SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended October 31, 1999
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from __________ to __________
Commission file numbers: 1-11331
333-06693
Ferrellgas Partners, L.P.
Ferrellgas Partners Finance Corp.
(Exact name of registrants as specified in their charters)
Delaware 43-1698480
Delaware 43-1742520
---------------------------- -------------------------------
(States or other jurisdictions of (I.R.S. Employer Identification Nos.)
incorporation or organization)
One Liberty Plaza, Liberty, Missouri 64068
(Address of principal executive offices) (Zip Code)
Registrants' telephone number, including area code: (816) 792-1600
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [ X ] No [ ]
At December 2, 1999, the registrants had units or shares outstanding as follows:
Ferrellgas Partners, L.P. 31,307,116 Common Units
Ferrellgas Partners Finance
Corp. 1,000 Common Stock
<PAGE>
FERRELLGAS PARTNERS, L.P. and SUBSIDIARIES
FERRELLGAS PARTNERS FINANCE CORP.
Table of Contents
PART I - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
ITEM 1. FINANCIAL STATEMENTS
Page
<S> <C>
Ferrellgas Partners, L.P. and Subsidiaries
Consolidated Balance Sheets - October 31, 1999 and July 31, 1999 1
Consolidated Statements of Earnings -
Three months ended October 31, 1999 and 1998 2
Consolidated Statement of Partners' Capital -
Three months ended October 31, 1999 3
Consolidated Statements of Cash Flows -
Three months ended October 31, 1999 and 1998 4
Notes to Consolidated Financial Statements 5
Ferrellgas Partners Finance Corp.
Balance Sheets - October 31, 1999 and July 31, 1999 8
Statements of Earnings - Three months ended October 31, 1999
and 1998 8
Statements of Cash Flows - Three months ended October 31, 1999
and 1998 9
Notes to Financial Statements 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
10
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 14
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 15
</TABLE>
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except unit data)
<TABLE>
<CAPTION>
October 31, July 31,
ASSETS 1999 1999
- ---------------------------------------------------------------------- ------------- -------------
(unaudited)
Current Assets:
<S> <C> <C>
Cash and cash equivalents $ 12,261 $35,134
Accounts and notes receivable 84,563 58,380
Inventories 52,831 24,645
Prepaid expenses and other current assets 17,363 6,780
------------- -------------
Total Current Assets 167,018 124,939
Property, plant and equipment, net 405,450 405,292
Intangible assets, net 116,473 118,117
Other assets, net 8,340 8,397
------------- -------------
Total Assets $697,281 $656,745
============= =============
LIABILITIES AND PARTNERS' CAPITAL
- ----------------------------------------------------------------------
Current Liabilities:
Accounts payable $88,370 $60,754
Other current liabilities 45,537 48,266
Short-term borrowings 55,965 20,486
------------- -------------
Total Current Liabilities 189,872 129,506
Long-term debt 593,081 583,840
Other liabilities 12,300 12,144
Contingencies and commitments - -
Minority interest 650 906
Partners' Capital:
Common unitholders (31,307,116 and 14,710,765 units
outstanding at October 31, 1999 and July 31, 1999, respectively) (37,982) 1,215
Subordinated unitholders (0 and 16,593,721 units outstanding
at October 31, 1999 and July 31, 1999, respectively) - (10,516)
General partner (59,843) (59,553)
Accumulated other comprehensive income (797) (797)
------------- -------------
Total Partners' Capital (98,622) (69,651)
------------- -------------
Total Liabilities and Partners' Capital $697,281 $656,745
============= =============
</TABLE>
See notes to consolidated financial statements.
1
<PAGE>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(in thousands, except per-unit data)
(unaudited)
<TABLE>
<CAPTION>
For the three months ended
-----------------------------------
October 31, 1999 October 31, 1998
------------------ ----------------
Revenues:
<S> <C> <C>
Gas liquids and related product sales $141,507 $118,002
Other 21,232 12,337
--------------- --------------
Total revenues 162,739 130,339
Cost of product sold (exclusive of
depreciation, shown separately below) 85,325 58,712
--------------- --------------
Gross profit 77,414 71,627
Operating expense 57,177 51,712
Depreciation and amortization expense 12,083 11,311
Employee stock ownership plan compensation charge 1,027 890
General and administrative expense 5,183 4,668
Equipment lease expense 3,853 2,968
--------------- --------------
Operating income (loss) (1,909) 78
Interest expense (12,581) (11,618)
Interest income 258 158
Gain (loss) on disposal of assets (96) 86
--------------- --------------
Loss before minority interest and
extraordinary item (14,328) (11,296)
Minority interest (106) (75)
--------------- --------------
Loss before extraordinary item (14,222) (11,221)
Extraordinary loss on early extinguishment of debt,
net of minority interest of $130 - (12,786)
--------------- --------------
Net loss (14,222) (24,007)
General partner's interest in net loss (142) (240)
--------------- --------------
Limited partners' interest in net loss $(14,080) $(23,767)
=============== ==============
Loss per limited partner unit:
Loss before extraordinary item $ (0.45) $ (0.35)
Extraordinary loss - (0.41)
--------------- --------------
Net loss $ (0.45) $ (0.76)
=============== ==============
Loss per limited partner unit-assuming dilution:
Loss before extraordinary item $ (0.45) $ (0.35)
Extraordinary loss - (0.41)
--------------- --------------
Net loss $ (0.45) $ (0.76)
=============== ==============
</TABLE>
See notes to consolidated financial statements.
2
<PAGE>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF PARTNERS' CAPITAL
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Number of units Accumulated
------------------------ other
Sub- Sub- compre- Total
Common ordinated Common ordinated General hensive partners'
unitholders unitholders unitholders unitholders partner income capital
----------- ------------ ------------------------ ------------ ------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
August 1, 1999 14,710.8 16,593.7 $ 1,215 $(10,516) $(59,553) $(797) $(69,651)
Conversion of
subordinated units 16,593.7 (16,593.7) (10,516) 10,516 - - -
into common units
Common units issued in -
connection with
acquisitions 2.6 - 45 - - - 45
Contribution from general
partner in connection
with ESOP compensation - - 1,007 - 10 - 1,017
charge
Quarterly distributions - - (15,653) - (158) - (15,811)
Comprehensive income:
Net loss - - (14,080) - (142) - (14,222)
---------------
Comprehensive income (14,222)
----------- ------------ ------------------------ ------------ ------------- ---------------
October 31, 1999 31,307.1 0.0 $(37,982) $ 0 $(59,843) $(797) $(98,622)
=========== ============ ======================== ============ ============= ===============
</TABLE>
See notes to consolidated financial statements.
3
<PAGE>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
For the three months ended
-------------------------------------
October 31, 1999 October 31, 1998
------------------ -----------------
Cash Flows From Operating Activities:
<S> <C> <C>
Net loss $(14,222) $(24,007)
Reconciliation of net loss to net cash used in
operating activities:
Depreciation and amortization 12,083 11,311
Extraordinary loss, net of minority interest - 12,786
Employee stock ownership plan compensation charge 1,027 890
Other 938 468
Changes in operating assets and liabilities net of
effects from business acquisitions:
Accounts and notes receivable (26,542) (10,951)
Inventories (27,640) (15,645)
Prepaid expenses and other current assets (10,583) (7,229)
Accounts payable 27,616 15,123
Other current liabilities (2,959) (2,679)
Other liabilities 157 (175)
------------------ -----------------
Net cash used in operating activities (40,125) (20,108)
------------------ -----------------
Cash Flows From Investing Activities:
Business acquisitions (6,527) (17,844)
Capital expenditures (6,205) (7,124)
Other 1,468 983
------------------ -----------------
Net cash used in investing activities (11,264) (23,985)
------------------ -----------------
Cash Flows From Financing Activities:
Net additions to short-term borrowings 35,479 27,541
Additions to long-term debt 10,223 370,719
Reductions of long-term debt (1,214) (336,090)
Cash paid for call premium and debt issuance costs - (12,528)
Distributions (15,811) (15,805)
Other (161) (161)
----------------- ------------------
Net cash provided by financing activities 28,516 33,676
------------------ -----------------
Decrease in cash and cash equivalents (22,873) (10,417)
Cash and cash equivalents - beginning of period 35,134 16,961
------------------ -----------------
Cash and cash equivalents - end of period $12,261 $6,544
================== =================
Cash paid for interest $13,708 $11,847
================== =================
</TABLE>
See notes to consolidated financial statements.
4
<PAGE>
FERRELLGAS PARTNERS, L.P. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 31, 1999
(unaudited)
A. The financial statements of Ferrellgas Partners, L.P. and Subsidiaries (
the "Partnership") reflect all adjustments which are, in the opinion of
management, necessary for a fair statement of the interim periods
presented. All adjustments to the financial statements were of a normal,
recurring nature. These financial statements should be read in conjunction
with the financial statements and related notes included in our Annual
Report on Form 10-K for the year ended July 31, 1999.
B. The preparation of financial statements in conformity with generally
accepted accounting principles ("GAAP") requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosures of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reported period. Actual results could differ from these
estimates.
C. The propane industry is seasonal in nature with peak activity during the
winter months. Therefore, the results of operations for the periods ended
October 31, 1999 and October 31, 1998 are not necessarily indicative of the
results to be expected for a full year.
D. Inventories consist of:
<TABLE>
<CAPTION>
October 31, July 31,
(in thousands) 1999 1999
--------------- ---------------
<S> <C> <C>
Liquefied propane gas and related products $43,747 $15,480
Appliances, parts and supplies 9,084 9,165
--------------- ---------------
$52,831 $24,645
=============== ===============
</TABLE>
In addition to inventories on hand, the Partnership enters into contracts
to buy product for supply purposes. Nearly all such contracts have terms of
less than one year and most call for payment based on market prices at date
of delivery. All fixed price contracts have terms of less than one year. As
of October 31, 1999, the Partnership had committed to take delivery of
43,329,000 gallons at a fixed price for its estimated future retail propane
sales.
<TABLE>
<CAPTION>
Property, plant and equipment, net consist of:
October 31, July 31,
(in thousands) 1999 1999
--------------- ---------------
<S> <C> <C>
Property, plant and equipment $656,374 $650,536
Less: accumulated depreciation 250,924 245,244
--------------- ---------------
$405,450 $405,292
=============== ===============
Intangible assets, net consist of:
October 31, July 31,
(in thousands) 1999 1999
--------------- ---------------
Intangible assets $259,977 $257,390
Less: accumulated amortization 143,504 139,273
--------------- ---------------
$116,473 $118,117
=============== ===============
</TABLE>
5
<PAGE>
E. Quarterly Distributions of Available Cash
The Partnership makes quarterly cash distributions of all of its "Available
Cash", generally defined as consolidated cash receipts less consolidated
cash disbursements and net changes in reserves established by the General
Partner for future requirements. These reserves are retained to provide for
the proper conduct of the Partnership business, or to provide funds for
distributions with respect to any one or more of the next four fiscal
quarters. Distributions are made within 45 days after the end of each fiscal
quarter ending January, April, July and October to holders of record on the
applicable record date.
Distributions by the Partnership in an amount equal to 100% of its Available
Cash will generally be made 98% to the Common Unitholders (the
"Unitholders") and 2% to the General Partner, subject to the payment of
incentive distributions to the holders of Incentive Distribution Rights to
the extent that certain target levels of cash distributions are achieved.
Common Units do not accrue arrearages.
F. Partners' Capital
Ferrellgas Partners, L.P. ("MLP") partners' capital consists of
31,307,116 Common Units representing the entire limited partner
interest, and a 1% General Partner interest. The Agreement of Limited
Partnership of Ferrellgas Partners, L.P. (the "Partnership Agreement")
contains specific provisions for the allocation of net earnings and loss to
each of the partners for purposes of maintaining the partner capital
accounts.
In a non-cash transaction, effective, August 1, 1999, the
Subordination Period ended and the Subordinated Units converted to Common
Units. Certain financial tests, which were primarily related to making the
Minimum Quarterly Distribution on all Units, were satisfied for each of the
three consecutive four quarter periods ending July 31, 1999.
The Partnership maintains a shelf registration statement for Common Units
representing limited partner interests in the Partnership. The Common Units
may be issued from time to time by the Partnership in connection with the
Partnership's acquisition
of other businesses, properties or securities in business combination
transactions. The Partnership also maintains another shelf registration
statement for the issuance of Common Units, Deferred Participation Units,
Warrants and Debt Securities. The Partnership Agreement allows the General
Partner to issue an unlimited number of additional Partnership general and
limited interests and other equity securities of the Partnership for such
consideration and on such terms and conditions as shall be established by
the General Partner without the approval of any Unitholders.
G. The Partnership is threatened with or named as a defendant in various
lawsuits which, among other items, claim damages for product liability. It
is not possible to determine the ultimate disposition of these matters;
however, management is of the opinion that there are no known claims or
contingent claims that are likely to have a material adverse effect on the
results of operations or financial condition of the Partnership.
H. On September 14, 1999, the Partnership paid a cash distribution of $0.50
per Common and Subordinated Unit for the quarter ended July 31, 1999. On
November 22, 1999, the Partnership declared its first-quarter cash
distribution of $0.50 per Common Unit, payable December 15, 1999.
6
<PAGE>
I. Subsequent Events
On November 8, 1999, the Partnership announced that it had signed a
definitive agreement to purchase Thermogas Company, a subsidiary of
Williams, for total consideration of $432,500,000. At closing the seller
will receive $257,500,000 cash and $175,000,000 Senior Common Units. The
closing of the transaction is subject to customary conditions, including
regulatory approval.
Effective December 6, 1999, the Ferrellgas, L.P. (the "OLP") entered into
with Banc of America, as investor, and First Security Bank, as
lessor-trustee, a $25,000,000 synthetic lease transaction involving a
portion of the Partnership's customer tanks. The lease term extends over
three and one-half years and may be extended for two additional one-year
periods at the option of the OLP if such extension is approved by the
lessor.
7
<PAGE>
FERRELLGAS PARTNERS FINANCE CORP.
(a wholly owned subsidiary of Ferrellgas Partners, L.P.)
BALANCE SHEETS
<TABLE>
<CAPTION>
October 31, July 31,
ASSETS 1999 1999
- -------------------------------------------------------------------- ------------------ -------------------
(unaudited)
<S> <C> <C>
Cash $1,000 $1,000
------------------ -------------------
Total Assets $1,000 $1,000
================== ===================
</TABLE>
STOCKHOLDER'S EQUITY
- --------------------------------------------------------------------
<TABLE>
<CAPTION>
Common stock, $1.00 par value; 2,000 shares
authorized; 1,000 shares issued and outstanding $1,000 $1,000
<S> <C> <C>
Additional paid in capital 960 774
Accumulated deficit (960) (774)
------------------ -------------------
Total Stockholder's Equity $1,000 $1,000
================== ===================
</TABLE>
STATEMENTS OF EARNINGS
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
-------------------------------------
October 31, October 31,
1999 1998
------------------ ------------------
<S> <C> <C>
General and administrative expense $ 186 $ 45
------------------ ------------------
Net loss $(186) $(45)
================== ==================
</TABLE>
See notes to financial statements.
8
<PAGE>
FERRELLGAS PARTNERS FINANCE CORP.
(A wholly owned subsidiary of Ferrellgas
Partners, L.P.)
STATEMENTS OF CASH FLOWS
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
-------------------------------------------------
October 31, October 31,
1999 1998
--------------------- ------------------------
Cash Flows From Operating Activities:
<S> <C> <C>
Net loss $(186) $(45)
--------------------- ------------------------
Cash used in operating activities (186) (45)
--------------------- ------------------------
Cash Flows From Financing Activities:
Capital contribution 186 45
--------------------- ------------------------
Cash provided by financing activities 186 45
--------------------- ------------------------
Change in cash - -
Cash - beginning of period 1,000 1,000
--------------------- ------------------------
Cash - end of period $1,000 $1,000
===================== ========================
</TABLE>
See notes to financial statements.
NOTES TO FINANCIAL STATEMENTS
OCTOBER 31, 1999
(unaudited)
A. Ferrellgas Partners Finance Corp., a Delaware corporation, was formed on
March 28, 1996, and is a wholly-owned subsidiary of Ferrellgas Partners,
L.P.
B. The financial statements reflect all adjustments which are, in the opinion
of management, necessary for a fair statement of the interim periods
presented. All adjustments to the financial statements were of a normal,
recurring nature.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is a discussion of the results of operations and liquidity
and capital resources of Ferrellgas Partners, L.P. (the "Partnership" or "MLP").
Except for the $160,000,000 of 9 3/8% Senior Secured Notes issued in April 1996
by the MLP and the related interest expense, Ferrellgas, L.P. (the "Operating
Partnership" or "OLP") accounts for nearly all of the consolidated assets,
liabilities, sales and earnings of the MLP. When the discussion refers to the
consolidated MLP, the term Partnership will be used.
Ferrellgas Partners Finance Corp. has nominal assets and does not
conduct any operations. Accordingly, a discussion of the
results of operations and liquidity and capital resources is not presented.
Forward-looking statements
Statements included in this report that are not historical facts, including
statements concerning Year 2000 compliance and the belief that the OLP will have
sufficient funds to meet its obligations and to enable it to distribute to the
MLP sufficient funds to permit the MLP to meet its obligations with respect to
the MLP Senior Notes issued in April 1996, and sufficient funds to pay the
Minimum Quarterly Distribution ("MQD") ($0.50 per Unit) on all Common Units, are
forward-looking statements.
Such statements are subject to risks and uncertainties that could cause
actual results to differ materially from those expressed in or implied by the
statements. The risks and uncertainties and their effect on the Partnership's
operations include but are not limited to the following: a) the effect of
weather conditions on demand for propane, b) price and availability of propane
supplies, c) the availability of capacity to transport propane to market areas,
d) competition from other energy sources and within the propane industry, e)
operating risks incidental to transporting, storing, and distributing propane,
f) changes in interest rates, g) governmental legislation and regulations, h)
energy efficiency and technology trends, i) Year 2000 compliance of the
Partnership's suppliers and j) other factors that are discussed in the Risk
Factor section of the Partnership's most recent 1933 Act filing with the
Securities and Exchange Commission, Amendment No. 1 to Form S-3 Registration
Statement, as filed February 5, 1999.
Year 2000 Compliance
Many computer systems and applications in use throughout the world today
may not be able to appropriately interpret dates beginning in the year 2000
("Year 2000" issue). As a result, this problem could have adverse consequences
on the operations of companies and the integrity of information processing.
The Partnership began the process in 1997 of identifying and correcting its
computer systems and applications that were exposed to the Year 2000 issue. The
Partnership initially focused on the systems and applications that were
considered critical to its operations and services for supplying propane to its
customers and to its ability to account for those business services accurately.
These critical areas include the retail propane accounting and operations system
(including related computer hardware), financial accounting and reporting
system, supply and distribution accounting and operating system, payroll system,
local and wide area networks and electronic mail systems. All these systems are
now believed to be Year 2000 compliant.
The Partnership has also taken steps to identify other non-critical
applications that may have exposure to the Year 2000 issue. It has established a
separate company group to independently test these applications for Year 2000
compliance. To date, no material Year 2000 issues have been identified as a
result of this testing.
There can be no assurance that every system in every location where
Ferrellgas conducts business
10
<PAGE>
will function properly on January 1, 2000. In
addition, there are other Year 2000 risks which are beyond the Partnership's
control, any of which if wide spread could have a material adverse affect on the
Partnership's operations. Such risks include, but are not limited to, the
failure of utility and telecommunications companies to provide service. For
these reasons, the Partnership has developed a contingency plan should Year 2000
problems temporarily affect any of our locations. Each Ferrellgas location has
been provided with a contingency plan that contains, among others, procedures to
keep the Partnership's plants operational, to access emergency management
personnel, and to utilize cellular phones.
The Partnership conducts business with several hundred outside suppliers.
While no single supplier is considered material to the Partnership, a combined
number could constitute a material amount to the Partnership. The Partnership
has reviewed its largest suppliers, particularly liquid petroleum gas suppliers,
to obtain appropriate assurances that they are, or will be, Year 2000 compliant.
This review included general public disclosures made by the supplier, general
questionnaires and direct contact with suppliers regarding specific facilities.
While no supplier will provide assurances regarding Year 2000 compliance or the
effect from external factors on their operations, our review has indicated
suppliers are addressing Year 2000 issues. If compliance by the Partnership's
suppliers is not achieved in a timely manner, it is unknown what effect, if any,
the Year 2000 issue could have on the Partnership's operations.
The Partnership has evaluated its Year 2000 issues and does not expect that
the total cost of related modifications and conversions will have a material
effect on its financial position, results of operations or cash flows. Such
costs are being expensed as incurred. To date, the Partnership has incurred
approximately $930,000 to identify and correct its Year 2000 issues. This
expense has been primarily related to its critical systems and applications. It
is estimated that in the remaining calendar year 1999 the Partnership will incur
an additional $51,000 to identify and correct its Year 2000 issues. The
Partnership does not anticipate significant purchases of computer software or
hardware as a result of its Year 2000 issue and does not believe that the
correction of any Year 2000 issues will delay or eliminate other scheduled
computer upgrades and replacements. Despite the Partnership's efforts to address
and remediate the Year 2000 issue, there can be no assurance that all critical
areas and non-critical applications will continue without interruption through
January 1, 2000 and beyond.
Results of Operations
The propane industry is seasonal in nature with peak activity during the
winter months. Due to the seasonality of the business, results of operations for
the three months ended October 31, 1999 and 1998, are not necessarily indicative
of the results to be expected for a full year. Other factors affecting the
results of operations include competitive conditions, demand for product,
variations in weather and fluctuations in propane prices. As the Partnership has
grown through acquisitions, fixed costs such as personnel costs, depreciation
and interest expense have increased. Historically, these fixed cost increases
have caused net losses in the first and fourth quarters and net income in the
second and third quarters to be more pronounced.
Three Months Ended October 31, 1999 vs. October 31, 1998
Total Revenues. Total gas liquids and related product sales increased 19.9%
to $141,507,000 as compared to $118,002,000 in the first quarter of fiscal 1999,
primarily due to increased sales price per gallon and increased retail propane
volumes.
Sales price per gallon increased due to the effect of a significant
increase in the wholesale cost of propane as compared to the prior period.
Retail volumes increased 6.0% to 153,429,000 gallons as compared to 144,682,000
gallons for the prior period, primarily due to increased base business sales and
the effect of acquisitions, partially offset by reduced crop drying volumes
compared to the same quarter last year and hurricane related crop damage in the
southeastern United States. Other revenues increased by $8,895,000 primarily due
to favorable trading revenues.
11
<PAGE>
Gross Profit. Gross profit increased 8.1% to $77,414,000 as compared to
$71,627,000 in the first quarter of fiscal 1999, primarily due to the favorable
trading profits and increased retail sales volume, partially offset by reduced
retail margins. Last year's margins benefited significantly from a low wholesale
cost environment. This cost environment was not repeated this year. In addition,
while the wholesale cost of propane rapidly increased during the quarter, the
sales price lagged the cost increase.
Operating Expenses. Operating expenses increased 10.6% to $57,177,000 as
compared to $51,712,000 in the first quarter of fiscal 1999 primarily due to
trading operations, merit salary increases, and acquisition related increases in
personnel costs, plant and office expenses, and vehicle and other expenses.
Equipment Lease Expense. Equipment lease expense, which includes vehicle,
propane tank and computer lease expense, increased by $885,000 primarily due to
the utilization of operating lease financing to fund fleet upgrades and
replacements.
Interest expense. Interest expense increased 8.3% to $12,581,000 as
compared to $11,618,000 in the first quarter of fiscal 1999. This increase is
primarily the result of increased borrowings related to acquisitions and capital
expenditures.
Extraordinary item. During fiscal year 1999, the Partnership recognized an
extraordinary loss of $12,786,000 net of minority interest of $130,000. The
gross extraordinary loss included a payment of a 5% premium and a write-off of
unamortized financing costs of $2,916,000, resulting primarily from the early
extinguishment of $200,000,000 of its fixed rate senior notes. (see Financing
Activities following).
Liquidity and Capital Resources
The ability of the MLP to satisfy its obligations is dependent upon future
performance, which will be subject to prevailing economic, financial, business
and weather conditions and other factors, many of which are beyond its control.
For the fiscal year ending July 31, 2000, the General Partner believes that the
OLP will have sufficient funds to meet its obligations and enable it to
distribute to the MLP sufficient funds to permit the MLP to meet its obligations
with respect to the $160,000,000 senior secured notes issued in April 1996 ("MLP
Senior Secured Notes") and enable it to distribute the MQD on all Common Units.
The MLP Senior Secured Notes, the $350,000,000 OLP senior notes ("Senior
Notes"), the $145,000,000 amended and restated OLP credit facility ("Credit
Facility") and the $38,000,000 additional OLP revolving credit agreement
("Additional Credit Facility") (See Financing Activities following) contain
several financial tests which restrict the Partnership's ability to pay
distributions, incur indebtedness and engage in certain other business
transactions. These tests, in general, are based on the ratio of the MLP's and
OLP's consolidated cash flow to fixed charges, primarily interest expense.
Because the Partnership is more highly leveraged at the MLP than at the OLP, the
tests related to the MLP Senior Secured Notes are more sensitive to fluctuations
in consolidated cash flows and fixed charges. The most sensitive of the MLP
related tests restricts the Partnership's ability to make certain Restricted
Payments which include, but are not limited to, the payment of the MQD to
unitholders.
Although the MLP's financial performance during fiscal 1999 was adversely
impacted by unseasonably warmer temperatures, the Partnership believes it will
continue to meet the MLP Senior Secured Notes Restricted Payment test during
fiscal 2000, in addition to meeting the other financial tests in the MLP Senior
Secured Notes, Senior Notes, Credit Facility and Additional Credit Facility
agreements. However, if the OLP were to encounter any unexpected downturns in
business operations, it could result in the Partnership not meeting certain
financial tests in future quarters, including but not limited to, the MLP Senior
Secured Notes Restricted Payment test. Depending on the circumstances, the
Partnership would pursue alternatives to permit the continued payment of MQD to
its Common Unitholders.
12
<PAGE>
No assurances can be given, however, that such
alternatives will be successful with respect to any given quarter.
In a non-cash transaction, on August 1, 1999, the subordination period
ended and the Subordinated Units converted to Common Units. This conversion is
more fully described in Note F of the Consolidated Financial Statements provided
herein.
Future maintenance and working capital needs of the Partnership are
expected to be provided by cash generated from future operations, existing cash
balances and the working capital borrowing facility. In order to fund expansive
capital projects and future acquisitions, the OLP may borrow on existing bank
lines, the MLP or OLP may issue additional debt or the MLP may issue additional
equity securities, including, among others, Common Units.
Toward this purpose, on February 5, 1999, the MLP filed a shelf
registration statement with the Securities and Exchange Commission (the
"Commission") for the periodic sale of up to $300,000,000 in debt and/or equity
securities. The registered securities would be available for sale by the
Partnership in the future to fund acquisitions or to reduce indebtedness. Also,
the MLP maintains a shelf registration statement with the Commission for
2,010,484 Common Units representing limited partner interests in the MLP. The
Common Units may be issued from time to time by the MLP in connection with the
OLP's acquisition of other businesses, properties or securities in business
combination transactions.
Operating Activities. Cash used in operating activities was $40,125,000 for
the three months ended October 31, 1999, compared to cash used in operating
activities of $20,108,000 for the prior period. This increased use of cash is
primarily due to the net effect of increased wholesale cost of product on
accounts receivable, inventory, and accounts payable and to a lesser extent the
timing of receipts and payments related to trading activities.
Investing Activities. During the three months ended October 31, 1999, the
Partnership made total acquisition capital expenditures of $6,708,000. This
amount was funded by $6,527,000 cash payments, $45,000 of Common Units issued
and $136,000 of other costs and consideration.
During the three months ended October 31, 1999, the Partnership made growth
and maintenance capital expenditures of $6,205,000 consisting primarily of the
following: 1) additions to Partnership-owned customer tanks and cylinders, 2)
relocating and upgrading district plant facilities, 3) vehicle lease buyouts,
and 4) upgrading computer equipment and software. Capital requirements for
repair and maintenance of property, plant and equipment are relatively low since
technological change is limited and the useful lives of propane tanks and
cylinders, the Partnership's principal physical assets, are generally long.
The Partnership meets its vehicle and transportation equipment fleet needs
by leasing light and medium duty trucks and tractors. The General Partner
believes vehicle leasing is a cost effective method for meeting the
Partnership's transportation equipment needs. The Partnership continues seeking
to expand its operations through strategic acquisitions of smaller retail
propane operations located throughout the United States. These acquisitions will
be funded through internal cash flow, external borrowings or the issuance of
additional Partnership interests.
On November 8, 1999, the Partnership announced that it had signed a
definitive agreement to purchase Thermogas Company, a subsidiary of Williams,
for total consideration of $432,500,000. At closing the seller will receive
$257,500,000 cash and $175,000,000 Senior Common Units. The closing of the
transaction is subject to customary conditions, including regulatory approval.
Other than future effects from the Thermogas acquisition, the Partnership does
not have any material commitments of funds for capital expenditures other than
to support the current level of operations. In fiscal 2000, the Partnership does
expect an increase in growth and maintenance capital expenditures as compared to
fiscal 1999 levels, primarily resulting from the Thermogas Company acquisition.
13
<PAGE>
Financing Activities. On August 4, 1998, the OLP issued the privately
placed unsecured Senior Notes and entered into a Credit Facility with its
existing banks. The proceeds of the Senior Notes, which include five series with
maturities ranging from year 2005 through 2013 at an average fixed interest rate
of 7.16%, were used to redeem $200,000,000 of OLP fixed rate senior notes issued
in July 1994, including a 5% call premium, and to repay outstanding indebtedness
under the former OLP revolving credit facility. The OLP entered the Additional
Credit Facility agreement on April 30, 1999. This facility provides for an
unsecured facility for acquisitions, capital expenditures, and general corporate
purposes. The outstanding Additional Credit Facility balance at April 29, 2000,
may be converted to a term loan and will be due and payable in full July 2,
2001.
During the three months ended October 31, 1999, the Partnership borrowed
$35,479,000 from its credit facilities to fund working capital, business
acquisitions, and capital expenditure needs. At October 31, 1999, $123,900,000
of borrowings were outstanding under the credit facilities. Letters of credit
outstanding, used primarily to secure obligations under certain insurance
arrangements, totaled $23,665,000. At October 31, 1999, the Operating
Partnership had $35,435,000 available for general corporate, acquisition and
working capital purposes under the credit facilities.
On November 22, 1999, the Partnership declared a cash distribution of $0.50
per Common Unit, payable December 15, 1999.
Effective December 6, 1999, the OLP entered into with Banc of America, as
investor, and First Security Bank, as lessor-trustee $25,000,000 synthetic
lease transaction involving a portion of the OLP customer tanks. The
lease term extends over three and one-half years and may be extended for two
additional one-year periods at the option of the OLP if such extension is
approved by the lessor.
Adoption of New Accounting Standards. The Financial Accounting Standards
Board ("FASB") recently issued Statment of Financial Accounting Standards No.
133 "Accounting for Derivative Instruments and Hedging Activities" ("SFAS No.
133"). SFAS No. 133, as amended by SFAS No. 137, "Accounting for Derivative
Instruments and Hedging Activities - Deferral of the Effective Date of FASB
Statement No. 133", is required to be adopted by the Partnership for the first
quarter of fiscal 2001. The Partnership is currently assessing its impact on the
Partnership's financial position, results of operations and cash flows.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The market risk inherent in the Partnership's market risk sensitive
instruments and positions is the potential loss arising from adverse changes in
commodity prices. Additionally, the Partnership seeks to mitigate its interest
rate risk exposure on variable rate debt by entering into interest rate collar
agreements. As of October 31, 1999, the Partnership had $123,900,000 in variable
rate debt and $25,000,000 notional amount of interest rate collar agreements
effectively outstanding. Thus, assuming a 100 basis point change increase in the
variable interest rate to the Partnership, the interest rate risk related to the
variable rate debt and the associated interest rate collar agreements is not
material to the financial statements.
The Partnership's trading activities utilize certain types of energy
commodity forward contracts and swaps traded on the over-the-counter financial
markets and futures traded on the New York Mercantile Exchange ("NYMEX" or
"Exchange") to anticipate market movements, manage and hedge its exposure to the
volatility of floating commodity prices and to protect its inventory positions.
The Partnership's non-trading activities utilize certain over-the-counter energy
commodity options to limit overall price risk and to hedge its exposure to
inventory price movements.
14
<PAGE>
Market risks associated with energy commodities are monitored daily for
compliance with the Partnership's trading policy. This policy includes specific
dollar exposure limits, limits on the term of various contracts and volume
limits for various energy commodities. The Partnership also utilizes loss limits
and daily review of open positions to manage exposures to changing market
prices.
Market and Credit Risk. NYMEX traded futures are guaranteed by the Exchange
and have nominal credit risk. The Partnership is exposed to credit risk
associated with futures, swaps and option transactions in the event of
nonperformance by counterparties. For each counterparty, the Partnership
analyzes the financial condition prior to entering into an agreement,
establishes credit limits and monitors the appropriateness of each limit. The
change in market value of Exchange-traded futures contracts requires daily cash
settlement in margin accounts with brokers. Forwards and most other
over-the-counter instruments are generally settled at the expiration of the
contract term.
Sensitivity Analysis. The Partnership has prepared a sensitivity analysis
to estimate the exposure to market risk of its energy commodity positions.
Forward contracts, futures, swaps and options were analyzed assuming a
hypothetical 10% change in forward prices for the delivery month for all energy
commodities. The potential loss in future earnings from these positions from a
10% adverse movement in market prices of the underlying energy commodities is
estimated at $4,300,000 as of October 31, 1999. Actual results may differ.
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
10.1 Lease Intended as Security, dated as of December 1, 1999
between Ferrellgas, LP as Lessee and First Security Bank,
National Association, solely as Certificate Trustee, as
Lessor
10.2 Participation Agreement, dated as of December 1, 1999,
among Ferrellgas, L.P., as Lessee, Ferrellgas, Inc. as
General Partner, First Security Bank, National
Association, solely as Certificate Trustee, First Security
Trust Company of Nevada, solely as Agent, The Persons
Named on Schedule I-A, The Persons Named on Schedule I-B,
as Lenders and Appendix I to Participation Agreement
10.3 Third Amendment to Second Amended and Restated Credit
Agreement dated as of December 2, 1999, among Ferrellgas,
L.P., Ferrellgas, Inc., Bank of America N.A. as agent,
and the other financial institutions party thereto.
10.4 First Amendment to Short-Term Revolving Credit Agreement
dated as of December 2, 1999, among Ferrellgas, L.P.,
Ferrellgas, Inc., Bank of America N.A., as agent, and the
other financial institutions party thereto.
27.1 Financial Data Schedule - Ferrellgas Partners, L.P. (filed
in electronic format only)
27.2 Financial Data Schedule - Ferrellgas Partners Finance
Corp. (filed in electronic format only)
(b) Reports on Form 8-K
The Partnership did not file a Form 8-K during the quarter ended
October 31, 1999.
15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrants have duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FERRELLGAS PARTNERS, L.P.
By Ferrellgas, Inc. (General Partner)
Date: December 13, 1999 By /s/ Kevin T. Kelly
-------------------------------------------------
Kevin T. Kelly
Vice President and Chief
Financial Officer (Principal
Financial and Accounting Officer)
FERRELLGAS PARTNERS FINANCE CORP.
Date: December 13, 1999 By /s/ Kevin T. Kelly
------------------------------------------------
Kevin T. Kelly
Chief Financial Officer (Principal
Financial and Accounting Officer)
15
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
10.1 Lease Intended as Security, dated as of December
1, 1999 between Ferrellgas, LP as
Lessee and First Security Bank, National
Association, solely as Certificate Trustee,
as Lessor
10.2 Participation Agreement, dated as of December 1,
1999, among Ferrellgas, L.P., as
Lessee, Ferrellgas, Inc. as General Partner, First
Security Bank, National
Association, solely as Certificate Trustee, First
Security Trust Company of Nevada,
solely as Agent, The Persons Named on Schedule I-A,
The Persons Named on Schedule
I-B, as Lenders and Appendix I to Participation
Agreement
10.3 Third Amendment to Second Amended and Restated
Credit Agreement dated as of December 2, 1999,
among Ferrellgas, L.P., Ferrellgas, Inc., Bank of
America N.A. as agent, and the other financial
institutions party thereto.
10.4 First Amendment to Short-Term Revolving Credit
Agreement dated as of December 2, 1999, among
Ferrellgas, L.P., Ferrellgas, Inc., Bank of
America N.A., as agent, and the other financial
institutions party thereto.
27.1 Financial Data Schedule - Ferrellgas Partners, L.P.
(filed in electronic format only)
27.2 Financial Data Schedule - Ferrellgas Partners
Finance Corp. (filed in electronic format only)
16
COUNTERPART NO. __ OF __ SERIALLY NUMBERED MANUALLY EXECUTED COUNTERPARTS. TO
THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER UNDER THE UNIFORM
COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY BE CREATED THROUGH
THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
LEASE INTENDED AS SECURITY
(Ferrellgas, LP Trust No. 1999-A)
Dated as of December 1, 1999
between
FERRELLGAS, LP
as Lessee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Certificate Trustee,
as Lessor
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
SECTION HEADING PAGE
<S> <C>
Parties...........................................................................................................1
ARTICLE I DEFINITIONS............................................................................1
ARTICLE II ACQUISITION AND LEASE; GENERAL PROVISIONS..............................................1
Section 2.1 Acceptance and Lease...................................................................1
Section 2.2. No Warranty............................................................................2
Section 2.3. Legal and Tax Representation...........................................................2
Section 2.4. Nature of Transaction..................................................................2
ARTICLE III INTENTIONALLY RESERVED.................................................................3
ARTICLE IV LEASE TERM, RENT AND PAYMENT...........................................................3
Section 4.1. Lease Term.............................................................................3
Section 4.2. Basic Rent.............................................................................3
Section 4.3. Supplemental Rent......................................................................3
Section 4.4. Method and Amount of Payment...........................................................4
Section 4.5. Late Payment...........................................................................4
Section 4.6. Net Lease..............................................................................4
ARTICLE V POSSESSION, ASSIGNMENT, USE AND MAINTENANCE OF UNITS...................................5
Section 5.1. Possession and Use of Units; Compliance with Laws......................................5
Section 5.2. Subleases and Assignments..............................................................6
Section 5.3. Maintenance............................................................................7
Section 5.4. Alterations and Modifications..........................................................7
Section 5.5. Legend; Inspection.....................................................................9
Section 5.6. Liens..................................................................................9
Section 5.7. Replacements and Substitutions.........................................................9
Section 5.8. Equipment List........................................................................10
ARTICLE VI RISK OF LOSS; INSURANCE...............................................................11
Section 6.1. Casualty..............................................................................11
Section 6.2. Insurance Coverages...................................................................13
Section 6.3. Insurance Certificates................................................................14
ARTICLE VII [INTENTIONALLY RESERVED]..............................................................14
ARTICLE VIII EVENTS OF DEFAULT; REMEDIES...........................................................14
Section 8.1. Events of Default.....................................................................14
Section 8.2. Remedies..............................................................................17
Section 8.3. Sale of Lessee Collateral.............................................................18
Section 8.4. Application of Proceeds...............................................................18
Section 8.5. Right to Perform Obligations..........................................................18
Section 8.6. Power of Attorney.....................................................................19
Section 8.7. Remedies Cumulative; Consents.........................................................19
Section 8.8. Certain Financial Covenant Defaults...................................................19
ARTICLE IX LEASE TERMINATION.....................................................................20
Section 9.1. Lessee's Options......................................................................20
Section 9.2. Election of Options...................................................................20
Section 9.3. Sale Option Procedures................................................................21
Section 9.4. Appraisals............................................................................21
Section 9.5. Early Termination.....................................................................22
Section 9.6. Designation of Purchaser..............................................................22
ARTICLE X OWNERSHIP AND GRANT OF SECURITY INTEREST..............................................23
Section 10.1. Grant of Security Interest............................................................23
Section 10.2. Retention of Proceeds.................................................................23
ARTICLE XI MISCELLANEOUS.........................................................................23
Section 11.1. Effect of Waiver......................................................................23
Section 11.2. Survival of Covenants.................................................................23
Section 11.3. Applicable Laws and Regulations.......................................................23
Section 11.4. Notices...............................................................................24
Section 11.5. Amendment; Complete Agreements........................................................24
Section 11.6. Counterparts..........................................................................24
Section 11.7. Severability..........................................................................24
Section 11.8. Successors and Assigns................................................................24
Section 11.9. Captions; Table of Contents...........................................................24
Section 11.10. Schedules and Exhibits................................................................24
Section 11.11. Liability of Lessor Limited...........................................................24
Section 11.12. Successor Lessor......................................................................25
Signatures.......................................................................................................26
Schedule I Description of Units
Schedule II Amortization Schedule
</TABLE>
<PAGE>
LEASE INTENDED AS SECURITY
This LEASE INTENDED AS SECURITY (as amended and supplemented from time
to time, this "Lease") is entered into as of December 1, 1999 between
FERRELLGAS, LP, a Delaware limited partnership ("Lessee"), with its principal
office at One Liberty Plaza, Liberty, Missouri 64068 and FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely in its capacity as Certificate Trustee under the Trust
Agreement ("Lessor"), with its principal office at 79 South Main Street, Salt
Lake City, Utah 84111.
RECITALS:
WHEREAS, on the Delivery Date, Lessor will purchase from Lessee, and
Lessee will transfer to Lessor, the propane tanks described on Schedule I hereto
(together with any units that may be hereafter substituted for any thereof
pursuant to Section 6.1 and subject to this Lease from time to time, being
referred to collectively as the "Units" and individually as a "Unit") and other
Acquired Property; and
WHEREAS, upon the transfer of the Acquired Property on the Delivery
Date, Lessor will lease such Units to Lessee and Lessee will lease such Acquired
Property from Lessor pursuant to the terms of this Lease, upon the terms and
conditions hereinafter set forth; and
NOW THEREFORE, in consideration of the mutual terms and conditions
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For all purposes hereof, the capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in Appendix 1 to that
certain Participation Agreement dated as of even date herewith, among Lessee,
Lessor, First Security Trust Company of Nevada, and the Participants identified
therein (the "Participation Agreement"). All obligations imposed on "Lessee" in
this Lease shall be the full recourse liability of Lessee.
ARTICLE II
ACQUISITION AND LEASE; GENERAL PROVISIONS
Section 2.1. Acceptance and Lease. Lessor, subject to the satisfaction
or waiver of the conditions set forth in Article III of the Participation
Agreement, hereby agrees to accept delivery on the Delivery Date of title to the
Acquired Property and to lease all of Lessor's interest in the Units to Lessee
hereunder, and Lessee hereby agrees, expressly for the direct benefit of Lessor,
to lease from Lessor for the Lease Term, Lessor's interest in the Acquired
Property, such acceptance by Lessor and lease by Lessee to be evidenced by the
execution and delivery by Lessee of an Acceptance Certificate.
Section 2.2. NO WARRANTY. THE ACQUIRED PROPERTY IS LEASED BY LESSOR "AS
IS" IN THEIR PRESENT OR THEN CONDITION, AS THE CASE MAY BE, SUBJECT TO (i) ANY
RIGHTS OF ANY PARTIES IN POSSESSION THEREOF, (ii) THE STATE OF TITLE THERETO
EXISTING AT THE TIME LESSOR ACQUIRES ITS INTEREST IN THE ACQUIRED PROPERTY,
(iii) ANY STATE OF FACT WHICH AN ACCURATE PHYSICAL INSPECTION MIGHT SHOW, AND
LESSEE CONFIRMS THAT ITS EXECUTION AND DELIVERY OF THE ACCEPTANCE CERTIFICATE
SHALL CONSTITUTE ITS CERTIFICATION THAT IT HAS INSPECTED AND ACCEPTS, AS BETWEEN
LESSOR AND LESSEE, EACH UNIT WHICH IS THE SUBJECT MATTER THEREOF, (iv) ALL
APPLICABLE LAWS AND REGULATIONS, AND (v) ANY VIOLATIONS OF APPLICABLE LAWS AND
REGULATIONS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE
ACKNOWLEDGES AND AGREES THAT (a) EACH UNIT IS OF A SIZE, DESIGN, CAPACITY AND
CONSTRUCTION SELECTED BY LESSEE, (b) LESSEE IS SATISFIED THAT THE SAME IS
SUITABLE FOR ITS PURPOSES, (c) NEITHER LESSOR NOR AGENT NOR ANY PARTICIPANT IS A
MANUFACTURER THEREOF OR A DEALER IN PROPERTY OF SUCH KIND, (d) NEITHER LESSOR
NOR AGENT NOR ANY PARTICIPANT SHALL BE LIABLE FOR ANY LATENT, HIDDEN OR PATENT
DEFECT IN ANY UNIT, OR THE FAILURE OF ANY UNIT TO COMPLY WITH APPLICABLE LAWS
AND REGULATIONS AND (e) NEITHER LESSOR NOR AGENT NOR ANY PARTICIPANT HAS MADE,
OR does OR WILL MAKE, (i) ANY REPRESENTATION OR WARRANTY OR COVENANT, WITH
RESPECT TO THE TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
CONDITION, QUALITY, DESCRIPTION, DURABILITY OR SUITABILITY OF ANY SUCH UNIT IN
ANY RESPECT OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF LESSEE OR (ii)
ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY ACQUIRED PROPERTY, IT BEING AGREED THAT, SUBJECT TO THE TERMS OF
THIS LEASE, ALL RISKS, AS BETWEEN LESSOR, ON THE ONE HAND, AND LESSEE, ON THE
OTHER HAND, SHALL BE BORNE BY LESSEE. Lessor assigns to Lessee, to the extent
assignable, all of its interest, if any, in any warranties, covenants and
representations of any manufacturer or vendor of any Unit; provided that such
assignment shall be effective only when no Lease Event of Default has occurred
and is continuing; and provided, further, that any action taken by Lessee by
reason thereof shall be at the expense of Lessee and shall be consistent with
Lessee's obligations pursuant to this Lease.
Section 2.3. Legal and Tax Representation. Lessee acknowledges and
agrees that neither Lessor, Arranger, any Participant nor Agent has made any
representations and warranties concerning the tax, accounting or legal
characteristics of this Lease and that Lessee has obtained and relied on such
tax, accounting and legal advice regarding this Lease and the other Operative
Documents as it deems appropriate.
Section 2.4. Nature of Transaction. It is the intent of the parties
that: (a) the transaction contemplated hereby constitutes an operating lease
from Lessor to Lessee for purposes of Lessee's financial reporting and record
title to the Acquired Property shall at all times during the Lease Term remain
in Lessor, (b) the transaction contemplated hereby preserves ownership in the
Acquired Property to Lessee for all other purposes including Federal, state and
local income tax, regulatory, bankruptcy and UCC and state commercial law
purposes, (c) this Lease grants a Lien in the Acquired Property and the other
Lessee Collateral to Lessor, and (d) this Lease shall be treated as the
repayment and security provisions of a loan from Lessor to Lessee in the amount
of the Purchase Price, and (e) all payments hereunder to Lessor shall be treated
as payments of principal, interest and all other amounts with respect to such
loan. Except as specifically provided for herein, Lessor shall retain title to
the Units, free and clear of all Liens other than Permitted Liens, as security
for the obligations of Lessee under the Operative Documents. Lessee shall not
have any right, title or interest in the Acquired Property except as expressly
set forth in this Lease. Each of the parties to this Lease agrees that it will
not, nor will any Person controlled by it, or under common control with it,
directly or indirectly, at any time take any action or fail to take any action
with respect to the filing of any income tax return, including an amended income
tax return, inconsistent with the intention of the parties expressed in this
Section 2.4.
It is the intent of the parties hereto that the Units shall be and
remain personal property and not a fixture notwithstanding the manner in which
any Unit shall be attached or affixed to realty. The parties further agree that
the Units shall constitute personal property for all purposes of the laws of
each State where any Unit may be located. Lessee shall take no action with
respect to the Units which would be inconsistent with such intent.
ARTICLE III
[INTENTIONALLY RESERVED]
ARTICLE IV
LEASE TERM, RENT AND PAYMENT
Section 4.1. Lease Term. Unless earlier terminated pursuant to the
terms hereof, the term of this Lease shall consist of (a) an interim period
commencing on and including the Delivery Date and ending on but not including
December 30, 1999 (the "Interim Term Expiration Date") and (b) a base period
commencing on and including the Interim Term Expiration Date and ending on June
30, 2003 (collectively, the "Lease Term"). This Lease may be extended pursuant
to and in accordance with Section 2.12 of the Participation Agreement and in the
event of such extension, "Lease Term" shall mean the Lease Term as so extended.
Section 4.2. Basic Rent. During the Lease Term, Lessee shall pay to
Lessor Basic Rent (i) on each Payment Date, (ii) on the date required under
Section 9.3 in connection with Lessee's exercise of the Sale Option and (iii) on
any date on which this Lease terminates or upon demand following a Lease Event
of Default pursuant to Article XVII.
Section 4.3. Supplemental Rent. Lessee shall pay to Lessor, or to
whomever shall be entitled thereto as expressly provided herein or in any other
Operative Document (and Lessor hereby directs Lessee, on behalf of Lessor, to so
pay any such other Person), any and all Supplemental Rent promptly as the same
shall become due and payable (if the payment date therefor is specified in any
Operative Document and otherwise within five (5) days after Lessee's receipt of
written demand therefor) and, in the event of any failure on the part of Lessee
to pay any Supplemental Rent, Lessor shall have all rights, powers and remedies
provided for herein or by law or in equity or otherwise in the case of
nonpayment of Basic Rent. The expiration or other termination of Lessee's
obligations to pay Basic Rent hereunder shall not limit or modify the
obligations of Lessee with respect to Supplemental Rent.
Section 4.4. Method and Amount of Payment. Basic Rent and Supplemental
Rent shall be paid by wire transfer by Lessee to Lessor (or, in the case of
Supplemental Rent, to such Person as may be entitled thereto) at such place as
Lessor (or such other Person) shall specify in writing to Lessee pursuant to
Schedule II to the Participation Agreement or Section 9.3 of the Participation
Agreement; provided, however, that, so long as the Notes remain outstanding,
Lessor directs Lessee to pay Basic Rent and Supplemental Rent payable to Lessor
or any Participant directly to the Agent. Each payment of Rent shall be made by
Lessee prior to 11:00 a.m. New York time (and payments made after such time
shall be deemed to have been made on the next day) at the place of payment in
funds consisting of lawful currency of the United States of America which (in
the case of any amount payable to Lessor, Agent or any Participant or any other
Indemnitee) shall be immediately available on the scheduled date when such
payment shall be due unless with respect to Supplemental Rent, the scheduled
date shall not be a Business Day, in which case such payment shall be due and
made on the next succeeding Business Day.
Section 4.5. Late Payment. If any Basic Rent shall not be paid when
due, Lessee shall pay to Lessor, or if any Supplemental Rent payable to or on
behalf or for the account of Lessor, Agent, any Participant, or other Indemnitee
is not paid when due, Lessee shall pay to whomever shall be entitled thereto, in
each case as Supplemental Rent, interest at the Overdue Rate (to the maximum
extent permitted by law) on such overdue amount from and including the due date
thereof (without regard to any applicable grace period) to but excluding the
Business Day of payment thereof.
Section 4.6. Net Lease. This Lease is a net lease and Lessee's
obligation to pay all Rent, Lease Balance, indemnities and other amounts payable
hereunder shall be absolute and unconditional under any and all circumstances
and, without limiting the generality of the foregoing, Lessee shall not be
entitled to and hereby waives any right to any abatement, suspension, deferment,
reduction, setoff, counterclaim or defense with respect to any Rent, Lease
Balance, indemnity or other amount, whether arising by reason of any past,
present or future claims of any nature by Lessee against Lessor, Agent or any
Participant, or otherwise. Except as otherwise expressly provided herein, this
Lease shall not terminate, nor shall the obligations of Lessee (including the
obligation to pay Rent) be otherwise affected: (a) by reason of any defect in
the condition, merchantability, design, construction, quality or fitness for use
of, damage to, or loss of possession or use, theft, obsolescence or destruction,
of any or all of the Units, however caused; or (b) by the taking, commandeering,
confiscation or requisitioning, complete or partial, of any or all of the
Acquired Property, or any part thereof, by condemnation or otherwise; or (c) by
the invalidity or unenforceability or lack of due authorization by Lessor,
Agent, any Participant or Lessee or other infirmity of this Lease or any other
Operative Document; or (d) by the attachment of any Lien of any third party to
any Acquired Property; or (e) by any prohibition or restriction of or
interference with Lessee's use of any or all of the Acquired Property by any
Person; or (f) by the insolvency of or the commencement by or against Lessor,
Agent or any Participant of any bankruptcy, reorganization or similar
proceeding; or (g) by any other cause, whether similar or dissimilar to the
foregoing, any present or future law to the contrary notwithstanding. Lessee
shall remain obligated under this Lease in accordance with its terms and,
consistent with the intention of the parties expressed in Sections 2.4 and 10.1,
shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Lessor, Agent or any
Participant, or any action with respect to this Lease which may be taken by any
custodian, receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of such Person. It is the intention of the parties, and Lessee
expressly agrees, that all Rent, Lease Balance, indemnities and other amounts
payable by Lessee hereunder shall be payable in all events in the manner and at
the times herein provided unless Lessee's obligations in respect thereof have
been terminated or modified pursuant to the express provisions of this Lease and
the Units have been returned to Lessor, purchased by Lessee or sold to a third
party in accordance with the terms hereof. To the extent permitted by Applicable
Laws and Regulations, Lessee hereby waives any and all rights which it may now
have or which may at any time be conferred upon it, by statute or otherwise, to
terminate, cancel, quit or surrender this Lease, in whole or in part, except
strictly in accordance with the express terms hereof. Each rental, indemnity or
other payment made by Lessee hereunder shall be final, and Lessee shall not seek
to recover all or any part of such payment from Lessor, Agent or any Participant
for any reason whatsoever. Without affecting Lessee's obligation to pay Rent,
Lease Balance or other amounts payable hereunder, Lessee may seek damages for a
breach by Lessor, Agent or any Participant of their respective obligations under
the Operative Documents.
ARTICLE V
POSSESSION, ASSIGNMENT, USE AND MAINTENANCE OF UNITS
Section 5.1. Possession and Use of Units; Compliance with Laws. The
Units shall be used only for their originally intended use. Lessee shall not use
the Units or any part thereof for any purpose or in any manner that would
materially adversely affect the Fair Market Value, utility, remaining useful
life or residual value of the Units. Lessee agrees that the Units will be used
and operated in compliance with any and all Applicable Laws and Regulations.
Lessee shall procure and maintain in effect all licenses, registrations,
certificates, permits, approvals, returns, renditions and consents required by
Applicable Laws and Regulations or by any Governmental Authority in connection
with the ownership, delivery, installation, use and operation of each Unit.
Lessee shall not (a) use, operate, maintain or store any Unit or any portion
thereof in violation of Section 5.3 or any Insurance Requirement; (b) sublease,
assign or otherwise permit the use of any Unit except as may be permitted by
Section 5.2 or 5.4; (c) except as set forth in Section 5.2 or 5.4 or Section
5.19 of the Participation Agreement, sell, assign or transfer any of its rights
hereunder or in any Acquired Property, or directly or indirectly create, incur
or suffer to exist any Lien on any of its rights hereunder or in any Unit,
except for Permitted Liens; or (d) permit any Unit to be operated, used or
located outside of the United States. Subject to Section 2.4 hereof, the Lessee
will defend the sale of the Units by the Lessee to Lessor against the claims or
demands of all Persons. Except in the ordinary course of business and except as
in compliance with all Environmental Laws, the Lessee shall not use any Unit, or
permit any Unit to be used, for the transportation or storage of Hazardous
Material. Lessee shall keep in its possession at all times the items described
in clause (e) of the definition of Lessee Collateral.
Section 5.2. Subleases and Assignments. LESSEE SHALL NOT, WITHOUT THE
PRIOR WRITTEN CONSENT OF Lessor AND AGENT, SUBLEASE OR OTHERWISE RELINQUISH
POSSESSION OF ANY UNIT, OR ASSIGN, TRANSFER OR ENCUMBER ITS RIGHTS, INTERESTS OR
OBLIGATIONS HEREUNDER AND ANY ATTEMPTED SUBLEASE OR OTHER RELINQUISHMENT OF
POSSESSION, ASSIGNMENT, TRANSFER OR ENCUMBERING BY LESSEE SHALL BE NULL AND
VOID, except as provided in this Section 5.2 or pursuant to a transaction
permitted under Section 5.4 or Section 5.19 of the Participation Agreement. Each
sublease, lease or user contract entered into in accordance with this Section
5.2 shall be referred to as a "Sublease." Lessee may, without the prior written
consent of Lessor and Agent, enter into subleases of (A) so long as no Lease
Event of Default described in Sections 8.1(f) or (g) exists, one or more of the
Units to any customer of Lessee in connection with the supply of propane by
Lessee to such customer, and (B) so long as no Lease Event of Default exists,
one or more of the Units to a Wholly-Owned Subsidiary of Lessee; provided, that
any Sublease entered into pursuant to clause (B) of this sentence must satisfy
each of the following conditions:
(a) such Sublease shall automatically expire upon the
termination of this Lease (unless Lessee shall have exercised the
Purchase Option) and be expressly subordinate and subject to this Lease
and the Liens created hereunder;
(b) such Sublease shall be in writing and shall expressly
prohibit any further assignment, sublease or transfer;
(c) such Sublease shall not contain a purchase option in
favor of the Sublessee or any other provision pursuant to which the
Sublessee may obtain record or beneficial title to any Unit leased
thereunder from Lessee;
(d) such Sublease shall prohibit the Sublessee from making
any alterations or modifications to any Unit that would result in a
violation of this Lease;
(e) such Sublease shall require the Sublessee to maintain
each Unit subleased thereunder in accordance with Section 5.3;
(f) Lessee shall not, without Agent's prior written consent,
permit or consent to any renewal or extension of such Sublease at any
time when an Lease Default or Lease Event of Default has occurred and
is continuing; and
(g) Lessee shall notify Lessor and Agent in writing within 30
days after entering into such Sublease, which notice shall include (i)
a description of the Unit or Units to be subleased thereunder, and (ii)
the location of such Unit or Units during the term of such Sublease.
The liability of Lessee with respect to this Lease and each of the
other Operative Documents shall not be altered or affected in any way by the
existence of any Sublease. In connection with any Sublease, Lessee shall, at its
own cost and expense, do any further act and execute, acknowledge, deliver,
file, register and record any further documents which Lessor or Agent may
reasonably request in order to preserve, protect and perfect Agent's and
Lessor's Lien in such Sublease. Upon the written request of Lessor or Agent
after a Lease Event of Default has occurred and is continuing, Lessee will
deliver copies of any Subleases (excluding any thereof which are not in written
form) then in effect to Lessor and Agent.
Section 5.3. Maintenance. At all times during the term of this
Lease, Lessee shall, at its own cost and expense including taxes thereon:
(a) keep, repair, maintain and preserve each of the Units in
at least as good order and operating condition, repair and appearance
as when originally delivered, ordinary wear and tear excepted, and (i)
in conformance with (A) customary industry standards, (B) the terms of
all contracts (including, without limitation, service contracts) and
(C) all Applicable Laws and Regulations and Insurance Requirements, and
in the event that Applicable Laws and Regulations require any
alteration, replacement or addition of or to any Part on any Unit,
Lessee will conform therewith at its own expense and (ii) in
conformance with the customary standards used by Lessee or any of its
Subsidiaries in the ordinary course of business for similar equipment
owned or leased by it;
(b) (i) conduct or cause to be conducted all scheduled
maintenance of each Unit in conformity with Lessee's practices for
similar equipment (including, without limitation, Lessee's maintenance
program for such equipment) and (ii) maintain or cause to be maintained
each Unit so as to preserve its remaining economic useful life, utility
and residual value;
(c) cause each Unit to continue to have at all times the
capacity and functional ability to perform, on a continuing basis
(subject to customary interruption in the ordinary course of business
for maintenance, inspection, service, repair and testing) and in
commercial operation, the functions for which it was specifically
designed.
In no event shall Lessee discriminate as to the use or maintenance of
any Unit (including the periodicity of maintenance or recordkeeping in respect
of such Unit) based upon such Unit being leased hereunder and financed under the
Operative Documents as compared to equipment of a similar nature which Lessee
owns or leases. Lessee shall prepare and deliver to Lessor within a reasonable
time prior to the required date of filing (or, to the extent permissible, file
on behalf of Lessor) any and all reports to be filed by Lessor with any
Governmental Authority of any country or subdivision thereof in which any Unit
is located by reason of the ownership by Lessor of the Units or the leasing
thereof to Lessee. Lessor agrees to inform Lessee of any request for such
reports received by it or of which it has knowledge. Lessee shall maintain or
cause to be maintained, and shall permit Lessor to inspect, all records,
returns, renditions, logs and other materials required by any Governmental
Authority having jurisdiction over the Units or Lessee, to be maintained in
respect of each Unit. Lessee hereby waives any right now or hereafter conferred
by law to make repairs on the Units at the expense of Lessor, Agent or any
Participant.
Section 5.4. Alterations and Modifications. In case any Unit, or any
item of equipment, part or appliance therein (each, a "Part") is required to be
altered, added to or modified in order to comply with any Applicable Laws and
Regulations (a "Required Alteration") pursuant to Sections 5.1 or 5.3 hereof,
Lessee agrees to make such Required Alteration at its own expense. Lessee shall
have the right to make or cause to be made any modification, alteration or
improvement to any Unit (herein referred to as a "Permitted Modification"), or
to remove or cause to be removed any Part which has become worn out, broken or
obsolete, provided in each case that Lessee continues to be in compliance with
Sections 5.1 and 5.3 hereof and that such action (a) will not decrease the
present or future economic value of the applicable Unit or impair its originally
intended use or function or decrease its economic useful life and (b) will not
cause such Unit to become suitable for use only by Lessee. In the event any
Permitted Modification (i) is readily removable without impairing the value or
use which the Unit would have had at such time had such Part not been affixed or
placed to or on such Unit (a "Removable Part"), (ii) is not a Required
Alteration and (iii) is not a Part which replaces any Part originally
incorporated or installed in or attached to such Unit on the date on which such
Unit became subject to this Lease, or any Part in replacement of or substitution
for any such original Part (each an "Original Part"), any such Permitted
Modification, unless a Lease Event of Default under clauses (a), (e) or (f) of
Section 8.1 has occurred and is continuing or Lessor has exercised any remedy
under Article VIII, shall be and remain the property of Lessee. To the extent
such Permitted Modification is not a Removable Part, or is a Required Alteration
or an Original Part, and, to the extent a Removable Part is not the property of
Lessee because of the continuance of a Lease Event of Default under clauses (a),
(f) or (g) of Section 8.1 or Lessor has exercised any remedy under Article VIII,
the same shall immediately and automatically be and become the property of
Lessor and subject to the terms of this Lease. Any Required Alterations, and any
Parts installed or replacements made by Lessee upon any Unit pursuant to its
obligation to maintain and keep the Units in good order, operating condition and
repair under Section 5.3 (collectively, "Replacement Parts") and all other Parts
which become the property of Lessor shall be considered, in each case,
accessions to such Unit and title thereto or security interest therein shall be
immediately and automatically vested in Lessor. All Replacement Parts shall be
free and clear of all Liens (other than Permitted Liens) and shall be in as good
an operating condition as, and shall have a value and utility at least equal to,
the Parts replaced, assuming such replaced Parts and the relevant Units were
immediately prior to such replacement or the event or events necessitating such
replacement in the condition and repair required to be maintained by the terms
hereof. Any Part at any time removed from any Unit shall remain subject to the
interests of Lessor and Agent under the Operative Documents, no matter where
located, until such time as such Part shall be replaced by a Part which has been
incorporated or installed in or attached to such Unit and which meets the
requirements for a Replacement Part specified above, whereupon Lessor hereby
releases any and all interest in and to such replaced Part. Upon the occurrence
of a Lease Event of Default or the exercise by Lessee of the Sale Option
pursuant to Section 9.1(b), upon Lessor's or Agent's written request Lessee
shall deliver to Lessor a Bill of Sale evidencing the conveyance by Lessee to
Lessor of all Replacement Parts not previously evidenced by a Bill of Sale
(which Bill of Sale may generally describe such Replacement Parts) and such
other documents in respect of such Part or Parts as Lessor may reasonably
request in order to confirm that title to such Part or Parts has passed to
Lessor, as hereinabove provided. Any such Replacement Part, regardless of
whether evidenced by a Bill of Sale, shall be deemed part of such Unit, for all
purposes hereof to the same extent as the Parts originally incorporated or
installed in such Unit, and title to such Replacement Part shall thereupon vest
in Lessor, subject to the terms of this Lease. All replacements pursuant to this
Section 5.4 shall be purchased by Lessee with its own funds. There shall be no
obligation on the part of Lessor, Agent or any Participant to pay for or
otherwise finance any such replacement.
Section 5.5. Legend; Inspection. Lessee will cause each Unit to be
plainly, conspicuously and permanently marked by a stencil, plate or sticker
disclosing the interests of Lessee (or its predecessors) therein. Lessee will
replace promptly any such marking which may be removed, defaced, obliterated or
destroyed. The Units may be lettered with the names or initials or other
insignia customarily used by the Lessee but Lessee will not allow the name of
any other Person (other than its predecessors) to be placed on any Unit as
designation that might be interpreted as a claim of ownership. Upon the request
of Lessor or Agent, Lessee shall make the Units available to Lessor or Agent or
its agents, representatives or assignees for inspection at reasonable times and
at their then location and upon reasonable notice and shall also make Lessee's
books, manuels, logs, records and other information pertaining to the Units
(other than customer information regarding internal classifications of
customers, payment history, propane gallons delivered, timing of propane gallons
delivered, payment terms and prices charged to customers) available for
inspection and permit such parties to make copies thereof, provided that all
costs and expenses of Lessor or Agent in connection with such inspection shall
be borne by the inspecting party unless a Lease Event of Default has occurred
and is continuing at the time of such inspection, in which case all such costs
and expenses shall be borne by Lessee.
Section 5.6. Liens. Lessee will not directly or indirectly create,
incur, assume or suffer to exist any Lien (other than Permitted Liens) on or
with respect to (i) any Unit or any Part thereof or any other Lessee Collateral,
or Lessor's, Agent's or any Participant's title thereto or interest therein or
(ii) this Lease or any of Lessor's, Agent's or any Participant's interests
hereunder. Lessee, at its own expense, will promptly pay, satisfy and otherwise
take such actions as may be necessary to keep this Lease and the Units and the
other Acquired Property free and clear of, and to duly discharge or eliminate or
bond in a manner satisfactory to Lessor and Agent in their reasonable
discretion, any such Lien not excepted above if the same shall arise at any
time. Lessee will notify Lessor and Agent in writing promptly upon becoming
aware of any Tax or other Lien (other than any Lien excepted above) which
individually or in the aggregate with any other Tax or other Lien exceeds
$1,000,000 that shall attach to the Units or any other Acquired Property, and of
the full particulars thereof. Without limiting the foregoing, Lessee shall not
assign or pledge any of its rights under any Sublease to any Person other than
Lessor.
Section 5.7. Replacements and Substitutions. (a) In addition to the
rights of Lessee under Section 5.4, Lessee shall have the option at any time to
replace any Unit or Units (a "Replaced Unit" or "Replaced Units") with a
substitute Unit or Units (a "Replacement Unit" or "Replacement Units" ), subject
to the following conditions:
(i) No Lease Event of Default shall have occurred and be
continuing;
(ii) The Replacement Unit or Replacement Units shall be
located in the same State as the Replaced Unit or Units;
(iii) The Replacement Unit or Replacement Units shall be of a
type described in the Appraisal delivered on the Delivery Date
(provided that in no event may any Replacement Unit be of a capacity
greater than 3499 gallons) and, taken as a whole, shall have a residual
value, Fair Market Value and economic useful life (based upon the
residual value, Fair Market Value and economic useful life for such
type set forth in the Appraisal delivered on the Delivery Date) at
least equal to those of the Replaced Unit or Replaced Units, taken as a
whole, immediately prior to such substitution, assuming that the
Replaced Unit or Replaced Units were in the condition and repair
required to be maintained by the terms of this Lease, shall be in as
good operating condition and state of repair as the Replaced Unit or
Replaced Units immediately prior to such substitution, assuming that
the Replaced Unit or Replaced Units were in the condition and repair
required to be maintained by the terms of this Lease; and
(iv) As and when required by Section 5.8, Lessee shall (A)
execute and deliver to Lessor a Bill of Sale substantially in the form
of Exhibit I to the Participation Agreement and an Acceptance
Certificate substantially in the form of Exhibit E to the Participation
Agreement in respect of such Replacement Unit or Replacement Units, (B)
provide evidence that the insurance required by Section 6.2 is in
effect with respect to such Replacement Unit or Replacement Units, (C)
perform all acts and execute, file and/or record any and all documents,
financing statements and other instruments as are necessary or
appropriate under Applicable Laws and Regulations or reasonably
requested by Lessor or Agent to perfect Lessor's title to such
Replacement Unit or Replacement Units and to perfect Agent's Lien and
security interest in such Replacement Unit or Replacement Units as a
first priority security interest subject to no Liens other than
Permitted Liens and provide Lessor and Agent with evidence thereof and
(D) provide an Officer's Certificate (which may be combined with the
Officer's Certificate delivered pursuant to Section 5.8) and, if the
value of the Replacement Units exceeds $1,000,000, opinion of counsel
(which may be in-house counsel to Lessee) as to the enforceability of
the Bill of Sale and as to the perfection of such title and security
interest;
(b) All replacements pursuant to Section 5.7(a) shall be purchased by
Lessee with its own funds. There shall be no obligation on the part of Lessor,
Agent or any Participant to pay for or otherwise finance any such replacement.
Section 5.8. Equipment List. (a) Lessee has delivered to Agent on the
Delivery Date the initial Equipment List with respect to the Units, setting
forth the information required by the definition thereof. Lessee shall deliver
to Agent an updated Equipment List (i) annually on each anniversary of the
Delivery Date, (ii) at any time that the aggregate value of Units or Units which
suffer a Casualty or are replaced pursuant to Section 5.7 exceeds $1,000,000,
(iii) on the date the Sale Option is exercised, (iv) on the Lease Termination
Date if the Sale Option has been exercised, or (v) upon the request of Agent or
Lessor after a Lease Event of Default shall have occurred and be continuing.
Such updated list shall reflect any replacements or settlements with respect to
the Units pursuant to Section 6.1 and any Replacement Units pursuant to Section
5.7. In connection with the delivery of such updated Equipment List, Lessee
shall deliver to Agent and Lessor (i) an Officer's Certificate certifying that
such updated Equipment List (except as to serial numbers) is true, correct and
complete in all material respects, and (ii) any documents or showings required
by Sections 5.8 or 6.1 for replacement Units, and, so long as no Lease Event of
Default shall have occurred and be continuing, Agent and Lessor shall release
any Replaced Units or substituted Units from the Lien of this Lease and the
other Operative Documents and Lessor shall execute and deliver to Lessee such
documents as may be reasonably required to release such Units from the terms and
scope of this Lease and reconvey such Units to Lessee (without representations
or warranties, except that such Units are free and clear of Certificate Trustee
Liens), in such form as may be reasonably requested by Lessee, all at Lessee's
sole cost and expense.
(b) In connection with any update to the Equipment List pursuant to
Section 5.8(a), Schedule I hereto shall be correspondingly updated (but only as
to the information set forth therein).
(c) The Equipment List shall be held by the Agent and, so long as no
Lease Event of Default shall have occurred and be continuing, shall not be
disclosed to any Person without the prior written consent of Lessee; provided
that Agent may permit, subject to Section 9.16 of the Participation Agreement,
Lessor and any Participant to inspect the Equipment List at the office of the
Agent and, if a Lease Event of Default has occurred and is continuing, make
copies thereof. Nothing in the foregoing sentence shall limit the right of
Lessor or Agent to utilize the Equipment as it deems appropriate in connection
with the exercise of remedies after a Lease Event of Default shall have occurred
and be continuing. Any such inspection shall be at the expense of the inspecting
party so long as no Lease Event of Default shall have occurred and be continuing
and otherwise at Lessee's expense.
ARTICLE VI
RISK OF LOSS; INSURANCE
Section 6.1. Casualty. Upon the occurrence of a Casualty or a series of
Casualties with respect to a Unit or Units with a Purchase Price aggregating in
excess of $1,000,000 during the term of this Lease or as otherwise required by
Section 5.8, Lessee shall give Lessor and Agent prompt notice thereof (a
"Casualty Notice"). The Casualty Notice shall specify whether Lessee will:
(a) pay to Lessor the Casualty Amount of the Unit or Units
suffering such Casualty or series of Casualties, together with all
other Rent then due and owing, which payment shall be made on the next
scheduled Payment Date after such Casualty or the latest in time of
such series of Casualties, unless such Payment Date is less than 30
days from the date of the Casualty Notice, in which case such payment
shall be made on the following Payment Date (the "Casualty Settlement
Date"); or
(b) replace the Unit or Units with respect to which the
Casualty or series of Casualties has occurred pursuant to the following
provisions of this Section 6.1.
If Lessee has elected to pay the Casualty Amount pursuant to clause (a)
above, such Lessee shall continue to make all payments of Rent due under this
Lease until and including the Casualty Settlement Date. Upon payment of the
Casualty Amount in respect of any Unit suffering a Casualty on such Casualty
Settlement Date together with all Basic Rent and Supplemental Rent then due and
owing, the remaining scheduled payments set forth on Schedule II, if any, shall
be reduced by an amount equal to the product of the scheduled amount of each
such payment (determined in each case prior to the receipt of such Casualty
Amount), multiplied by the Unit Value Fraction of the Unit or Units suffering
such Casualty or series of Casualties.
If Lessee has given notice that it intends to replace the Unit or Units
suffering such Casualty or series of Casualties, Lessee may make subject to this
Lease, not more than 60 days after the date of such Casualty Notice, a
replacement for such Unit or Units meeting the suitability standards hereinafter
set forth. To be suitable as a replacement Unit, an item (or items) (i) shall be
of a type described in the Appraisal delivered on the Delivery Date (provided
that in no event may any Replacement Unit be of a capacity greater than 3499
gallons), (ii) taken as a whole, must be of the same economic useful life, state
of repair and operating condition (immediately preceding the Casualty or
Casualties assuming that such Unit or Units had been maintained in accordance
with the terms of Section 5.3) as the Unit or Units, taken as a whole, suffering
the Casualty or Casualties, (iii) taken as a whole, must have a fair market
value and residual value of not less than the fair market value and residual
value (immediately preceding the Casualty assuming that such Unit or Units had
been maintained in accordance with the terms of Section 5.3) of the Unit or
Units, taken as a whole, suffering the Casualty or Casualties, (iv) must be free
and clear of any Liens other than Permitted Liens, and (v) must be located in
the same state as the Unit or Units suffering the Casualty or Casualties.
Lessee shall (A) execute and deliver to Lessor a Bill of Sale
substantially in the form of Exhibit I to the Participation Agreement and an
Acceptance Certificate substantially in the form of Exhibit E to the
Participation Agreement in respect of such replacement Unit or replacement
Units, (B) provide evidence that the insurance required by Section 6.2 is in
effect with respect to such replacement Unit or replacement Units, (C) perform
all acts and execute, file and/or record any and all documents, financing
statements and other instruments as are necessary or appropriate under
Applicable Laws and Regulations or reasonably requested by Lessor or Agent to
perfect Lessor's title to such replacement Unit or replacement Units and to
perfect Agent's Lien and security interest in such replacement Unit or
replacement Units as a first priority security interest subject to no Liens
other than Permitted Liens and provide Lessor and Agent with evidence thereof
and (D) provide an Officer's Certificate and opinion of counsel (which may be
in-house counsel to Lessee) as to the enforceability of the Bill of Sale and as
to the perfection of such title security interest.
If (i) Lessor has received the amount payable with respect to the
Casualty or Casualties and all other amounts due hereunder, or (ii) the Units
have been substituted in accordance herewith, and, in each case, no Lease Event
of Default exists, Lessee shall be entitled to receive from Lessor the proceeds
of any recovery in respect of the Unit or Units from insurance or otherwise
("Casualty Recoveries"), and Lessor, subject to the rights of any insurer
insuring the Units as provided herein, shall transfer title to the Units
suffering such Casualty or Casualties to Lessee "as-is, where-is" without
representation or warranty of any kind, except as to the absence of Certificate
Trustee Liens. All fees, costs and expenses relating to a substitution as
described herein shall be borne by Lessee. Except as otherwise provided in this
Section 6.1, Lessee shall not be released from its obligations hereunder in the
event of, and shall bear the risk of, any Casualty or Casualties to any Unit
prior to or during the term of this Lease and thereafter until all of Lessee's
obligations hereunder are fully performed.
Any payments (including, without limitation, insurance proceeds)
received at any time by Lessor or Lessee from any Governmental Authority or
other party with respect to any loss or damage to any Unit or Units not
constituting a Casualty (i) up to $1,000,000 shall be paid to Lessee, so long as
no Lease Event of Default shall have occurred and be continuing, for application
to repair or replacement of property in accordance with Sections 5.1 and 5.3,
and (ii) in excess of $1,000,000 will be held by Agent and applied directly in
payment of repairs or for replacement of property in accordance with the
provisions of Sections 5.1 and 5.3, if not already paid by Lessee, or if already
paid by Lessee and no Lease Event of Default shall have occurred and be
continuing, shall be applied to reimburse Lessee for such payment, and any
balance remaining after compliance with said Sections with respect to such loss
or damage shall be retained by Lessee.
LESSEE HEREBY ASSUMES ALL RISK OF LOSS, DAMAGE, THEFT, TAKING,
DESTRUCTION, CONFISCATION, REQUISITION, COMMANDEERING, TAKING BY EMINENT DOMAIN
OR CONDEMNATION, PARTIAL OR COMPLETE, OF OR TO EACH UNIT, HOWEVER CAUSED OR
OCCASIONED, SUCH RISK TO BE BORNE BY LESSEE WITH RESPECT TO EACH UNIT FROM THE
DATE OF THIS LEASE, AND CONTINUING UNTIL SUCH UNIT HAS BEEN RETURNED TO LESSOR
IN ACCORDANCE WITH THE TERMS HEREOF. LESSEE AGREES THAT NO OCCURRENCE SPECIFIED
IN THE PRECEDING SENTENCE SHALL IMPAIR, IN WHOLE OR IN PART, ANY OBLIGATION OF
LESSEE UNDER THIS LEASE, INCLUDING, WITHOUT LIMITATION, THE OBLIGATION TO PAY
RENT.
Section 6.2. Insurance Coverages. Lessee shall at all times, at its
expense, cause to be carried and maintained (a) property insurance against risks
of physical loss or damage to the Units, (b) public liability insurance against
claims for bodily injury, death or property damage in an amount at least equal
to $10,000,000 per occurrence, and (c) worker's compensation, business
interruption and automobile insurance, in each case in such amounts, with such
deductibles and from such financially sound and reputable insurers as shall be
(i) consistent with Lessee's current practices with respect to the Units, (ii)
consistent with the insurance maintained by Lessee with respect to similar
equipment owned or leased by Lessee, and (iii) with respect to the insurance
described in clause (b) above, reasonably acceptable to Lessor and Agent. Lessor
acknowledges that Lessee currently self-insures for physical loss or damage of
the Units.
All such insurance shall name Lessor, Agent and the Participants as
additional insureds, as their respective interests may appear pursuant to the
terms and conditions of this Lease. Each policy referred to in this Section 6.2
shall provide that (i) it will not be cancelled or its limits reduced, or
allowed to lapse without renewal, except after not less than 30 days' written
notice to Lessor, Agent and the Participants, (ii) the interests of Lessor,
Agent and the Participants shall not be invalidated by any act or negligence of,
or breach of representation or warranty by, Lessee or any Person having an
interest in any Unit, (iii) such insurance is primary with respect to any other
insurance carried by or available to Lessor, Agent and/or any Participant, (iv)
the insurer shall waive any right of subrogation, setoff, counterclaim or other
deduction, whether by attachment or otherwise, against Lessor, Agent and the
Participant, (v) the insurer shall waive any right to claim any premiums or
commission against Lessor, Agent or any Participants; and (vi) such policy shall
contain a cross-liability clause providing for coverage of Lessor, Agent and
each Participant as if separate policies had been issued to each of them, except
with respect to the limit of such insurance which shall in no event increase as
a result of such additional language. Lessee will notify Lessor, Agent and the
Participants promptly of any policy cancellation, reduction in policy limits,
modification or amendment.
Section 6.3. Insurance Certificates. Prior to the Delivery Date, and
thereafter not less than 15 days prior to the expiration dates of the expiring
policies theretofore delivered pursuant to Section 6.2, Lessee shall deliver to
Lessor and Agent certificates issued by the insurer(s) for the insurance
maintained pursuant to Section 6.2. Upon the request of Lessor or Agent, which
shall not be made more than once per year, Lessee will furnish to Lessor and
Agent a certificate of either Lessee's insurer or an independent insurance
broker of recognized standing evidencing the maintenance of all insurance
required hereunder.
ARTICLE VII
[INTENTIONALLY RESERVED]
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.1. Events of Default. The following shall constitute
events of default (each a "Lease
Event of Default") hereunder:
(a) Non-Payment. Lessee fails to pay, (i) when and as
required to be paid herein, any payment of Basic Rent or any amount
payable pursuant to Section 6.1(a), or Article IX, or (ii) within 5
days after the same becomes due, any Supplemental Rent (other than
Supplemental Rent described in clause (i)); or
(b) Representation or Warranty. Any representation or
warranty by Lessee or the General Partner made or deemed made herein,
in any other Operative Document, or which is contained in any
certificate, document or financial or other statement by Lessee, the
General Partner, or any Responsible Officer, furnished at any time
under this Lease, or in or under any other Operative Document, is
incorrect in any material respect on or as of the date made or deemed
made; or
(c) Specific Defaults. (i) Lessee fails to maintain the
insurance required by Section 6.2 or Lessee fails to perform or observe
any term, covenant or agreement contained in any of Section 5.2, or
Sections 5.1 through 5.4, inclusive, 5.6, 5.9, 5.12, 5.13 or 5.15
through 5.38, inclusive, of the Participation Agreement; or (ii) Lessee
shall fail to sell all of the Units on the Termination Date in
accordance with and satisfaction of each of the terms, covenants,
conditions and agreements set forth under Article IX in connection with
and following its exercise of the Sale Option; or
(d) Other Defaults. Lessee, the General Partner or any
Subsidiary fails to perform or observe any other term or covenant
contained in this Lease or any other Operative Document, and such
default shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which a Responsible Officer knew of such
failure or (ii) the date upon which written notice thereof is given to
Lessee by the Lessor or Agent; provided that if (i) such default is not
curable by the payment of money and cannot be cured within such 30 day
period, and (ii) Lessee, the General Partner or such Subsidiary is
diligently pursuing the cure of such default, then the period for cure
of such default will be extended for the period necessary for Lessee,
the General Partner or such Subsidiary to effect such cure, but in no
event longer than 90 days from the date of such notice or knowledge; or
(e) Cross-Default. Lessee, 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 Lessee, 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, Lessee 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,
Lessee 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, Lessee 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, Lessee 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 Lessee 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 Lessee, 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.
(i) Monetary Judgments. One or more judgments, orders,
decrees or arbitration awards is entered against Lessee, 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 Lessee, 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 Lessee or
any Subsidiary, or Lessee or any Subsidiary for any reason loses any
material license, permit or franchise, or Lessee 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 (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 Lessee 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) Lessee
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, 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 8.1 occurs with respect to the Guarantor; or
(o) Operative Documents. Any Operative Document shall (except
in accordance with its terms), in whole or in part, terminate, cease to
be effective or cease to be the legally valid, binding and enforceable
obligation of Lessee, or Lessee or any of its Affiliates shall,
directly or indirectly, contest in any manner in any court the
effectiveness, validity, binding nature or enforceability thereof, or
the Lien securing Lessee's obligations under the Operative Documents
shall, in whole or in part, cease to be a perfected first priority Lien
free and clear of all Liens (other than Permitted Liens), or, in any
case, Lessee or any of its Affiliates shall, at any time, directly or
indirectly, contest in any manner in any court the validity or
enforceability thereof; or
(p) Other Lease. A "Lease Event of Default" shall occur under
the Other Lease.
(q) Change of Control. A Change of Control occurs.
Section 8.2. Remedies. If any Lease Event of Default exists, Lessor
shall have the rights, options and remedies set forth below and Lessor may
exercise in any order one or more or all of the following remedies (it being
understood that no remedy herein conferred is intended to be exclusive of any
other remedy or remedies, but each and every remedy shall be cumulative and
shall be in addition to every other remedy given herein or now or hereafter
existing at law or in equity or by statute): (i) declare the entire outstanding
Lease Balance to be due and payable, together with accrued and unpaid Rent and
any other amounts payable under the Operative Documents (without double
counting); (ii) proceed by appropriate court action or actions either at law or
in equity, to enforce the declaration of the amounts described in clause (i)
above, the performance by Lessee of the applicable covenants of this Lease and
the other Operative Documents or to recover damages for the breach thereof;
(iii) terminate this Lease by notice in writing to Lessee, but Lessee shall
remain liable as hereinafter provided; (iv) enforce the Lien given hereunder
pursuant to the UCC or any other law; (v) enter upon the premises where any of
the Lessee Collateral may be and take possession of all or any of such Lessee
Collateral and exercise any of its rights with respect thereto; (vi) require
Lessee to assemble and return the Units as provided below; and (vii) avail
itself of the rights, options and remedies of a secured party under the UCC
(regardless of whether the UCC or a law similar thereto has been enacted in a
jurisdiction wherein the rights or remedies are asserted) or any other law.
If Lessor exercises the option set forth in clause (vi) above, Lessee
shall, at its own expense, forthwith deliver exclusive possession of the Units
to Lessor, at a location or locations designated by Agent in the 48 contiguous
United States, together with a copy of an equipment list of the Units then
subject to this Lease, all then current plans, specifications and operating,
maintenance and repair manuals relating to the Units that have been received or
prepared by Lessee or its Affiliates, appropriately protected and in the
condition required by Article V hereof (and in any event in condition to be
placed in immediate revenue service) and free and clear of all Liens other than
Certificate Trustee Liens. In addition, Lessee shall, for 180 days after
redelivery of the Units, maintain (or cause to be maintained) the Units in the
condition required by Article V and free and clear of all Liens other than
Certificate Trustee Liens, store the Units without cost to Lessor, Agent or any
Participant and keep all of the Units insured in accordance with Section 6.2.
This paragraph shall survive termination of this Lease.
Following the foreclosure of Lessee's interest in the Units and the
other Lessee Collateral, Lessee shall take such action as Lessor or Agent shall
reasonably request in order to notify sublessees and users of the Units of such
foreclosure and the succession of Agent, Lessor or its designee to ownership and
operation thereof. Without limiting the foregoing, Lessee agrees that if it
receives any payments in respect of the filling of any Unit by Agent, Lessor or
its designee, such amounts will be held in trust and promptly paid over to the
applicable Person entitled thereto.
Notwithstanding the foregoing, if any Lease Event of Default described
in Section 8.1(e) or 8.1(f) shall have occurred and be continuing, then the
entire outstanding Lease Balance and all accrued and unpaid Rent and other
amounts payable under the Operative Documents (without double counting) shall
automatically and immediately become due and payable, without presentment,
demand, notice, declaration, protest or other requirements of any kind, all of
which are hereby expressly waived.
Section 8.3. Sale of Lessee Collateral. In addition to the remedies set
forth in Section 8.2, if any Lease Event of Default shall occur, Lessor may, but
is not required to, sell the Lessee Collateral in one or more sales. Any
Participant, Lessor and Agent may purchase all or any part of the Lessee
Collateral at such sale. Lessee acknowledges that sales for cash or on credit to
a wholesaler, retailer or user of such Lessee Collateral, or at public or
private auction, are all commercially reasonable. Any notice required by law of
intended disposition by Agent shall be deemed reasonably and properly given if
given at least 10 days before such disposition.
Section 8.4. Application of Proceeds. All payments received and amounts
held or realized by Lessor at any time when a Lease Event of Default shall be
continuing as well as all payments or amounts then held or thereafter received
by Lessor and the proceeds of sale pursuant to Section 8.3 shall be distributed
to the Agent upon receipt by Lessor for distribution in accordance with Article
III of the Loan Agreement.
Section 8.5. Right to Perform Obligations. If Lessee fails to perform
any of its agreements contained herein within 10 days following Lessor's notice
to Lessee describing such failure, Lessor may perform such agreement, and the
fees and expenses incurred by Lessor in connection with such performance
together with interest thereon shall be payable by Lessee upon demand. Interest
on fees and expenses so incurred by Lessor shall accrue as provided in Section
4.5 from the date such expense is incurred until paid in full.
Section 8.6. Power of Attorney. Lessee unconditionally and irrevocably
appoints Lessor as its true and lawful attorney-in-fact, with full power of
substitution, to the extent permitted by Applicable Laws and Regulations, in its
name and stead and on its behalf, for the purpose of effectuating any sale,
assignment, transfer or delivery hereunder, if a Lease Event of Default has
occurred and is continuing and Lessor is exercising any of the remedies
contained in clauses (iii) through (vii) of the first paragraph of Section 8.2,
whether pursuant to foreclosure or power of sale or otherwise, and in connection
therewith to execute and deliver all such deeds, bills of sale, assignments,
releases (including releases of this Lease on the records of any Governmental
Authority) and other proper instruments as Lessor may reasonably consider
necessary or appropriate. Lessee ratifies and confirms all that such attorney or
any substitute shall lawfully do by virtue hereof. If requested by Lessor or any
purchaser, Lessee shall ratify and confirm any such lawful sale, assignment,
transfer or delivery by executing and delivering to Lessor or such purchaser,
all deeds, bills of sale, assignments, releases and other proper instruments to
effect such ratification and confirmation as may be designated in any such
request.
Section 8.7. Remedies Cumulative; Consents. To the extent permitted by,
and subject to the mandatory requirements of, Applicable Laws and Regulations,
each and every right, power and remedy herein specifically given to Lessor or
otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. Lessor's, Agent's or the Participants'
consent to any request made by Lessee shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's, Agent's or the Participants'
consent in the future to all similar requests. To the extent permitted by
Applicable Laws and Regulations, Lessee hereby waives any rights now or
hereafter conferred by statute or otherwise that may require Lessor, Agent or
the Participants to sell, lease or otherwise use the Units, any Unit or any Part
thereof in mitigation of Lessor's, Agent's or the Participants' damages upon the
occurrence of a Lease Event of Default or that may otherwise limit or modify any
of Lessor's, Agent's or the Participants' rights or remedies under this Section
8.
Section 8.8. 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 Lessee (a "Charge"), and if solely
by virtue of such Charge there would exist a Lease Event of Default due to the
breach of any of Section 5.12(a) or 5.12(b) of the Participation Agreement as of
such fiscal period end date, such Lease Event of Default shall be deemed to
arise upon the earlier of (a) the date after such fiscal period end date on
which Lessee 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 Lessee delivers to
Lessor and Agent its audited annual or unaudited quarterly financial statements
in respect of such fiscal period reflecting such Charge as taken.
ARTICLE IX
LEASE TERMINATION
Section 9.1. Lessee's Option. Not later than 270 days prior to the last
day of the Lease Term, Lessee shall, by delivery of written notice to Lessor and
Agent, exercise one of the following options:
(a) purchase for cash for the Purchase Option Exercise Amount
all, but not less than all, of the Units then subject to this Lease on
the last day of the Lease Term (the "Purchase Option"); or
(b) sell on behalf of Lessor for cash to a purchaser or
purchasers not in any way affiliated with Lessee all, but not less than
all, of the Units then subject to this Lease on the last day of the
Lease Term (the "Sale Option"). Simultaneously with a sale pursuant to
the Sale Option, Lessee shall pay or cause to be paid to Lessor, as
Supplemental Rent, (i) the Applicable Percentage Amount and (ii) that
portion of the gross proceeds of the sale of the Units, without
deductions or expense reimbursements ("Proceeds") which is sufficient
to pay the aggregate outstanding Lease Balance as of the Lease
Expiration Date (as determined after the payment of all Basic Rent due
on such date and after giving effect to the reduction of the Lease
Balance by application of the Applicable Percentage Amount thereto). If
the Proceeds exceed the Lease Balance as of the Lease Expiration Date
as reduced by the application of the Applicable Percentage Amount
thereto, Lessee shall retain the portion of the Proceeds in excess
thereof. If the Proceeds are less than the aggregate outstanding Lease
Balance as reduced by the application of the Applicable Percentage
Amount thereto, Lessee shall not be obligated pursuant to this Section
9.1(b) to pay or cause to be paid to Lessor, as Supplemental Rent, more
than the Proceeds, it being understood, however, that the amount
payable pursuant to this Section 9.1(b) shall in no event be construed
to limit any other obligation of Lessee under the Operative Documents,
including, without limitation, pursuant to Article VII of the
Participation Agreement and Sections 9.3, 9.4 and 9.5 hereof. In
addition to the amounts determined to be payable by Lessee pursuant to
the foregoing provisions of this Section 9.1(b), Lessee shall pay to
Lessor all Supplemental Rent then due and owing. The obligation of
Lessee to pay the amounts determined pursuant to this Section 9.1(b)
shall be a recourse obligation of Lessee and shall be payable on the
Termination Date. All amounts paid to Lessor pursuant to this Section
9.1(b) shall be paid to Agent for distribution pursuant to Article III
of the Loan Agreement.
Section 9.2. Election of Options. Lessee's election of the Purchase
Option will be irrevocable at the time made, but if Lessee fails to make a
timely election, Lessee will be deemed to have irrevocably elected the Purchase
Option. In addition, the Sale Option shall automatically be revoked if there
exists a Lease Default or Lease Event of Default, at any time after the Sale
Option is properly elected. In such event, Lessor shall be entitled to exercise
all rights and remedies provided in Article VIII. Lessee may not elect the Sale
Option if on the date the election is made there exists a Lease Event of Default
or a Lease Default. Lessee's exercise of the Sale Option or the Purchase Option
shall be conditioned upon the corresponding option being concurrently exercised
under the Other Lease. In addition, it shall be a condition to the exercise of
the Sale Option that Lessee shall have settled for or replaced any Unit or Units
suffering a Casualty in accordance with Section 6.1 and shall have delivered an
updated Equipment List to Agent and Lessor and otherwise complied with its
obligations under Section 5.8 of this Lease, in each case regardless of whether
the $1,000,000 threshold has been reached.
Section 9.3. Sale Option Procedures. If Lessee elects the Sale Option,
Lessee shall use its best commercial efforts to obtain the highest all cash
purchase price for the Units. All costs related to such sale including, without
limitation, the cost of sales agents, removal of the Units, delivery of
documents to any location designated by a buyer within the continental United
States, certification and testing of the Units in any reasonable location chosen
by the buyer or prospective buyer, legal costs, costs of notices, any
advertisement or other similar costs, or other information and of any parts,
configurations or repairs, or modifications consistent with the Units being used
to store and/or transport liquids and gases, in each case, required by a buyer
or prospective buyer shall be borne entirely by Lessee, without regard to
whether such costs were incurred by Lessor, Lessee or any potentially qualified
buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor,
Agent nor any Participant shall have any responsibility for procuring any
purchaser. If, nevertheless, Lessor, Agent or any Participant undertakes any
sales efforts, Lessee shall promptly reimburse such Person for any charges,
costs and expenses incurred in such effort, including any allocated time
charges, costs and expenses of internal counsel or other attorneys' fees. Upon a
sale pursuant to the Sale Option, the Units shall be in the condition required
by Section 5.3 and shall be free and clear of all Liens other than Certificate
Trustee Liens. Any purchaser or purchasers of the Units shall not in any way be
affiliated with Lessee or have any understanding or arrangement with Lessee
regarding the future use of the Units. On the Termination Date, so long as no
Lease Event of Default or Lease Default exists: (i) Lessee shall transfer all of
Lessee's right, title and interest in the Units or cause the Units to be so
transferred to such purchaser or purchasers, if any, in accordance with all of
the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of
all amounts due under clause (iii) of this sentence, Lessor shall, without
recourse or warranty, except as to the absence of Certificate Trustee Liens,
transfer by quitclaim or otherwise release, as appropriate, Lessor's right,
title and interest in and to the Units to such purchaser or purchasers; and
(iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated
in Section 9.1(b).
Section 9.4. Appraisals. If Lessee exercises the Sale Option and the
sum of the Proceeds from the sale of all Units subject to this Lease plus the
Applicable Percentage Amount are less than the outstanding Lease Balance, Lessor
(upon direction from any Affected Participant) shall engage an appraiser of
nationally recognized standing, at Lessee's expense, to determine (by appraisal
methods satisfactory to the Affected Participants) the Fair Market Value of the
Units then subject to this Lease as of the Termination Date. If the Appraisal
concludes that the Fair Market Value of such Units as of the Termination Date
was in excess of the aggregate Proceeds from the sale of all Units subject to
this Lease, Lessee shall promptly pay to Lessor, as Supplemental Rent, such
excess, which together with such Proceeds and the Applicable Percentage Amount
so paid shall not exceed the Lease Balance determined immediately prior to the
application of the foregoing amounts.
Section 9.5. Early Termination. (a) If no Lease Event of Default shall
exist, on any scheduled Payment Date after the second anniversary of the Interim
Term Expiration Date, Lessee may, at its option, upon at least 30 days' advance
written notice to Lessor and Agent, purchase all, but not less than all, of the
Units subject to this Lease for the Purchase Option Exercise Amount; provided
that the lessee under the Other Lease shall have concurrently exercised its
early termination option thereunder and designated the same date for purchase.
Upon the indefeasible payment in full of such sums by Lessee in accordance with
the provisions of the preceding sentence, the obligation of Lessee to pay Rent
hereunder shall cease, the term of this Lease shall end on the date of such
payment and Lessor shall execute and deliver to Lessee such documents as may be
reasonably required to release the Units from the terms and scope of this Lease
(without representations or warranties, except that the Units are free and clear
of Certificate Trustee Liens), in such form as may be reasonably requested by
Lessee, all at Lessee's sole cost and expense.
(b) Notwithstanding anything stated herein to the contrary, if (i) due
to a change in accounting rules or treatment, this Lease is no longer treated as
an operating lease for accounting purposes, or (ii) Lessor or any Participant is
required to claim any federal or state tax attributes or benefits (including
depreciation) relating to the Units in respect of any period prior to the Lease
Expiration Date by an appropriate taxing authority or after a clearly applicable
change in Applicable Laws and Regulations or as a protective response to a
proposed adjustment by a Governmental Authority, Lessee may, at its option, upon
at least five (5) days' advance written notice to Lessor and Agent, purchase all
but not less than all of the Units subject to this Lease for the Purchase Option
Exercise Amount; provided that the lessee under the Other Lease shall have
concurrently exercised its early termination option thereunder and designated
the same date for purchase. Upon the indefeasible payment in full of such sums
by Lessee in accordance with the provisions of the preceding sentence, the
obligation of Lessee to pay Rent hereunder shall cease, the term of this Lease
shall end on the date of such payment and Lessor shall execute and deliver to
Lessee such documents as may be reasonably required to release the Units from
the terms and scope of this Lease (without representations or warranties, except
that the Units are free and clear of Certificate Trustee Liens), in such form as
may be reasonably requested by Lessee, all at Lessee's sole cost and expense.
Section 9.6. Designation of Purchaser. If Lessee has exercised the
Purchase Option or any option under Section 9.5, Lessee may assign its right to
purchase the Units to any other person or to designate any other person as the
transferee under any bill of sale to be executed by Lessor in connection with
such sale; provided, however, that Lessee shall remain primarily liable to pay
the Purchase Option Exercise Amount and all other amounts then due and owing by
Lessee under the Operative Documents.
ARTICLE X
OWNERSHIP AND GRANT OF SECURITY INTEREST
Section 10.1. Grant of Security Interest. Title to the Acquired Property
shall remain in Lessor as security for the obligations of Lessee hereunder and
under the other Operative Documents and under the Related Operative Documents to
which it is a party until Lessee has fulfilled all of its obligations hereunder
and thereunder. Lessee hereby assigns, hypothecates, transfers and pledges to
Lessor, and grants to Lessor a security interest in each Unit and in each
Sublease covering any Unit that may be entered into from time to time in
accordance with the provisions of this Lease, and Lessee hereby grants to Lessor
a continuing security interest in all of the other Lessee Collateral, to secure
the payment of all sums due hereunder and under the other Operative Documents
and under the Related Operative Documents to which it is a party and the
performance of all other obligations hereunder and under the other Operative
Documents and under the Related Operative Documents to which it is a party.
Section 10.2. Retention of Proceeds. If Lessee would be entitled to any
amount (including any Casualty Recoveries) held by Lessor or Agent or title to
any Unit hereunder but for the existence of any Lease Event of Default, Agent
shall hold such amount or Unit as part of the Lessee Collateral and shall be
entitled to apply such amounts against any amounts due hereunder; provided, that
Agent shall distribute such amount or transfer such Unit, to the extent not
theretofore applied, in accordance with the other terms of this Lease if and
when no Lease Event of Default exists.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Effect of Waiver. No delay or omission to exercise any
right, power or remedy accruing to Lessor upon any breach or default of Lessee
hereunder shall impair any such right, power or remedy nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein or of
or in any similar breach or default thereafter occurring, nor shall any single
or partial exercise of any right, power or remedy preclude other or further
exercise thereof, or the exercise of any other right, power or remedy, nor shall
any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of Lessor of any breach
or default under this Lease must be specifically set forth in writing and must
satisfy the requirements set forth in Section 11.5 with respect to approval by
Lessor.
Section 11.2. Survival of Covenants. All representations, warranties and
covenants of the parties hereto under Article IV, Article V, Article IX and
Article X shall survive the expiration or termination of this Lease to the
extent arising prior to any such expiration or termination.
Section 11.3. Applicable Laws and Regulations. THIS LEASE SHALL
BE GOVERNED BY AND CONSTRUED UNDER the LAWS OF THE STATE OF NEW YORK.
Section 11.4. Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be in writing and shall be delivered and shall be deemed to have
been given in accordance with Section 9.3 of the Participation Agreement.
Section 11.5. Amendment; Complete Agreements. Neither this Lease nor any
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification shall be sought. This Lease, together with the other Operative
Documents, is intended by the parties as a final expression of their agreement
and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein and therein. No course of prior dealings between the parties
or their officers, employees, agents or Affiliates shall be relevant or
admissible to supplement, explain, or vary any of the terms of this Lease or any
other Operative Document. Acceptance of, or acquiescence in, a course of
performance rendered under this or any prior agreement between the parties or
their Affiliates shall not be relevant or admissible to determine the meaning of
any of the terms of this Lease or any other Operative Document. No
representations, undertakings or agreements have been made or relied upon in the
making of this Lease other than those specifically set forth in the Operative
Documents.
Section 11.6. Counterparts. This Lease has been executed in several
numbered counterparts. Only the counterpart designated as counterpart
"No. 1" shall be deemed to be an original or to be chattel paper for
purposes of the Uniform Commercial Code, and such copy shall be held by Agent.
Section 11.7. Severability. Whenever possible, each provision of this
Lease shall be interpreted in such a manner as to be effective and valid under
Applicable Laws and Regulations; but if any provision of this Lease shall be
prohibited by or invalid under Applicable Laws and Regulations, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Lease.
Section 11.8. Successors and Assigns. This Lease shall be binding upon
the parties hereto and their respective successors and assigns and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 11.9. Captions; Table of Contents. Section captions and the
table of contents used in this Lease (including the Schedules, Exhibits and
Annexes hereto) are for convenience of reference only and shall not affect the
construction of this Lease.
Section 11.10. Schedules and Exhibits. The Schedules, Annexes and
Exhibits hereto, along with all attachments referenced in any of such items, are
incorporated herein by reference and made a part hereof.
Section 11.11. Liability of Lessor Limited. The parties hereto agree that
First Security Bank, National Association, in its individual capacity ("First
Security"), shall have no personal liability whatsoever to Lessee or its
respective successors and assigns for any Claim based on or in respect of this
Lease or any of the other Operative Documents or arising in any way from the
transactions contemplated hereby or thereby; provided, however, that First
Security shall be liable in its individual capacity (a) for its own willful
misconduct or gross negligence (or negligence in the handling of funds), (b) for
liabilities that may result from the incorrectness of any representation or
warranty expressly made by it in its individual capacity in Section 4.3 of the
Participation Agreement or from the failure of First Security to perform its
covenants and agreements set forth in Section 6.2 of the Participation
Agreement, or (c) for any Tax based on or measured by any fees, commission or
compensation received by it for acting as Lessor as contemplated by the
Operative Documents. It is understood and agreed that, except as provided in the
preceding proviso: (i) First Security shall have no personal liability under any
of the Operative Documents as a result of acting pursuant to and consistent with
any of the Operative Documents; (ii) all obligations of Lessor to Lessee are
solely nonrecourse obligations except to the extent that it has received payment
from others; (iii) all such personal liability of First Security is expressly
waived and released as a condition of, and as consideration for, the execution
and delivery of the Operative Documents by First Security and (iv) this Lease is
executed and delivered by First Security solely as Certificate Trustee in the
exercise of the powers expressly conferred upon it as Lessor under the Trust
Agreement.
Section 11.12. Successor Lessor. Lessee agrees that, in the case of the
appointment of any successor Certificate Trustee pursuant to the Trust Agreement
and the other Operative Documents, such successor shall, upon written notice by
such successor to Lessee, succeed to all the rights, powers and title of Lessor
hereunder and shall be deemed to be Lessor for all purposes hereof and without
in any way altering the terms of this Lease or Lessee's obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
FERRELLGAS, LP, as Lessee
By: Ferrellgas, Inc., its General Partner
By:_______________________________
Name:
Title:
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Certificate
Trustee, as Lessor
By:
Name:
Title:
<PAGE>
SCHEDULE I
DESCRIPTION OF UNITS
<PAGE>
SCHEDULE II
AMORTIZATION OF CLASS A NOTES
PARTICIPATION AGREEMENT
(Ferrellgas, LP Trust No. 1999-A)
Dated as of December 1, 1999
Among
FERRELLGAS, LP,
as Lessee,
FERRELLGAS, INC.,
as General Partner
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity except as expressly
stated herein, but solely as Certificate Trustee
FIRST SECURITY TRUST COMPANY OF NEVADA,
not in its individual capacity except as expressly
stated herein, but solely as Agent
THE PERSONS NAMED ON SCHEDULE I-A,
as Certificate Purchasers
THE PERSONS NAMED ON SCHEDULE I-B,
as Lenders
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
SECTION HEADING PAGE
<S> <C>
ARTICLE I DEFINITIONS............................................................................2
ARTICLE II ACQUISITION AND LEASE; GENERAL PROVISIONS..............................................2
Section 2.1. Funding................................................................................2
Section 2.2. Application of Funds; Acquisition and Lease of Units...................................2
Section 2.3. Time and Place of Delivery Date........................................................3
Section 2.4. Postponement of Delivery Date..........................................................3
Section 2.5. Participants'Instructions to Certificate Trustee and Payments to
Participants.......................................................................3
Section 2.6. Nature of Transaction..................................................................4
Section 2.7. Amounts Due............................................................................4
Section 2.8. Computations...........................................................................5
Section 2.9. Determination of Interest Rate and Yield Rate..........................................5
Section 2.10. Obligations Several....................................................................6
Section 2.11. Fees6
Section 2.12. Extension of Lease Expiration Date and Final Maturity Date.............................6
ARTICLE III CONDITIONS TO DELIVERY DATE............................................................8
Section 3.1. Conditions to Delivery Date............................................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................12
Section 4.1. Representations and Warranties of Lessee..............................................12
Section 4.2. Representations and Warranties of Each Participant....................................19
Section 4.3. Representations and Warranties of Certificate Trustee.................................21
Section 4.4. Representations and Warranties of Agent...............................................23
ARTICLE V COVENANTS OF LESSEE AND GUARANTOR.....................................................24
Section 5.1. Financial Statements..................................................................24
Section 5.2. Certificates; Other Information.......................................................25
Section 5.3. Notices...............................................................................26
Section 5.4. Preservation of Corporate or Partnership Existence, Etc...............................27
Section 5.5. Maintenance of Property...............................................................27
Section 5.6. Insurance.............................................................................27
Section 5.7. Payment of Obligations................................................................27
Section 5.8. Compliance with Laws..................................................................28
Section 5.9. Inspection of Property and Books and Records..........................................28
Section 5.10. Environmental Laws....................................................................28
Section 5.11. Use of Proceeds.......................................................................28
Section 5.12. Financial Covenants...................................................................28
Section 5.14. Other General Partner Obligations.....................................................29
Section 5.15. Monetary Judgments....................................................................30
Section 5.16. Year 2000 Compliance..................................................................30
Section 5.17. Limitation on Liens...................................................................30
Section 5.18. Asset Sales...........................................................................32
Section 5.19. Consolidations and Mergers............................................................33
Section 5.20. Acquisitions..........................................................................34
Section 5.21. Limitation on Indebtedness............................................................34
Section 5.22. Transactions with Affiliates..........................................................35
Section 5.23. Use of Proceeds.......................................................................36
Section 5.24. Use of Proceeds - Ineligible Securities...............................................36
Section 5.25. Contingent Obligations................................................................36
Section 5.26. Joint Ventures........................................................................36
Section 5.27. Lease Obligations.....................................................................36
Section 5.28. Restricted Payments...................................................................37
Section 5.29. Prepayments of Subordinated Indebtedness..............................................38
Section 5.30. Dividend and Other Payment Restrictions Affecting Subsidiaries........................39
Section 5.31. Change in Business....................................................................39
Section 5.32. Accounting Changes....................................................................40
Section 5.33. Limitation on Sale and Leaseback Transactions.........................................40
Section 5.34. [Intentionally Omitted]...............................................................40
Section 5.35. Amendments of Organization Documents or 1996 Indenture or 1998 Note
Purchase Agreement................................................................40
Section 5.37. Operations through Subsidiaries.......................................................40
Section 5.38. Operations of MLP.....................................................................41
Section 5.39. Miscellaneous.........................................................................41
Section 5.40. Accounting Principles.................................................................42
ARTICLE VI OTHER COVENANTS AND AGREEMENTS........................................................42
Section 6.1. Cooperation with Lessee...............................................................42
Section 6.2. Covenants of Certificate Trustee and Agent............................................43
Section 6.3. Assignments...........................................................................44
Section 6.4. Participations........................................................................45
ARTICLE VII INDEMNIFICATION.......................................................................45
Section 7.1. General Indemnification...............................................................45
Section 7.2. General Tax Indemnity.................................................................47
Section 7.3. Excessive Use Indemnity...............................................................49
Section 7.4. Gross Up..............................................................................49
Section 7.5. Increased Capital Costs...............................................................49
Section 7.6. LIBO Rate Illegal, Unavailable or Impracticable.......................................50
Section 7.7. Funding Losses........................................................................50
Section 7.8. Actions of Affected Participants......................................................51
ARTICLE VIII AGENT.................................................................................51
Section 8.1. Appointment of Agent; Powers and Authorization to Take Certain Actions................51
Section 8.2. Reliance..............................................................................52
Section 8.3. Action upon Instructions Generally....................................................53
Section 8.4. Indemnification.......................................................................53
Section 8.5. Independent Credit Investigation......................................................54
Section 8.6. Refusal to Act........................................................................54
Section 8.7. Resignation or Removal of Agent; Appointment of Successor.............................54
Section 8.8. Separate Agent........................................................................55
Section 8.9. Termination of Agency.................................................................55
Section 8.10. Compensation of Agent.................................................................55
Section 8.11. Limitations...........................................................................56
ARTICLE IX MISCELLANEOUS.........................................................................56
Section 9.1. Survival of Agreements................................................................56
Section 9.2. No Broker, etc........................................................................56
Section 9.3. Notices...............................................................................57
Section 9.4. Counterparts..........................................................................57
Section 9.5. Amendments............................................................................57
Section 9.6. Headings, etc.........................................................................58
Section 9.7. Parties in Interest...................................................................58
Section 9.8. Governing Law.........................................................................59
Section 9.9. Payment of Transaction Costs and Other Costs..........................................59
Section 9.10. Severability..........................................................................59
Section 9.11. Limited Liability of Certificate Trustee..............................................59
Section 9.12. Liabilities of the Participants.......................................................60
Section 9.13. Submission to Jurisdiction; Waivers...................................................60
Section 9.14. Reproduction of Documents.............................................................60
Section 9.15. Role of Bank of America Leasing & Capital Group, LLC..................................61
Section 9.16. Confidentiality.......................................................................61
Section 9.17. Thermogas Transaction.................................................................62
Section 9.18. Acquired Property.....................................................................62
Section 9.19. Effective Date........................................................................62
</TABLE>
<PAGE>
APPENDIX 1 Definitions
SCHEDULE I-A Certificate Purchaser Commitments
SCHEDULE I-B Lender Commitments
SCHEDULE II Addresses For Notice; Wire Instructions
SCHEDULE III Units
SCHEDULE 3.1(o) Filings and Recordings
SCHEDULE 4.1(g) ERISA Matters
SCHEDULE 4.1(p) Subsidiaries and Affiliates
SCHEDULE 5.21 Existing Indebtedness
EXHIBIT A Form of Lease
EXHIBIT B Form of Delivery Date Notice
EXHIBIT C Form of Loan Agreement
EXHIBIT D Form of Assignment of Lease and Rent
EXHIBIT E Form of Acceptance Certificate
EXHIBIT F Form of Trust Agreement
EXHIBIT G [Intentionally Reserved]
EXHIBIT H-1 Form of Opinion of Special Counsel for Lessee
EXHIBIT H-2 Form of Opinion of Special Counsel for
Certificate Trustee
EXHIBIT H-3 Form of Opinion of Special Counsel for Agent
EXHIBIT I Form of Bill of Sale
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Form of Transfer Documentation
<PAGE>
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (Ferrellgas, LP Trust No. 1999-A), dated
as of December 1, 1999 (this "Agreement"), is among FERRELLGAS, LP, a Delaware
limited partnership, as Lessee; FERRELLGAS, INC., a Delaware corporation, as
General Partner; FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity except as expressly stated herein,
but solely as Certificate Trustee; FIRST SECURITY TRUST COMPANY OF NEVADA, not
in its individual capacity except as expressly stated herein, but solely as
Agent; the Persons named on Schedule I-A hereto (together with their respective
permitted successors, assigns and transferees), as Certificate Purchasers; and
the Persons listed on Schedule I-B hereto (together with their respective
permitted successors, assigns and transferees), as Lenders.
PRELIMINARY STATEMENT
A. Lessee is the owner of the Units and the other Lessee Collateral
(collectively the "Acquired Property") and desires to enter into the Overall
Transaction for the purpose of financing of the Acquired Property.
B. The Trust under the Trust Agreement has been created for the
purpose of providing financing for the acquisition of the Acquired Property and
to hold title to the Acquired Property to secure Lessee's performance under the
Operative Documents.
C. Subject to the terms and conditions of this Agreement and the other
Operative Documents, on the Delivery Date, among other things:
(i) Lessor will purchase from Lessee, and Lessee will
transfer to Lessor, the Units described on Schedule III hereto
(together with any Units that may be hereafter substituted for any
thereof pursuant to Section 5.7 or Section 6.1 of the Lease and
subjected to the Lease from time to time, being referred to
collectively as the "Units" and individually as a "Unit") and the other
Acquired Property; and
(ii) Lessor will lease such Acquired Property to Lessee and
Lessee will lease such Acquired Property from Lessor, pursuant to the
terms of the Lease.
D. Subject to the terms and conditions of this Agreement and the other
Operative Documents, the Participants are willing to advance funds for the
financing of the Acquired Property and to pay certain Transaction Costs as
contemplated herein.
E. To secure their respective Certificate Amounts and Loans, Agent, on
behalf of the Participants, will have the benefit of a Lien on the Units and the
Lessee Collateral and the Certificate Trustee's interest in the Lease and the
other Lessor Collateral.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix 1 hereto
for all purposes hereof; and the rules of interpretation set forth in Appendix 1
hereto shall apply to this Agreement.
ARTICLE II
ACQUISITION AND LEASE; GENERAL PROVISIONS
Section 2.1. Funding.
(a) Amount of Funding. Subject to the terms and conditions of this
Agreement and in reliance on the representations and warranties of each of the
parties hereto contained herein or made pursuant hereto, upon receipt of the
Delivery Date Notice, on the Delivery Date each Certificate Purchaser shall
acquire its interest in the Trust Estate and each Lender will assist in funding
Certificate Trustee's purchase of the Acquired Property, in each case by making
available to Certificate Trustee by wire transfer in accordance with the
instructions set forth in the Delivery Date Notice an amount in immediately
available funds on the Delivery Date equal to such Participant's Commitment.
(b) Notes and Certificates. Each Lender's Loan shall be evidenced by a
separate Class A or Class B Note or Notes issued to such Lender and repayable in
accordance with, and with Interest accruing pursuant to, the terms of the Loan
Agreement. The amounts made available by each Certificate Purchaser shall be
evidenced by a separate Certificate issued by Certificate Trustee to each
Certificate Purchaser. Each Certificate shall accrue Yield at the Yield Rate on
the Certificate Amount thereof, payable as more fully set forth in the Trust
Agreement.
Section 2.2. Application of Funds; Acquisition and Lease of Units. On
the Delivery Date, upon (a) receipt by Agent of all amounts to be paid by the
Participants pursuant to Section 2.1, and (b) satisfaction or waiver of each of
the conditions set forth in Article III, (i) Certificate Trustee shall acquire
record title to the Acquired Property, as specified in the Delivery Date Notice,
(ii) in consideration therefor, Agent, on behalf of Certificate Trustee, shall
pay, from the funds made available by the Participants pursuant to Section 2.1,
an amount equal to the aggregate Purchase Price of the Acquired Property in
immediately available funds remitted by wire transfer to the account specified
by Lessee in the Delivery Date Notice, and (iii) Certificate Trustee shall lease
to Lessee the Acquired Property, and Lessee shall accept delivery of and lease
from Certificate Trustee such Acquired Property, pursuant to the Lease.
Section 2.3. Time and Place of Delivery Date. The Delivery Date shall
take place on the Delivery Date set forth in the Delivery Date Notice,
commencing at 10:00 a.m., Chicago time, at the offices of Chapman and Cutler,
111 West Monroe Street, Chicago, Illinois 60603, subject to the following:
(i) the Funding and Delivery Date shall occur on a Business
Day on or after the date hereof and not later than December 30, 1999,
it being understood that there may be a Funding without the
consummation of the transactions to occur on the Delivery Date if
Lessee has postponed the Delivery Date pursuant to Section 2.4, so long
as the Delivery Date occurs not later than December 30, 1999; and
(ii) in no event shall the aggregate amount advanced by the
Participants exceed the total Commitments of all Participants, nor
shall the aggregate amount advanced by any Participant exceed such
Participant's Commitment.
Section 2.4. Postponement of Delivery Date. In the event that the
Participants shall make the Funding requested pursuant to the Delivery Date
Notice and the transactions contemplated to occur on the Delivery Date shall not
have been consummated on the date specified in such Delivery Date Notice, Lessee
shall pay to Agent, for the benefit of (a) the Certificate Purchasers, yield on
the amount funded by each Certificate Purchaser at the Yield Rate, and (b) the
Lenders, interest on the amount funded by each Lender at the Interest Rate, in
each case less any interest or other amounts earned by Agent investing such
funded amounts, which interest shall be for the ratable benefit of the
Participants; provided that this provision shall not be construed to require
Agent to invest such funds in interest-bearing accounts. Such interest shall be
due and payable by Lessee upon the consummation of the Delivery Date and such
payment shall be an additional condition precedent to such Delivery Date;
provided, however, that no additional Delivery Date Notice shall be required to
be given if such Delivery Date is postponed and thereafter consummated; and
provided, further, that if such Delivery Date shall not have occurred by the
first to occur of (a) the second (2nd) Business Day following the Funding in
respect thereof and (b) December 30, 1999, then all such interest shall be due
and payable on such date, and Agent shall refund to each Participant all amounts
funded by such Participant, plus any amounts due pursuant to Section 7.7 (which
Lessee shall pay to Agent for the benefit of the Participants). Upon a
Participant funding the amount of its Commitment, the Commitment of such
Participant shall terminate.
Section 2.5. Participants' Instructions to Certificate Trustee and
Payments to Participants. (a) Each Participant agrees that the making of its
monies available pursuant to Section 2.1 shall constitute, without further act,
authorization and direction by such Participant to Certificate Trustee to take
the actions specified in Section 1.1 of the Trust Agreement.
(b) The parties to this Participation Agreement hereby agree that any
payment required to be made to the Participants by Certificate Trustee pursuant
to any Operative Document may be made directly to the Participants by Lessee, or
to Agent pursuant to the Loan Agreement for the benefit of the Participants, in
lieu of the corresponding payment required to be made by Lessee to Certificate
Trustee pursuant to any Operative Document. Such payment by Lessee to the
Participants or to Agent pursuant to the Loan Agreement for the benefit of the
Participants, shall be deemed to constitute: (i) the required payment from
Lessee to Certificate Trustee, and (ii) the corresponding payment by Certificate
Trustee to the Participants.
Section 2.6. Nature of Transaction. It is the intention of the
parties that:
(a) the Overall Transaction constitutes an operating
lease from Lessor to Lessee for purposes of Lessee's financial reporting;
(b) for all other purposes including federal, state and local
income tax, property tax, transfer tax, bankruptcy (including the
substantive law upon which bankruptcy proceedings are based),
regulatory and real estate, commercial law and UCC purposes:
(i) the Overall Transaction constitutes a financing
by the Participants to Lessee, the Overall Transaction
preserves beneficial ownership in the Units in Lessee, and the
obligations of Lessee to pay Basic Rent shall be treated as
payments of interest, yield and/or principal to the
Participants, and the payment by Lessee of any amounts in
respect of the Lease Balance shall be treated as payments of
principal to the Participants;
(ii) Lessor is the owner of record and holds title in
the Acquired Property as security for Lessee's obligations
under the Operative Documents, and the Lease grants a security
interest or a lien, as the case may be, in the Units and the
other Lessee Collateral in favor of the Lessor, and for the
benefit of the Participants; and
(iii) the Assignment of Lease and Rent creates Liens
and security interests in the Lessor Collateral for the
benefit of all of the Participants.
Nevertheless, Lessee acknowledges and agrees that none of Certificate Trustee,
Agent, Arranger, or any Participant has made any representations or warranties
concerning the tax, accounting or legal characteristics of the Operative
Documents or any aspect of the Overall Transaction and that Lessee has obtained
and relied upon such tax, accounting and legal advice concerning the Operative
Documents and the Overall Transaction as it deems appropriate.
Section 2.7. Amounts Due. Anything else herein or elsewhere to the
contrary notwithstanding, it is the intention of Lessee, Certificate Trustee and
Participants that: (i) the amount and timing of installments of Basic Rent due
and payable from time to time from Lessee under the Lease shall be equal to the
aggregate payments due and payable in respect of principal amortization of the
Notes, if any, Interest accrued on the Notes and Yield accrued on the
Certificates on each Payment Date; (ii) if Lessee elects the Early Termination
Option or the Purchase Option or becomes obligated to purchase the Units under
the Lease, the principal of the Notes, the Certificate Amounts, all Interest and
Yield thereon, all Fees and Transaction Costs and all other obligations of
Lessee owing to the Participants, Agent and Certificate Trustee shall be paid in
full by Lessee in accordance with Article IX of the Lease; (iii) if Lessee
properly elects the Sale Option and remarkets the Units in accordance with
Article IX of the Lease, Lessee shall only be required to pay the Proceeds of
the sale of the Units and, if the Proceeds are less than the Lease Balance, the
amount of such difference but not more than the Applicable Percentage Amount,
all in accordance with Article IX of the Lease, and any amounts due pursuant to
Section 7.3 hereof and Section 9.4 of the Lease (which aggregate amounts may be
less than the Lease Balance) together with all other Supplemental Rent then due
and payable; and (iv) upon the occurrence and continuance of a Lease Event of
Default resulting in an acceleration of Lessee's obligation to purchase the
Units under the Lease, the amounts then due and payable by Lessee under the
Lease shall include all amounts necessary to pay in full the outstanding
principal under the Notes, the Certificate Amounts and all accrued Interest and
Yield thereon, plus all other amounts then payable by Lessee to Participants,
Agent and Certificate Trustee under the Operative Documents.
Section 2.8. Computations. For all purposes under the Operative
Documents, all computations of Interest, Yield and other accrued amounts
(including, without limitation, the Overdue Rate) shall be made on the basis of
a 360-day year and the actual days elapsed, unless otherwise specifically
provided herein.
Section 2.9. Determination of Interest Rate and Yield Rate. (a) The
amount of principal outstanding on the Notes shall accrue Interest at the rate
per annum equal to the Interest Rate applicable to the Class of such Note. The
amount of Certificate Amounts outstanding from time to time shall accrue Yield
at the rate per annum equal to the Yield Rate. Agent shall as soon as
practicable, but in no event later than 11:00 a.m., New York time, two (2)
Business Days prior to the effectiveness of each LIBO Rate, notify Certificate
Trustee, Lessee and the Participants of such LIBO Rate and the corresponding
Interest Rates and Yield, as applicable, but failure to so notify shall not
affect the obligations of the parties hereunder or under the other Operative
Documents. Accrued Interest and Yield shall be due and payable by Lessee as
Basic Rent on each applicable Payment Date and on the Lease Expiration Date. If
all or any portion of the principal under the Notes, the Certificate Amounts,
any accrued Interest or Yield payable thereon or any other amount payable
hereunder shall not be paid when due (whether at stated maturity, acceleration
or otherwise), such overdue amount shall bear interest at a rate per annum which
is equal to the Overdue Rate and shall be payable from time to time on demand as
Supplemental Rent. If at any time the rate on which Interest or Yield accrues
cannot be determined by reference to a LIBO Rate, or if such rate becomes
unavailable or illegal, then the rate on which Interest or Yield accrues shall
be determined as provided at Section 7.6.
(b) During such time as the LIBO Rate applies to any of the Notes or
Certificates, Interest in respect of such Notes and Yield in respect of such
Certificates shall be calculated on the basis of a 360-day year and the actual
days elapsed. During such time as the Alternate Base Rate determined by
reference to the Reference Rate applies to any of the Notes or Certificates,
Interest in respect of such Notes and Yield in respect of such Certificates
shall be calculated on the basis of a 365 (or 366, as applicable) day year and
the actual days elapsed. During such time as the Alternate Base Rate determined
by reference to the Federal Funds Effective Rate applies to any of the Notes or
Certificates, Interest in respect of such Notes and Yield in respect of such
Certificates shall be calculated on the basis of a 360-day year and the actual
days elapsed.
(c) Each determination of an Interest Rate pursuant to any provision of
this Agreement and the determination of the corresponding Yield shall be
conclusive and binding on Certificate Trustee, Lessee and the Participants in
the absence of manifest error.
Section 2.10. Obligations Several. The obligations of the Participants
hereunder or elsewhere in the Operative Documents shall be several and not
joint; and no Participant shall be liable or responsible for the acts or
defaults of any other party hereunder or under any other Operative Document.
Section 2.11. Fees. Lessee shall pay any and all fees described in
the succeeding provisions of this Section 2.11 (collectively, "Fees"):
(a) The Fees specified in the Arranger's Fee Letter,
in the amounts and on the dates set forth therein;
(b) The Fees of the Bank, for its own account, specified in
the Trustee Fee Letter and the Fees of the Agent, for its own account,
specified in the Agent Fee Letter, in each case in the amounts and on
the dates set forth therein; and
(c) An upfront fee to each Participant as specified in the
Arranger's Fee Letter, such upfront fee to be payable on the date it
acquires its interest in the Notes and/or Certificates.
Section 2.12. Extension of Lease Expiration Date and Final Maturity
Date. (a) Lessee may request in writing (the "Extension Option Request") to the
Agent, Certificate Trustee and each of the Participants that each of the
Participants agrees that Lessee be granted the right (the "Extension Option")
pursuant to the Lease to extend the Lease Term (the "Lease Extension") for up to
two (2) additional one-year periods commencing on the last day of the then
current Lease Term, as applicable (each, a "Lease Renewal Term") and that the
Final Maturity Date be correspondingly extended to the extended Lease Expiration
Date; provided that the lessee under the Other Lease shall have concurrently
requested a similar extension of the term of the Other Lease. Such Extension
Option Request must be delivered in writing to Certificate Trustee and Agent not
later than 270 days nor more than 360 days prior to the expiration of the Lease
Term. Agent and Certificate Trustee shall promptly forward such notice to the
Certificate Purchasers and the Lenders, respectively. Each Participant will
notify the Certificate Trustee in writing of whether or not it has consented to
such Extension Option Request not later than 45 days after receipt of the
Extension Option Request (the "Extension Option Response Date"). Any Participant
who does not so notify Certificate Trustee by the Extension Option Response Date
will be deemed to be, and any Participant that has notified the Certificate
Trustee that it has not consented to an Extension Option Request will be, a
Non-Consenting Participant. Each Participant's determination with respect to an
Extension Option Request shall be a new credit determination and within such
Participant's sole and absolute discretion and may be conditioned upon such
terms and conditions as deemed appropriate by the consenting Participants,
including the modification of the Applicable Percentage Amount, receipt of such
financial information, documentation or other information or conditions as may
be reasonably requested by such Participant, the receipt of an appraisal of the
Units (in form and substance satisfactory to the Participants) opining that the
Appraised Value of the Units on an in-place, in-service basis at the end of the
first or second Lease Renewal Term, as applicable, is reasonably expected to be
at least 95.50% of the aggregate Purchase Price (with respect to the first Lease
Renewal Term) and at least 94.50% (with respect to the second Lease Renewal
Term).
The Extension Option shall become effective as of the first date (the
"Extension Effective Date") on or after the Extension Option Response Date on
which all of the Participants (other than Non-Consenting Participants who have
been replaced by Replacement Participants in accordance with Section 2.12(b))
and Replacement Participants shall have consented to such Lease Extension;
provided that on both the date of the Extension Option Request
and the Extension Effective Date: (w) each of the representations and
warranties made by the Certificate Trustee and Lessee in or pursuant to
the Operative Documents shall be true and correct as if made on and as
of each such date (except to the extent any such representation or
warranty specifically relates to an earlier date), (x) Lessee shall not
have elected the Purchase Option or Sale Option, (y) no Lease Default
or Lease Event of Default shall have occurred and be continuing, and
(z) on each of such dates, the Certificate Trustee shall have received
a certificate of Lessee as to the matters set forth in clauses (x) and
(y) above; and
provided further that in no event shall the Extension
Effective Date occur unless (x) each of the Participants (other than
Non-Consenting Participants who have been replaced in accordance with
Section 2.12(b)) and the Replacement Participants shall have consented
to the Extension Option Request on or before the expiration of the
Lease Term, and (y) each of the participants under the Other
Transaction shall have consented to the corresponding extension option
request on or before the expiration of the term of the Other Lease.
(b) At any time after the Extension Option Response Date, Lessee shall
be permitted to replace any Non-Consenting Participant with a replacement bank
or other financial institution (a "Replacement Participant"), and such
Non-Consenting Participant shall sell (without recourse) to the Replacement
Participant all Notes and/or Certificates of such Non-Consenting Participant for
an amount equal to the aggregate outstanding principal amount of such Notes
and/or Certificates plus accrued Interest and Yield thereon to (but not
including) the date of sale, provided that: (i) such replacement does not
conflict with any Applicable Laws and Regulations, (ii) the Lessee shall pay to
such Non-Consenting Participant any amounts arising under Section 7.7 if any
Notes and/or Certificates of such Non-Consenting Participant shall be purchased
other than on the last day of the Payment Period relating thereto, (iii) such
replacement shall be made in accordance with the provisions of Section 6.3
(provided that the relevant Replacement Participant or Lessee shall be obligated
to pay the transaction costs arising in connection therewith), (iv) the
Replacement Participant shall have agreed to be subject to all of the terms and
conditions of the Operative Documents, and (v) such replacement must be
consummated no later than thirty (30) days prior to the expiration of the Lease
Term. A Non-Consenting Participant's rights under the indemnification provisions
of the Operative Documents shall survive any sale of its Notes and/or
Certificates to a Replacement Participant.
ARTICLE III
CONDITIONS TO DELIVERY DATE
Section 3.1. Conditions to Delivery Date. The obligation of each
Participant to perform its obligations on the Delivery Date shall be subject to
the fulfillment to the reasonable satisfaction of, or the waiver by, such
Participant of the conditions precedent set forth in this Section 3.1 on or
prior to the Delivery Date (except that the obligation of any party hereto shall
not be subject to such party's own performance or compliance):
(a) Delivery Date Notice. Lessee shall have delivered to
Agent, Certificate Trustee and each Participant, not later than three
(3) Business Days prior to the proposed Delivery Date, an irrevocable
notice substantially in the form of Exhibit B (a "Delivery Date
Notice"), setting forth (i) the proposed Delivery Date, (ii) a
description (including, if available, model, make and identification
number) of each Unit to be purchased on the Delivery Date, (iii) the
aggregate Purchase Price of such Units, (iv) the respective Purchase
Price of each Unit and (v) wire transfer instructions for the
disbursement of funds.
(b) Authorization, Execution and Delivery of Documents; No
Default. This Agreement, the Lease, the Assignment of Lease and Rent,
the Trust Agreement, the Certificates, the Loan Agreement and the Notes
shall have been duly authorized, executed and delivered by each of the
other parties thereto, shall (to the extent the form and substance
thereof shall not be prescribed hereby) be in form and substance
satisfactory to each Participant and an executed counterpart of each
thereof (except for the Certificates and the Notes, originals of which
shall only be delivered to the applicable Participant, and the original
counterpart of the Lease, which shall be delivered to the Agent) shall
have been received by each of the Participants, Agent and Certificate
Trustee. Each Participant shall have received an original, duly
executed Note and/or Certificate, as applicable, registered in such
Participant's name. Each of the documents referred to above shall be in
full force and effect as to all other parties and no Lease Default or
Lease Event of Default shall have occurred or be continuing.
(c) Litigation. No action or proceeding shall have been
instituted or threatened nor shall any governmental action be
instituted or threatened before any Governmental Authority, nor shall
any order, judgment or decree have been issued or proposed to be issued
by any Governmental Authority, to set aside, restrain, enjoin or
prevent the performance of this Agreement or any transaction
contemplated hereby or by any other Operative Document or which is
reasonably likely, in the reasonable opinion of each Participant, to
have a Material Adverse Effect.
(d) Legality, etc. In the opinion of each Participant or its
counsel, the transactions contemplated by the Operative Documents shall
not violate any Applicable Laws and Regulations and no change shall
have occurred or been proposed in Applicable Laws and Regulations that
would make it uneconomic or illegal for any party to any Operative
Document to participate in any of the transactions contemplated by the
Operative Documents or otherwise would prohibit the consummation of any
transaction contemplated by the Operative Documents or expand the
duties, obligations and risks of such Participant.
(e) Approvals. (x) All approvals and consents required or
advisable to be taken, given or obtained, as the case may be, by or
from any trustee or holder of any Indebtedness or obligation of Lessee,
that are necessary at such time for the execution, delivery and
performance of the Operative Documents shall have been taken, given or
obtained as the case may be, shall be in full force and effect and the
time for appeal with respect to any thereof shall have expired (or, if
an appeal shall have been taken, the same shall have been dismissed)
and shall not be subject to any pending proceedings or appeals
(administrative, judicial or otherwise).
(y) All approvals, consents, exemptions, authorizations, or
other actions by, or notices to, or filing with, any Governmental
Authority necessary or required in connection with (a) the execution,
delivery or performance by, or enforcement against, the General Partner
or Lessee of this Agreement or any other Operative Document, or (b) the
continued operation of Lessee's business as contemplated to be
conducted after the date hereof by the Operative Documents shall have
been obtained on or before the Delivery Date, except in the case of
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
Lessee 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.
(f) Requirements of Law. In the reasonable opinion of
Certificate Trustee, Agent and the Participants and their respective
counsel, the Overall Transaction does not and will not violate any
Applicable Laws and Regulations and does not and will not subject
Certificate Trustee, Agent or any Participant to any adverse regulatory
prohibitions or constraints.
(g) Corporate Status and Proceedings. On or prior to the
Delivery Date, each of the Participants, Agent and Certificate Trustee
shall have received:
(i) certificates of existence and good standing with
respect to Lessee and the General Partner from the Secretary
of State of the state of its organization dated no earlier
than the 30th day prior to the Delivery Date;
(ii) copies of Lessee's Certificate of Limited
Partnership, certified by the Secretary of State of the state
of its organization dated no earlier than the 30th day prior
to the Delivery Date; and
(iii) certificates of the Secretary or Assistant
Secretary of the general partner of Lessee, in form and
substance satisfactory to Agent and the Participants, and
attaching and certifying as to (A) the Lessee's limited
partnership agreement, (B) the director's resolutions in
respect of the execution, delivery and performance by Lessee
of each Operative Document to which it is or will be a party,
(C) the general partner's articles of incorporation and bylaws
and (D) the incumbency and signatures of persons authorized to
execute and deliver documents on behalf of Lessee.
(h) Certificate Trustee Officer's Certificate. Each
Participant and Agent shall have received (x) a certificate of the
Secretary or Assistant Secretary of Certificate Trustee attaching and
certifying as to: (i) the corporate authority for the execution,
delivery and performance by Certificate Trustee of each Operative
Document to which it is or will be a party, (ii) its organizational
documents, (iii) its by-laws, (iv) the incumbency and signature of
persons authorized to execute and deliver such documents on behalf of
Certificate Trustee and (y) a good standing certificate from the
appropriate Governmental Authority as to Certificate Trustee's good
standing.
(i) Equipment List. Lessee shall have delivered to Agent the
initial Equipment List, setting forth the description of the Units, the
serial numbers thereof (if available), Lessee's internal unit numbers
thereof, Lessee's District for administration thereof and either
Lessee's customer mailing and/or street address or the address of
Lessee's storage location, as applicable, as of the Delivery Date.
(j) Performance. Lessee shall have performed and complied
with all agreements and conditions contained herein and in any other
Operative Document to which Lessee is a party required to be performed
or complied with by Lessee, on or prior to the Delivery Date.
(k) Representations and Warranties True; Absence of Defaults
Each representation and warranty of Lessee contained herein or in any
other Operative Document shall be true and correct in all material
respects as though made on and as of the Delivery Date, except that any
such representation or warranty which is expressly made only as of an
earlier date need be true only as of such date. No Lease Event of
Default or Lease Default or default under any other Operative Document
shall have occurred and be continuing.
(l) Appraisal. At least five (5) Business Days prior to the
Delivery Date, Certificate Trustee, Agent and each Participant shall
have received an Appraisal from the Appraiser to their satisfaction
opining (by use of appraisal methods satisfactory to the Participants):
(i) that the Appraised Value of the Units on
the Delivery Date is at least equal to the aggregate Purchase Price;
(ii) that the Appraised Value of the Units at the end
of the Lease Term (exclusive of any Lease Renewal Terms) is
reasonably expected to be at least 96.50% of the aggregate
Purchase Price;
(iii) that the remaining economic useful life
of each Unit is not less than eight (8) years; and
(iv) that the value set forth in clause (ii) above
was determined on an in-place, in-service basis.
(m) Bill of Sale. Lessee shall have executed and delivered to
Lessor a bill of sale (a "Bill of Sale") with respect to the Units to
be sold by it to Lessor on the Delivery Date in the form of Exhibit I
hereto.
(n) Acceptance Certificate. Lessee shall inspect to its
satisfaction and accept the Acquired Property by delivering to
Certificate Trustee, Agent and the Participants an acceptance
certificate (the "Acceptance Certificate") in the form of Exhibit E
hereto whereupon (i) subject to the payment of the Purchase Price for
the Acquired Property, the Acquired Property shall immediately become
subject to and be governed by all the provisions of the Lease and (ii)
Lessee shall be deemed by delivering the Acceptance Certificate to have
reaffirmed each of its representations and warranties set forth in
Section 4.1 hereof.
(o) Lien Searches; Filings and Recordings. At least five (5)
Business Days prior to the Delivery Date, Agent and the Participants
shall have received lien search results against Lessee in each State
where the Units are located. On the Delivery Date, all filings or
recordings enumerated and described in Schedule 3.1(o) hereof, as well
as all other filings and recordings necessary or advisable in the
opinion of counsel to the Participants, to perfect the rights, title
and interest of Certificate Trustee, the Participants and the Agent
intended to be created by the Operative Documents shall have been made
in the appropriate places or offices.
(p) Transaction Costs; Fees. On or prior to the Delivery
Date, Lessee shall have paid any Transaction Costs invoiced and not
previously paid and any Fees required to be paid on the Delivery Date
pursuant to Section 2.11.
(q) Opinions of Counsel. On the Delivery Date, Certificate
Trustee, Agent and the Participants shall have received opinions of
Bracewell & Patterson, LLP, special counsel to Lessee, and Ray, Quinney
& Nebeker, special counsel to the Certificate Trustee and to Agent,
dated the Delivery Date and substantially in the forms of Exhibits H-1,
H-2 and H-3 respectively, with respect to the Overall Transaction.
(r) Payment of Taxes. All Taxes due and payable on or prior
to the Delivery Date in connection with the execution, delivery,
recording or filing of any of the Operative Documents, in connection
with the filing of any of the financing statements and any other
documents, in connection with the consummation of any other
transactions contemplated hereby or by any of the other Operative
Documents, shall have been paid in full by Lessee.
(s) Insurance. On or prior to the Delivery Date, Agent,
Certificate Trustee and each Participant shall have received a current
certificate of insurance, and the insurance complying with Section 6.2
of the Lease shall be in full force and effect, and there shall be no
past due premiums in respect of any such insurance.
(t) Absence of Material Adverse Effect. Since July 31, 1999,
no Material Adverse Effect shall have occurred.
(u) No Casualty; No Liens. No Casualty shall have occurred
with respect to any Unit being delivered on the Delivery Date. The
Units shall be free and clear of all Liens other than Permitted Liens.
(v) Syndication Agreement. Lessee and Arranger shall have
entered into a syndication agreement in form and substance reasonably
satisfactory to them (the "Syndication Agreement") with respect to the
Notes and the Certificates.
(w) Credit Agreement Amendment. Lessee, the General Partner,
the Credit Agreement Banks and the other parties to the Credit
Agreement shall have entered into the Third Amendment to Second Amended
and Restated Credit Agreement.
(x) Proceedings Satisfactory, Etc. All proceedings taken in
connection with the Delivery Date and all documents relating thereto
shall be reasonably satisfactory to Agent, Certificate Trustee, each
Participant and their respective counsel, and each such Person shall
have received copies of such documents as they may reasonably request
in connection therewith, all in form and substance reasonably
satisfactory to each such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Lessee. As of the date
of its execution of this Agreement and the Delivery Date, Lessee makes the
representations and warranties set forth in this Section 4.1 to each of the
other parties hereto:
(a) Corporate or Partnership Existence and Power.
The General Partner, the MLP, Lessee and each of its Subsidiaries:
(i) is a corporation or partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation;
(ii) 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 Operative Documents;
(iii) 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
(iv) is in compliance with all material Requirements
of Law.
(b) Corporate or Partnership Authorization; No Contravention.
The execution, delivery and performance by Lessee and the General
Partner of this Agreement and each other Operative Document to which
the General Partner or Lessee is party, have been duly authorized by
all necessary partnership action on behalf of Lessee and all necessary
corporate action on behalf of the General Partner, and do not and will
not:
(i) contravene the terms of any of the General
Partner's or Lessee's Organization Documents;
(ii) 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 or Lessee 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
(iii) violate any material Requirement of Law.
(c) 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 or Lessee of this Agreement or any other
Operative Document, or (b) the continued operation of Lessee's business
as contemplated to be conducted after the date hereof by the Operative
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 Lessee 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.
(d) Binding Effect. This Agreement and each other Operative
Document to which the General Partner or Lessee 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.
(e) Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of Lessee,
threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority, against the General Partner, the MLP,
Lessee or any of its Subsidiaries or any of their respective properties
which:
(i) purport to affect or pertain to this
Agreement or any other Operative Document or any of the transactions
contemplated hereby or thereby; or
(ii) if determined adversely to Lessee 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 Operative Document, or directing that
the transactions provided for herein or therein not be
consummated as herein or therein provided.
(f) No Default. No Lease Default or Lease Event of Default
exists or would result from Lessee entering into the Overall
Transaction or the incurring, continuing or converting of any
Obligations by Lessee. As of the Delivery Date, neither Lessee nor any
Affiliate of Lessee 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
Delivery Date, create a Lease Event of Default under Section 8.1(e) of
the Lease.
(g) ERISA Compliance. (i) 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 Lessee and the General
Partner, nothing has occurred which would cause the loss of such
qualification.
(ii) There are no pending, or to the best knowledge of Lessee
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.
(iii) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Pension Plan.
(iv) No Pension Plan has any Unfunded Pension Liability,
except that the Ferrellgas, Inc. Retirement Income Plan has an Unfunded
Pension Liability in an amount not in excess of $448,221 however, the
Ferrellgas, Inc. Retirement Income Plan is not underfunded.
(v) Lessee 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).
(vi) Lessee 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.
(vii) Except as specifically disclosed in Schedule 4.1(g), no
trade or business (whether or not incorporated under common control
with Lessee 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 4.1(g), neither Lessee nor any Person under common control
with Lessee (as defined in the preceding sentence) has ever contributed
to any multiemployer plan within the meaning of Section 4001(a)(3) of
ERISA.
(h) Use of Proceeds; Margin Regulations. The proceeds of the
sale of the Units, the Certificates and the Notes are to be used solely
for the purposes set forth in and permitted by Section 5.11 and Section
5.23 and 5.24. Neither Lessee nor any Affiliate of Lessee is generally
engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin
Stock.
(i) Title to Properties. Lessee 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 Delivery Date and subject to the preceding
sentence, the property of Lessee and its Subsidiaries (other than the
Units) is subject to no Liens other than Permitted Encumbrances.
(j) Taxes. The General Partner has filed all Federal and
other material tax returns and reports required to be filed, for itself
and for Lessee, 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.
(k) Financial Condition. (i) The audited consolidated
financial statements of the General Partner, Lessee, the MLP and their
respective Subsidiaries dated July 31, 1999 and the unaudited
consolidated financial statements of the General Partner, Lessee, 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:
(A) 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;
(B) fairly present the financial condition of Lessee
and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and
(C) show all material indebtedness and other
liabilities, direct or contingent, of Lessee and its
consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations.
(ii) Since July 31, 1999, there has been no Material Adverse
Effect.
(iii) The General Partner, the MLP, Lessee and each of the
other Subsidiaries of Lessee are each Solvent, both before and after
giving effect to the consummation of each of the transactions
contemplated by the Operative Documents.
(l) Environmental Matters. Lessee 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 Lessee 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.
(m) Regulated Entities. None of Lessee or any Affiliate of
Lessee, is an "Investment Company" within the meaning of the Investment
Company Act of 1940. Lessee 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.
(n) No Burdensome Restrictions. Neither Lessee 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.
(o) Copyrights, Patents, Trademarks and Licenses, Etc. Lessee
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 Lessee, no slogan or other advertising device,
product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by Lessee 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 Lessee, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard
or code is pending or, to the knowledge of Lessee, proposed, which, in
either case, could reasonably be expected to have a Material Adverse
Effect.
(p) Subsidiaries and Affiliates. Lessee (a) has no
Subsidiaries or other Affiliates except (i) those specifically
disclosed in part (a) of Schedule 4.1(p) hereto, (ii) one or more SPEs
established in connection with Accounts Receivable Securitizations
permitted by Section 5.21, (iii) Subsidiaries established in compliance
with Section 5.37 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 5.37) 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 4.1(p).
(q) Insurance. The properties of Lessee and its Subsidiaries
are insured with financially sound and reputable insurance companies
not Affiliates of Lessee, 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
Lessee or such Subsidiary operates.
(r) Tax Status. Lessee is subject to taxation under the Code
only as a partnership and not as a corporation.
(s) Full Disclosure. None of the representations or
warranties made by Lessee or any Affiliate of Lessee in the Operative
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 Lessee or
any Affiliate of Lessee in connection with the Operative 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.
(t) [Intentionally Reserved].
(u) [Intentionally Reserved].
(v) [Intentionally Reserved].
(w) Year 2000. Lessee 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 Lessee and its Subsidiaries 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, Lessee believes that the
"Year 2000 Problem" will not have a Material Adverse Effect.
(x) Title; Liens. Lessee has good and marketable title to
each Unit and the other Acquired Property to be sold and delivered to
Certificate Trustee, free and clear of all Liens other than Permitted
Liens. Lessee has not granted, nor will it grant, any Lien (other than
any Permitted Lien) on any Unit, any other Lessee Collateral or the
Lease, to any Person other than Certificate Trustee; and no Lien (other
than any Permitted Lien) has attached to any Unit, any other Lessee
Collateral or the Lease, or in any manner has affected adversely
Agent's and Certificate Trustee's rights and Lien therein.
(y) Security Interest. (i) Certificate Trustee has a valid
and enforceable Lien in the Units and the other Lessee Collateral free
and clear of all Liens other than Permitted Liens and, upon the filing
of the items listed on Schedule 3.1(o), Certificate Trustee will have a
perfected first priority Lien of record in the Units and in the other
Lessee Collateral as against all Persons including Lessee and its
creditors, free and clear of all Liens other than Permitted Liens.
(ii) Agent has a valid and enforceable Lien in the Lessor
Collateral free and clear of all Liens other than Permitted Liens and,
upon the filing of the items listed on Schedule 3.1(o), Agent will have
a perfected first priority Lien of record in the Lessor Collateral as
against all Persons including Lessee, Certificate Trustee and their
creditors, free and clear of all Liens other than Permitted Liens.
(z) The Units. The Purchase Price for each item of Acquired
Property does not exceed the Appraised Value of such item of Acquired
Property at the time of the sale to Certificate Trustee hereunder and
the aggregate Purchase Price for all Acquired Property does not exceed
the Appraised Value of all of the Acquired Property at the time of the
sale to Certificate Trustee hereunder.
(aa) No Transfer Taxes. No sales, use, excise, transfer or
other tax, fee or imposition shall result from the sale, transfer or
purchase of any Acquired Property or any Certificate or Note pursuant
to this Agreement, except such taxes, fees or impositions that have
been paid in full.
(bb) Casualties, Etc. No Casualty has occurred and is
continuing and there is no actionpending or, to the best of Lessee's
knowledge, threatened by any Governmental Authority to initiate a Casualty.
(cc) Chief Executive Office of Lessee. The principal place of
business and chief executive office, as such terms are used in Section
9-103(3) of the UCC, of Lessee are each located at One Liberty Plaza,
Liberty, Missouri 64068.
(dd) Compliance with Law. The Units and the current use and
operation thereof and thereon do not violate any Applicable Laws and
Regulations in any material respect, including, without limitation, any
thereof relating to occupational safety and health or Environmental
Laws.
(ee) Subjection to Government Regulation. Neither Agent,
Certificate Trustee nor any Participant will, solely by reason of
entering into the Operative Documents or consummating the transactions
contemplated thereby, become subject to ongoing regulation of its
operations by any Governmental Authority or be required to qualify to
do business in any jurisdiction.
(ff) Licenses, Registrations and Permits. All material
licenses, approvals, authorizations, consents and permits required for
the use and operation of each Unit have been obtained from the
appropriate Governmental Authorities having jurisdiction or from
private parties, as the case may be.
(gg) Appraisal Data. The written information provided by
Lessee and its Affiliates to the Appraiser and forming the basis for
the conclusions set forth in the Appraisal, taken as a whole, was true
and correct in all material respects and did not omit any information
known and available to Lessee necessary to make the information
provided not misleading.
(hh) Private Offering. Neither Lessee nor anyone authorized to
act on its behalf has, directly or indirectly, solicited any offers to
acquire, offered or sold: (i) any interest in the Certificates, the
Notes, the Units, the Trust Estate, the Lease or the Operative
Documents in violation of Section 5 of the Securities Act or any state
securities laws, or (ii) any interest in any security or lease the
offering of which, for purposes of the Securities Act or any state
securities laws, would be deemed to be part of the same offering as the
offering of the aforementioned interests. Neither it nor anyone
authorized to act on its behalf was involved in (y) offering or
soliciting offers for the Certificates or Notes (or any similar
securities) or (z) selling Certificates or Notes (or any similar
securities) to any Person other than the Certificate Purchasers and
Lenders identified and contacted by the Arranger.
(ii) Unit Insurance. The Units are covered by the
insurance required by the Lease and all premiums in respect thereof have been
paid.
(jj) Nature of Units. The Units constitute movable personal
property and not real property or fixtures under the laws of the States
where the Units are located.
(kk) Equipment List. The Equipment List delivered on
the Delivery Date (except as toserial numbers) is true, correct and complete
in all material respects.
Section 4.2. Representations and Warranties of Each Participant. As of
the date of its execution of this Agreement, each Participant represents and
warrants severally and only as to itself to each of the other parties hereto as
follows:
(a) Due Organization, etc. It is duly organized and validly
existing under the laws of the jurisdiction of its organization and has
full corporate power and authority to enter into and perform its
obligations as either a Lender or a Certificate Purchaser (as the case
may be) under each Operative Document to which it is or is to be a
party and each other agreement, instrument and document to be executed
and delivered by it on or before the Delivery Date in connection with
or as contemplated by each such Operative Document to which it is or is
to be a party.
(b) ERISA. It is purchasing its interest in the
Certificate(s) and/or the Note(s) to be acquired by it with assets that
are either: (i) not assets of any Employee Benefit Plan (or its related
trust) which is subject to Title I of ERISA or Section 4975 of the
Code; or (ii) assets of any Employee Benefit Plan (or its related
trust) which is subject to Title I of ERISA or Section 4975 of the
Code, but there is available an exemption from the prohibited
transaction rules under Section 406(a) of ERISA and Section 4975 of the
Code and such exemption is immediately applicable to each transaction
contemplated by the Operative Documents.
(c) Investment in Notes and Certificates. It is an
institutional investor, it has been afforded an opportunity to
investigate matters relating to Lessee and any Affiliate thereof and it
is acquiring its interest in the Note(s) and/or Certificate(s) to be
acquired by it for its own account for investment and not with a view
to any distribution (as such term is used in Section 2(11) of the
Securities Act) thereof, and if in the future it should decide to
dispose of its interest in such Notes and/or Certificates, it
understands that it may do so only in compliance with the Securities
Act and the rules and regulations of the SEC thereunder and any
applicable state securities laws. It is aware that the Notes and
Certificates have not been registered under the Securities Act or
qualified or registered under any state or other jurisdiction's
securities laws. Neither it nor anyone authorized to act on its behalf
has taken or will take any action which would subject the issuance or
sale of any Note or Certificate to the registration requirements of
Section 5 of the Securities Act. No representation or warranty
contained in this Section 4.2(c) shall include or cover any action or
inaction of Lessee or any Affiliate thereof whether or not purportedly
on behalf of any Participant, Agent, Certificate Trustee or any of
their Affiliates. Notwithstanding the foregoing, but subject to the
provisions of Article VI hereof, it is understood among the parties
that the disposition of its property shall be at all times within its
control. It and its respective agents and representatives have such
knowledge and experience in financial and business matters as to enable
them to utilize the information made available to them in connection
with the transactions contemplated hereby, to evaluate the merits and
risk of an investment in Notes and/or Certificates and to make an
informed decision with respect thereto and such an evaluation and
informed decision have been made.
It understands and agrees that the Certificates and Notes will bear a
legend that shall read substantially as follows:
"THIS [CERTIFICATE] [NOTE] HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER STATE
SECURITIES OR "BLUE SKY" LAW, AND MAY NOT BE TRANSFERRED, SOLD
OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT OR LAWS."
Section 4.3. Representations and Warranties of Certificate Trustee. As
of the date of its execution of this Agreement and as of the Delivery Date,
First Security Bank, National Association ("Bank"), in its individual capacity
and not as Certificate Trustee (with the exception of the last sentence of
subsection (c), which representation and warranty is made by Bank solely in its
capacity as Certificate Trustee), represents and warrants to each of the other
parties hereto as follows:
(a) Chief Executive Office. The Bank's chief executive office
and principal place of business and the place where the documents,
accounts and records relating to the Overall Transaction are kept is
located at 79 South Main Street, Salt Lake City, Utah 84111.
(b) Due Organization, etc. The Bank is a national banking
association duly organized and validly existing in good standing under
the laws of the United States and has full corporate power and
authority to execute, deliver and perform its obligations: (i) in its
individual capacity under the Trust Agreement and, to the extent it is
a party hereto in its individual capacity, this Agreement, and (ii)
acting as Certificate Trustee under the Trust Agreement, under this
Agreement and each other Operative Document to which it is or will be a
party as Certificate Trustee.
(c) Due Authorization; Enforceability, etc. This Agreement
and each other Operative Document to which the Bank is or will be a
party have been or will be (to the extent it is to be a party thereto
in its individual capacity), duly authorized, executed and delivered by
or on behalf of the Bank (in its individual capacity) and are, or upon
execution and delivery will be, legal, valid and binding obligations of
the Bank (in its individual capacity), enforceable against it in
accordance with their respective terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws
affecting creditors' rights generally and by general equitable
principles. The Operative Documents to which the Certificate Trustee is
a party constitute the legal, valid and binding obligations of the
Certificate Trustee (acting solely as Certificate Trustee under the
Trust Agreement, and not in its individual capacity), enforceable
against it in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general
equitable principles.
(d) No Conflict. The execution and delivery by (a) the Bank,
in its individual capacity, of the Trust Agreement and, to the extent
it is a party hereto in its individual capacity, this Agreement and (b)
the Bank, in its capacity as Certificate Trustee, of each Operative
Document to which Certificate Trustee is or will be a party, are not
and will not be, and the performance by the Bank, in its individual
capacity or as Certificate Trustee, as the case may be, of its
obligations under each are not and will not be, inconsistent with the
articles of association or by-laws of the Bank, do not and will not
contravene any Applicable Laws and Regulations of the United States of
America or the State of Utah relating to the banking or trust powers of
the Bank and do not and will not contravene any provision of, or
constitute a default under, any indenture, mortgage, chattel mortgage,
deed of trust, lease, conditional sales contract, loan or credit
arrangement or other agreement or instrument to which the Bank is a
party or by which it or its properties may be bound or affected.
(e) No Approvals, etc. Neither the execution and delivery by
Bank in its individual capacity or (assuming the due authorization,
execution and delivery of the Trust Agreement by each Certificate
Purchaser) as Certificate Trustee, as the case may be, of any of the
Operative Documents to which it is a party requires the consent or
approval of, or the giving of notice to or registration with, or the
taking of any other action in respect of, any Governmental Authority or
other United States of America or Utah body governing its banking
practices.
(f) Litigation. There is no action, proceeding or
investigation pending or, to its best knowledge, threatened against the
Bank (in its individual capacity or as Certificate Trustee) which
questions the validity of the Operative Documents, and there is no
action, proceeding or investigation pending or, to its best knowledge,
threatened which is likely to result, either in any case or in the
aggregate, in any material adverse change in the ability of the Bank
(in its individual capacity or as Certificate Trustee) to perform its
obligations (in either capacity) under the Operative Documents to which
it is a party.
(g) Certificate Trustee Liens. The Units are free and clear
of all Certificate Trustee Liens attributable to the Bank (in its
individual capacity) and no act or omission by it has occurred which
would cause a Certificate Trustee Lien attributable to it.
(h) Securities Act. Neither the Bank (in its individual
capacity or as a Certificate Trustee) nor anyone authorized to act on
its behalf has, directly or indirectly, in violation of Section 5 of
the Securities Act or any state securities laws, offered or sold any
interest in the Certificates, the Units, the Lease, or the Operative
Documents or in any security or lease the offering of which, for
purposes of the Securities Act or any state securities laws, would be
deemed to be part of the same offering as the offering of the
aforementioned securities or lease, or solicited any offer to acquire
any of the aforementioned securities or lease.
(i) Taxes. There are no taxes payable by the Bank imposed by
the State of Utah or any political subdivision thereof or by the United
States of America in connection with the execution and delivery by the
Bank of this Participation Agreement or the other Operative Documents
to be delivered on the Delivery Date solely because the Bank is a
national banking association with its principal place of business in
the State of Utah and performs certain of its duties as the Certificate
Trustee in the State of Utah and there are no taxes payable by the Bank
imposed by the State of Utah or any political subdivision thereof or by
the United States of America in connection with the acquisition of its
interest in the Trust Estate, and its execution, delivery and
performance of the Trust Agreement and any other Operative Document
(other than franchise or other taxes based on or services rendered in
connection with the transactions contemplated hereby), solely because
the Bank is a national banking association with its principal place of
business in the State of Utah and performs certain of its duties as
Certificate Trustee in the State of Utah.
Section 4.4. Representations and Warranties of Agent. Agent,
in its individual capacity, hereby represents and warrants to the
Participants as follows:
(a) Organization and Authority. Agent is a banking
corporation duly organized and validly existing in good standing under
the laws of the State of Nevada and has the power and authority to
enter into and perform its obligations under the Operative Documents.
(b) Authorization; Binding Effect. The Operative Documents to
which Agent is or will be a party have been or will be, on the date
required to be delivered hereby, duly authorized, executed and
delivered by Agent, and this Participation Agreement is, and such other
Operative Documents are, or, when so executed and delivered by Agent
will be, valid, legal and binding agreements of Agent, enforceable
against Agent in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(c) Non-Contravention. Neither the execution and delivery by
Agent of the Operative Documents to which it is or will be a party,
either in its individual capacity, as Agent, or both, nor compliance
with the terms and provisions thereof, conflicts with, results in a
breach of, constitutes a default under (with or without the giving of
notice or lapse of time or both), or violates any of the terms,
conditions or provisions of: (i) the articles of association or by-laws
of Agent; (ii) any bond, debenture, note, mortgage, indenture,
agreement, lease or other instrument to which Agent, either in its
individual capacity, as Agent, or both, is now a party or by which it
or its property, either in its individual capacity, as Agent, or both,
is bound or affected, where such conflict, breach, default or violation
would be reasonably likely to materially and adversely affect the
ability of Agent, either in its individual capacity, as Agent or both,
to perform its obligations under any Operative Document to which it is
or will be a party, either in its individual capacity, as Agent, or
both; or (iii) any of the terms, conditions or provisions of any
federal or Nevada law, rule or regulation governing its banking or
trust powers, or any order, injunction or decree of any Governmental
Authority applicable to it in its individual capacity, as Agent, or
both, where such conflict, breach, default or violation would be
reasonably likely to materially and adversely affect the ability of
Agent, either in its individual capacity, as Agent or both, to perform
its obligations under any Operative Document to which it is or will be
a party.
(d) Absence of Litigation, etc. There is no litigation
(including, without limitation, derivative actions), arbitration or
governmental proceedings pending or, to the best knowledge of Agent,
threatened against it which would be reasonably likely to adversely
affect Agent's ability to perform its obligations under the Operative
Documents to which it is party.
(e) Consents, etc. No authorization, consent, approval,
license or formal exemption from, nor any filing, declaration or
registration with, any federal or Nevada Authority governing its
banking or trust powers, is or will be required in connection with the
execution and delivery by Agent of the Operative Documents to which it
is party or the performance by Agent of its obligations under such
Operative Documents.
ARTICLE V
COVENANTS OF LESSEE
Section 5.1. Financial Statements. Lessee shall deliver to Agent, in
form and detail satisfactory to Agent and the Required Participants and
consistent with the form and detail of financial statements and projections
provided to Agent by Lessee and its Affiliates prior to the Delivery Date, with
sufficient copies for each Participant:
(a) as soon as available, but not later than 100 days after
the end of each fiscal year (commencing with the fiscal year ended July
31, 2000), a copy of the audited consolidated balance sheet of Lessee
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 ("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 Lessee'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 fiscal quarter ended January 31, 2000), a copy of
the unaudited consolidated balance sheet of Lessee 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
Lessee 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 Lessee had one or more Significant
Subsidiaries), a copy of an unaudited consolidating balance sheet of
Lessee 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 5.1(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 Lessee had one or more Significant Subsidiaries), a copy of the
unaudited consolidating balance sheets of Lessee 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 5.1(b);
(e) as soon as available, but not later than 60 days after
the end of each fiscal year (commencing with the fiscal year beginning
August 1, 2000), projected consolidated balance sheets of Lessee 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
Lessee in good faith and based upon Lessee's best estimates and best
available information; and
(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
fiscal year ended July 31, 2000, 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
5.1(a)).
Section 5.2. Certificates; Other Information. Lessee shall
furnish to Agent, with sufficient copies for each Participant:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate of the
Independent Auditor stating that in making the examination necessary
therefor no knowledge was obtained of any Lease Default or Lease Event
of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(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 Agent and the Required
Participants shall require;
(c) promptly, copies of all financial statements and reports
that Lessee, 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 Lessee or any Affiliate of Lessee, 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 Lessee, the General
Partner, the MLP or any Subsidiary as Agent, at the request of any
Participant, may from time to time request.
Section 5.3. Notices. Lessee shall promptly notify Agent:
(a) of the occurrence of any Lease Default or Lease Event of
Default, and of the occurrence or existence of any event or
circumstance that foreseeably will become a Lease Default or Lease
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 Lessee, the General Partner, the MLP or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between
Lessee, 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 Lessee, the
General Partner, the MLP or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) of any of the following events affecting Lessee, 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 4.1(g) 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; and
(d) of any material change in accounting policies or
financial reporting practices by Lessee or any of its consolidated
Subsidiaries.
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 Lessee or any affected Affiliate
proposes to take with respect thereto and at what time. Each notice under
subsection 5.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Operative Document that have been (or
foreseeably will be) breached or violated.
Section 5.4. Preservation of Corporate or Partnership Existence,
Etc. The General Partner and Lessee shall, and Lessee 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 5.19;
(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 5.19 and
sales of assets permitted by Section 5.18;
(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 5.5. Maintenance of Property. Lessee 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. Lessee and each Subsidiary shall use the standard of care typical
in the industry in the operation and maintenance of its facilities. Lessee shall
maintain the Units in accordance with the Lease.
Section 5.6. Insurance. Lessee 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. Lessee shall insure
the Units in accordance with the Lease.
Section 5.7. Payment of Obligations. Lessee 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 Lessee, 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 Lessee, 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 5.8. Compliance with Laws. Lessee 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 5.9. Inspection of Property and Books and Records. Lessee 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 Lessee and such Subsidiary. Lessee shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of Agent or any Participant 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
Lessee and at such reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to Lessee; provided,
however, when a Lease Event of Default exists Agent or any Participant may do
any of the foregoing at the expense of Lessee at any time during normal business
hours and without advance notice.
Section 5.10. Environmental Laws. Lessee shall, and shall cause
each Subsidiary to, conduct its operations and keep and maintain its
property in material compliance with all Environmental Laws.
Section 5.11. Use of Proceeds. Lessee shall use the proceeds of the sale
of the Units, the Certificates and the Notes for working capital and other
general partnership purposes, in each case not in contravention of any
Requirement of Law or of any Operative Document.
Section 5.12. Financial Covenants.
(a) Leverage Ratio. Lessee shall maintain as of the last day of each
fiscal quarter a Leverage Ratio equal to or less than 4.75 to 1.00 (or, if the
Thermogas Acquisition shall have been consummated on or prior to January 31,
2000, Lessee shall be required to maintain from and after the date of such
Thermogas Acquisition a Leverage Ratio equal to or less than (i) 5.25 to 1.00 as
of the last day of each fiscal quarter ending on or prior to January 31, 2000,
(ii) 5.10 to 1.00 as of the last day of each fiscal quarter ending during the
period commencing on February 1, 2000 and ending on January 31, 2001 and (iii)
4.75 to 1.00 as of the last day of each fiscal quarter ending after January 31,
2001).
(b) Interest Coverage Ratio. Lessee shall maintain, as of the last day
of each fiscal quarter of Lessee, an Interest Coverage Ratio for the fiscal
period consisting of such fiscal quarter and the three immediately preceding
fiscal quarters of at least 2.50 to 1.00 (or, if the Thermogas Acquisition shall
have been consummated on or prior to January 31, 2000, Lessee shall be required
to maintain from and after the date of such Thermogas Acquisition an Interest
Coverage Ratio of at least 2.25 to 1.00 for each such period of four fiscal
quarters ending on or prior to January 31, 2001 and 2.50 to 1.00 for each such
period of four fiscal quarters ending after January 31, 2001).
Section 5.13. [Intentionally Reserved].
Section 5.14. Other General Partner Obligations. (a) The General Partner
shall cause Lessee 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 Lessee, and that its
obligations hereunder as general partner are full recourse obligations to the
same extent as those of Lessee.
(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 Operative Documents, and that it will remain
Solvent until all Obligations hereunder and under the other Operative Documents
shall have been repaid in full.
(c) The General Partner, for so long as it is the general partner of
Lessee, (i) agrees that its sole business will be to act as the general partner
of Lessee, the MLP and any further limited partnership of which Lessee 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
Lessee), (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 Lessee or partnership interests in the MLP or any
further limited partnership of which Lessee or the MLP is, directly or
indirectly, a limited partner, except that, notwithstanding the foregoing,
employees of the General Partner may perform services for Ferrell Companies,
Inc. and its Affiliates.
(d) The General Partner agrees that, until all Obligations hereunder
and under the other Operative Documents 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 Lessee) the ability of Lessee 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 Lessee 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 5.15. Monetary Judgments. If one or more judgments, orders,
decrees or arbitration awards is entered against Lessee 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 Lessee 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 5.16. Year 2000 Compliance. Lessee 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 Lessee 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 Participant, Lessee and its Subsidiaries
shall provide to such Participant such updated information or documentation as
is requested regarding the status of their efforts to address the Year 2000
Problem (as defined in Section 4.1(w)).
Section 5.17. Limitation on Liens. Lessee 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 (x) in the case of the Units or the other Lessee
Collateral, Permitted Liens, and (y) in the case of any other property of Lessee
or such Subsidiary, the following ("Permitted Encumbrances"):
(a) Liens existing on the Restatement Effective Date
set forth in Schedule 8.01 of the Existing Credit Agreement;
(b) Liens in favor of Lessee or Liens to secure Indebtedness
of a Subsidiary to Lessee or a Wholly-Owned Subsidiary;
(c) Liens on property of a Person existing at the time such
Person is merged into or consolidated with Lessee 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 Lessee;
(d) Liens on property existing at the time acquired by Lessee
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 Lessee 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 Lessee or such Subsidiary to secure the
purchase price or other obligation of Lessee 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 Lessee 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
Lessee or any of its Subsidiaries or impair the use of such property in
the operation of the business of Lessee 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 Lessee 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
Lessee and its Subsidiaries to the owners of such personal property
which are either (i) operating leases (including, without limitation,
Synthetic Leases) or (ii) capital leases to the extent (but only to the
extent) permitted by Section 5.21; provided, that in each case such
Lien does not extend to any other property or asset of Lessee and its
Subsidiaries;
(l) judgment Liens to the extent that such judgments do not
cause or constitute a Lease Default or Lease Event of Default;
(m) Liens incurred in the ordinary course of business of
Lessee 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 Lessee 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 5.21 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 under the
Credit Agreement, any Issuing Bank and the Credit Agreement Banks
relating to the Cash Collateralization of Lessee's obligations under
the Credit Agreement or Liens created by the Operative Documents; and
(q) Liens securing Indebtedness of an SPE in connection with
an Accounts Receivable Securitization permitted by Section 5.21
(including the filing of any related financing statements naming Lessee
as the debtor thereunder in connection with the sale of accounts
receivable by Lessee 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 5.21.
Section 5.18. Asset Sales. Lessee 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 Lessee shall be governed by the provisions of Section 5.19 hereof and
not by the provisions of this Section 5.18), 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)
Lessee (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 Agent) of the assets sold or
otherwise disposed of and (Y) at least 80% of the consideration therefor
received by Lessee or such Subsidiary is in the form of cash; provided, however,
that the amount of (1) any liabilities (as shown on Lessee's or such
Subsidiary's most recent balance sheet or in the notes thereto), of Lessee or
any Subsidiary (other than liabilities that are by their terms subordinated in
right of payment to the Obligations hereunder and under the other Operative
Documents) that are assumed by the transferee of any such assets and (2) any
notes or other obligations received by Lessee or any such Subsidiary from such
transferee that are immediately converted by Lessee 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 Lessee to an SPE and by an SPE to
any other Person in connection with any Accounts Receivable Securitization
permitted by Section 5.21 (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 5.21), (x) any transfer of assets by
Lessee or any of its Subsidiaries to a Subsidiary of Lessee that is a Guarantor
under the Credit Agreement, (y) any transfer of assets by Lessee or any of its
Subsidiaries to any Person in exchange for other assets used in a line of
business permitted under Section 5.31 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 Lessee Investment or any sale-leaseback (including
sale-leasebacks involving Synthetic Leases) permitted by Section 5.33.
Notwithstanding the foregoing, Lessee may not sell, lease, convey or otherwise
dispose of any Unit except as permitted by the Lease.
Section 5.19. Consolidations and Mergers. (a) Lessee shall not
consolidate or merge with or into (whether or not Lessee 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) Lessee is the surviving Person, or
the Person formed by or surviving any such consolidation or merger (if other
than Lessee) 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 Lessee) or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the Obligations of Lessee under this Agreement and the other
Operative Documents pursuant to an assumption agreement in a form reasonably
satisfactory to Agent; (iii) immediately after such transaction no Lease Default
or Lease Event of Default exists; and (iv) Lessee 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 Lessee 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 5.12(a).
(b) Lessee shall deliver to Agent prior to the consummation of the
proposed transaction pursuant to the foregoing paragraph (a) an officers'
certificate to the foregoing effect signed by a Responsible Officer and an
opinion of counsel satisfactory to Agent stating that the proposed transaction
complies with this Agreement. Agent, Certificate Trustee and the Participants
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 Lessee in accordance with this Section 5.19, the successor Person
formed by such consolidation or into or with which Lessee 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 and the other Operative Documents referring to the
"Lessee" shall refer to or include instead the successor Person and not Lessee),
and may exercise every right and power of Lessee under this Agreement with the
same effect as if such successor Person had been named as Lessee herein;
provided, however, that the predecessor Lessee shall not be relieved from the
obligation to pay Rent or perform the other Obligations except in the case of a
sale of all of such Lessee's assets that meets the requirements of this Section
5.19 hereof.
Section 5.20. Acquisitions. Without limiting the generality of any other
provision of this Agreement, neither Lessee 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 Lease Default or Lease Event of Default will occur or be
continuing and each of the representations and warranties of Lessee herein is
true on and as of the date of such Acquisition, both before and after giving
effect thereto. Nothing in Section 5.38 shall prohibit (x) the making by Lessee
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 Lessee 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 or a
Participant and, upon such assumption, is (to the extent such Acquired Debt is
not otherwise permitted to be incurred by Lessee pursuant to this Agreement)
immediately repaid (with the proceeds of Revolving Loans or otherwise).
Section 5.21. Limitation on Indebtedness. Lessee 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 Lessee shall not issue any Disqualified Interests and
shall not permit any of its Subsidiaries to issue any shares of preferred stock;
provided, however, that Lessee and any Subsidiary of Lessee 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 5.12(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 Lessee and its Subsidiaries and (2) all Indebtedness for which Lessee and any
Subsidiary of Lessee 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 Lessee 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 Lessee or any Subsidiary of Lessee 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 Lessee 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 5.22. Transactions with Affiliates. Lessee 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
Lessee or the relevant Subsidiary than those that would have been obtained in a
comparable transaction by Lessee 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,
Lessee delivers to Agent and the Participants an opinion as to the fairness to
Lessee 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 Lessee or any of its
Subsidiaries in the ordinary course of business and consistent with the past
practice of Lessee (or the General Partner) or such Subsidiary, Restricted
Payments permitted by the provisions of Section 5.28, and transactions entered
into by Lessee 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 Lessee, its Subsidiaries and its
Affiliates, in each case, shall not be deemed Affiliate Transactions, and (ii)
nothing herein shall authorize the payments by Lessee to the General Partner or
any other Affiliate of Lessee for administrative expenses incurred by such
Person other than such out-of-pocket administrative expenses as such Person
shall incur and Lessee shall pay in the ordinary course of business; and
provided, further, that the foregoing provisions of this Section 5.22 shall not
apply to transfers of accounts receivable of Lessee to an SPE in connection with
any Accounts Receivable Securitization permitted by Section 5.21.
Section 5.23. Use of Proceeds. Lessee shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the proceeds of the sale of the
Units, the Certificates or the Notes, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of Lessee
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 5.24. Use of Proceeds - Ineligible Securities. Lessee shall not,
directly or indirectly, use any portion of the proceeds of the sale of the
Units, the Certificates or the Notes (i) knowingly to purchase Ineligible
Securities from the Credit Agreement Arranger or the Documentation Agent during
any period in which the Credit Agreement 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 Credit Agreement Arranger or the Documentation Agent, or
(iii) to make payments of principal or interest on Ineligible Securities
underwritten or privately placed by the Credit Agreement Arranger or the
Documentation Agent and issued by or for the benefit of Lessee or any Affiliate
of Lessee.
Section 5.25. Contingent Obligations. Lessee 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 Agent, Hedging Obligations entered
into in the ordinary course of business as bona fide hedging
transactions;
(c) the Guaranties under the Credit Agreement; and
(d) Guaranty Obligations to the extent not prohibited by
Section 5.21.
Section 5.26. Joint Ventures. Lessee shall not, and shall not
suffer or permit any Subsidiary to enter into any Joint Venture.
Section 5.27. Lease Obligations. The aggregate obligations of Lessee and
its Subsidiaries for the payment of rent for any property under lease or
agreement to lease (excluding obligations of Lessee 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 Lessee
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 5.27. For purposes of
this Section 5.27, 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 Lessee 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 5.28. Restricted Payments. Lessee 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 Lessee's or any Subsidiary's
Equity Interests (other than (x) dividends or distributions payable in Equity
Interests (other than Disqualified Interests) of Lessee, (y) dividends or
distributions payable to Lessee or a Wholly-Owned Subsidiary of Lessee 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 Lessee or any
Subsidiary or other Affiliate of Lessee (other than, subject to compliance with
Section 5.37, any such Equity Interests owned by a Wholly-Owned Subsidiary of
Lessee that is a Guarantor); (iii) make any investment other than a Permitted
Lessee 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 Lease Default or Lease Event of Default shall have
occurred and be continuing or would occur as a consequence thereof and
each of the representations and warranties of Lessee 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 Lessee for Lessee'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
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 5.28) made by
Lessee 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 Lessee for the immediately preceding fiscal quarter
plus (y) the lesser of (i) the amount of any Available Cash of Lessee
during the first 45 days of such fiscal quarter and (ii) the excess of
the aggregate amount of Credit Agreement Loans that Lessee could have
borrowed over the actual amount of Credit Agreement 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
5.28 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 5.28) the amount of which, if made other than with cash, to be
determined in accordance with clause (c) of this Section 5.28 shall not
exceed an amount equal to (1) Consolidated Cash Flow of Lessee 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 Lessee 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 Lessee 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 5.28 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 5.28) made by Lessee 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 Lessee and
its Subsidiaries at July 31, 1996 over consolidated working capital of
Lessee 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 Lessee and its
Subsidiaries at the end of the fiscal year immediately preceding the
date of the proposed Restricted Payment over consolidated working
capital of Lessee and its Subsidiaries at July 31, 1996. For purposes
of this subsection 5.28(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 business 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 Lessee 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 Lessee in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of Lessee) of other Equity Interests of Lessee
(other than any Disqualified Interests).
Not later than the date of making any Restricted Payment, the General
Partner shall deliver to 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 5.28 were computed,
which calculations may be based upon Lessee's latest available financial
statements.
Section 5.29. Prepayments of Subordinated Indebtedness. Lessee 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 5.21 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 5.30. Dividend and Other Payment Restrictions Affecting
Subsidiaries. Lessee 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 Lessee 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 Lessee or any of its Subsidiaries, (c) make loans or
advances to Lessee or any of its Subsidiaries or (d) transfer any of its
properties or assets to Lessee or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) Existing
Indebtedness, (ii) the Operative Documents, the Credit 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 Lessee 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 Restatement Effective Date pursuant to the provisions of
Section 5.21 hereof, provided that such restrictions are no more restrictive
than those contained in this Agreement.
Section 5.31. Change in Business. Lessee 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 Lessee and
its Subsidiaries on the date hereof.
Section 5.32. Accounting Changes. Lessee 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
Lessee or of any Subsidiary except as required by the Code.
Section 5.33. Limitation on Sale and Leaseback Transactions. Lessee will
not, and will not permit any of its Subsidiaries to, enter into any arrangement
with any Person providing for the leasing by Lessee or such Subsidiary of any
property that has been or is to be sold or transferred by Lessee or such
Subsidiary to such Person in contemplation of such leasing; provided, however,
that Lessee or such Subsidiary may enter into such sale and leaseback
transaction if: (i) Lessee 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 5.12(a) and (B) secured
a Lien on such Indebtedness pursuant to Section 8.17; (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 5.34. [Intentionally Omitted].
Section 5.35. Amendments of Organization Documents or 1996 Indenture or
1998 Note Purchase Agreement. Lessee shall not modify, amend, supplement or
replace, nor permit any modification, amendment, supplement or replacement of
the Organization Documents of the General Partner, Lessee or any Subsidiary of
Lessee, 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 Participants, Lessee's ability to perform the Obligations, or the
Guarantor's ability to perform its obligations under the Guaranty, in each such
case without the prior written consent of Agent and the Required Participants.
Furthermore, the Lessee shall not permit any modification, amendment, supplement
or replacement of the Organization Documents of the MLP that would have a
material effect on Lessee without the prior written consent of Agent and the
Required Participants.
Section 5.36. [Intentionally Omitted].
Section 5.37. Operations through Subsidiaries. Lessee shall not conduct
any of its operations through Subsidiaries unless: (a) such Subsidiary executes
a Guaranty substantially in the form of Exhibit G to the Credit Agreement
guaranteeing payment of the Obligations, accompanied by an opinion of counsel to
the Subsidiary addressed to Agent and the Participants 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 5.21; (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
Lessee 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 Lessee and its Subsidiaries for such fiscal year, as determined
in accordance with GAAP; provided, however, that Lessee may, without regard to
the foregoing provisions of this Section 5.37, (x) establish and operate SPEs
solely in connection with Accounts Receivable Securitizations permitted by
Section 5.21 and (y) operate Thermogas as a Wholly-Owned Subsidiary for a period
of up to (but not exceeding) 30 days following the consummation of the Thermogas
Acquisition pending the merger of Thermogas with and into Lessee.
Section 5.38. Operations of MLP. Except in connection with an indirect
Acquisition permitted by Section 5.20, the General Partner and Lessee 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
Lessee and its Subsidiaries within a 25 mile radius of any business conducted by
Lessee and its Subsidiaries. In order to comply with this Section 5.38, Lessee
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, Lessee shall
have first obtained at its expense an opinion from a nationally recognized
investment banking firm, addressed to it, Agent and the Participants and opining
without material qualification and based on assumptions that are realistic at
the time, that the exchange or swap transactions are fair to Lessee 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 Required
Participants, Agent shall have first retained, at Lessee's expense, an
investment banking firm on behalf of the Participants who shall also have
rendered an opinion containing the statements and content referred to in clause
(i).
Section 5.39. Miscellaneous.
(a) Further Assurances. The Lessee, at its cost and expense, will cause
to be promptly and duly taken, executed, acknowledged and delivered all such
further acts, documents and assurances as Certificate Trustee or Agent
reasonably may request from time to time in order to carry out more effectively
the intent and purposes of this Agreement and the other Operative Documents and
the Overall Transaction. The Lessee, at its cost and expense, will cause all
financing statements (including precautionary financing statements), fixture
filings, mortgages and other documents, to be recorded or filed at such places
and times in such manner, and will take all such other actions or cause such
actions to be taken, as may be necessary or as may be reasonably requested by
Agent or Certificate Trustee in order to establish, preserve, protect and
perfect the title and Lien of Agent in the Units, the Lessee Collateral and the
Lessor Collateral and Certificate Trustee's, Agent's and/or any Participant's
rights under this Agreement and the other Operative Documents.
(b) Change of Name or Address. Lessee shall provide Agent thirty (30)
days' prior written notice of any change in name, or the address of its chief
executive office and principal place of business or the office where it keeps
its records concerning its accounts and the Units.
(c) Securities. Lessee shall not, nor shall it permit anyone authorized
to act on its behalf to, take any action which would subject the issuance or
sale of the Notes or Certificates, the Units, the Trust Estate or the Operative
Documents, or any security or lease the offering of which, for purposes of the
Securities Act or any state securities laws, would be deemed to be part of the
same offering as the offering of the aforementioned items to the registration
requirements of Section 5 of the Securities Act or any state securities laws.
(d) Rates. With respect to each determination of Interest and Yield
pursuant to this Agreement, the Loan Agreement, the Trust Agreement and Basic
Rent under the Lease, Lessee agrees to be bound by Sections 2.6 and 2.7 of the
Loan Agreement, Sections 2.4 and 2.5 of the Trust Agreement, and Sections 2.8
and 2.9 hereof and the applicable definitions in Appendix 1.
Section 5.40. 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 the Lease such that the covenants contained in
Section 5.12 would then be calculated in a different manner or with different
components, (i) Lessee and the Participants agree to amend this Agreement in
such respects as are necessary to conform those covenants as criteria for
evaluating Lessee's financial condition to substantially the same criteria as
were effective prior to such change in GAAP and (ii) Lessee shall be deemed to
be in compliance with the covenants contained in Section 5.12 during the 90-day
period following any such change in GAAP if and to the extent that Lessee 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 Lessee.
ARTICLE VI
OTHER COVENANTS AND AGREEMENTS
Section 6.1. Cooperation with Lessee. (a) Certificate Trustee, Agent
and each Participant shall, to the extent reasonably requested by Lessee (but
without assuming additional liability on account thereof), at Lessee's expense,
cooperate to allow Lessee to (a) perform its covenants contained in Section
5.39(a), including, without limitation, at any time and from time to time, upon
the reasonable request of Lessee, to promptly and duly execute and deliver any
and all such further instruments, documents and financing statements (and
continuation statements related thereto) as Lessee may reasonably request in
order to perform such covenants.
(b) Without limiting the generality of the foregoing, Agent and
Certificate Trustee shall, upon the request of Lessee and at Lessee's expense,
execute and deliver UCC partial termination statements releasing any propane
tank which is not a Unit from the coverage of any Financing Statement filed in
connection with the transactions contemplated by the Operative Documents.
Section 6.2. Covenants of Certificate Trustee and Agent.
(a) Discharge of Liens. Certificate Trustee, in its trust capacity,
will not create or permit to exist at any time, and will promptly take such
action as may be necessary duly to discharge, or to cause to be discharged, all
Certificate Trustee Liens attributable to it and will cause restitution to be
made to the Trust Estate in the amount of any diminution of the value thereof as
a result of its failure to comply with its obligations under this Section
6.2(a). The Bank, in its individual capacity, will not create or permit to exist
at any time, and will, at its own cost and expense, promptly take such action as
may be necessary duly to discharge, or to cause to be discharged, all
Certificate Trustee Liens attributable to it and will cause restitution to be
made to the Trust Estate in the amount of any diminution of the value thereof as
a result of its failure to comply with its obligations under this Section
6.2(a). Agent, in its individual capacity, will not create or permit to exist at
any time, and will, at its own cost and expense, promptly take such action as
may be necessary duly to discharge, or to cause to be discharged, all
Certificate Trustee Liens attributable to it and will cause restitution to be
made to the Trust Estate in the amount of any diminution of the value thereof as
a result of its failure to comply with its obligations under this Section
6.2(a). Notwithstanding the foregoing, none of Certificate Trustee, Agent or the
Bank, as the case may be, shall be required to so discharge any such Certificate
Trustee Lien while the same is being contested in good faith by appropriate
proceedings diligently prosecuted so long as such proceedings shall not involve
any meaningful danger of the sale, forfeiture or loss of, and shall not
interfere with the use or disposition of, the Units, the Lease or the Trust
Estate or title thereto or any interest therein or the payment of Rent.
(b) Trust Agreement. Without prejudice to any right under the Trust
Agreement of Certificate Trustee to resign, or the Certificate Purchasers' right
under the Trust Agreement to remove Certificate Trustee, each of the Certificate
Purchasers and Certificate Trustee hereby agrees with Lessee: (i) except as
permitted by the Trust Agreement not to terminate or revoke the trust created by
the Trust Agreement prior to the Lease Expiration Date, (ii) not to amend,
supplement, terminate or revoke or otherwise modify any provision of the Trust
Agreement prior to the Lease Expiration Date in such a manner as to materially
and adversely affect the rights of Lessee, (iii) except as otherwise expressly
authorized under the Operative Documents, not to withdraw from the Trust Estate
any funds other than amounts payable to it by Certificate Trustee as
distributions of Basic Rent and Supplemental Rent without the prior written
consent of Lessee and (iv) to comply with all of the terms of the Trust
Agreement applicable to it the nonperformance of which would adversely affect
such party.
(c) Successor Certificate Trustee. Certificate Trustee or any successor
may resign or be removed by the Certificate Purchasers as Certificate Trustee, a
successor Certificate Trustee may be appointed, and a corporation may become
Certificate Trustee under the Trust Agreement, only (and, so long as no Lease
Event of Default has occurred and is continuing, with the written consent of
Lessee) in accordance with the provisions of Article IV of the Trust Agreement.
(d) Indebtedness; Other Business. Certificate Trustee on behalf of the
Trust shall not contract for, create, incur or assume any indebtedness, or enter
into any business or other activity, other than pursuant to or under the
Operative Documents and, for the benefit of Lessee and the Certificate
Purchasers, agrees to be bound by Section 1.2(b) of the Trust Agreement.
(e) Change of Principal Place of Business. Certificate Trustee shall
give prompt notice to the Participants and Lessee if Certificate Trustee's
principal place of business or chief executive office, or the office where the
records concerning the accounts or contract rights relating to the Units or the
Overall Transaction are kept, shall cease to be located at its address in the
State of Utah set forth on Schedule II or if it shall change its name or
identity.
(f) Depreciation. Neither Certificate Trustee nor any Participant shall
claim any federal or state tax attributes or benefits (including depreciation)
relating to the Units in respect of any period prior to the Lease Expiration
Date unless required to do so by an appropriate taxing authority or after a
clearly applicable change in Applicable Laws and Regulations or as a protective
response to a proposed adjustment by a Governmental Authority; provided,
however, that if an appropriate taxing authority shall require Certificate
Trustee or any Participant to claim any such federal or state tax attributes or
benefits, such Person shall promptly notify Lessee thereof and shall permit
Lessee to contest such requirement in a manner similar to the contest rights
provided in, and subject to any applicable limitation to a context contained in,
Section 7.2(b) hereof.
Section 6.3. Assignments. (a) All or any part of the interest of any
Lender in, to or under this Participation Agreement, the other Operative
Documents, the Units or the Notes may be assigned or transferred by such Lender
at any time to an Eligible Assignee; provided, however, that (i) each assignment
or transfer shall comply with all applicable securities laws and ERISA; (ii)
each assignment or transfer shall consist of a transfer of equivalent portions
of such Lender's rights and obligations under the Loan Agreement (if applicable
to such Lender); and (iii) each assignment or transfer of Loans shall be in a
minimum aggregate amount of $2,000,000 and $500,000 integral multiples in excess
thereof (or, if less, the aggregate amount of Loans then held by the assignor or
transferor Lender), unless such assignment or transfer is between Lenders and/or
their Affiliates; and provided further that so long as no Lease Default or Lease
Event of Default exists, any such transfer or assignment (other than a transfer
or assignment to a Participant or an Affiliate of the transferor) shall be
subject to the consent of Lessee, which shall not be unreasonably withheld. Such
assignment or transfer shall be pursuant to documentation in the form of Exhibit
K, duly executed by the assignee or transferee.
(b) Any Certificate Purchaser may assign or transfer all or
any part of its interest in, to and under this Participation Agreement,
the other Operative Documents, the Units and the Certificates at any
time to an Eligible Assignee; provided, however, that (i) each
assignment or transfer shall comply with all applicable securities laws
and ERISA; (ii) each assignment or transfer shall consist of a transfer
of equivalent portions of such Certificate Purchaser's rights and
obligations under the Trust Agreement (if applicable to such Lender);
and (iii) each assignment or transfer of Certificate Amounts shall be
in a minimum aggregate amount of $75,000 and $10,000 integral multiples
in excess thereof (or, if less, the aggregate amount of Certificates
then held by the assignor or transferor Certificate Purchaser), unless
such assignment or transfer is between Certificate Purchasers and/or
their Affiliates; and provided further that so long as no Lease Default
or Lease Event of Default exists, any such transfer or assignment
(other than a transfer or assignment to a Participant or an Affiliate
of the transferor) shall be subject to the consent of Lessee, which
shall not be unreasonably withheld. Such assignment or transfer shall
be pursuant to documentation in the form of Exhibit K, duly executed by
the assignee or transferee.
Section 6.4. Participations. Each Participant may sell, transfer or
assign a participation in all or a portion of the interests represented by its
Notes and/or Certificates or any right to payment thereunder (a "Participation")
to any Person (a "Participation Holder"). In the event of any such sale by a
Participant of a Participation to a Participation Holder, the obligations of
such Participant under this Participation Agreement and under the other
Operative Documents shall remain unchanged, such Participant shall remain solely
responsible for the performance thereof, such Participant shall remain the
holder of its Note and/or Certificate for all purposes under this Participation
Agreement and under the other Operative Documents, and Certificate Trustee and
Agent shall continue to deal solely and directly with such Participant in
connection with such Participation Holder's rights and obligations under this
Trust Agreement, under the Loan Agreement and under the other Operative
Documents, as applicable.
ARTICLE VII
INDEMNIFICATION
Section 7.1. General Indemnification. Whether or not the transactions
contemplated hereby are consummated, to the fullest extent permitted by
Applicable Laws and Regulations, Lessee hereby assumes liability for and agrees
to indemnify, protect, defend, save and keep harmless each Indemnitee on an
after-tax basis (in accordance with Section 7.4) from and against, any and all
Claims of every kind and nature whatsoever that may be imposed on, incurred by,
or asserted against any Indemnitee, which are not directly and primarily caused
by (i) the fraud, gross negligence or willful misconduct of such Indemnitee
(provided that the indemnification provided under this Section 7.1 shall
specifically include matters based on or arising from the negligence of any
Indemnitee), (ii) the breach by such Indemnitee of any representation, warranty
or covenant set forth in any Operative Document or (iii) the violation by such
Indemnitee of any Applicable Laws and Regulations, whether or not such
Indemnitee shall also be indemnified as to any such Claim by any other Person
and whether or not such Claim arises or accrues prior to the Delivery Date or
after the Lease Expiration Date, and which relates in any way to or arises in
any way out of:
(a) any of the Operative Documents or any of the transactions
contemplated thereby, or any investigation, litigation or proceeding in
connection therewith, and any amendment, modification or waiver in
respect thereof;
(b) the Acquired Property or any Part thereof or interest
therein;
(c) the acquisition, mortgaging, design, manufacture,
re-manufacture, construction, preparation, installation, inspection,
delivery, non-delivery, acceptance, rejection, purchase, ownership,
possession, rental, lease, sublease, transportation, repossession,
maintenance, repair, alteration, modification, addition or
substitution, storage, transfer of title, registration or
re-registration, redelivery, use, operation, condition, financing,
refinancing, sale (including, without limitation, any sale pursuant to
the Lease), return or other application or disposition of the Units or
any Unit or Part thereof or the imposition of any Lien (or incurring of
any liability to refund or pay over any amount as a result of any Lien)
on any of the Units, including, without limitation, (i) Claims or
penalties arising from any violation of Applicable Laws and Regulations
or in tort (strict liability or otherwise), (ii) loss of or damage to
the environment (including, without limitation, investigation costs,
cleanup costs, response costs, remediation and removal costs, costs of
corrective action, costs of financial assurance, and all other damages,
costs, fees and expenses, fines and penalties, including natural
resource damages), or death or injury to any Person, and any mitigative
action required by or under Environmental Laws, (iii) latent or other
defects, whether or not discoverable, and (iv) any Claim for patent,
trademark or copyright infringement;
(d) the sale or other disposition of any of the Acquired
Property, including, without limitation, any disposition pursuant to
the Sale Option, Purchase Option or as a result of the exercise of
remedies;
(e) the offer, issuance, sale or delivery of the
Certificates or the Notes;
(f) the breach by Lessee of any representation or warranty
made by it or deemed made by it in any Operative Document;
(g) the transactions contemplated hereby or by any other
Operative Document in respect of the application of Parts 4 and 5 of
Subtitle B of Title I of ERISA and any prohibited transaction described
in Section 4975(c) of the Code;
(h) any Claims related to the Release from any Unit of any
substance into the environment, including (without limitation) Claims
arising out of the use of any Unit for the transportation or storage of
any Hazardous Material;
(i) any failure on the part of Lessee to perform or
comply with any of the terms of any Operative Document; or
(j) any other agreement entered into or assumed by Lessee in
connection with any Unit.
It is expressly understood and agreed that this Section 7.1 shall not
apply to Claims in respect of:
(A) Taxes (such Claims being subject to Section 7.2), except
with respect to (1) taxes or penalties included in Claims described in
clause (g) above, and (2) any payment necessary to make payments under
this Section 7.1 in accordance with Section 7.4; and
(B) as to an Indemnitee, Certificate Trustee Liens which such
Indemnitee is responsible for discharging under the Operative
Documents.
Section 7.2. General Tax Indemnity. (a) Lessee shall pay, defend and
indemnify and hold each Indemnitee harmless on an after-tax basis (in accordance
with Section 7.4) from any and all Federal, state, local and foreign Taxes
imposed on or with respect to or in connection with any Indemnitee, the Acquired
Property or any portion thereof, any Operative Document, Lessee or any sublessee
or user of any Unit, howsoever imposed, whether levied or imposed upon or
asserted against any Indemnitee, any Acquired Property, or any Part thereof, by
any taxing Governmental Authority (including any Federal, state or local
government or taxing Governmental Authority in the United States and any taxing
Governmental Authority or governmental subdivision of a foreign country), upon
or with respect to:
(i) the acquisition, mortgaging, design, manufacture,
re-manufacture, construction, preparation, installation, inspection,
delivery, non-delivery, acceptance, rejection, purchase, ownership,
possession, rental, lease, sublease, repossession, maintenance, repair,
alteration, modification, addition or substitution, storage, titling or
retitling, transfer of title, registration or re-registration,
redelivery, use, operation, condition, financing, refinancing, sale,
return or other application or disposition of the Units or any Unit or
Part thereof or any other Acquired Property or the imposition of any
Lien (or incurrence of any liability to refund or pay over any amount
as a result of any Lien) thereon,
(ii) Basic Rent or Supplemental Rent or the receipts or
earnings arising from or received with respect to the Units or any Unit
or any Part thereof, or any interest therein or any applications or
dispositions thereof,
(iii) any other amount paid or payable pursuant to the Lease,
the Certificates, the Notes or any other Operative Documents,
(iv) the Units or any Unit or any Part thereof or any other
Acquired Property or any interest therein,
(v) all or any of the Operative Documents, any other
documents contemplated thereby and any amendments and supplements
thereto, and
(vi) otherwise with respect to or in connection with the
transactions contemplated by the Operative Documents;
provided, that the indemnification obligation of this Section 7.2(a) shall not
apply to (1) Taxes which are based upon or measured by the Indemnitee's net
income or which are expressly in substitution for, or relieve Indemnitee from,
any actual Tax based upon or measured by Indemnitee's net income (other than any
such Taxes imposed by means of withholding); (2) Taxes characterized under local
law as franchise, net worth, or shareholder's capital (excluding, however, any
value-added, license, property or similar Taxes); and (3) if no Lease Event of
Default exists, Taxes based upon the voluntary transfer, assignment or
disposition by Lessor or any Participant of any interest in any of the Units,
the Certificates or the Notes (other than transfers pursuant to the exercise of
the Sale Option or the Purchase Option, or any other transfer to Lessee or
otherwise pursuant to the Lease). Notwithstanding the proviso of the preceding
sentence of this Section 7.2(a), Lessee shall pay or reimburse, and indemnify
and hold harmless,
(A) any Indemnitee against any Tax based on, or
measured by the net income of, such Indemnitee imposed by any
Federal, state or local taxing Authority in the United States
(or any taxing Governmental Authority in any other
jurisdiction in which such Indemnitee maintains its principal
place of business) to the extent such Tax would not have been
imposed if on the Delivery Date the Participants had advanced
funds directly to Lessee in the form of a loan secured by the
Units in an amount equal to the aggregate amount funded by the
Participants on the Delivery Date, with the debt service for
such loan equal to the rents provided under the Lease and a
principal balance due at the end of such term in an amount
equal to the Lease Balance remaining at the end of the Lease
Term, or
(B) any Indemnitee which is not incorporated under
the laws of the United States or a State thereof and which has
complied with Section 7.2(c), from any deduction or
withholding of any United States Federal income tax.
All of the indemnities contained in this Section 7.2 shall continue in
full force and effect notwithstanding the expiration or earlier termination of
the Lease and the other Operative Documents in whole or in part, including the
termination of the Lease with respect to any Unit or all of the Units, and are
expressly made for the benefit of, and shall be enforceable by, each Indemnitee.
(b) On or before October 1 of each year occurring during the Lease
Term, Lessee will deliver to Certificate Trustee and Agent an Officer's
Certificate stating that Lessee has filed all reports or returns and paid all
material Taxes which are due and payable and which Lessee is (i) required to
indemnify hereunder and (ii) permitted to so file and pay pursuant to Applicable
Laws and Regulations. If Lessee is not permitted by Applicable Laws and
Regulations to file any report or return required to be made with respect to any
Tax with respect to which Lessee is required to indemnify hereunder, Lessee
shall prepare such reports or returns for signature by Agent, Certificate
Trustee or the applicable Participant and shall forward the same, together with
immediately available funds for payment of any Tax due, to Agent, Certificate
Trustee or such Participant, at least ten (10) days in advance of the date such
payment is to be made. Upon written request, Lessee shall furnish Agent,
Certificate Trustee or any Participant with copies of all reports, returns, paid
receipts or other appropriate evidence of payment for all Taxes paid by Lessee
pursuant to this Section 7.2.
(c) At least five (5) Business Days prior to the first date on which
any payment is due on any Note or Certificate for the account of any Participant
not incorporated under the laws of the United States or a State thereof, such
Participant agrees that it will have delivered to each of Lessee and Agent two
duly completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in the case of a Form 1001 that such Participant is entitled to
receive payments under the Operative Documents without deduction or withholding
of any United States Federal income taxes, or at a reduced rate, if applicable.
Each Participant which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of Lessee and Agent two additional copies of such form (or a
successor form) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by Lessee or Agent, in each
case certifying that such Participant is entitled to receive payments under the
Operative Documents without deduction or withholding of any United States
Federal income taxes, unless an event (including any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Participant from duly completing and delivering any such form with
respect to it and such Participant advises Lessee and Agent that it is not
capable of receiving payments without any withholding of United States Federal
income tax.
Section 7.3. Excessive Use Indemnity. In the event that at the end of
the Lease Term: (a) Lessee elects the Sale Option and (b) after paying to Agent
any amounts due under Section 9.1(b) of the Lease, Proceeds and the Applicable
Percentage Amount, the Lease Balance shall not have been reduced to zero, then
Lessee shall promptly pay over to Agent the shortfall unless Lessee delivers a
report from an independent appraiser in form and substance satisfactory to the
Required Participants which establishes that the decline in value in the Units
from the aggregate amount anticipated for such date in the Appraiser's report
delivered with respect to each Unit on the Delivery Date was not due to the
excessive use of any Unit, failure to maintain any Unit, modifications or
alteration which reduce the value of any Unit, any adverse change in the
environmental condition of any Unit, any defect or exception to title of any
Unit or any other cause or condition within the power of Lessee to control or
affect, differing from ordinary wear and tear.
Section 7.4. Gross Up. If an Indemnitee shall not be entitled to a
corresponding and equal deduction with respect to any payment or Tax which
Lessee is required to pay or reimburse under any other provision of this Article
VII (each such payment or reimbursement under this Article VII, an "original
payment") and which original payment constitutes income to such Indemnitee, then
Lessee shall pay to such Indemnitee on demand the amount of such original
payment on a gross-up basis such that, after subtracting all Taxes imposed on
such Indemnitee with respect to such original payment by Lessee (including any
Taxes otherwise excluded from the indemnification provided under Section 7.2 and
assuming for this purpose that such Indemnitee was subject to taxation at the
highest Federal, state or local marginal rates applicable to widely held
corporations for the year in which such income is taxable), such payments shall
be equal to the original payment to be received (net of any credits, deductions
or other tax benefits then actually recognized that arise from the payment by
such Indemnitee of any amount, including taxes, for which the payment to be
received is made).
Section 7.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank regulator or
other Governmental Authority ("Change in Law") affects or would affect the
amount of capital required or expected to be maintained by any Participant
directly or by its parent company (other than any change by way of imposition of
or increase in reserve requirements included in the calculation of the LIBO Rate
or in respect of the assessment rate payable by any Participant to the FDIC for
insuring U.S. deposits) and such Participant determines (in its sole and
absolute discretion) that the rate of return on it or its parent's capital as a
consequence of any Funding made by such Participant hereunder to pay its share
of the Purchase Price is reduced to a level below that which such Participant or
its parent could have achieved but for the occurrence of any such circumstances,
then, in any such case, upon written notification from time to time by such
Participant to Lessee, Lessee shall, within five (5) Business Days following
receipt of the statement referred to in the next sentence, pay directly to such
Participant, as Supplemental Rent, additional amounts sufficient to compensate
Participant or its parent for such reduction in rate of return (subject to
Section 7.4). A statement of a Participant as to any such additional amount or
amounts (including calculations thereof in reasonable detail) and the reasons
therefor shall, in the absence of manifest error, be conclusive and binding on
Lessee. In determining such amount, each Participant shall use any method of
averaging or attribution that it (in its reasonable discretion) shall deem
applicable.
Section 7.6. LIBO Rate Illegal, Unavailable or Impracticable.
If any Participant shall determine in good faith (which determination shall,
upon notice thereof to Lessee, be conclusive and binding on Lessee) that
(a) a change in law makes it unlawful, or the central bank or
other Governmental Authority asserts that it is unlawful, for such
Participant to make, continue or maintain any amount of such
Participant's investment in the Notes or Certificates on a LIBO Rate
basis,
(b) deposits in Dollars (in the applicable amounts) are not
being offered to such Participant in the relevant market for the
applicable Payment Period, or that by reason of circumstances affecting
the interbank eurodollar market adequate and reasonable means do not
exist for ascertaining the applicable LIBO Rate, or
(c) the LIBO Rate, as determined by Agent, will not
adequately and fairly reflect the cost to such Participant of
maintaining or funding its investments for the applicable Payment
Period,
then the obligations of such Participant to make, continue or maintain any such
investment shall, upon such determination, forthwith be suspended until such
Participant shall notify Lessee that such circumstances no longer exist, and all
Basic Rent (or Interest and Yield) allocable to such Participant shall
automatically be determined on a Alternate Base Rate basis beginning on the next
immediately succeeding Payment Date with respect thereto or sooner, if required
by such law, assertion or determination.
Section 7.7. Funding Losses. Lessee agrees to reimburse any Participant
for any loss or expense incurred (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Participant to make, continue or maintain any portion of its investment in
any Note or Certificate on a LIBO Rate basis) as a result of (i) the failure of
the transaction contemplated by Article II to occur on or before the Delivery
Date specified in the Delivery Date Notice or (ii) any payment of all or any
portion of the Lease Balance for any reason on a date other than the Payment
Date when such Lease Balance was scheduled to be paid. Such Participant shall
promptly notify Lessee in writing of the amount of any claim under this Section
7.7, the reason or reasons therefor and the additional amount required fully to
compensate such Participant for such loss or expense. Such written notice (which
shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on Lessee.
Section 7.8. Actions of Affected Participants. Each Participant shall
use reasonable efforts (including reasonable efforts to change the booking
office for this transaction) to avoid or minimize any amounts which might
otherwise be payable pursuant to Sections 7.5 and 7.6; provided, however, that
such efforts shall not be deemed by such Participant, in its sole discretion, to
be disadvantageous to it. In the event that such reasonable efforts are
insufficient to avoid or minimize such amounts that might be payable pursuant to
Sections 7.5 and 7.6, then such Participant (the "Affected Participant") shall
use its reasonable efforts to transfer to any other Participant approved by
Lessee (which itself is not then an Affected Participant) its Notes and/or
Certificates; provided, that such transfer shall not be deemed by such Affected
Participant, in its reasonable sole discretion, to be disadvantageous to it
(other than the economic disadvantage of ceasing to be a Participant). In the
event that the Affected Participant is unable, or otherwise is unwilling, to use
its reasonable efforts to so transfer its rights and obligations, Lessee may
designate an alternate financial institution to purchase the Affected
Participant's Notes and Certificates and, subject to the provisions of Sections
6.3 and 7.7, the Affected Participant shall transfer its rights and obligations
to such alternate financial institution and such alternate financial institution
shall become a Participant hereunder; provided that the costs of such transfer
to either another Participant or an alternate financial institution shall be
borne by Lessee.
ARTICLE VIII
AGENT
Section 8.1. Appointment of Agent; Powers and Authorization to Take
Certain Actions. (a) Each Participant irrevocably appoints and authorizes First
Security Trust Company of Nevada to act as its agent hereunder, with such powers
as are specifically delegated to Agent by the terms hereof, together with such
other powers as are reasonably incidental thereto. Each Participant authorizes
and directs Agent to, and Agent agrees for the benefit of the Participants,
that, on the Delivery Date it will accept the documents described in Article III
of this Participation Agreement. Agent accepts the agency hereby created
applicable to it and agrees to receive all payments and proceeds pursuant to the
Operative Documents and disburse such payments or proceeds in accordance with
the Operative Documents. Agent shall have no duties or responsibilities except
those expressly set forth in the Loan Agreement and this Participation
Agreement. Agent shall not be responsible to any Participant (or to any other
Person): (i) for any recitals, statements, representations or warranties of any
party contained in the Loan Agreement, this Participation Agreement, or in any
certificate or other document referred to or provided for in, or received by it
under, the Operative Documents, other than the representations and warranties
made by Agent in Section 4.4, or (ii) for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of the Units, the Lessee Collateral
or the Lessor Collateral or the title thereto (subject to Agent's obligations
under Section 4.4) or of the Loan Agreement or any other document referred to or
provided for therein or (iii) for any failure by any Lessee, Certificate Trustee
or any other third party (other than Agent) to perform any of its obligations
under any Operative Document. Agent may employ agents, trustees or
attorneys-in-fact, may vest any of them with any property, title, right or power
deemed necessary for the purposes of such appointment and shall not be
responsible for the negligence or misconduct of any of them selected by it with
reasonable care. Except as provided for in Section 8.1(c) below, neither Agent
nor any of its directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by it or them hereunder,
or in connection herewith.
(b) Agent shall not have any duty or obligation to manage, control,
use, operate, store, lease, sell, dispose of or otherwise deal with the Units,
the Lessee Collateral or the Lessor Collateral, or to otherwise take or refrain
from taking any action under, or in connection with, this Participation
Agreement or any related document to which Agent is a party, except as expressly
provided by the terms hereof, and no implied duties of any kind shall be read
into any Operative Document against Agent. The permissive right of Agent to take
actions enumerated in this Participation Agreement or any other Operative
Document shall never be construed as a duty, unless Agent is instructed or
directed to exercise, perform or enforce one or more rights by the Required
Participants (provided that Agent has received indemnification reasonably
satisfactory to it). Subject to Section 8.1(c) below, no provision of the
Operative Documents shall require Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
obligations under the Operative Documents, or in the exercise of any of its
rights or powers thereunder. It is understood and agreed that the duties of
Agent are ministerial in nature.
(c) Except as specifically provided herein, Agent is acting hereunder
solely as agent and, except as specifically provided herein, is not responsible
to any party hereto in its individual capacity, except with respect to any claim
arising from Agent's gross negligence or willful misconduct, or its negligence
in the handling of funds or any breach of a representation or covenant made in
its individual capacity.
(d) Agent may accept deposits from, lend money to and otherwise deal
with Lessee or any of its Affiliates with the same rights as it would have if it
were not the named Agent hereunder.
Section 8.2. Reliance. Agent may rely upon, and shall not be bound or
obligated to make any investigation into the facts or matters stated in, any
certificate, notice or other communication (including any communication by
telephone, telecopy, telex, telegram or cable) reason ably believed by it to be
genuine and correct and to have been made, signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Agent with due care
(including any expert selected by Agent to aid Agent in any calculations
required in connection with its duties under the Operative Documents).
Section 8.3. Action upon Instructions Generally. Subject to Sections
8.4 and 8.6, upon written instructions of the Required Participants, Agent
shall, on behalf of the Participants, give such notice or direction, exercise
such right, remedy or power hereunder or in respect of the Units, and give such
consent or enter into such amendment to any document to which it is a party as
Agent as may be specified in such instructions. Agent shall deliver to each
Participant a copy of each notice, report and certificate received by Agent
pursuant to the Operative Documents. Agent shall have no obligation to
investigate or determine whether there has been a Lease Event of Default or a
Lease Default. Agent shall not be deemed to have notice or knowledge of a Lease
Event of Default or Lease Default unless a Responsible Officer of Agent is
notified in writing of such Lease Event of Default or Lease Default; provided
that Agent shall be deemed to have been notified in writing of any failure of
Lessee to pay Rent in the amounts and at the times set forth in Article IV of
the Lease. If Agent receives notice of a Lease Event of Default, Agent shall
give prompt notice thereof, at Lessee's expense, to each Participant. Subject to
Sections 8.4, 8.6 and 9.5, Agent shall take action or refrain from taking action
with respect to such Lease Event of Default as directed by the Required
Participants or, in the case of a Payment Default, as directed by any
Participant; provided that, unless and until Agent receives such directions,
Agent may refrain from taking any action with respect to such Lease Event of
Default or Payment Default. Prior to the date the Lease Balance shall have
become due and payable by acceleration pursuant to Section 8.2 of the Lease, the
Required Participants may deliver written instructions to Agent to waive, and
Agent shall waive pursuant thereto, any Lease Event of Default and its
consequences; provided that in the absence of written instructions from all
Participants, Agent shall not waive any: (i) Payment Default, or (ii) covenant
or provision which, under Section 9.5, cannot be modified or amended without the
consent of all Participants. As to any matters not expressly provided for by
this Participation Agreement, Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
signed by the Required Participants and such instructions of the Required
Participants and any action taken or failure to act pursuant thereto shall be
binding on each Participant.
Section 8.4. Indemnification. Each Participant shall reimburse and hold
Agent harmless, ratably in accordance with its Commitment at the time the
indemnification is required to be given, (but only to the extent that any such
indemnified amounts have not in fact been paid to Agent by, or on behalf of,
Lessee in accordance with Section 7.1) from any and all claims, losses, damages,
obligations, penalties, liabilities, demands, suits, judgments, or causes of
action, and all legal proceedings, and any reasonable costs or expenses in
connection therewith, including allocated charges, costs and expenses of
internal counsel of Agent and all other reasonable attorneys' fees and expenses
incurred by Agent, in any way relating to or arising in any manner out of: (i)
any Operative Document, the enforcement hereof or thereof or the consummation of
the transactions contemplated thereby, or (ii) instructions from the Required
Participants (including, without limitation, the costs and expenses that Lessee
is obligated to and does not pay hereunder, but excluding normal administrative
costs and expenses incident to the performance by Agent of its agency duties
hereunder other than materially increased administrative costs and expenses
incurred as a result of a Lease Event of Default); provided that no Participant
shall be liable for any of the foregoing to the extent they arise from (a) the
gross negligence or willful misconduct of Agent, (b) the inaccuracy of any
representation or warranty or breach of any covenant given by Agent in Section
4.4 or in the Loan Agreement, (c) in the case of Agent's handling of funds, the
failure to act with the same care as Agent uses in handling its own funds or (d)
any taxes, fees or other charges payable by Agent based on or measured by any
fees, commissions or compensation received by it for acting as Agent in
connection with the transactions contemplated by the Operative Documents.
Section 8.5. Independent Credit Investigation. Each Participant by
entering into this Participation Agreement agrees that it has, independently and
without reliance on Agent or Arranger or any other Participant and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of Lessee and its own decision to enter into this Participation
Agreement and each of the other Operative Documents to which it is a party and
that it will, independently and without reliance upon Agent, Arranger or any
other Participant and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking action under this Participation Agreement and any related documents to
which it is a party. Agent shall not be required to keep itself informed as to
the performance or observance by Lessee of any other document referred to
(directly or indirectly) or provided for herein or to inspect the properties or
books of Lessee. Except for notices or statements which Agent is expressly
required to give under this Participation Agreement and for notices, reports and
other documents and information expressly required to be furnished to Agent
alone (and not also to each Participant and the Certificate Trustee, it being
understood that Agent shall forward copies of same to each Participant and the
Certificate Trustee) hereunder or under any other Operative Document, Agent
shall not have any duty or responsibility to provide any Participant with copies
of notices or with any credit or other information concerning the affairs,
financial condition or business of Lessee (or any of its Affiliates) that may
come into the possession of Agent or any of its Affiliates.
Section 8.6. Refusal to Act. Except for notices and actions expressly
required of Agent hereunder and except for the performance of its covenants in
Section 4.4, Agent shall in all cases be fully justified in failing or refusing
to act unless (a) it is indemnified to its reasonable satisfaction by the
Participants against any and all liability and reasonable expense which may be
incurred by it by reason of taking or continuing to take any such action
(provided that such indemnity shall be subject to each of the limitations set
forth at Section 8.4, it being understood that no action taken by Agent in
accordance with the instructions of the Required Participants shall be deemed to
constitute any such matter) and (b) it is reasonably satisfied that such action
is not contrary to any Operative Document or to any Applicable Laws and
Regulations.
Section 8.7. Resignation or Removal of Agent; Appointment of Successor.
Subject to the appointment and acceptance of a successor Agent as provided
below, Agent may resign at any time by giving notice thereof to each Certificate
Trustee and Lessee or may be removed at any time by written notice from the
Required Participants. Upon any such resignation or removal, the Required
Participants at the time of the resignation or removal shall have the right to
appoint (so long as no Lease Event of Default is continuing, with the prior
written consent of Lessee) a successor Agent which shall be a financial
institution having a combined capital and surplus of not less than $500,000,000.
If, within 30 calendar days after the retiring Agent's giving of notice of
resignation or receipt of a written notice of removal, a successor Agent is not
so appointed and does not accept such appointment, then the retiring or removed
Agent may appoint a successor Agent and transfer to such successor Agent all
rights and obligations of the retiring Agent. Such successor Agent shall be a
financial institution having combined capital and surplus of not less than
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent shall be discharged from duties
and obligations as Agent thereafter arising hereunder and under any related
document. If the retiring Agent does not appoint a successor, any Participant
shall be entitled to apply to a court of competent jurisdiction for such
appointment, and such court may thereupon appoint a successor to act until such
time, if any, as a successor shall have been appointed as above provided.
Section 8.8. Separate Agent. The Required Participants may, and if they
fail to do so at any time when they are so required, Agent may, for the purpose
of meeting any legal requirements of any jurisdiction in which the Units, the
Lessee Collateral or the Lessor Collateral may be located and, so long as no
Lease Event of Default has occurred and is continuing, with the prior written
consent of Lessee, appoint one or more individuals or corporations either to act
as co-agent jointly with Agent or to act as separate agent of all or any part of
the Units, the Lessee Collateral or the Lessor Collateral, and vest in such
individuals or corporations, in such capacity, such title to such Units, the
Lessee Collateral or the Lessor Collateral or any part thereof, and such rights
or duties as Agent may consider necessary or desirable. Agent shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified. Agent shall execute, acknowledge and deliver all such instruments as
may be required by any such co-agent or separate agent more fully confirming
such title, rights or duties to such co-agent or separate agent. Upon the
acceptance in writing of such appointment by any such co-agent or separate
agent, it, she or he shall be vested with such interest in the Units, the Lessee
Collateral or the Lessor Collateral or any part thereof, and with such rights
and duties, not inconsistent with the provisions of the Operative Documents, as
shall be specified in the instrument of appointment, jointly with Agent (except
insofar as local law makes it necessary for any such co-agent or separate agent
to act alone), subject to all terms of the Operative Documents. Any co-agent or
separate agent, to the fullest extent permitted by legal requirements of the
relevant jurisdiction, at any time, by an instrument in writing, shall
constitute Agent its attorney-in-fact and agent, with full power and authority
to do all acts and things and to exercise all discretion on its behalf and in
its name. If any co-agent or separate agent shall die, become incapable of
acting, resign or be removed, the interest in the Units, the Lessee Collateral
and the Lessor Collateral and all rights and duties of such co-agent or separate
agent shall, so far as permitted by law, vest in and be exercised by Agent,
without the appointment of a successor to such co-agent or separate agent.
Section 8.9. Termination of Agency. The agency created hereby shall
terminate upon the final disposition by Agent of all Units, the Lessee
Collateral and the Lessor Collateral and the final distribution by Agent of all
monies or other property or proceeds received pursuant to the Lease in
accordance with their terms; provided, that at such time Lessee shall have
complied fully with all the terms hereof.
Section 8.10. Compensation of Agent. Lessee shall pay Agent its
reasonable fees, costs and expenses for the performance of Agent's obligations
hereunder (including the reasonable fees and expenses of its counsel).
Section 8.11. Limitations. It is expressly understood and agreed by and
among the parties hereto that, except as otherwise provided herein or in the
other Operative Documents: (a) this Participation Agreement and the other
Operative Documents to which Agent is a party are executed by Agent, not in its
individual capacity (except with respect to the representations and covenants of
Agent in Section 4.4), but solely as Agent under the Operative Documents in the
exercise of the power and authority conferred and vested in it as such Agent;
(b) each and all of the undertakings and agreements herein made on the part of
Agent are each and every one of them made and intended not as personal
undertakings and agreements by Agent, or for the purpose or with the intention
of binding Agent personally, unless expressly provided otherwise; (c) actions to
be taken by Agent pursuant to its obligations under the Operative Documents may,
in certain circumstances, be taken by Agent only upon specific authority of the
Participants; (d) nothing contained in the Operative Documents shall be
construed as creating any liability on Agent, individually or personally, or any
incorporator or any past, present or future subscriber to the capital stock of,
or stockholder, officer or director, employee or agent of, Agent to perform any
covenants either express or implied contained herein, all such liability, if
any, being expressly waived by the other parties hereto and by any Person
claiming by, through or under them; and (e) so far as Agent, individually or
personally, is concerned, the other parties hereto and any Person claiming by,
through or under them shall look solely to the Units, the Lessee Collateral, the
Lessor Collateral and Lessee for the performance of any obligation under any of
the instruments referred to herein; provided, however, that nothing in this
Section 8.11 shall be construed to limit in scope or substance the general
corporate liability of Agent in respect of its gross negligence or willful
misconduct, negligence in the handling of funds or for those representations,
warranties and covenants of Agent in its individual capacity set forth herein or
in any of the other agreements contemplated hereby.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery and the termination or expiration of
this Agreement and any of the Operative Documents, the transfer of the interest
in the Units as provided herein or in any other Operative Documents, any
disposition of any interest of Certificate Trustee in the Units, the purchase
and sale of the Notes or Certificates, payment therefor and any disposition
thereof and shall be and continue in effect notwithstanding any investigation
made by any party hereto or to any of the other Operative Documents and the fact
that any such party may waive compliance with any of the other terms, provisions
or conditions of any of the Operative Documents.
Section 9.2. No Broker, etc. Except for Lessee's dealing with Banc of
America Leasing & Capital, LLC, as Arranger, each of the parties hereto
represents to the others that it has not retained or employed any arranger,
broker, finder or financial advisor to act on its behalf in connection with this
Agreement, nor has it authorized any arranger, broker, finder or financial
adviser retained or employed by any other Person so to act, nor has it incurred
any fees or commissions to which Certificate Trustee, Agent or any Participant
might be subjected by virtue of their entering into the transactions
contemplated by this Agreement. Any party who is in breach of this
representation shall indemnify and hold the other parties harmless from and
against any liability arising out of such breach of this representation.
Section 9.3. Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been given: (i) in the case of notice by letter,
the earlier of when delivered to the addressee by hand or courier if delivered
on a Business Day and, if not delivered on a Business Day, the first Business
Day thereafter or on the third Business Day after depositing the same in the
mails, registered or certified mail, postage prepaid, return receipt requested,
and (ii) in the case of notice by facsimile or bank wire, when receipt is
confirmed if delivered on a Business Day and, if not delivered on a Business
Day, the first Business Day thereafter, addressed as provided on Schedule II
hereto, or to such other address as any of the parties hereto may designate by
written notice.
Section 9.4. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same agreement.
Section 9.5. Amendments. No Operative Document nor any of the terms
thereof may be terminated, amended, supplemented, waived or modified without the
written agreement or consent of Certificate Trustee, Agent, Lessee and the
Required Participants; provided, however, that Section 9.15 hereof may not be
terminated, amended, supplemented, waived or modified without the written
agreement or consent of the Arranger; and provided, further, that such
termination, amendment, supplement, waiver or modification shall require the
written agreement or consent of each Participant if such termination, amendment,
supplement, waiver or modification would:
(a) modify any of the provisions of this Section 9.5, change
the definition of "Required Participants", or modify or waive any
provision of any Operative Document requiring action by all of the
Participants, or release any collateral (except in connection with a
transaction permitted by the Operative Documents or approved by all of
the Participants);
(b) reduce the amount or change the time of payment of any
amount of principal owing or payable under any Note, Certificate or
Interest or Yield owing or payable on any Note or Certificate, modify
any of the provisions of Article III of the Loan Agreement or Article
III of the Trust Agreement, or modify the definition of "Interest Rate"
or "Yield Rate";
(c) modify, amend, waive or supplement any of the provisions
of Sections 5.6, 8.1(a), 8.1(c)(i) (to the extent such Section
8.1(c)(i) relates to Section 6.2 of the Lease), 8.1(c)(ii) or 10.1, or
the first paragraph of Section 6.1, in each case of the Lease;
(d) reduce, modify, amend or waive any indemnities in
favor of any Participant;
(e) reduce the amount or change the time of payment of Rent,
the Lease Balance, or Applicable Percentage Amount;
(f) modify any provision of any Operative Document that
expressly requires the unanimous consent of the Participants;
(g) consent to modification, amendment or waiver releasing
Lessee from its obligations to pay Rent, the Lease Balance, Proceeds or
the Applicable Percentage Amount or changing the absolute and
unconditional character of such obligations;
(h) permit the creation of any Lien on the Units, the Lessee
Collateral, the Lessor Collateral or the Trust Estate or any part
thereof except as permitted by the Operative Documents, or deprive any
Participant of the benefit of the security interest and lien secured by
the Units, the Lessee Collateral, the Lessor Collateral or the Trust
Estate in a manner not generally applicable to the other Participants;
or
(i) increase the Commitment of any Participant.
Lessee hereby agrees that it will not directly or indirectly (i) pay or
cause to be paid any fee or other remuneration or (ii) grant or permit the grant
of any Lien on any stock or assets of the Lessee or any of its Subsidiaries, in
each case, to any Participant in connection with, in exchange for, or as an
inducement to, such Participant's consent to any waiver in respect of, any
modification or amendment of, any supplement to, or any other consent or
approval under, any Operative Document unless such fee or other remuneration or
grant is offered on the same terms ratably to all Participants. Lessee will
offer and pay to the Participants any consideration offered or paid to other
creditors of Lessee for amendments or waivers of any obligation of Lessee.
Certain representations, warranties, covenants and events of default
contained in the Credit Agreement are set forth herein and in the other
Operative Documents. Upon any modification to any of such provisions, the
applicable Operative Document shall be correspondingly modified, with the prior
written consent of the Required Participants, upon the request of Lessee. In
connection with any such modification, Lessee shall pay to the Participants any
amendment fee paid to the Credit Agreement Banks in consideration for the
modification of the Credit Agreement.
Lessee hereby agrees that it will not request any amendment, waiver or
modification of any provision of the Operative Documents unless it concurrently
requests the same amendment, waiver or modification of the corresponding
provision of the Related Operative Documents.
Section 9.6. Headings, etc. The Table of Contents and headings of the
various Articles and Sections of this Agreement are for convenience of reference
only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
Section 9.7. Parties in Interest. Except as expressly provided herein,
none of the provisions of this Agreement is intended for the benefit of any
Person except the parties hereto, their successors and permitted assigns.
Section 9.8. Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH
STATE.
Section 9.9. Payment of Transaction Costs and Other Costs.
(a) Transaction Costs. As and when any portion of Transaction Costs
becomes due and payable, such Transaction Costs shall be paid by Lessee as
Supplemental Rent.
(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees) of (i) Certificate Trustee, as
Lessor under the Lease and as trustee under the Trust Agreement with respect to
the administration of the Trust Estate, and (ii) Agent, under the Operative
Documents, shall be paid directly by Lessee as Supplemental Rent.
(c) Amendments, Supplements and Appraisal. Without limitation of the
foregoing, Lessee agrees to pay to the Participants, Certificate Trustee and
Agent all costs and expenses (including reasonable legal fees and expenses of
counsel to Agent, Certificate Trustee and the Participants) incurred by any of
them in connection with: (i) the considering, evaluating, investigating,
negotiating and entering into or giving or withholding of any amendments or
supplements or waivers or consents with respect to any Operative Document; (ii)
any Casualty or termination of the Lease or any other Operative Document; (iii)
the negotiation and documentation of any restructuring or "workout," whether or
not consummated, of any Operative Document; (iv) the enforcement of the rights
or remedies under the Operative Documents; or (v) any transfer by Certificate
Trustee or a Participant of any interest in the Operative Documents during the
continuance of a Lease Event of Default.
Section 9.10. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.11. Limited Liability of Certificate Trustee. The parties
hereto agree that the Bank, in its individual capacity, shall have no personal
liability whatsoever to Lessee, Agent, the Participants or any of their
respective successors and assigns for any Claim based on or in respect of this
Agreement or any of the other Operative Documents or arising in any way from the
transactions contemplated hereby or thereby; provided, however, that the Bank
shall be liable in its individual capacity (a) for its own willful misconduct or
gross negligence (or negligence in the handling of funds) and, to each
Participant for the breach of its obligations to the Participants in respect of
the Trust Agreement and the Trust Estate, (b) for liabilities that may result
from the incorrectness of any representation or warranty expressly made by it in
its individual capacity in Section 4.3 or a breach of its covenant in Section
6.2(a) hereof, or (c) for any Tax based on or measured by any fees, commission
or compensation received by it for actions contemplated by the Operative
Documents. The Bank (in its individual capacity and as Lessor, Borrower and
Certificate Trustee) shall have no responsibility for construction of the
Facility or for the accuracy, sufficiency or adequacy of any of the information
or documents submitted in connection with each Advance or upon Completion of the
Facility.
Section 9.12. Liabilities of the Participants. No Participant shall have
any obligation to any other Participant or to Lessee, Certificate Trustee or
Agent with respect to the transactions contemplated by the Operative Documents
except those obligations of such Participant expressly set forth in the
Operative Documents or except as set forth in the instruments delivered in
connection therewith, and no Participant shall be liable for performance by any
other party hereto of such other party's obligations under the Operative
Documents except as otherwise so set forth.
Section 9.13. Submission to Jurisdiction; Waivers. (a) Each
party hereto irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the United States
District Court for the Southern District of New York and of any New
York state court sitting in the Borough of Manhattan, and appellate
courts from any thereof;
(ii) consents that any such action or proceedings may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth on Schedule II or at
such other address of which the other parties hereto shall have been
notified pursuant to Section 9.3; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE OPERATIVE
DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN.
Section 9.14. Reproduction of Documents. This Agreement, all documents
constituting an Appendix, Schedule or Exhibit hereto, and all documents relating
hereto received by a party hereto, including, without limitation: (a) consents,
waivers and modifications that may hereafter be executed; (b) documents received
by the Participants or Certificate Trustee in connection with the receipt and/or
acquisition of the Units; and (c) financial statements, certificates, and other
information previously or hereafter furnished to Certificate Trustee, Agent or
any Participant may be reproduced by the party receiving the same by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. Each of the parties hereto agrees and stipulates that, to
the extent permitted by law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such party in the regular course of business) and that,
to the extent permitted by law, any enlargement, facsimile, or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 9.15. Role of Banc of America Leasing & Capital Group, LLC. Each
party hereto acknowledges hereby that it is aware of the fact that Banc of
America Leasing & Capital Group, LLC has acted as an "arranger" with respect to
the transactions contemplated by the Operative Documents. The parties hereto
acknowledge and agree that Arranger and its Affiliates, including Bank of
America National Association, have not made any representations or warranties
concerning, and that they have not relied upon Arranger as to, the tax,
accounting or legal characterization or validity of (i) the Operative Documents
or (ii) any aspect of the Overall Transaction. The parties hereto acknowledge
and agree that Arranger has no duties, express or implied, under the Operative
Documents in its capacity as Arranger. The parties hereto further agree that
Section 2.6, Section 2.11, Section 8.5, Section 9.2, Section 9.9(a) and this
Section 9.15 are for the express benefit of Arranger, and Arranger shall be
entitled to rely thereon as if it were a party hereto.
Section 9.16. Confidentiality. Lessee, Certificate Trustee, Agent and
each Participant agree that they will not disclose the terms of the Overall
Transaction without the prior written consent of the other parties and agrees to
take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
Lessee and provided to it by Lessee or any Subsidiary, or by Agent or
Certificate Trustee on Lessee's behalf, under this Agreement or any other
Operative 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 Operative Documents, except to the extent such information (i) was
or becomes generally available to the public other than as a result of
disclosure by Agent, Certificate Trustee or such Participant, or (ii) was or
becomes available on a non-confidential basis from a source other than Lessee,
provided that such source is not bound by a confidentiality agreement with
Lessee known to Agent, Certificate Trustee or such Participant; provided
however, that Agent, Certificate Trustee or any Participant may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which Agent, Certificate Trustee or such Participant
is subject or in connection with an examination of Agent, Certificate Trustee or
such Participant 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 Agent, Certificate
Trustee, any Participant 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 Operative Document; (F) to Agent's, Certificate
Trustee's or such Participant's independent auditors and other professional
advisors; (G) to any Affiliate of Agent, Certificate Trustee or such
Participant, or to any Participation Holder or assignee or transferee, actual or
potential, provided that such Affiliate, Participation Holder or assignee or
transferee agrees to keep such information confidential to the same extent
required of the Participants hereunder, and (H) as to Agent, Certificate Trustee
or any Participant, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which Lessee is party or is deemed
party with Agent, Certificate Trustee or such Participant.
Lessee hereby identifies the Equipment List and any future updates
thereof as confidential information pursuant to the foregoing provisions of this
Section 9.16.
Section 9.17. Thermogas Transaction. Lessee covenants and agrees for the
benefit of Agent, Certificate Trustee and the Participants that upon the
acquisition of Thermogas by the MLP, Thermogas shall immediately be contributed
to Lessee and Lessee shall, concurrently with the "Delivery Date" thereunder,
assume all obligations of Thermogas under the Other Transaction pursuant to an
assumption agreement in form and substance satisfactory to Agent, Certificate
Trustee and the Participants and deliver such other documents, certificates and
opinions as any such Person shall reasonably request in connection with such
assumption.
Section 9.18. Acquired Property. For all purposes of the Operative
Documents, any purchase, sale, replacement, substitution or return of any Unit
or Units shall include the other Acquired Property which relates thereto.
Section 9.19. Effective Date. . Notwithstanding the dating of this
Agreement and certain other Operative Documents as of December 1, 1999, the
transactions contemplated hereby shall be effective on the Delivery Date.
[SIGNATURE PAGES FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
Lessee: FERRELLGAS, LP, as Lessee
By Ferrellgas, Inc., its General Partner
By:__________________________________________________
Name: Title:
General Partner:
FERRELLGAS, INC.
By:__________________________________________________
Name:
Title:
<PAGE>
Certificate Trustee: FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity except as expressly stated
herein, but solely as Certificate Trustee
By:
Name:
Title:
<PAGE>
Agent: FIRST SECURITY TRUST COMPANY OF NEVADA, not in its
individual capacity except as expressly stated
herein, but solely as Agent
By:
Name:
Title:
<PAGE>
Certificate Purchasers: BANC OF AMERICA LEASING & CAPITAL, LLC, as Certificate
Purchaser
By:
Name:
Title:
<PAGE>
Lenders: BANC OF AMERICA LEASING & CAPITAL, LLC, as Lender
By:
Name:
Title:
<PAGE>
APPENDIX 1
TO
PARTICIPATION AGREEMENT
(FERRELLGAS, LP TRUST NO. 1999-A)
In the Participation Agreement and each other Operative Document,
unless the context otherwise requires:
(a) any term defined below by reference to another instrument
or document shall continue to have the meaning ascribed thereto whether
or not such other instrument or document remains in effect;
(b) words importing the singular include the plural and
vice versa;
(c) words importing a gender include any gender;
(d) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term.
"Acceptance Certificate" shall have the meaning provided in Section
3.1(n) of the Participation Agreement.
"Accounts Receivable Securitization" shall mean a financing arrangement
involving the transfer or sale of accounts receivable of Lessee 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 Lessee or any
Affiliate of Lessee (other than any such SPE) except to the extent of the breach
of a representation or warranty by Lessee 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, (i)
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 (ii) 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 Lessee or the Subsidiary is the surviving entity.
"Additional Costs" shall mean the amounts payable by Lessee pursuant
to Sections 7.3, 7.4, 7.5,7.6 and 7.7 of the Participation Agreement.
"Administrative Agent" has the meaning specified in the introductory
clause to the Credit Agreement.
"Affected Participant" shall have the meaning provided in Section 7.8
of the Participation Agreement.
"Affected Participants" shall mean, as of the date of determination,
(i) Lenders holding at least a majority in aggregate principal amount of
outstanding Class B Notes and (ii) Certificate Purchasers holding at least a
majority in aggregate principal amount of Certificates.
"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" shall mean First Security Trust Company of Nevada, in its
capacity as administrative agent under the Operative Documents.
"Agent Fee Letter" shall mean that certain Fee Letter dated November
17, 1999 between Agent and Lessee.
"Alternate Base Rate" shall mean for any period, an interest rate per
annum equal to the higher of (A) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1% (50 basis points) and (B) the Reference Rate. If either
of the aforesaid rates or equivalent changes from time to time after the
Delivery Date, the Alternate Base Rate shall be automatically increased or
decreased, if appropriate and as the case may be, without notice to Lessee or
Borrower, as of the effective time of each change. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it.
"Reference Rate" shall mean the rate of interest most recently announced by Bank
of America National Association in the United States from time to time as its
"reference rate" or corporate base rate for calculating interest on certain
loans, which need not be the lowest interest rate charged by Bank of America
National Association.
"Applicable Laws and Regulations" shall mean as of any date all
applicable laws, rules, regulations (including applicable Environmental Laws),
statutes, treaties, codes, ordinances, permits, certificates, orders and
licenses of and interpretations by, any Governmental Authority, and applicable
judgments, decrees, injunctions, writs, orders or like action of any court,
arbitrator or other administrative, judicial or quasi-judicial tribunal or
agency of competent jurisdiction (including those pertaining to health, safety
or the environment and those pertaining to the construction, use, occupancy or
subdivision of the Acquired Property) and any restrictive covenant or deed
restriction or easement of record affecting the Acquired Property.
"Applicable Margin" shall mean, (a) with respect to the Class A Notes,
the percentage per annum set forth below opposite the Level of the Pricing Ratio
(PR) applicable to such fiscal quarter as set forth herein:
-------------------------- ----------------------- ------------------------
Pricing Ratio Level A Notes
-------------------------- ----------------------- ------------------------
-------------------------- ----------------------- ------------------------
Level 1 PR < 1.75 .875
-------------------------- ----------------------- ------------------------
-------------------------- ----------------------- ------------------------
Level 2 1.75 = PR < 2.75 1.00
-------------------------- ----------------------- ------------------------
-------------------------- ----------------------- ------------------------
Level 3 2.75 = PR < 3.25 1.25
-------------------------- ----------------------- ------------------------
-------------------------- ----------------------- ------------------------
Level 4 3.25 = PR < 3.75 1.50
-------------------------- ----------------------- ------------------------
-------------------------- ----------------------- ------------------------
Level 5 3.75 = PR < 4.25 1.75
-------------------------- ----------------------- ------------------------
------------------------- ----------------------- ------------------------
Level 6 4.25 = PR < 4.75 2.00
-------------------------- ----------------------- ------------------------
-------------------------- ----------------------- ------------------------
Level 7 4.75 = PR 2.25
-------------------------- ----------------------- ------------------------
The Level of the Pricing Ratio prior to March 31, 2000 shall be determined based
on Level 7. Any change in the Level of the Pricing Ratio shall be determined by
Agent based upon the financial information required to be contained in the
Compliance Certificate delivered by Lessee to Agent with respect to each fiscal
quarter of Lessee and shall become effective as of the date such Compliance
Certificate was delivered; provided that any change in the Level of the Pricing
Ratio based on a Compliance Certificate delivered prior to March 31, 2000 shall
take effect on April 1, 2000. Upon any failure of Lessee to deliver a Compliance
Certificate for any fiscal quarter prior to 10 days after the date on which such
Compliance Certificate is required to be delivered to Agent, and without
limiting the other rights and remedies of Agent and the Participants under the
Operative Documents, the Pricing Ratio shall be deemed to be Level 7 for the
entire Payment Period during which such Compliance Certificate was due; and
(b) with respect to the Class B Notes, 3.85%.
"Applicable Percentage Amount" shall mean the product obtained by
multiplying the aggregate original Purchase Price of the Units then subject to
the Lease by 79%.
"Appraisal" shall mean each appraisal of the Units from an Appraiser
received pursuant to the terms of the Operative Documents.
"Appraised Value" shall mean, with respect to any Unit as of any date
of determination, the Fair Market Value of such Unit as set forth in the
Appraisal therefor.
"Appraiser" shall mean American Appraisal Associates, or such other
Person as may be selected by the Agent.
"Acquired Property" shall have the meaning provided in the Preliminary
Statement to the Participation Agreement.
"Arranger" shall mean Banc of America Leasing & Capital, LLC.
"Arranger's Fee Letter" shall mean that certain Engagement Letter dated
November 8, 1999 between Arranger and Lessee.
"Asset Sale" has the meaning specified in Section 5.18 of the
Participation Agreement.
"Assignment of Lease and Rent" shall mean the Assignment of Lease and
Rent and Security Agreement dated as of December 1, 1999 between the Certificate
Trustee and the Agent, substantially in the form of Exhibit D to the
Participation Agreement.
"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 (i) 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, (ii) 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 (iii) cash receipts of a Non-Recourse Subsidiary shall not constitute
cash receipts of Lessee for purposes of determining the amount of Available Cash
until cash is actually distributed by such Non-Recourse Subsidiary to Lessee.
"Bank" shall mean First Security Bank, National Association, in its
individual capacity.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978, as
amended (11 U.S.C. ss.101, et seq.).
"Basic Rent" shall mean on the Interim Term Expiration Date and any
Payment Date with regard to a Quarterly Payment Period then ended, an amount
equal to the sum of (A) the aggregate amount of Interest payable on such date on
the Notes, plus (B) the aggregate amount of Yield payable on such date on the
Certificates, plus (C) the amount, if any, payable on such date as set forth on
Schedule II to the Lease.
"Benefitted Lender" shall have the meaning provided in Section 8.4 of
the Loan Agreement.
"Bill of Sale" shall have the meaning provided in Section 3.1(m) of the
Participation Agreement.
"Borrower" shall have the meaning provided in the preamble to the Loan
Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in Liberty, Missouri, Salt Lake City, Utah,
or Chicago, Illinois and, solely with respect to definition of "LIBO Rate", San
Francisco, California or London, U.K. are authorized or required by law to
close.
"Capital Interests" means, with respect to any corporation, any and all
shares, participations, rights or other equivalent interests in the capital of
the corporation, and with respect to any partnership, any and all partnership
interests (whether general or limited) 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.
"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 Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks and the Credit Agreement Banks, as collateral for the L/C Obligations or
any outstanding Credit Agreement Loan, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
(which documents have been consented to by the Credit Agreement Banks).
Derivatives of such term shall have corresponding meaning.
"Cash Equivalents" means (i) United States dollars, (ii) 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, (iii) 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 Credit Agreement Bank
or with any other domestic commercial bank having capital and surplus in excess
of $500 million and a Keefe Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper or direct obligations of a Person, provided such Person has
publicly outstanding debt having the highest short-term rating obtainable from
Moody's or S&P and provided further that such commercial paper or direct
obligation matures within 270 days after the date of acquisition, and (vi)
investments in money market funds all of whose assets consist of securities of
the types described in the foregoing clauses (i) through (v).
"Casualty" shall mean any of the following events in respect of any
Unit: (a) the total loss of such Unit, the total loss of use thereof due to
theft, disappearance, destruction, damage beyond repair or the rendering of such
Unit permanently unfit for normal use for any reason whatsoever (other than
obsolescence); (b) any damage to such Unit which results in an insurance
settlement with respect to such Unit on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or seizure
of, or the requisition of title to or use of, such Unit; (d) such Unit becomes
affixed to land so as to become a fixture under Applicable Laws and Regulations;
or (e) as a result of any Applicable Laws and Regulations or other action by any
Governmental Authority, the use of such Unit in the normal course of Lessee's
business shall have been prohibited, directly or indirectly, for a period equal
to the lesser of 180 consecutive days and the remaining Lease Term.
"Casualty Amount" shall mean, with respect to any Unit as of any date
specified for payment thereof, a portion of the Lease Balance equal to the
product obtained by multiplying the entire outstanding Lease Balance as of the
Casualty Settlement Date by the Unit Value Fraction of such Unit.
"Casualty Recoveries"shall have the meaning provided in Section 6.1 of
the Lease.
"Casualty Settlement Date" shall have the meaning provided in Section
6.1 of the Lease.
"Certificate" shall have the meaning provided in Section 2.1 of the
Trust Agreement.
"Certificate Amount" shall mean, with respect to any Certificate
Purchaser as of any date of determination, the amount advanced by such
Certificate Purchaser for the purchase of Certificates pursuant to Section 2.1
of the Participation Agreement, net of any distributions (other than
distributions of Yield) with respect thereto.
"Certificate Purchaser"shall have the meaning provided in the preamble
to the Trust Agreement.
"Certificate Register"shall have the meaning provided in
Section 2.8(a) of the Trust Agreement.
"Certificate Trustee" shall mean First Security Bank, National
Association, a national banking association, not in its individual capacity but
solely as trustee under the Trust Agreement, together with any individual
trustee or co-trustee appointed pursuant to the terms of the Trust Agreement.
"Certificate Trustee Liens" shall mean Liens on or against the Units,
the Lease, the Trust Estate or any payment of Rent (a) which result from any act
of, or any Claim against Certificate Trustee (in its individual capacity or in
its trustee capacity), or Agent unrelated to the transactions contemplated by
the Operative Documents, (b) which result from any Tax owed by Certificate
Trustee (in its individual capacity) or Agent, except any Tax for which Lessee
is obligated to indemnify or (c) which result from any act or omission of
Certificate Trustee (in its individual or in its trustee capacity) or Agent that
is in breach of such Person's covenants or agreements under the Operative
Documents.
"Certificates" shall mean those certain certificates issued to the
Certificate Purchasers pursuant to the Trust Agreement, substantially in the
form of Exhibit A thereto, and any and all Certificates issued in replacement or
exchange therefor.
"Change of Control" means (i) the sale, lease, conveyance or other
disposition of all or substantially all of Lessee's assets to any Person or
group (as such term is used in Section 13(d)(3) of the Exchange Act) other than
James E. Ferrell, the Related Parties and any Person of which James E. Ferrell
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), (ii) the liquidation or dissolution of Lessee or the
General Partner, (iii) the occurrence of any transaction, the result of which is
that James E. Ferrell 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 (iv) the occurrence of
any transaction, the result of which is that the General Partner is no longer
the sole general partner of Lessee.
"Claims" shall mean liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, settlements, charges,
costs, fees, expenses and disbursements (including, without limitation, legal
fees (including reasonable allocated time charges of internal counsel) and
expenses and costs of investigation which, in the case of counsel or
investigators retained by an Indemnitee, shall be documented and reasonable) of
any kind and nature whatsoever.
"Class" with respect to any Note shall mean Class A Notes or Class B
Notes, as applicable.
"Class A Notes" shall mean the Class A Notes issued from time to time
under the Loan Agreement.
"Class B Notes" shall mean the Class B Notes issued from time to time
under the Loan Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder.
"Commercial Letters of Credit" means commercial documentary letters of
credit issued by an Issuing Bank pursuant to Article III of the Credit
Agreement.
"Commitment" shall mean as to any Certificate Purchaser or Lender, the
amount set forth opposite such Certificate Purchaser's or Lender's name on
Schedule I-A and Schedule I-B to the Participation Agreement.
"Compliance Certificate" means a certificate signed by a Responsible
Officer of Lessee substantially in the form of Exhibit J to the Participation
Agreement, demonstrating compliance with the covenants contained therein,
including Sections 5.12, 5.13, 5.16 and 5.28.
"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 (including
Letter of Credit fees), charges and related expenses paid or payable (without
duplication) for that fiscal period to the Credit Agreement Banks under the
Credit Agreement 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 (i) 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, (ii) 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, (iii) 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 (i) above and (iv) 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 (i) the consolidated equity of the common stockholders or
partners of such Person and its consolidated Subsidiaries as of such date, plus
(ii) 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 Restatement 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 Lessee 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 (other than any Letter of Credit) 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.
"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.
"Corporate Trust Department" shall mean the principal corporate trust
office of the Bank, located at 79 South Main Street, Salt Lake City, Utah 84111,
or at such other office at which the corporate trust business of Bank shall be
administered which Bank shall have specified by notice in writing to Lessee and
each Participant.
"Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of July 2, 1998, as amended by the First Amendment to Second
Amended and Restated Credit Agreement, dated as of October 9, 1998, by the
Second Amendment to Second Amended and Restated Credit Agreement, dated as of
April 27, 1999 and by the Third Amendment to Second Amended and Restated Credit
Agreement, dated as of December 2, 1999, in each case among Lessee, the General
Partner, the Administrative Agent, the Credit Agreement Banks and the
Documentation Agent.
"Credit Agreement Arranger" means BancAmerica Robertson Stephens, a
Wholly-Owned Subsidiary of BankAmerica Corporation. The Credit Agreement
Arranger is a registered broker-dealer and permitted to underwrite and deal in
certain Ineligible Securities.
"Credit Agreement Bank" has the meaning specified in the introductory
clause to the Credit Agreement.
"Credit Agreement Loan" means an extension of credit by a Credit
Agreement Bank to Lessee under Article II or Article III of the Credit
Agreement.
"Delivery Date" shall mean the actual date on or prior to December 31,
1999 on which the transactions contemplated in Article II of the Participation
Agreement are completed.
"Delivery Date Notice" shall have the meaning provided in Section
3.1(a) of the Participation Agreement.
"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.
"Documentation Agent" means NationsBank, N.A.
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"Early Termination Option" means Lessee's option to purchase all, but
not less than all, of the Units pursuant to Section 9.5 of the Lease.
"Eligible Assignee" means (i) 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; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $500,000,000,
provided that such bank is acting through a branch or agency located in the
United States; and (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Participant, (B) a
Subsidiary of a Person of which a Participant is a Subsidiary, or (C) a Person
of which a Participant is a Subsidiary.
"Employee Benefit Plan" shall mean an employee benefit plan (within the
meaning of Section 3(3) of ERISA, including any multiemployer plan (within the
meaning of Section 3(37) (A) of ERISA)), or any "plan" as defined in Section
4975(e) (1) of the Code and as interpreted by the Internal Revenue Service and
the Department of Labor in rules, regulations, releases or bulletins in effect
at the time of any determination under the Operative Documents. The assets of an
Employee Benefit Plan shall be determined using the foregoing criteria,
including on the date hereof the Department of Labor plan asset regulation (29
C.F.R. ss. 2510.3-101).
"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" shall mean and include the Resource Conservation
and Recovery Act of 1976, (RCRA) 42 U.S.C. ss.ss. 6901-6987, as amended by the
Hazardous and Solid Waste Amendments of 1984, the ComprehensIVE Environmental
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ss.ss. 9601-9657, (CERCLA), the
Hazardous Materials Transportation Act OF 1975, 49 U.S.C. ss.ss. 1801-1812, the
Toxic Substances Control Act, 15 U.S.C. ss.ss. 2601-2671, the Clean Air ACT, 42
U.S.C. ss.ss. 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. ss.ss. 136 et seq. AND ALL similar federal, state and local
environmental laws, ordinances, rules, orders, statutes, decrees, judgments,
injunctions, codes and regulations, and any other federal, state or local laws,
ordinances, rules, codes and regulations relating to the environment, human
health or natural resources or the regulation or control of or imposing
liability or standards of conduct concerning human health, the environment,
Hazardous Materials or the clean-up or other remediation of a Unit or any
Facility or location at which Units are located, stored or serviced.
"Equipment List" shall mean the list of each Unit subject to the Lease,
described by (a) capacity of each Unit; (b) the serial number thereof (if
available); (c) Lessee's internal unit number thereof; (d) Lessee's District for
administration of such Unit; and (e) either Lessee's customer mailing and/or
street address applicable to such Unit or the address of Lessee's storage
location for such Unit, as applicable, as such list shall be updated from time
to time in accordance with Section 5.8 of the Lease.
"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 Lessee 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 Lessee 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 Lessee 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.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Excluded Amounts" shall mean:
(a) all indemnity payments and expenses to which Certificate
Trustee or Agent in their respective individual capacities or any
Participant (or any of their respective successors, assigns, agents,
officers, directors or employees) is entitled pursuant to the Operative
Documents;
(b) any amounts payable under any Operative Documents to
reimburse Certificate Trustee, Agent or any Participant (including the
reasonable expenses incurred in connection with any such payment) for
performing or complying with any of the obligations of Lessee under and
as permitted by any Operative Document;
(c) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies payable to
Certificate Trustee or Agent in their respective individual capacities
or any Participant (or their respective successors, assigns, agents,
officers, directors or employees);
(d) any insurance proceeds under policies maintained by
Certificate Trustee, Agent or any Participant and not required to be
maintained by Lessee under the Lease;
(e) any amount payable to Certificate Trustee, Agent or the
Participants pursuant to Section 9.9 of the Participation Agreement;
and
(f) any payments of interest or yield on payments referred to
in clauses (a) through (e) above.
"Existing Credit Agreement" means the Amended and Restated Credit
Agreement, dated as of July 31, 1996, as amended prior to the Restatement
Effective Date, among Lessee, the General Partner, the several financial
institutions from time to time party thereto, Bank of America National Trust and
Savings Association, as Agent, with NationsBank of Texas, N.A. as named Co-Agent
thereunder.
"Existing Indebtedness" means Indebtedness of Lessee and its
Subsidiaries (other than the "Obligations" as defined in the Credit Agreement)
and certain Indebtedness of the General Partner with respect to which Lessee has
assumed the General Partner's repayment obligations, in each case in existence
on the Restatement Effective Date and as more fully set forth on Schedule 5.21
to the Participation Agreement.
"Facility A Revolving Loan" has the meaning specified in subsection
2.01(a) of the Credit Agreement.
"Facility B Revolving Loan" has the meaning specified in subsection
2.01(b) of the Credit Agreement.
"Facility C Revolving Loan" has the meaning specified in subsection
2.01(c) of the Credit Agreement.
"Fair Market Value" shall mean, with respect to any Unit as of any
date, the price which a purchaser would pay to purchase such Unit in an
arm's-length transaction between a willing buyer and a willing seller, neither
of them being under any compulsion to buy or sell. In making any determination
of Fair Market Value, Appraiser may assume (i) such Unit has been maintained in
accordance with the requirements of the Lease, that such Unit is in the
condition in which it is required to be under the Lease as of the date for which
such determination is made and (ii) such Unit is not subject to a Sublease.
Appraiser shall use such reasonable methods of appraisal as are chosen by Agent
upon instructions from the Required Participants; provided, in the event such
Appraisal is conducted in connection with a substitution of a Unit pursuant to
the last paragraph of Section 5.6(a) of the Lease, the Appraiser shall use the
same methods of appraisal as were used in connection with the Appraisal
delivered to the Participants on the Delivery Date.
"FCI ESOT" means the employee stock ownership trust of Ferrell
Companies, Inc. organized under Section
4975(e)(7) of the Code.
"FDIC" shall mean the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Fees" shall have the meaning provided in Section 2.11 of the
Participation Agreement.
"Ferrellgas Partners Finance Corp." means Ferrellgas Partners Finance
Corp., a Delaware corporation and a Wholly-Owned Subsidiary of the MLP.
"Final Maturity Date" shall mean June 30, 2003; provided that if the
Final Maturity Date is extended in accordance with Section 2.12 of the
Participation Agreement, then "Final Maturity Date" shall mean the Final
Maturity Date as so extended.
"Finance Corp." means Ferrellgas Finance Corp., a Delaware corporation
and a Wholly-Owned Subsidiary of Lessee.
"Financing Statements" shall mean all such UCC-1 Financing Statements
required by Agent or Certificate Trustee to be executed by Lessee or Certificate
Trustee in connection with the perfection of any security interests granted by
Certificate Trustee or Lessee, as the case may be, under the Operative
Documents.
"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
Lessee, Swingline Loans, Facility A Revolving Loans, Facility B Revolving Loans
and Facility C Revolving 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
Lessee, (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 Lessee 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 Lessee in the operation of such acquired business or
asset during such period computed on the basis of (i) personnel expenses for
employees retained by Lessee in the operation of the acquired business or asset
and (ii) non-personnel costs and expenses incurred by Lessee on a per gallon
basis in the operation of Lessee's business at similarly situated Lessee
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.
"Fund," "Funded" or "Funding" shall mean the funding by a Participant
of the principal under its Note or its Certificate Amount (as the case may be)
as provided in Section 2.1 of the Participation Agreement.
"Funded Debt" means all Indebtedness of Lessee and its Subsidiaries
excluding all Contingent Obligations of Lessee and its Subsidiaries under or in
connection with Letters of Credit outstanding from time to time.
"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., a Delaware corporation and
the general partner of Lessee.
"Governmental Action" shall mean all applicable permits,
authorizations, registrations, consents, approvals, waivers, exceptions,
variances, orders, judgments, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Applicable Laws and Regulations.
"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 each Person that executes a Guaranty and its
successors and assigns.
"Guaranty" means a continuing guaranty of the obligations of Lessee
under the Credit Agreement in favor of the Administrative Agent on behalf of the
Credit Agreement Banks, in form and substance satisfactory to the Administrative
Agent.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Material" shall mean any substance, waste or material which
is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous by listing characteristic or
definition under any applicable Environmental Law, including petroleum, crude
oil or any fraction thereof, petroleum derivatives, by-products and other
hydrocarbons and is or becomes regulated by any Governmental Authority,
including any agency, department, commission, board or instrumentality of the
United States or any State in which the Units are located, or any political
subdivision of any of the foregoing and also including asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls ("PCBs") and radon gas.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) 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.
"Indemnitee" shall mean each Participant, the Certificate Trustee (in
its individual capacity and as trustee), Agent (in its individual capacity and
as Agent), any additional, separate or co-trustee or co-agent appointed in
accordance with the terms of the Trust Agreement or the Participation Agreement,
and the respective Affiliates, successors, permitted assigns, permitted
transferees, contractors, servants, employees, officers, directors,
shareholders, partners, participants, representatives and agents of each of the
foregoing Persons; provided, however, that in no event shall Lessee or its
Affiliates be an Indemnitee.
"Independent Auditor" has the meaning specified in Section 5.1(a) of
the Participation Agreement.
"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.
"Institutional Investor" shall mean (a) any Person which is an original
Participant, (b) any Person holding more than 5% of the aggregate principal
amount of the Notes and/or Certificates then outstanding, or (c) any bank, trust
company, savings and loan association or other financial institution, any
pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of
legal form.
"Insurance Requirements" shall mean all terms and conditions of any
insurance policy required by the Lease to be maintained by Lessee and all
requirements of the issuer of any such policy.
"Interest" shall mean with respect to each Payment Period, the sum of
(i)(w) the Interest Rate for the Class A Notes for such period multiplied by (x)
the aggregate outstanding principal amount of the Loans relating to the Class A
Notes plus (ii)(y) the Interest Rate for the Class B Notes for such period
multiplied by (z) the aggregate outstanding principal amount of the Loans
relating to the Class B Notes.
"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
Lessee 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 Lessee 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 Lessee and its
Subsidiaries in the operation of the acquired business or asset and (ii)
non-personnel costs and expenses incurred by Lessee and its Subsidiaries on a
per gallon basis in the operation of Lessee's business at similarly situated
facilities of Lessee.
"Interest Rate" for any Class of Notes shall mean for any Payment
Period, the sum of the LIBO Rate plus the Applicable Margin for such Class of
Notes or at any time that the provisions of Section 7.6 of the Participation
Agreement shall apply, the Alternate Base Rate for such Class of Notes.
"Interim Term Expiration Date" shall have the meaning specified in
Section 4.1 of the Lease.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions.
"Issuing Banks" means the issuers of one or more Letters of Credit
under the Credit Agreement.
"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 Lessee or
any of its Subsidiaries with another Person in order to conduct a common venture
or enterprise with such Person.
"L/C Amendment Application" means an application form for amendment of
outstanding Standby Letters of Credit or Commercial Letters of Credit as shall
at any time be in use at the applicable Issuing Bank, as such Issuing Bank shall
request.
"L/C Application" means an application form for issuances of Standby
Letters of Credit or Commercial Letters of Credit as shall at any time be in use
at the applicable Issuing Bank, as such Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made nor converted into a borrowing of Facility B Revolving Loans under
subsection 3.03(c) of the Credit Agreement.
"L/C Obligations" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the amount of
all unreimbursed drawings under all Letters of Credit, including all outstanding
L/C Borrowings, plus (c) all other obligations of Lessee under or in connection
with the L/C-Related Documents, to the extent not included within clauses (a)
and (b) hereof.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Banks' standard form
reimbursement agreements and other documents for letter of credit issuances.
"Lease" shall mean that certain Lease Intended as Security dated as of
December 1, 1999, between Certificate Trustee and Lessee, substantially in the
form of Exhibit A to the Participation Agreement.
"Lease Balance" shall mean, as of any date of determination, an amount
equal to the aggregate sum of the outstanding principal amount of the Loans of
all of the Lenders and the outstanding Certificate Amounts of all of the
Certificate Purchasers.
"Lease Default" shall mean any event, condition or failure which, with
notice or lapse of time or both, would, unless cured or waived, become a Lease
Event of Default.
"Lease Event of Default" shall mean any event, condition or failure
designated as a "Lease Event of Default" in Section 8.1 of the Lease.
"Lease Expiration Date" shall mean the last day of the Lease Term or
any other date on which the Lease is terminated, including pursuant to Sections
6.1 or 8.2 or Article IX of the Lease.
"Lease Term" shall have the meaning provided in Section 4.1 of the
Lease.
"Lenders" shall mean the holders of the Notes.
"Lessee" shall mean Ferrellgas, LP, a Delaware limited partnership, in
its capacity as Lessee.
"Lessee Collateral" shall mean all of Lessee's right, title and
interest in and to each of the following, however arising and whether now
existing or hereafter acquired or arising:
(a) the Units (including all Parts thereof,
accessions thereto and replacements and
substitutions therefor);
(b) the Subleases;
(c) to the extent assignable, all other contracts
necessary to operate and maintain the
Units;
(d) to the extent assignable, any rights to a rebate, offset
or other assignment, warranty or service under a purchase order,
invoice or purchase agreement with any manufacturer of any Unit;
(e) all books, manuals, logs, records and other information
directly relating to (i) the maintenance, insurance or operation (other
than customer information regarding internal classifications of
customers, payment history, propane gallons delivered, timing of
propane gallons delivered, payment terms and prices charged to
customers) of the Units, (ii) the Subleases or (iii) the property
described in clauses (c) and (d) above, in each case, in the possession
of Lessee; and
(f) all proceeds of and from any and all of the foregoing
collateral (including proceeds which constitute property of the types
described in clauses (a), (b), (c), (d) and (e) above and, to the
extent not otherwise included, all payments under insurance (whether or
not Agent is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing collateral);
provided that there is specifically excluded from the Lessee Collateral any
receivables arising from the subleasing or operation of the Units by Lessee.
"Lessor" shall mean Certificate Trustee.
"Lessor Collateral" shall mean the collateral described in Section 2 of
the Assignment of Lease and Rent.
"Letters of Credit" means, collectively, Standby Letters of Credit and
Commercial Letters of Credit.
"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
Lessee 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 Lessee 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 Lessee 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
Lessee and its Subsidiaries in the operation of the acquired business or asset
and (ii) non-personnel costs and expenses incurred by Lessee and its
Subsidiaries on a per gallon basis in the operation of Lessee's business at
similarly situated facilities of Lessee.
"LIBO Rate" shall mean with respect to any Payment Period at any time,
the applicable London interbank offered rate for deposits in U.S. dollars
appearing on Telerate Page 3750 as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Payment Period, and having a maturity
approximately equal to such Payment Period; or if no London interbank offered
rate of such maturity then appears on Telerate Page 3750, then the rate equal to
the London interbank offered rate for deposits in U.S. dollars maturing
immediately before or immediately after such maturity, whichever is higher, as
determined by the Agent from Telerate Page 3750; or if Telerate page 3750 is not
available, the applicable LIBO Rate for the relevant Payment Period shall be the
applicable London interbank offered rate for deposits in U.S. Dollars appearing
on Reuters Screen LIBO Page as of 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Payment Period, and having a maturity
approximately equal to such Payment Period; or if no London interbank offered
rate of such maturity then appears on Reuters Screen LIBO Page, then the rate
equal to the London interbank offered rate for deposits in U.S. Dollars maturing
immediately before or immediately after such maturity, whichever is higher, as
determined by the Agent from Reuters Screen LIBO Page; or if Telerate Page 3750
and Reuters Screen LIBO Page are not available, the applicable LIBO Rate for the
relevant Payment Period shall be the rate determined by the Agent to be the rate
at which Bank of America National Association offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Payment Period, in the approximate amount of the aggregate outstanding principal
amount of the Notes and Certificate Amounts and having a maturity approximately
equal to such Payment Period.
"LIBOR Office" shall mean initially, the funding office of each
Participant designated as such in Schedule II to the Participation Agreement;
and thereafter, such other office of such Participant, if any, which shall be
making or maintaining such Participant's investment in Notes or the
Certificates, as applicable.
"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 UCC or any comparable law) and any contingent or other
agreement to provide any of the foregoing, but, except as related to the Units,
the Lessee Collateral or the Lessor Collateral, not including the interest of a
lessor under an operating lease.
"Loan" shall have the meaning provided in Section 2.1 of the Loan
Agreement.
"Loan Agreement" shall mean the Loan Agreement dated as of December 1,
1999, among Certificate Trustee, Agent and the Lenders, substantially in the
form of Exhibit C to the Participation Agreement.
"Loan Documents" shall mean the Loan Agreement, the Notes, the
Assignment of Lease and Rent and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" shall mean any event, condition or failure
designated as a "Loan Event of Default" in Section 6.1 of the Loan Agreement.
"Loan Value" of any Unit or Units suffering a Casualty or series of
Casualties means an amount equal to the outstanding principal amount of the
Loans multiplied by the Unit Value Fraction of such Unit or Units.
"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 Lessee or Lessee and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the General
Partner or Lessee to perform under any Operative Document or of the General
Partner, Lessee or any Subsidiary to avoid any Lease Event of Default; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against Lessee or the General Partner of any Operative Document.
"MLP" means Ferrellgas Partners, L.P., a Delaware limited partnership
and the sole limited partner of Lessee.
"MLP Registration Statement" means the Form F-1 Public Offering
Registration Statement of the MLP as filed with the SEC on April 29, 1994.
"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.
"Moody's" shall mean Moody's Investor Service, Inc.
"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, without
limitation, 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 Lessee or any of its Subsidiaries in respect of any Asset Sale, net of the
direct costs relating to such Asset Sale (including, without limitation, 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.
"1996 Indenture" means the Indenture dated as of April 26, 1996, among
the MLP, Ferrellgas Partners Finance Corp. 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 Lessee pursuant to
the 1998 Note Purchase Agreement.
"1998 Note Purchase Agreement" means the Note Purchase Agreement, dated
as of July 1, 1998, among Lessee and the Purchasers named therein, pursuant to
which the 1998 Fixed Rate Senior Notes were issued, as it may be amended,
modified or supplemented from time to time.
"Non-Recourse Subsidiary" means any Person that would otherwise be a
Subsidiary of Lessee 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 Lessee or any of its Subsidiaries, (ii) is recourse or obligates
Lessee or any of its Subsidiaries in any way or (iii) subjects any property or
asset of Lessee or any of its Subsidiaries, directly or indirectly, contingently
or otherwise, to satisfaction thereof, (b) neither Lessee 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 Lessee and its Subsidiaries than those that
might be obtained at the time from persons who are not Affiliates of Lessee, (c)
neither Lessee 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 5.38 of the
Participation Agreement and (f) such Person takes steps designed to assure that
neither Lessee 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 Lessee.
"Notes" shall mean the notes issued by the Borrower under the Loan
Agreement and denominated as such, substantially in the form of Exhibit A to the
Loan Agreement, and any and all Notes issued in replacement or exchange therefor
in accordance with the provisions thereof.
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal and Certificate Amount of and Interest and
Yield on (including interest accruing after the filing of any bankruptcy or
similar petition) the Notes and the Certificates, and (b) all other fees and
commissions (including attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by Lessee to the Participants, the Certificate Trustee or the Agent, of every
kind, nature and description, direct or indirect, absolute or contingent, due or
to become due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any note, in each case under or in respect of the Operative
Documents.
"Officer's Certificate" of a Person means a certificate signed by a
Responsible Officer of such Person.
"Operative Documents" shall mean the Participation Agreement, the
Lease, the Bill of Sale, the Loan Agreement, the Assignment of Lease and Rent,
the Syndication Agreement, the Trust Agreement, the Notes and the Certificates.
"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.
"Original Part" shall have the meaning provided in Section 5.4 of the
Lease.
"Other Certificate Amounts" means the then outstanding "Certificate
Amounts" under the Other Transaction.
"Other Certificate Holders" means the "Certificate Holders" party to
the Other Transaction.
"Other Lease" means the Lease Intended as Security dated as of December
15, 1999 between Thermogas Company, as lessee and First Security Bank, National
Association, not in its individual capacity but solely as trustee, as lessor.
"Other Lenders" means the "Lenders" party to the Other Transaction.
"Other Loans" means the then outstanding "Loans" under the Other
Transaction.
"Other Transaction" means the $135,000,000 synthetic lease financing of
propane tanks for Thermogas Company pursuant to the Other Lease and related
documents dated as of December 15, 1999, which is to be assumed by Lessee
pursuant to Section 9.17 of the Participation Agreement.
"Overall Transaction" shall mean all the transactions and activities
referred to in or contemplated by the Operative Documents.
"Overdue Rate" shall mean the lesser of (a) the highest interest rate
permitted by Applicable Laws and Regulations and (b) an interest rate per annum
equal to, in the case of the Notes, the rate of interest otherwise payable with
respect thereto plus 2% and, in the case of the Certificates, the Yield Rate
plus 2%.
"Part" shall have the meaning provided in Section 5.4 of the Lease.
"Participants" shall mean the Certificate Purchasers and the Lenders,
collectively.
"Participation" shall have the meaning provided in Section 6.4 of the
Participation Agreement.
"Participation Agreement" shall mean the Participation Agreement dated
as of December 1, 1999 among Lessee, Certificate Trustee, Agent and the
Participants.
"Participation Holder" shall have the meaning provided in Section 6.4
of the Participation Agreement.
"Partnership Agreement" shall mean the Agreement of Limited Partnership
of Lessee dated July 5, 1994, as amended from time to time in accordance with
the terms of the Participation Agreement.
"Payment Date" shall mean the Interim Term Expiration Date and the last
day of each Payment Period.
"Payment Default" shall mean an event described in Section 8.1(a) of
the Lease (without giving effect to any grace periods).
"Payment Period" shall mean Quarterly Payment Period during the Base
Term; provided that any Payment Period that would otherwise extend beyond the
Final Maturity Date shall end on the Final Maturity Date.
"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 Lessee 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 Lessee and its
Subsidiaries which comply with the provisions of Section 5.20 of the
Participation Agreement.
"Permitted Contest" shall mean actions taken by a Person so long as no
Lease Event of Default shall have occurred and be continuing to contest in good
faith, by appropriate proceedings initiated timely and diligently prosecuted,
the legality, validity or applicability to Lessee or any Subsidiary thereof or
to the Units or any interest therein or to the operation, use or maintenance
thereof by, any Person of: (a) any Applicable Laws and Regulations; (b) any term
or condition of, or any revocation or amendment of, or other proceeding relating
to, any Governmental Action; (c) any utility charges; (d) any Insurance
Requirements; or (e) any Lien or Tax; provided that the initiation and
prosecution of such contest would not: (i) result in, or materially increase the
risk of, the imposition of any criminal liability or material civil liability on
any Indemnitee; (ii) be reasonably likely to adversely affect the lien and
security interests created by the Operative Documents or the right, title or
interest of Certificate Trustee or Agent in or to the Units or the right of
Certificate Trustee, Agent, or any Participant to receive payment of the
Certificate Amount of or Yield on any Certificate, the principal of or interest
on any Note, Rent, the Lease Balance, the Proceeds or any other amount payable
under the Operative Documents or any interest therein; (iii) be reasonably
likely to adversely affect the fair market value, utility or remaining useful
life of the Units or any interest therein or the continued economic operation
thereof; (iv) involve any risk of the sale, forfeiture or loss of any part of
the Units, the Trust Estate, title thereto or any interest therein or interfere
with the use or disposition of the Units, the Trust Estate or the payment of
Rent or (v) otherwise be reasonably expected to result in a Material Adverse
Effect; and provided further that in any event reserves to the extent required
by GAAP are maintained against any adverse determination of such contest.
"Permitted Encumbrances" has the meaning specified in Section 5.17 of
the Participation Agreement.
"Permitted Investments" shall mean (i) full faith and credit
obligations of the United States of America, or fully guaranteed as to interest
and principal by the full faith and credit of the United States of America, of
deposit having a final maturity of not more than one year after the date of
issuance maturing in not more than one year from the date such investment is
made, (ii) certificates of deposit, of a Participant or of any other commercial
bank incorporated under the laws of the United States of America or any state
thereof or the District of Columbia, which bank is a member of the Federal
Reserve System and has a combined capital and surplus of not less than
$500,000,000 and with a senior unsecured debt credit rating of at least "A" by
Moody's and "A" by S&P, (iii) commercial paper of the Participants having a
remaining term until maturity of not more than 180 days from the date such
investment is made, (iv) commercial paper of companies, banks, trust companies
or national banking associations (in each case excluding Lessee and its
Affiliates) incorporated or doing business under the laws of the United States
or one of the States thereof, in each case having a remaining term until
maturity of not more than 180 days from the date such investment is made and
rated at least "P-1" by Moody's or at least "A-1" by S&P and (v) repurchase
agreements maturing within one year with any financial institution having
combined capital and surplus of not less than $500,000,000 with any of the
obligations described in clauses (i) through (iv) as collateral so long as title
to the underlying obligations pass to Agent and such underlying securities shall
be segregated in a custodial or trust account for the benefit of Agent.
"Permitted Lessee Investments" means (a) any investments in Cash
Equivalents; (b) any investments in Lessee or in a Wholly-Owned Subsidiary of
Lessee that is a Guarantor; (c) investments by Lessee or any Subsidiary of
Lessee in a Person, if as a result of such investment (i) such Person becomes a
Wholly-Owned Subsidiary of Lessee 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, Lessee or a Wholly-Owned Subsidiary
of Lessee that is a Guarantor; and (d) other investments in Non-Recourse
Subsidiaries of Lessee that do not exceed $30 million in the aggregate.
"Permitted Liens" shall mean (a) the respective rights and interests of
Lessee, the Participants, Agent, and Certificate Trustee, as provided in the
Operative Documents, (b) Certificate Trustee Liens, (c) Liens for current Taxes
either not yet delinquent or being contested by a Permitted Contest, (d) the
leasehold interest of any Person under any Sublease permitted under Section 5.2
of the Lease, and (e) materialmen's, mechanics', workers', repairmen's,
employees' or other like Liens arising in the ordinary course of business for
amounts either not yet due or being contested by a Permitted Contest.
"Permitted Modification" shall have the meaning provided in Section 5.4
of the Lease.
"Permitted Refinancing Indebtedness" means any Indebtedness of Lessee
or any Subsidiary of Lessee issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of Lessee 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 5.21 to the Participation
Agreement; and (d) such Indebtedness is incurred by Lessee or the Subsidiary who
is the obligor on the Prior Indebtedness.
"Person" means an individual, partnership, corporation, 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 Lessee sponsors or maintains or to which Lessee or the General
Partner makes, is making, or is obligated to make contributions and includes any
Pension Plan.
"Pricing Ratio" means, as of the last day of each fiscal quarter of
Lessee, the Leverage Ratio for the fiscal period consisting of such fiscal
quarter of Lessee and the three immediately preceding fiscal quarters of Lessee.
"Proceeds" shall have the meaning specified in Section 9.1(b) of the
Lease.
"Purchase Option" shall have the meaning provided in Section 9.1(a) of
the Lease.
"Purchase Option Exercise Amount" shall mean, as of any date of
determination and without duplication, the sum of (a) the Lease Balance as of
the date of purchase, plus (b) all accrued but unpaid Basic Rent, plus (c) all
other Supplemental Rent then due and owing, if any.
"Purchase Price" for a Unit shall mean the Appraised Value of such
Unit, and the aggregate Purchase Price of all Units shall be the aggregate
Appraised Value of the Units, not to exceed $25,000,000 in the aggregate.
"Quarterly Payment Period" shall mean successive calendar quarters
commencing on the Interim Expiration Date; provided, however, that (a) if such
Payment Period would otherwise end on a day which is not a Business Day, then
such Payment Period shall be extended to the next following Business Day, unless
(solely for purposes of determining Payment Periods in connection with
calculating Rent on a LIBO Rate basis) the effect of such extension would be to
carry such Payment Period into another calendar month, in which case such
Payment Period shall end on the Business Day immediately preceding such
numerically corresponding day, and (b) no Payment Period may end later than the
last day of the Lease Term.
"Related Operative Documents" means the Other Lease and the "Operative
Documents" referred to therein relating to the Other Transaction.
"Related Party" means (i) the spouse or any lineal descendant of James
E. Ferrell, (ii) any trust for his benefit or for the benefit of his spouse or
any such lineal descendants, (iii) any corporation, partnership or other entity
in which James E. Ferrell and/or such other Persons referred to in the foregoing
clauses (i) and (ii) are the direct record and beneficial owners of all of the
voting and nonvoting Equity Interests, (iv) the FCI ESOT or (v) any participant
in the FCI ESOT whose ESOT account has been allocated shares of Ferrell
Companies, Inc.
"Release" shall mean the release, deposit, disposal or leak of any
Hazardous Material into or upon or under any land or water or air, or otherwise
into the environment, including, without limitation, by shall mean of burial,
disposal, discharge, emission, injection, spillage, leakage, seepage, leaching,
dumping, pumping, pouring, escaping, emptying, placement and the like.
"Removable Part" shall have the meaning provided in Section 5.4 of the
Lease.
"Rent" shall mean Basic Rent and Supplemental Rent, collectively.
"Replacement Parts" shall have the meaning provided in Section 5.4 of
the Lease.
"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.
"Required Alteration" shall have the meaning provided in Section 5.4 of
the Lease.
"Required Certificate Purchasers" shall mean, as of the date of the
determination, Certificate Purchasers having unpaid Certificate Amounts equal to
at least a majority of the aggregate unpaid Certificate Amounts.
"Required Participants" shall mean, as of the date of the
determination, (i) Lenders holding at least a majority in aggregate principal
amount, of outstanding Loans and (ii) Certificate Purchasers holding at least a
majority in aggregate principal amount, of Certificates.
"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 (a) in the case of Lessee or the General
Partner, 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 Lessee; or, with respect to 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 Lessee or any other
employee of the General Partner designated in a certificate of a Responsible
Officer to have authority in such matters, and (b) in the case of any other
Person, the Chairman or Vice Chairman of the Board of Directors, the Chairman or
Vice Chairman of the Executive Committee of the Board of Directors, the
President, any Senior Vice President or Executive Vice President, any Vice
President, the Secretary, the Treasurer, any Assistant Treasurer or comptroller.
"Restatement Effective Date" means August 4, 1998.
"Restricted Payments" has the meaning specified in Section 5.28 of the
Participation Agreement.
"Revolving Loans" means, collectively, the Facility A Revolving Loans,
the Facility B Revolving Loans and the Facility C Revolving Loans.
"S&P" shall mean Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies, Inc.
"Sale Option" shall have the meaning provided in Section 9.1(b) of the
Lease.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Subsidiary of Lessee 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, without limitation, 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 Lessee
established in connection with Accounts Receivable Securitizations permitted by
Section 5.21 of the Participation Agreement.
"Standby Letters of Credit" means standby letters of credit Issued by
an Issuing Bank pursuant to Article III of the Credit Agreement.
"Sublease" shall have the meaning provided in Section 5.2 of the Lease.
"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.
Notwithstanding the foregoing, any Subsidiary of Lessee 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 Lessee.
"Supplemental Rent" shall mean any and all amounts, liabilities and
obligations other than Basic Rent which Lessee assumes or agrees or is otherwise
obligated to pay under the Lease or any other Operative Document (whether or not
designated as Supplemental Rent) to Certificate Trustee, Agent, any Participant,
or any other Person, including, without limitation, Purchase Option Exercise
Amount, Additional Costs, Applicable Percentage Amount, and indemnities and
damages for breach of any covenants, representations, warranties or agreements.
"Surety Instruments" means all letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swingline Loan" has the meaning specified in Section 2.15 of the
Credit Agreement.
"Syndication Agreement" is defined in Section 3.1(v) of the
Participation Agreement
"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" and "Tax" shall mean any and all fees (including, without
limitation, documentation, recording, license and registration fees), taxes
(including, without limitation, income (whether net, gross or adjusted gross),
gross receipts, sales, rental, use, turnover, value-added, property, excise and
stamp taxes), levies, imposts, duties, charges, assessments or withholdings of
any nature whatsoever, together with any penalties, fines or interest thereon or
additions thereto.
"Termination Date" shall mean the date on which the Lease Term ends
pursuant to (a) Article VIII in connection with a Lease Event of Default, or (b)
Section 9.5 in connection with an early termination, or (c) Section 9.1 in
connection with the exercise of the Purchase Option or Sale Option.
"Thermogas" means Thermogas Company and, upon conversion of Thermogas
Company from a Delaware corporation into a Delaware limited liability company,
Thermogas LLC (or other named company resulting from such conversion).
"Thermogas Acquisition" means the occurrence of all of the following:
(a) the acquisition by the MLP of all of the capital stock or member interests
(as applicable) of Thermogas; (b) the contribution by the MLP of such capital
stock or member interests to the Borrower; and (c) the assumption by Lessee of
any and all Acquired Debt and Synthetic Lease Obligations obtained in connection
with such acquisition.
"Transaction Costs" shall mean transaction costs and expenses incurred
by the Arranger, the Certificate Trustee, Lessee, Participants and Agent in
connection with the consummation of the transactions contemplated by the
Operative Documents, and the preparation, negotiation, execution and delivery of
the Operative Documents, including (1) the reasonable fees, expenses and
disbursements of Chapman and Cutler, special counsel to the Participants and the
Arranger; (2) the Arranger's fee pursuant to the Arranger's Fee Letter; (3)
Arranger's reasonable costs and expenses including the reasonable allocated
costs of internal counsel to the Arranger and syndication expenses; (4) the
reasonable fees and expenses of local counsel in each State in which the Units
are located; (5) the initial and ongoing fees and reasonable expenses of the
Certificate Trustee and the Agent and their special counsel; (6) all appraisal
fees and reasonable expenses with respect to the Units; (7) all search fees,
recording and filing fees incurred in connection with the filing of the Lease,
the Assignment of Lease, all Financing Statements and any other documents, (8)
the reasonable fees and expenses of counsel to Lessee; and (9) the reasonable
fees and expenses of financial advisor to Lessee.
"Trust" shall mean the trust created by the Trust Agreement.
"Trust Agreement" shall mean the Trust Agreement, dated as of December
1, 1999, between Certificate Trustee and the Certificate Purchasers,
substantially in the form of Exhibit F to the Participation Agreement.
"Trust Estate" shall mean all estate, right, title and interest of
Certificate Trustee in, to and under the Units, the Lessee Collateral, the
Lessor Collateral, the Trust Agreement, the Lease, and all of the other
Operative Documents, including (i) all amounts (other than Excluded Amounts) of
Rent and other payments due or to become due of any kind for or with respect to
the Units or payable under any of the foregoing, (ii) any or all payments or
proceeds received by Certificate Trustee after the termination of the Lease with
respect to the Units as the result of the sale, lease or other disposition
thereof and (iii) proceeds of the investments in the Certificates, all of which,
together with any other moneys, proceeds or property at any time received by
Certificate Trustee under or in connection with the Operative Documents.
"Trustee Fee Letter" shall mean that certain Fee Letter dated November
17, 1999 between Certificate Trustee and Lessee.
"UCC" shall mean the Uniform Commercial Code of any applicable
jurisdiction.
"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.
"Unit" shall have the meaning provided in the Recitals to the Lease.
"Unit Value Fraction" shall mean, with respect to any Unit, a fraction
determined as of any Payment Date the numerator of which is the Purchase Price
for such Unit and the denominator of which is the aggregate Purchase Price of
all Units then subject to the Lease, including such Unit.
"United States" and "U.S." each means the United States of America.
"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 Lessee, a Wholly-Owned
Subsidiary of Lessee or both.
"Yield" shall mean with respect to each Payment Period (a) the Yield
Rate for such Payment Period multiplied by (b) the aggregate Certificate Amounts
outstanding.
"Yield Rate" shall mean, with respect to each Payment Period, the
applicable rate at which Yield shall accrue and be payable from time to time on
the Certificates, which rate shall be the rate per annum equal to the sum of (i)
the LIBO Rate for such Payment Period plus (ii) 4.00% or, at any time the
Certificates bear interest at the Alternate Base Rate, the Alternate Base Rate
for such Payment Period.
<PAGE>
SCHEDULE I-A
CERTIFICATE PURCHASER COMMITMENTS AND COMMITMENT PERCENTAGES
<TABLE>
<CAPTION>
<S> <C> <C>
CERTIFICATE PURCHASER COMMITMENT PERCENTAGE COMMITMENT
Banc of America Leasing & Capital, LLC 100% $1,312,500
</TABLE>
<PAGE>
SCHEDULE I-B
LENDER COMMITMENTS AND COMMITMENT PERCENTAGES
<TABLE>
<CAPTION>
LENDER COMMITMENT PERCENTAGE COMMITMENT
<S> <C> <C>
Banc of America Leasing & Capital, LLC 100% $23,687,500
CLASS OF NOTES PERCENTAGE OF PURCHASE PRICE AGGREGATE AMOUNT
Class A 82.50% $20,625,000
Class B 12.25% $3,062,500
</TABLE>
<PAGE>
SCHEDULE II
NOTICE INFORMATION AND PAYMENT INSTRUCTIONS
LESSEE
Ferrellgas, LP
One Liberty Plaza
Liberty, Missouri 64068
Contact: Chief Financial Officer
Telephone: (816) 792-6901
Fax: (816) 792-6978
CERTIFICATE TRUSTEE
First Security Bank, National Association
79 South Main Street
Salt Lake City, Utah 84111
Contact: Corporate Trust Department
Telephone: (801) 246-5630
Fax: (801) 246-5053
Payment Instructions
First Security Bank, N.A.
ABA No. 124000012
Acct: 0510922115
Attn: Corporate Trust Services
Re: Ferrellgas - 36078
AGENT
First Security Trust Company of Nevada
79 South Main Street
Salt Lake City, Utah 84111
Contact: Corporate Trust Department
Telephone: (801) 246-5630
Fax: (801) 246-5053
Payment Instructions
First Security Bank, N.A.
ABA No. 124000012
Acct: 0510922115
Attn: Corporate Trust Services
Re: Ferrellgas - 36079
CERTIFICATE PURCHASER
Banc of America Leasing & Capital, LLC
2059 Northlake Parkway
Tucker, Georgia 30084
Contact: Rena Wilson
Telephone: (770) 270-8421
Payment Instructions
Bank of America, N.A.
Atlanta, Georgia
ABA No.: 061000052
Account No.: 01-022-13-569
Account Name: BALLC
Reference: Ferrellgas
Attention: Rana Wilson
LENDER
Banc of America Leasing & Capital, LLC
2059 Northlake Parkway
Tucker, Georgia 30084
Contact: Rena Wilson
Telephone: (770) 270-8421
Payment Instructions
Bank of America, N.A.
Atlanta, Georgia
ABA No.: 061000052
Account No.: 01-022-13-569
Account Name: BALLC
Reference: Ferrellgas
Attention: Rana Wilson
<PAGE>
SCHEDULE III
UNITS
<PAGE>
SCHEDULE 3.1(o)
FILINGS AND RECORDINGS
(1) UCC-1 Financing Statement naming Lessee as debtor, Certificate
Trustee as secured party and Agent as assignee of secured party and covering the
Units and the other Lessee Collateral, to be filed with the Secretary of State
of the State of Wisconsin.
(2) UCC-1 Financing Statement naming Certificate Trustee as debtor and
Agent as secured party and covering the Units and the other Lessor Collateral,
to be filed with the State Corporation Commission of the State of Utah.
<PAGE>
SCHEDULE 4.1(g)
ERISA MATTERS
Ferrellgas, Inc. Single Employer Defined Benefit Plan. The Ferrellgas, Inc.
Single Employer Benefit Plan has a projected benefit obligation of no more than
$3,179,000. The Ferrellgas, Inc. Single Employer Benefit Plan is currently being
funded in accordance with ERISA.
Lessee makes annual contribution of approximately $107,340 to Central
States Pension Fund and the Western Conference of Teamsters Fund on behalf of
approximately 48 employees covered by five collective bargaining arrangements.
<PAGE>
SCHEDULE 4.1(p)
SUBSIDIARIES AND AFFILIATES
(a) Subsidiaries:
None.
Affiliates:
o Ferrellgas Partners L.P. - Limited Partner of Ferrellgas, L.P.
o Ferrellgas Partners Finance Corp. - wholly-owned subsidiary of
Ferrellgas Partners, L.P.
o Ferrellgas, Inc. - General Partner of Ferrellgas, L.P.
o Ferrellgas Acquisition Company, LLC
o Ferrellgas Propane, Inc.
o Ferrellgas Companies, Inc.
(b) None.
<PAGE>
SCHEDULE 5.21
EXISTING INDEBTEDNESS
<PAGE>
FORM OF TRANSFER DOCUMENTATION
THIRD AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of December 2, 1999, is entered into by
and among FERRELLGAS, L.P., a Delaware limited partnership (the "Borrower"),
FERRELLGAS, INC., a Delaware corporation and the sole general partner of the
Borrower (the "General Partner"), each of the financial institutions referred to
as Banks in the Existing Credit Agreement referred to below (collectively, the
"Banks") and BANK OF AMERICA, N.A. (formerly known as BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION), as agent for the Banks (in such capacity, the
"Administrative Agent"), and amends that certain Second Amended and Restated
Credit Agreement, dated as of July 2, 1998 (as the same is in effect immediately
prior to the effectiveness of this Amendment, the "Existing Credit Agreement"
and as the same may be amended, supplemented or modified and in effect from time
to time, the "Credit Agreement"), by and among the Borrower, the General
Partner, the Administrative Agent and the Banks from time to time party to the
Credit Agreement. Capitalized terms used and not otherwise defined in this
Amendment shall have the same meanings in this Amendment as set forth in the
Credit Agreement, and the rules of interpretation set forth in Section 1.02 of
the Credit Agreement shall be applicable to this Amendment.
RECITAL
The Borrower has requested that the Banks amend the Existing
Credit Agreement in the respects set forth below in this Amendment, and the
Banks are willing to agree to so amend the Existing Credit Agreement on the
terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Amendments. On the terms of this Amendment and subject to the
satisfaction of the conditions precedent set forth below in Section 3:
(a) Section 1.01 of the Existing Credit Agreement is hereby amended by the
addition of the following definitions in such Section 1.01 in appropriate
alphabetical order:
"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.
"SPE" shall mean any special purpose
Non-Recourse Subsidiary of the Borrower established in
connection with Accounts Receivable Securitizations permitted
by Section 8.05.
"Thermogas" means Thermogas Company and,
upon conversion of Thermogas Company from a Delaware
corporation into a Delaware limited liability company,
Thermogas LLC (or other named company resulting from such
conversion).
"Thermogas Acquisition" means the occurrence
of all of the following: (a) the acquisition by the MLP of all
of the capital stock or member interests (as applicable) of
Thermogas; (b) the contribution by the MLP of such capital
stock or member interests to the Borrower; and (c) the
assumption by the Borrower of any and all Acquired Debt and
Synthetic Lease Obligations obtained in connection with such
acquisition.
(b) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the chart in the definition of "Applicable Margin" in such Section 1.01 with the
following:
Pricing Ratio Base Rate Loans Eurodollar Rate Loans
Level 1 0.00 b.p. 62.50 b.p
Level 2 0.00 b.p. 75.00 b.p.
Level 3 0.00 b.p 100.00 b.p.
Level 4 25.00 b.p. 125.00 b.p.
Level 5 50.00 b.p. 150.00 b.p.
Level 6 75.00 b.p. 175.00 b.p.
Level 7 100.00 b.p. 200.00 b.p.
(c) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the chart in the definition of "Commercial Letter of Credit Risk Participation
Percentage" in such Section 1.01 with the following:
Commercial Letter of Credit Risk
Pricing Ratio Participation Percentage
Level 1 25.00 b.p.
Level 2 30.00 b.p.
Level 3 35.00 b.p.
Level 4 42.50 b.p.
Level 5 50.00 b.p.
Level 6 57.50 b.p.
Level 7 65.00 b.p.
(d) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the chart in the definition of "Commitment Fee Rate" in such Section 1.01 with
the following:
Pricing Ratio Commitment Fee Rate
Level 1 17.50 b.p.
Level 2 22.50 b.p.
Level 3 27.50 b.p.
Level 4 32.50 b.p.
Level 5 37.50 b.p.
Level 6 42.50 b.p.
Level 7 50.00 b.p.
(e) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the definition of "Indebtedness" in such Section 1.01 with the following:
"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.
(f) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the definition of "Level" in such Section 1.01 with the following:
"Level" means, at any time, Level 1, Level
2, Level 3, Level 4, Level 5, Level 6 or Level 7 based on the
amount of the Pricing Ratio at such time. For purposes of this
Agreement, the following "Levels" of Pricing Ratio (PR) shall
apply:
Level Pricing Ratio
Level 1 PR < 1.75
Level 2 1.75 < PR < 2.75
Level 3 2.75 < PR < 3.25
Level 4 3.25 < PR < 3.75
Level 5 3.75 < PR < 4.25
Level 6 4.25 [OBJECT OMITTED]
PR < 4.75
Level 7 4.75 [OBJECT OMITTED]
PR
The Level of the Pricing Ratio for the period from and after
the date on which the Thermogas Acquisition occurs through the
last day of the fiscal quarter of the Borrower ending January
31, 2000 shall be equal to Level 7. Any change in the Level of
the Pricing Ratio shall be determined by the Administrative
Agent based upon the financial information required to be
contained in the Compliance Certificate delivered by the
Borrower to the Administrative Agent with respect to each
fiscal quarter of the Borrower and shall become effective as
of the first day of the fiscal quarter following the fiscal
quarter for which such Compliance Certificate was delivered.
Upon any failure of the Borrower to deliver a Compliance
Certificate for any fiscal quarter prior to 10 days after the
date on which such Compliance Certificate is required to be
delivered to the Administrative Agent, and without limiting
the other rights and remedies of the Administrative Agent and
the Banks hereunder, the Pricing Ratio shall be deemed to be
Level 7 as of the first day of the fiscal quarter beginning
after the fiscal quarter for which such Compliance Certificate
was due.
(g) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the chart in the definition of "Standby Letter of Credit Risk Participation
Percentage" in such Section 1.01 with the following:
Standby Letter of Credit Risk
Pricing Ratio Participation Percentage
Level 1 62.50 b.p.
Level 2 75.00 b.p.
Level 3 100.00 b.p.
Level 4 125.00 b.p.
Level 5 150.00 b.p.
Level 6 175.00 b.p.
Level 7 200.00 b.p.
(h) Section 6.16 of the Existing Credit Agreement is hereby amended to read
in its entirety as follows:
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 8.21
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 8.21) 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.
(i) Section 7.12 of the Existing Credit Agreement is hereby amended by replacing
the first sentence of subsection (a) of such Section 7.12 with the following:
(a) Leverage Ratio. The Borrower shall
maintain as of the last day of each fiscal quarter a Leverage
Ratio equal to or less than 4.75 to 1.00 (or, if the Thermogas
Acquisition shall have been consummated on or prior to January
31, 2000, the Borrower shall be required to maintain from and
after the date of such Thermogas Acquisition a Leverage Ratio
equal to or less than (i) 5.25 to 1.00 as of the last day of
each fiscal quarter ending on or prior to January 31, 2000,
(ii) 5.10 to 1.00 as of the last day of each fiscal quarter
ending during the period commencing on February 1, 2000 and
ending on January 31, 2001 and (iii) 4.75 to 1.00 as of the
last day of each fiscal quarter ending after January 31,
2001).
(j) Section 7.12 of the Existing Credit Agreement is hereby further amended by
replacing subsection (b) of such Section 7.12 with the following:
(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 2.50 to 1.00 (or, if the
Thermogas Acquisition shall have been consummated on or prior
to January 31, 2000, the Borrower shall be required to
maintain from and after the date of such Thermogas Acquisition
an Interest Coverage Ratio of at least 2.25 to 1.00 for each
such period of four fiscal quarters ending on or prior to
January 31, 2001 and 2.50 to 1.00 each such period of four
fiscal quarters ending after January 31, 2001).
(k) Section 8.01 of the Existing Credit Agreement is hereby amended by deleting
the words "in the ordinary course of business" in subsection (k) of such Section
8.01.
(l) Section 8.01 of the Existing Credit Agreement is hereby further amended by
deleting the word "and" at the end of subsection (o) of such Section 8.01,
substituting a semi-colon for the period at the end of subsection (p) thereof;
adding the word "and" following such semi-colon, and adding the following
subsection (q) to such Section 8.01:
(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.
(m) Section 8.02 of the Existing Credit Agreement is hereby amended by replacing
the last sentence of such Section 8.02 with the following:
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.
(n) Section 8.05 of the Existing Credit Agreement is hereby amended by replacing
the final proviso of such Section 8.05 with the following:
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.
(o) Section 8.06 of the Existing Credit Agreement is hereby amended by
substituting a semi-colon for the period at the end of such Section 8.06, adding
the word "and" following such semi-colon, and thereafter adding the following
proviso to the end of such Section 8.06:
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.
(p) Section 8.17 of the Existing Credit Agreement is hereby amended to read
in its entirety as follows:
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.
(q) Section 8.21 of the Existing Credit Agreement is hereby amended by
substituting a semi-colon for the period at the end of such Section 8.21 and
adding the following proviso to the end of such Section 8.21 following such
semi-colon:
provided, however, that the Borrower may, without regard to
the foregoing provisions of this Section 8.21, (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 consummation of the
Thermogas Acquisition pending the merger of Thermogas with and
into the Borrower.
(r) Section 9.01 of the Existing Credit Agreement is hereby amended by replacing
clause (ii) of subsection (e) of such Section 9.01 with the following:
(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
SECTION 2. Waiver. The Banks hereby waive any Default or Event of Default
arising as a result of any breach of Section 7.12(a) or Section 7.12(b) of the
Existing Credit Agreement solely in connection with the pro forma calculation of
the Leverage Ratio and the Interest Coverage Ratio as of October 31, 1999 as
required by the definitions of "Leverage Ratio" and "Interest Coverage Ratio" in
Section 1.01 of the Existing Credit Agreement in connection with the Thermogas
Acquisition.
SECTION 3. Conditions to Effectiveness. The amendments set forth in Section 1 of
this Amendment and the waiver set forth in Section 2 of this Amendment shall
become effective only upon the satisfaction of all of the following conditions
precedent (the date of satisfaction of all such conditions being referred to as
the "Amendment Effective Date"):
(a) The Administrative Agent shall have received, on behalf of the Banks, this
Amendment, duly executed and delivered by the Borrower, the General Partner, the
Majority Banks and the Administrative Agent.
(b) The Administrative Agent shall have received, for the account of each Bank
that shall have executed and delivered this Amendment (without any reservation
or condition) to the Administrative Agent before 4:00 p.m. (New York City time)
on November 24, 1999, a non-refundable amendment fee in an amount equal to 0.15%
of the sum of the Facility A Commitment, Facility B Commitment and Facility C
Commitment of such Bank (in each case without regard to usage).
(c) All corporate, partnership and other proceedings taken or to be taken in
connection with the transactions contemplated by this Amendment, and all
documents incidental thereto, shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel, and the Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as they may reasonably request.
(d) The Administrative Agent shall have received such other documents, opinions,
certificates and evidence as the Administrative Agent and its counsel may
reasonably request.
(e) The representations and warranties set forth in this Amendment shall be true
and correct as of the Amendment Effective Date.
SECTION 4. Representations and Warranties. In order to induce the Administrative
Agent and the Banks to enter into this Amendment and to amend the Existing
Credit Agreement in the manner provided in this Amendment, the Borrower and the
General Partner represent and warrant to the Administrative Agent and each Bank
as of the Amendment Effective Date as follows:
(a) Power and Authority. The Borrower and the General Partner have all requisite
corporate or partnership power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform their respective
obligations under, the Existing Credit Agreement as amended by this Amendment
(hereafter referred to as the "Amended Credit Agreement").
(b) Authorization of Agreements. The execution and delivery of this Amendment by
the Borrower and the General Partner and the performance of the Amended Credit
Agreement by the Borrower and the General Partner have been duly authorized by
all necessary action, and this Amendment has been duly executed and delivered by
the Borrower and the General Partner.
(c) Enforceability. Each of this Amendment and the Amended Credit Agreement
constitutes the legal, valid and binding obligation of the Borrower and the
General Partner enforceable against the Borrower and the General Partner in
accordance with its terms, except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general.
The enforceability of the obligations of the Borrower and the General Partner
hereunder is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(d) No Conflict. The execution and delivery by the Borrower and the General
Partner of this Amendment and the performance by the Borrower and the General
Partner of each of this Amendment and the Amended Credit Agreement do not and
will not (i) contravene, in any material respect, any provision of any law,
regulation, decree, ruling, judgment or order that is applicable to the Borrower
or the General Partner, as the case may be, or their respective properties or
other assets, (ii) result in a breach of or constitute a default under the
charter, bylaws or other organizational documents of the Borrower or the General
Partner, as the case may be, or any material agreement, indenture, lease or
instrument binding upon the Borrower or the General Partner or their respective
properties or other assets or (iii) result in the creation or imposition of any
Liens on their respective properties other than as permitted under the Credit
Agreement.
(e) Governmental Consents. No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower or the
General Partner of this Amendment.
(f) Representations and Warranties in the Credit Agreement. The Borrower and the
General Partner confirm that as of the Amendment Effective Date the
representations and warranties contained in Article VI of the Credit Agreement
are (before and after giving effect to this Amendment) true and correct in all
material respects (except to the extent any such representation and warranty is
expressly stated to have been made as of a specific date, in which case it shall
be true and correct as of such specific date) and that no Default has occurred
and is continuing.
SECTION 5. Miscellaneous.
(a) Reference to and Effect on the Existing Credit Agreement and the other
Loan Documents.
(i) Except as specifically amended by this Amendment and the documents executed
and delivered in connection herewith, the Existing Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(ii) The execution and delivery of this Amendment and performance of the Amended
Credit Agreement shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power or remedy
of the Banks under, the Existing Credit Agreement or any of the other Loan
Documents.
(iii) Upon the conditions precedent set forth herein being satisfied, this
Amendment shall be construed as one with the Existing Credit Agreement, and the
Existing Credit Agreement shall, where the context requires, be read and
construed throughout so as to incorporate this Amendment.
(b) Expenses. The Borrower and the General Partner acknowledge that all costs
and expenses of the Administrative Agent incurred in connection with this
Amendment will be paid in accordance with Section 11.04 of the Existing Credit
Agreement.
(c) Headings. Section and subsection headings in this Amendment are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose or be given any substantive effect.
(d) Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. Transmission by telecopier of an
executed counterpart of this Amendment shall be deemed to constitute due and
sufficient delivery of such counterpart.
(e) Governing Law. This Amendment shall be governed by and construed according
to the laws of the State of New York.
(f) Merger of Thermogas into the Borrower. The Borrower covenants and agrees
with the Banks that Thermogas will be merged with and into the Borrower as
promptly as is reasonably practicable and in any event within 30 days following
the consummation of the Thermogas Acquisition. Any failure by the Borrower to
observe or perform such agreement in a timely manner shall be deemed to be a
failure by the Borrower to observe or perform a covenant under the Credit
Agreement and thereby constitute an Event of Default under Section 9.01(d) of
the Credit Agreement (subject to passage of the applicable grace period referred
to in such Section 9.01(d)).
[Remainder of page intentionally left blank.]
<PAGE>
DOCSLA1:325521.4
DOCSLA1:325521.4
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
FERRELLGAS, L.P., a Delaware limited partnership
By: Ferrellgas, Inc. Its: General Partner
By:
Name:
Title:
FERRELLGAS, INC.
By:
Name:
Title:
ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A., as Administrative Agent
By:
Name:
Title:
<PAGE>
BANKS
BANK OF AMERICA, N.A.
By:
Name:
Title:
<PAGE>
WELLS FARGO BANK, N.A.
By:
Name:
Title:
<PAGE>
THE BANK OF NEW YORK
By:
Name:
Title:
<PAGE>
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
<PAGE>
PARIBAS
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
UNION BANK OF CALIFORNIA, N.A.
By:
Name:
Title:
FIRST AMENDMENT
TO SHORT-TERM REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO SHORT-TERM REVOLVING CREDIT AGREEMENT
(this "Amendment"), dated as of December 2, 1999, is entered into by and among
FERRELLGAS, L.P., a Delaware limited partnership (the "Borrower"), FERRELLGAS,
INC., a Delaware corporation and the sole general partner of the Borrower (the
"General Partner"), each of the financial institutions referred to as Banks in
the Existing Credit Agreement referred to below (collectively, the "Banks") and
BANK OF AMERICA, N.A. (formerly known as BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION), as agent for the Banks (in such capacity, the
"Administrative Agent"), and amends that certain Short-Term Revolving Credit
Agreement, dated as of April 30, 1999 (as the same is in effect immediately
prior to the effectiveness of this Amendment, the "Existing Credit Agreement"
and as the same may be amended, supplemented or modified and in effect from time
to time, the "Credit Agreement"), by and among the Borrower, the General
Partner, the Administrative Agent and the Banks from time to time party to the
Credit Agreement. Capitalized terms used and not otherwise defined in this
Amendment shall have the same meanings in this Amendment as set forth in the
Credit Agreement, and the rules of interpretation set forth in Section 1.02 of
the Credit Agreement shall be applicable to this Amendment.
RECITAL
The Borrower has requested that the Banks amend the Existing
Credit Agreement in the respects set forth below in this Amendment, and the
Banks are willing to agree to so amend the Existing Credit Agreement on the
terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Amendments. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth below in
Section 3:
(a) Section 1.01 of the Existing Credit Agreement is hereby amended by the
addition of the following definitions in such Section 1.01 in appropriate
alphabetical order:
"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.
"SPE" shall mean any special purpose
Non-Recourse Subsidiary of the Borrower established in
connection with Accounts Receivable Securitizations permitted
by Section 7.05.
"Thermogas" means Thermogas Company and,
upon conversion of Thermogas Company from a Delaware
corporation into a Delaware limited liability company,
Thermogas LLC (or other named company resulting from such
conversion).
"Thermogas Acquisition" means the occurrence
of all of the following: (a) the acquisition by the MLP of all
of the capital stock or member interests (as applicable) of
Thermogas; (b) the contribution by the MLP of such capital
stock or member interests to the Borrower; and (c) the
assumption by the Borrower of any and all Acquired Debt and
Synthetic Lease Obligations obtained in connection with such
acquisition.
(b) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the chart in the definition of "Applicable Margin" in such Section 1.01 with the
following:
Pricing Ratio Base Rate Loans Eurodollar Rate Loans
Level 1 0.00 b.p. 62.50 b.p.
Level 2 0.00 b.p. 75.00 b.p.
Level 3 0.00 b.p. 100.00 b.p.
Level 4 25.00 b.p. 125.00 b.p.
Level 5 50.00 b.p. 150.00 b.p.
Level 6 75.00 b.p. 175.00 b.p.
Level 7 100.00 b.p. 200.00 b.p.
(c) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the chart in the definition of "Commitment Fee Rate" in such Section 1.01 with
the following:
Pricing Ratio Commitment Fee Rate
Level 1 17.50 b.p.
Level 2 22.50 b.p.
Level 3 27.50 b.p.
Level 4 32.50 b.p.
Level 5 37.50 b.p.
Level 6 42.50 b.p.
Level 7 50.00 b.p.
(d) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the definition of "Indebtedness" in such Section 1.01 with the following:
"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.
(e) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the definition of "Level" in such Section 1.01 with the following:
"Level" means, at any time, Level 1, Level
2, Level 3, Level 4, Level 5, Level 6 or Level 7 based on the
amount of the Pricing Ratio at such time. For purposes of this
Agreement, the following "Levels" of Pricing Ratio (PR) shall
apply:
Level Pricing Ratio
Level 1 PR LT 1.75
Level 2 1.75 LTE PR LT 2.75
Level 3 2.75 LTE PR LT 3.25
Level 4 3.25 LTE PR LT 3.75
Level 5 3.75 LTE PR LT 4.25
Level 6 4.25 LTE PR LT 4.75
Level 7 4.75 LTE PR
The Level of the Pricing Ratio for the period from and after
the date on which the Thermogas Acquisition occurs through the
last day of the fiscal quarter of the Borrower ending January
31, 2000 shall be equal to Level 7. Any change in the Level of
the Pricing Ratio shall be determined by the Administrative
Agent based upon the financial information required to be
contained in the Compliance Certificate delivered by the
Borrower to the Administrative Agent with respect to each
fiscal quarter of the Borrower and shall become effective as
of the first day of the fiscal quarter following the fiscal
quarter for which such Compliance Certificate was delivered.
Upon any failure of the Borrower to deliver a Compliance
Certificate for any fiscal quarter prior to 10 days after the
date on which such Compliance Certificate is required to be
delivered to the Administrative Agent, and without limiting
the other rights and remedies of the Administrative Agent and
the Banks hereunder, the Pricing Ratio shall be deemed to be
Level 7 as of the first day of the fiscal quarter beginning
after the fiscal quarter for which such Compliance Certificate
was due.
(f) Section 1.01 of the Existing Credit Agreement is hereby amended by replacing
the definition of "Majority Banks" in such Section 1.01 with the following:
"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.
(g) Section 5.16 of the Existing Credit Agreement is hereby amended to read
in its entirety as follows:
5.16 Subsidiaries and Affiliates. The
Borrower (a) has no Subsidiaries or other Affiliates except
(i) those specifically disclosed in part (a) of Schedule 5.16
hereto, (ii) one or more SPEs established in connection with
Accounts Receivable Securitizations permitted by Section 7.05,
(iii) Subsidiaries established in compliance with Section 7.20
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 7.20) 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 5.16.
(h) Section 6.12 of the Existing Credit Agreement is hereby amended by replacing
the first sentence of subsection (a) of such Section 6.12 with the following:
(a) Leverage Ratio. The Borrower shall
maintain as of the last day of each fiscal quarter a Leverage
Ratio equal to or less than 4.75 to 1.00 (or, if the Thermogas
Acquisition shall have been consummated on or prior to January
31, 2000, the Borrower shall be required to maintain from and
after the date of such Thermogas Acquisition a Leverage Ratio
equal to or less than (i) 5.25 to 1.00 as of the last day of
each fiscal quarter ending on or prior to January 31, 2000,
(ii) 5.10 to 1.00 as of the last day of each fiscal quarter
ending during the period commencing on February 1, 2000 and
ending on January 31, 2001 and (iii) 4.75 to 1.00 as of the
last day of each fiscal quarter ending after January 31,
2001).
(i) Section 6.12 of the Existing Credit Agreement is hereby further amended by
replacing subsection (b) of such Section 6.12 with the following:
(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 2.50 to 1.00 (or, if the
Thermogas Acquisition shall have been consummated on or prior
to January 31, 2000, the Borrower shall be required to
maintain from and after the date of such Thermogas Acquisition
an Interest Coverage Ratio of at least 2.25 to 1.00 for each
such period of four fiscal quarters ending on or prior to
January 31, 2001 and 2.50 to 1.00 each such period of four
fiscal quarters ending after January 31, 2001).
(j) Section 7.01 of the Existing Credit Agreement is hereby amended by deleting
the words "in the ordinary course of business" in subsection (k) of such Section
7.01.
(k) Section 7.01 of the Existing Credit Agreement is hereby further amended by
deleting the word "and" at the end of subsection (o) of such Section 7.01,
substituting a semi-colon for the period at the end of subsection (p) thereof;
adding the word "and" following such semi-colon, and adding the following
subsection (q) to such Section 7.01:
(q) Liens securing Indebtedness of an SPE in
connection with an Accounts Receivable Securitization
permitted by Section 7.05 (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 7.05..
(l) Section 7.02 of the Existing Credit Agreement is hereby amended by replacing
the last sentence of such Section 7.02 with the following:
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 7.05 (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 7.05), (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 7.15 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 7.17.
(m) Section 7.05 of the Existing Credit Agreement is hereby amended by replacing
the final proviso of such Section 7.05 with the following:
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.
(n) Section 7.06 of the Existing Credit Agreement is hereby amended by
substituting a semi-colon for the period at the end of such Section 7.06, adding
the word "and" following such semi-colon, and thereafter adding the following
proviso to the end of such Section 7.06:
provided, further, that the foregoing provisions of this
Section 7.06 shall not apply to transfers of accounts
receivable of the Borrower to an SPE in connection with any
Accounts Receivable Securitization permitted by Section 7.05.
(o) Section 7.17 of the Existing Credit Agreement is hereby amended to read
in its entirety as follows:
7.17. 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 6.12(a) and
(B) secured a Lien on such Indebtedness pursuant to Section
7.01; (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.
(p) Section 7.20 of the Existing Credit Agreement is hereby amended by
substituting a semi-colon for the period at the end of such Section 7.20 and
adding the following proviso to the end of such Section 7.20 following such
semi-colon:
provided, however, that the Borrower may, without regard to
the foregoing provisions of this Section 7.20, (x) establish
and operate SPEs solely in connection with Accounts Receivable
Securitizations permitted by Section 7.05 and (y) operate
Thermogas as a Wholly-Owned Subsidiary for a period of up to
(but not exceeding) 30 days following the consummation of the
Thermogas Acquisition pending the merger of Thermogas with and
into the Borrower.
(q) Section 8.01 of the Existing Credit Agreement is hereby amended by replacing
clause (ii) of subsection (e) of such Section 8.01 with the following:
(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
SECTION 2. Waiver. The Banks hereby waive any Default or Event
of Default arising as a result of any breach of Section 6.12(a) or Section
6.12(b) of the Existing Credit Agreement solely in connection with the pro forma
calculation of the Leverage Ratio and the Interest Coverage Ratio as of October
31, 1999 as required by the definitions of "Leverage Ratio" and "Interest
Coverage Ratio" in Section 1.01 of the Existing Credit Agreement in connection
with the Thermogas Acquisition.
SECTION 3. Conditions to Effectiveness. The amendments set
forth in Section 1 of this Amendment and the waiver set forth in Section 2 of
this Amendment shall become effective only upon the satisfaction of all of the
following conditions precedent (the date of satisfaction of all such conditions
being referred to as the "Amendment Effective Date"):
(a) The Administrative Agent shall have received, on behalf of the Banks, this
Amendment, duly executed and delivered by the Borrower, the General Partner, the
Majority Banks and the Administrative Agent.
(b) All corporate, partnership and other proceedings taken or to be taken in
connection with the transactions contemplated by this Amendment, and all
documents incidental thereto, shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel, and the Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as they may reasonably request.
(c) The Administrative Agent shall have received such other documents, opinions,
certificates and evidence as the Administrative Agent and its counsel may
reasonably request.
(d) The representations and warranties set forth in this Amendment shall be true
and correct as of the Amendment Effective Date.
SECTION 4. Representations and Warranties. In order to induce
the Administrative Agent and the Banks to enter into this Amendment and to amend
the Existing Credit Agreement in the manner provided in this Amendment, the
Borrower and the General Partner represent and warrant to the Administrative
Agent and each Bank as of the Amendment Effective Date as follows:
(a) Power and Authority. The Borrower and the General Partner
have all requisite corporate or partnership power and authority to enter into
this Amendment and to carry out the transactions contemplated by, and perform
their respective obligations under, the Existing Credit Agreement as amended by
this Amendment (hereafter referred to as the "Amended Credit Agreement").
(b) Authorization of Agreements. The execution and delivery of
this Amendment by the Borrower and the General Partner and the performance of
the Amended Credit Agreement by the Borrower and the General Partner have been
duly authorized by all necessary action, and this Amendment has been duly
executed and delivered by the Borrower and the General Partner.
(c) Enforceability. Each of this Amendment and the Amended
Credit Agreement constitutes the legal, valid and binding obligation of the
Borrower and the General Partner enforceable against the Borrower and the
General Partner in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general. The enforceability of the obligations of the
Borrower and the General Partner hereunder is subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(d) No Conflict. The execution and delivery by the Borrower
and the General Partner of this Amendment and the performance by the Borrower
and the General Partner of each of this Amendment and the Amended Credit
Agreement do not and will not (i) contravene, in any material respect, any
provision of any law, regulation, decree, ruling, judgment or order that is
applicable to the Borrower or the General Partner, as the case may be, or their
respective properties or other assets, (ii) result in a breach of or constitute
a default under the charter, bylaws or other organizational documents of the
Borrower or the General Partner, as the case may be, or any material agreement,
indenture, lease or instrument binding upon the Borrower or the General Partner
or their respective properties or other assets or (iii) result in the creation
or imposition of any Liens on their respective properties other than as
permitted under the Credit Agreement.
(e) Governmental Consents. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower or the General Partner of this Amendment.
(f) Representations and Warranties in the Credit Agreement.
The Borrower and the General Partner confirm that as of the Amendment Effective
Date the representations and warranties contained in Article VI of the Credit
Agreement are (before and after giving effect to this Amendment) true and
correct in all material respects (except to the extent any such representation
and warranty is expressly stated to have been made as of a specific date, in
which case it shall be true and correct as of such specific date) and that no
Default has occurred and is continuing.
SECTION 5. Miscellaneous.
(a) Reference to and Effect on the Existing Credit
Agreement and the other Loan Documents.
(i) Except as specifically amended by this Amendment and the documents executed
and delivered in connection herewith, the Existing Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(ii) The execution and delivery of this Amendment and performance of the Amended
Credit Agreement shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power or remedy
of the Banks under, the Existing Credit Agreement or any of the other Loan
Documents.
(iii) Upon the conditions precedent set forth herein being satisfied, this
Amendment shall be construed as one with the Existing Credit Agreement, and the
Existing Credit Agreement shall, where the context requires, be read and
construed throughout so as to incorporate this Amendment.
(b) Expenses. The Borrower and the General Partner acknowledge
that all costs and expenses of the Administrative Agent incurred in connection
with this Amendment will be paid in accordance with Section 11.04 of the
Existing Credit Agreement.
(c) Headings. Section and subsection headings in this
Amendment are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
(d) Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Transmission by
telecopier of an executed counterpart of this Amendment shall be deemed to
constitute due and sufficient delivery of such counterpart.
(e) Governing Law. This Amendment shall be governed by and
construed according to the laws of the State of New York.
(f) Merger of Thermogas into the Borrower. The Borrower
covenants and agrees with the Banks that Thermogas will be merged with and into
the Borrower as promptly as is reasonably practicable and in any event within 30
days following the consummation of the Thermogas Acquisition. Any failure by the
Borrower to observe or perform such agreement in a timely manner shall be deemed
to be a failure by the Borrower to observe or perform a covenant under the
Credit Agreement and thereby constitute an Event of Default under Section
8.01(d) of the Credit Agreement (subject to passage of the applicable grace
period referred to in such Section 8.01(d).
[Remainder of page intentionally left blank.]
<PAGE>
DOCSLA1:325535.2
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
FERRELLGAS, L.P., a Delaware limited partnership
By: Ferrellgas, Inc.
Its: General Partner
By: _______________________________________________________
Name:
Title: _______________________________________________________
FERRELLGAS, INC.
By: _______________________________________________________
Name:
Title: _______________________________________________________
ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A., as Administrative Agent
By: _______________________________________________________
Name:
Title: _______________________________________________________
BANKS
BANK OF AMERICA, N.A.
By: _______________________________________________________
Name:
Title: _______________________________________________________
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<LEGEND>
(THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
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AND THE STATEMENT OF EARNINGS ENDING OCTOBER 31, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS)
</LEGEND>
<CIK> 0000922358
<NAME> Ferrellgas Partners, L.P.
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<PERIOD-START> AUG-01-1999
<PERIOD-END> OCT-31-1999
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<OTHER-SE> (60,640)
<TOTAL-LIABILITY-AND-EQUITY> 697,281
<SALES> 141,507
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<CGS> 85,325
<TOTAL-COSTS> 158,438
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<INTEREST-EXPENSE> 12,581
<INCOME-PRETAX> (14,222)
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<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
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</LEGEND>
<CIK> 0001012493
<NAME> Ferrellgas Partners Finance Corp.
<MULTIPLIER> 1
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 3-MOS
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