82
Section 11.12 Severability.........................................................................82
Section 11.13 No Third Parties Benefited...........................................................82
Section 11.14 Governing Law and Jurisdiction.......................................................82
Section 11.15 Waiver of Jury Trial.................................................................83
Section 11.16 Entire Agreement.....................................................................83
Schedules
2.01 - Commitments; Pro Rata Shares
6.07 - ERISA
6.16 - Subsidiaries and Affiliates
8.05 - Existing Indebtedness and Subordination Provisions
10.06 - Information to be provided to Banks by Administrative Agent
11.02 - Addresses for Notices
Exhibits
A - Form of Notice of Borrowing
B - Form of Notice of Conversion/Continuation
C - Form of Compliance Certificate
D-1 - Form of Opinion of Counsel to TWCI and Thermogas
D-2 - Form of Opinion of Counsel to Ferrellgas and the General Partner
E - Form of Assignment and Acceptance
F - Form of Note
G - Form of Subsidiary Guaranty
H - Form of Assumption Agreement
I - Form of TWCI Guaranty
J - Form of Release of TWCI Guaranty